§ Mr. Godson
rose pursuant to notice to ask leave to bring in a Bill to amend the laws respecting Letters-patent for inventions. He must claim the indulgence of the House for a short period, as the subject was one of the greatest importance 975 —not merely to individuals, but to the public at large. He asked for the indulgence of the House, on the ground that the subject was encompassed with many difficulties, and there had not been any legislative enactment respecting it since the reign of James 1st. From that period down to the present time, the law-books had become filled with cases arising from the doubt and obscurity in which the law for the regulation of patents is involved. That enactment was only a clause in the Statute of the 21st James 1st, called the "Act of Monopolies," not above a dozen lines in extent; but from it the whole system of patents for inventions sprang. By that clause the King was empowered to grant, for the term of fourteen years, his letters-patent to the first and true inventor of such new manufactures, as other persons did not use in this country. In the reign of Queen Anne, a condition was introduced, providing that a description, or specification, of the invention should be lodged and enrolled in the Court of Chancery. There was, also, another condition, that no patent should be assigned to more than five persons, and that if an assignment were made to more than five, the patent to be void. From these three sources all the decisions by which inventions and discoveries were protected had flowed. In the Courts of Law and Equity, these decisions have fluctuated in doubt and uncertainty, and therefore he proposed in the Bill he asked leave to introduce, to take into consideration almost every one of the rules of law as to patents. To begin with the inventor. He should be able to show, that the laws relative to him might be much improved. The word "inventor," in the Statute of James, had been considered by the Judges to mean, not only the first inventor, but the first publisher, being also the inventor; and not only the first inventor or publisher, but also the first importer of an invention from abroad. He proposed to go one step further, and to provide, that an Englishman, who might learn an invention in a foreign country, and bring it home, should have his discovery protected; for there could be no distinction in principle between allowing a foreigner or an Englishman to bring an invention into this country. One of the principal complaints made by poor persons, who had given their time and attention to scientific pursuits, and made some discovery, was, that during 976 the time between the presentation of the petitions, and the days on which the patents were granted, men of property, were continually endeavouring to drive the poor inventors to make an improvident bargain, and to deprive them of the benefit of the inventions, by pretending that they had made similar discoveries, which by the employment of their superior capital, they could carry into effect without patents, if the inventors would not admit them to a share of the invention. He proposed, that the inventor should be permitted to sell his prospective patent rights, and that the buyer might obtain a patent in his own name. The poor man, instead of running the risk, during a period varying from three to nine months, of losing his reward, together with the little capital he had expended in making the invention, would be enabled at once to realize some profit, and the person to whom it might be sold would be protected by patent in his own name. Another word in the Statute of James 1st, on which constructions, as diversified as human ingenuity could make them, had been put, was the word "manufacture." It had puzzled all the Judges from that time to the present, to find out what could have been meant by the Legislature. At one time, it was interpreted to include some new substance; at another, a machine; and, at another, a combination of machinery. It would scarcely be credited that, at one time, an improvement was held not to be a fit subject for a patent. It was subsequently acknowledged, however, that there was nothing new under the sun; and that, if patents were not granted for improvements, they would be very limited indeed. It would be in the recollection of hon. Members, that when Watt invented his improvement of the steam-engine, it became a question whether it was a fit subject for a patent, as the invention was only a condensation of steam, in a separate vessel. In the Court of Common Pleas, two of the Judges were of one way of thinking, and the remaining two were of a contrary opinion; and it was not until after some lengthened discussion in the Court of King's Bench, that Lord Kenyon and the Court agreed that the steam-engine of Watt, which with all its beautiful machinery and splendid apparatus, had since become connected with the arts, the wealth, and the trade of England, could be a proper subject for a patent. The question 977 was, for a long time, agitated, whether the word "manufacture" could include the new and useful application of some principle either known, or previously in existence, but unnoticed, and whether a man who discovered a new application of something which must have existed, although it had remained undiscovered, ought to have a patent. Before common gas was brought into use as a means of lighting the streets: many scientific persons were aware of the existence of such a vapour capable of producing a flame, though no one was sufficiently acquainted with it to convert it to any of the present useful purposes. The Judges, in former times, considered that a principle or application was a mere idea, and therefore could not be a fit subject for a patent. Modern Judges had varied in their opinions upon this subject. Lord Kenyon was of opinion that all patents for inventions were monopolies, and he strictly construed them against the patentee. Lord Ellenborough considered that they ought to be governed by the rules of good sense, and the patentee had a fair chance before that Judge of supporting his grant; but Lord Tenterden said, that if any doubt should arise, it ought always to be decided in favour of the patentee; giving inventors the fruits of their labour. That was the proper and legitimate construction. The rule of law ought to be, that the man who had matured an invention for the use of the public—who had spent years of toil and study in the attainment of his object, who had thought much and laboured long, who endured many privations, and incurred considerable expense, and had, at last, presented the public with some useful or convenient article, ought to have every doubt given in his favour. A case, which occupied a portion of the public attention at the present moment—was the discovery of collecting a spirit from bread, whilst it was in the oven. Mr. Hicks, the patentee, observed, that a considerable vapour arose from the bread whilst baking, which he thought must contain some alcohol. He immediately placed a common still in conjunction with the oven, and his idea was correct. The vapour on being condensed contained alcohol. So simple was this discovery; and yet if it were applied to all the baking in England, the worth of the spirit so manufactured, would he was told, on good authority, be no less than one million of money an- 978 nually. Could it be said, because such an invention was not a manufacture, not made by hand, as the old Judges held, that it was an unfit subject for protection? He proposed, then, that chemical discoveries, that principles, that new applications, when reduced to practice, so that some advantage was presented to the public, should be subjects in respect of which letters-patent might be taken out. From the new application of something old, or from the use of a new principle, there might be made some article for sale; he therefore proposed to add, to substances, machines, and combination of machinery and improvements thereof, all principles reduced to practice, and chemical discoveries which result in the production of some articles of commerce. A condition was now introduced into the patent, providing that a description of the invention for which a patent should be taken out should be enrolled in the High Court of Chancery. That description was technically called a specification, and from the construction which the Courts of Justice had put upon that specification, had arisen the greater number of the difficulties with which patentees had to contend. The constructions had been so nice, and had been so stretched by the profession to which he belonged, that it really was almost impossible for a scientific man to draw a proper specification without the assistance of a lawyer. He intended to propose two or three improvements connected with this part of the law, which, in his judgment, after a careful and deliberate study of the general question, would remedy those defects. He meant to propose, in the first place, that if a patentee discovered he had made an omission in the specification, he should have the power of enrolling a second one, but the second specification, in order that the public might be protected against an improper one in the first instance, and running the risk of a subsequent inquiry, should be marked with a stamp. The public was entitled to an accurate description of the invention, and it was necessary to its protection, that these specifications should not be given in merely at the caprice of the inventor. He would not impose a very large stamp on this amended or secondary specification, but such a one as would be likely to correct the evil of having too many of them. His next proposition was, that all errors of form in the title to the 979 patent and in the specifications might be corrected. The House would perhaps be astonished to hear, that the omission of a letter in the specification had frequently been held to invalidate a patent. He also wished to propose, that when a patentee makes an improvement on his own invention, he may have a secondary specification to include that invention, without incurring the whole expense of an original patent, in order to secure to himself an improvement on his own invention. He would further propose, that a model might be deposited with the specification, instead of drawings, because a model was the best specification that could be given, and it was far more easy to describe an invention by a model than by a drawing, or by a written statement. He thought, therefore, that the inventor should if he pleased, deposit a model with his specification. He proposed, then, as far as the patentee himself was concerned, three things—The improvement of the law with respect to inventors; the extension of the subjects for patents; and a proper description of the invention, so that the public might have it fully explained. He proposed as to the property which the patentee acquired by the grant, that there should be two kinds of patents, instead of one—one for seven years, and another for fourteen years; that the expense of the patent for seven years should only amount to half the expense of the one for fourteen years; and that the inventor might sell his patent as he pleased. In former times only five persons could be interested in one patent; but by the liberality of the Government, the number had been enlarged to twelve. He knew no reason why a man should not be permitted to make the utmost use of his invention, and he proposed that the inventor should have the power of disposing of it to any number of persons. The utility to the public was often in proportion to the magnitude of the invention, with which a company might be well trusted. Patentees frequently incurred considerable expense, while a long time might elapse before the invention came into practice. In such cases the patentee applied to Parliament to get the term of fourteen years enlarged. Instead of their being obliged to make such an application, the proceedings by which they obtained the patent in the first instance, ought to be the means through which they might enlarge it. The 980 House was perhaps aware, that in the process of obtaining patents, the inventor began by presenting a petition to the Secretary of State for the Home Department: then he travelled to the office of the Attorney General; back again to the office of the Home Secretary; and back again to the office of the Attorney General. From the Attorney General's Office he had to go to the Signet; from the Signet to the Privy Seal; and lastly to the Great Seal. If the Great Seal was out of town, he travelled after it. The sign-manual of his Majesty was necessary to two documents; for what purpose, when the only object in view was the protection of a commercial article, he could not understand. Buonaparte, it was said, on one occasion when a patent for an invention called "the invisible lady" was presented to him for his sign-manual, threw it under the table at which he was seated, observing, that he could not possibly discover why his time should be consumed in putting his sign-manual to every patent for every little invention that any tradesman might make. Trifles were often the subjects of patents in England. A tailor took out a patent for an improvement in the mode of fastening the trowsers to the boots. The inconvenience of the present system with respect to Ireland and Scotland was great; the sign-manual was required once for each country. It frequently required five or six months before a patent could be obtained for Ireland; the intermediate time being consumed in travelling. He would pose—first, that a petition should be presented to the Secretary of State, which should be referred to the Attorney General; and that the Attorney General should make his report and send his bill direct to the Great Seal. There was no necessity for going through all the other offices. If it were necessary that the present fees should be retained, the same amount could be collected at the office of the Secretary of State; and by obviating the necessity of going to the other offices, a great saving of expense would be effected, and much of that anxiety which men naturally felt when they were seeking for this kind of protection, would be removed. If they retained three efficient offices, that would be quite sufficient for all practical and useful purposes. The system followed in the office for patents of the Attorney General, was productive of very mischievous 981 consequences. Any person could enter a caveat that a patent should not be granted to any person on any particular subject, and must have notice of every application sent to him. No useful end was attained by these caveats; but in many cases they brought ruin on the patentees, in consequence of the delay, not caused by the Attorney General, but by the people who entered the caveats, before the question could be examined or decided. It was done in this way. Suppose a person en-deavouring to procure a patent in a particular trade or manufacture; any persons connected with that trade, were at liberty to enter a caveat, and both parties were examined by the Attorney General, to the risk of the invention becoming known; and the person seeking the patent was not at liberty to proceed, until those who opposed had been satisfied. By this means a month was sometimes wasted. He proposed that, from the time of the arrival of the petition of the inventor at the office of the Secretary of State, fifteen days should be allowed for parties to come in and enter their caveats, and that the application should be advertised in the London Gazette,. in order not only that those who might wish to enter caveats, but that all the world might know, that particular patents had been applied for. He proposed as another protection to the patentee against fraud—for it was in this part of the process that fraud was committed—that the Attorney General should have the power of calling in two scientific men as assistants or examiners. He proposed, that they should receive two guineas each on every patent; and that the Attorney General, assisted by these two examiners, should have "A preparatory specification" laid before him, that was to say, an outline or sketch of the invention or improvement which it was the intention of the party hereafter more particularly to specify. He proposed that this "preparatory specification" should lie at the Attorney General's office until the end of the fifteen days during which period any person who wished to show cause or assign a reason why the patent should not be granted, should be allowed to come in and state his case to the Attorney General and his two examiners. The House would see that the great advantage to be attained by inventors at this part of the proceedings was to obtain a priority in the dates of 982 their patents, and introduce a very material improvement by proposing that the letters-patent should be dated from the time when the Attorney General made his report. From this single proposition many material benefits would result. The party might be allowed two, three, or four months, according to the discretion of the Attorney General, to give in the specification, without running any risk of the loss of his labour by a discovery of his invention by other persons. During that time he could make such experiments as occurred to him without the chance of losing his prior claim. The preparatory specification would show whether he had in any way attempted to produce a different invention. He meant to leave the question of expense entirely with his Majesty's Government, leaving blanks in the Bill for the different sums. He should, however, suggest that patents for seven years should be only half the expense of patents for fourteen years; and that patents for fourteen years should be half the present expense. When this additional security was given to the inventor, the number of patents taken out would be at least double: so that the individuals who received the fees would have no ground to complain of the reduction. Stamps were most unequally imposed on inventions for the different parts of the kingdom; but with reference to this part of the measure, also, he should prefer leaving blanks in the Bill to be tilled up by the Government. He had no doubt that acting on those liberal principles which guided the other measures of the Administration, they would reduce the price of patents as low as would be consistent with the state of the revenue on the one hand, and the encouragement of the inventors on the other. It had been said, that if patents were too dear, a stop would be put to new inventions; but if they were too cheap, the country would be overladen, and it would be impossible to distinguish between the useless and the useful inventions. There was another complaint frequently made by patentees, respecting the legal proceedings necessary to enforce their rights, or cancel void patents. He had no doubt that hon. Gentlemen might contend that there ought to be a separate Board. To such a system he decidedly objected, for he never would consent to the appointment of secret commissions to decide upon the rights of an English- 983 man. He disliked all secret Boards—he never would give up Trial by Jury for any purpose; and, if such a step were taken in this case, an injurious precedent might be established for others of greater importance. The arguments which he had heard advanced by those who advocated the establishment of a Board to try these cases, amounted to this, that, inasmuch as the subjects to be considered were frequently unintelligible to men of ordinary education, and only understood by scientific persons, therefore, questions of this nature ought to be decided by a body of scientific men. When he recollected that questions involving rights, and property, were tried by juries, he could not but conclude, that a special jury of English gentlemen would be perfectly competent to decide upon a question of this nature. With reference to the jury, he proposed to introduce two improvements. In the first place, that there should be a power of inspection, similar to the present practice of having "a view" by the jury. He apprehended there could be no objection to the drawings and model being inspected by the jury before coming into court. As scientific men appeared to imagine that they should have some of their own body on the jury, a power might be given to the Sheriff to summon twelve scientific men, but he would give each party the power of striking off six; for all inventors would not like to have men of the same business or profession as themselves upon the jury. He should also propose, that instead of pleading the general issue, as was done at present, every person who put in a plea to an action on a patent should be bound at the same time to give a notice of the objections he intended to urge in order that the party against whom the action was brought might have an opportunity of knowing what parts of the invention were to be disputed. He could not divine why a man who was pursuing a right in a common-law court should be forced to support a Chancery suit into the bargain. He would, on no account, interfere with the jurisdiction of that Court; but a power should be given to a Court of Common Law to call upon the party against whom the action had been commenced, either to stay him from using the invention, or to keep an account of the sales by him of the patent article. He proposed that the person who was convicted of infringing any 984 patent should pay three times the amount of that account as a penalty; and, instead of common costs being allowed, in which case the patentee was often 200l. or 300l. out of pocket, that the losing party should be compelled to pay double costs. Even then, the patentee would not always receive the amount of his own attorney's bill. If these suggestions were complied with, we should have a competent tribunal for the decision of questions respecting patents. There was another point—namely, the legal proceedings necessary to cancel a patent. He did not wish to interfere with the present mode, which was by writ of scire facias,. but when a verdict was obtained on the writ against a patentee, a certificate was carried into Chancery, and the patent was thereupon cancelled. He wished that the same result might follow a verdict in a common action, and if the defendant obtained a verdict in an action, then on motion to the whole Court, the Judges should have the power of granting a certificate to enable the Lord Chancellor to cancel the patent. Some means might be devised by which a party might be enabled to go to the Great Seal, and have the patent cancelled. These improvements were founded on the present law. He had not, in the Bill which he asked leave to present to the House, departed from any principle or practice of law. He had consulted the laws not only of this but of every other country in which inventions were protected, and endeavoured to cull from the enactments all the clauses congenial to the principles of the British laws. He had endeavoured to select those parts which would best amalgamate with each other, and with our notions of justice and equity. He wished to submit to the House a Bill which should render the law respecting patents for inventions as clear as the Judges now made it, without ever reverting to old decisions. Such a system would give protection to men of ingenuity, and, at the same time, afford ample security to the public. In conclusion he begged to move, that leave be given to bring in a Bill "to amend the laws respecting letters patent for inventions."
The Attorney General
said it was not his intention to oppose the bringing in of this Bill, which was connected with a subject of the utmost importance to the public at large, as well as to a class of individuals deserving attentive consideration, and whose interests it was especially connected with. 985 So far from opposing the Motion, he assured his hon. and learned friend, that he should most cordially concur in every practical mode of adding to the simplicity of these proceedings, or of preventing delay and unreasonable difficulty in procuring patents. He must, however, qualify that assurance by stating, that he should only give his support to the hon. and learned Gentleman's measure, provided it should appear to him consistent with the grounds on which they ought to deal with the question. The object proposed was to secure to scientific individuals, a valuable reward for the discoveries they might make in science, or in the elegant or useful arts—that reward being, the legal possession to be vested in them of an undisputed monopoly of their respective inventions for a certain term of years. This monopoly, although well deserved by the individual, however, was undoubtedly, given at the expense of the public at large, who had, therefore, a right to require the fullest and clearest description of the invention. For this reason, the specification ought to be so clear and so precise, as to place the identity of an invention beyond all possible doubt, in order, on the one hand, that if any question should arise on the validity of a particular patent, the public might be able to refer immediately to the specification; and, on the other hand, that when the term of such monopoly expired, the public might have the advantage of such invention, which could not be secured without making the specification so distinct, that "he who runs may read." Without expressing any opinion on this part of his learned friend's statement, he should feel it his duty strictly to uphold the law. If it were altered at all, he should be inclined to say it ought to be by making specifications more strict than they were now. He should, certainly, too, not be disposed to delay the giving in the specification, which, in many cases, might deprive the public of the benefit of it altogether; for, by what ulterior process could a man be compelled to give in a specification? With reference to the principles of the hon. and learned Gentleman's Bill, they could be better collected from the Bill itself than from any statement. He was sorry that he could not do justice to the very able speech of the hon. and learned Gentleman because he had not previously communicated to him his intentions as to the objects he proposed 986 to accomplish by the Bill. As part of his speech referred to the office of the Attorney General, it would have been as well if the hon. and learned Gentleman had communicated with him beforehand. He hoped the House would not suppose that there had been any abuse in the Attorney General's office; for nothing could possibly be more unjust than for the Attorney General not to receive caveats in cases of this nature. Did his hon. and learned friend know what a caveat meant? It was a notice by any party, who thought that a man who asked for a monopoly against his fellow-subjects, had no right to enjoy it to their prejudice: in entering this caveat you gave him a reasonable time to make out his case or amend his specification. The Attorney General summoned the person giving the caveat to come before him; but not that the invention of the patentee might be looked into and inspected by him; quite the contrary; he who put in the caveat was obliged to state to the Attorney General, who had previously taken care to inform himself upon the subject, the grounds on which he objected to the patent. If the objection appeared a good one, further inquiries were instituted; if not, the objection was directly dismissed. In conclusion he had only again to assure his hon. and learned friend of his entire concurrence in the object he had in view.
begged to say, that he entirely concurred in the view which had been taken of this subject by the hon. and learned Gentleman, and he only regretted that the matter had not fallen into such able hands at an earlier period, for no man could have read any part of the evidence taken before the Committee, of which he had the honour to be Chairman, without feeling that the present state of the law relative to patents, called for attention and alteration. With regard to the question of expense, it was deserving of consideration. It was suggested before the Committee, that if patents were rendered too easy of attainment, the great manufacturers would be considerably annoyed by having a vast variety of patents taken out for small, trifling, and unimportant inventions. The suggestion for shortening the process of obtaining a patent was most valuable; since nothing could be more inconvenient than the delay, the trouble, and the anxiety, consequent upon the present system. Indeed, the hon. 987 and learned Gentleman had actually understated the amount of that inconvenience; for, during the last reign, it was in evidence that a much greater loss of time than he mentioned took place, in consequence of the illness of his late Majesty, and of other causes, which, in some cases, amounted even to as much as a delay of seven or eight months. It should be remembered, too, that during the whole of the time a man was endeavouring to obtain a patent, he was under great risk, and considerable anxiety, as to the chances of his invention being discovered. It was well known that when any individual intended applying for a patent connected with a branch of trade, the thoughts of practical men were immediately turned to the subject; and it was by no means improbable, that a course of inquiry would lead an ingenious man to the very same result as that invention for which the application for the patent was depending; besides which, the inventor was always exposed to the risk of having his secret discovered by the person whom he might have employed to assist him in the mechanical detail of its development. It was true that the Judges had lately strained the law, to adapt it to the circumstances of the present times; but he must say, that he would rather live under a law made by Parliament, than under a law made by the Judges. He was aware that they had to contend against the acts of legislators who had been wilfully blind to the signs of the times, and who had obstinately refused to adapt the laws to the changing circumstances of the country. He was informed that no man could venture to say what would be the decision of the Judges, in cases where questions relative to patents arise; some had been for extending the law, and others for confining it. Great inconvenience arose from the existing uncertainty as to the point of law, and the opinion of the Judges. He concurred in the principle laid down by the hon. and learned Attorney General—namely, that it was due to the public that the specification should state accurately and distinctly the nature of the invention; and he begged to suggest to the hon. and learned Gentleman whether it would not be desirable, in order to the attainment of this object, that a Committee of scientific men should be appointed? An eminent lawyer must be a man of very varied and extensive 988 accomplishments; but the Attorney General might not always be competent to inquire into a question of this description. He would further offer his thanks to the hon. and learned Gentleman for having introduced a measure for effecting an important improvement in the law of patents.
§ Sir George Cayley
was of opinion that it was highly important, and very necessary, that the attention of the House should be directed to this subject, which involved very great and very peculiar interests. The best course would be, to allow the hon. and learned Gentleman to bring in his Bill; and, on the second reading, such suggestions could be made as would lead to the attainment of the object in view.
hoped his hon. and learned friend would shape his Bill so as to give all parts of the empire the benefit of it. Why should not a man in England have the benefit of a patent in Ireland by enrolling it here? And why should not an Irishman have the benefit of a patent in England, by a similar proceeding in Ireland? Why should it be necessary, to come here to get a sign-manual attached to a patent for Ireland? Why should not the signature of the Lord Lieutenant be sufficient for that, as well as for the other purposes in which it represented that of the Sovereign? In Scotland, the stamp for a patent was 6; in Ireland it was 25l. Why was this? Surely there could be no reason why they should pay 25l. in Ireland, for what could be got in Scotland for 6l. These were grievances; and he hoped his hon. and learned friend would give Ireland the benefit of his comprehensive and accurate knowledge.
§ Mr. Warburton
said, that if it were only to convert Judge-made law into statute law, he should wish to see the proposed measure introduced. He was persuaded, however, that it would be advisable to refer the Bill to a Committee above stairs, when it would be rendered a very valuable measure.