The inventor re

those privileges are the greatest calamity. cognised by the Patent Law is a legal fiction. Few patentees are really inventors, and many inventors are not patentees. And the expenses of patents fall heavily, as Bentham said of taxes of justice, upon a class who at first sight seem not to bear them at all. The men of inventive genius who are too poor to take patents, and too poor to contest an unjust claim to their own inventions; the men prevented or intimidated from improvements,-these are the heaviest sufferers. They are many, but they are scattered and weak; they submit to oppression in silence. We can only imagine the extent of the evil to them, and people with little imagination are apt to think such evils are imaginary. But even persons fully alive to both the visible and invisible mischiefs of a Patent Law, and their irremediable nature, suppose that, without exclusive privileges, there would be no motive for invention in the face of competition. It is a remarkable proof of the depth of the roots of the doctrine of Protectionism in the minds even of eminent political economists, that it should be necessary at this day, and in this country, to argue that so far from monopoly being indispensable to industrial progress, competition both compels and rewards it; and that the division of labour provides a great natural workshop of invention. It is sad to have to tell professed free traders that unrestricted competition stimulates every producer to employ all the means in his power to get before his competitors, and forces him to do so in order not to be left behind by them; that it urges perpetual improvement by the perpetual action of two powerful persuasives-hope and fear, and facilitates it by an infinite number of auxiliaries. Each man makes but one thing, or kind of thing, but uses many in its production. The rivals he has are therefore few compared with his coadjutors, and their rivalry only drives him to put forth his full strength. very first chapter of Adam Smith's Inquiry into the Causes of the Wealth of Nations' shows that the division of labour provides a natural organisation for invention, consisting of a special body of scientific discoverers in every branch of knowledge applicable to the arts upon the one hand, and the combination of capital and special skill, with constant observation and practice in each branch of trade, upon the other hand:

:

The

'The invention of those machines by which labour is so much facilitated and abridged, seems to have been originally owing to the division of labour. Men are much more likely to discover easier and readier methods of obtaining any object when the whole attention of their minds is directed towards that single object, than when

it is dissipated among a variety of things. A great part of the machines made use of in those manufactories in which labour is most subdivided, were originally the inventions of common workmen, who being each of them employed in some simple operation, naturally turned their thoughts towards finding out easier and readier methods of preparing it. All the improvements in machinery, however, have been by no means the inventions of those who had occasion to use the machines. Many have been made by the ingenuity of the makers of the machines, when to make them became the business of a peculiar trade, and some by that of those who are called philosophers, whose trade it is not to do anything but to observe everything. Like every other employment, too, it is subdivided into a great number of different branches, each of which affords occupation to a particular class of philosophers.'*

In

Since this passage was written, the increase of scientific discovery and industrial skill has surpassed all that the founder of a special class of economic philosophers could himself have conceived, yet economic philosophers to this day cannot all realise its truths. One reason for the popular fallacy they share upon the subject is probably that many inventions which are the simple application of scientific discovery, or the natural births of time and practice, are necessarily patented, because there is a Patent Law, and are therefore supposed to have been caused by the Patent Law. the case of Crane v. Price, the patentee being resident in South Wales, where anthracite was abundant and cheap, and bituminous coal was dear, after the invention of the Hot Blast in the manufacture of iron by Mr. Neilson, patented the application of the new process to the sort of coal nearest at hand -namely, anthracite. He was not the first to think of combining the use of anthracite with the hot blast, but he was the first to patent it. The patent, however, was disputed upon the ground that as anthracite had been used with the cold blast before, there was no invention in using the hot blast instead, as soon as it was known. Sir N. Tindal, C.J., in giving judgment, said: We are of opinion that if the result be either a new article or a better article, or a cheaper 'article to the public, than that produced before by the old method, such combination is an invention or new manufac ture intended by the statute, and may well become the sub'ject of a patent.' Does any one suppose that no one would use a better machine or process already invented, and the use of which produced better or cheaper articles,' unless he got a patent for doing so? Out of more than a hundred patents for the manufacture of sugar, Mr. Fairrie assured the Lords'

* Wealth of Nations, book i. ch. 1.

Committee that only two were for really useful discoveries, and that he had known the principle of one of these two, and applied it two years before a patentee monopolised it. The other case he stated thus: 'People took out a patent for a machine called 'the centrifugal machine to be used for drying cloth. A

6

gentleman in Liverpool said this could be applicable to sugarrefining. He went and took out a patent for that, though he had made no discovery, simply because the idea occurred to him, and without ever having tried it, and so had the means of excluding all the world from using it, though it was not his own invention at all.' When a simple analogous case of this sort is patented, it is sometimes urged on behalf of the claim of the patentee that no one else thought of it. The patent, however, affords no proof of that, and the presumption is all the other way, since many minds are always observing the same facts with equal powers of observation and similar ends in view. The patent does not prove even that the thing has not been often used already. And while the Patent Law deprives the public of the free use of improvements, naturally and, as one may say, necessarily made, it stops many others that would equally naturally arise. I know,' said Mr. Fairrie, ' of a process which is in use at the present moment; I see im'provements which I could make upon it; but I cannot make those improvements because the original patentee says, "No, "I shall not allow you to touch this thing at all." Patentees are even deterred from improving upon their own improvements. The fate of Mr. Heath, who improved himself out of his patent, is before them.

The patentee,' says Mr. Brunel, 'even if he saw that a most material improvement could be effected by a slight change, but that such a change is not precisely foreseen by the words of his patent, not only does not introduce the improvement, but he is obliged to profess strongly that the thing is perfect as it was described, though he impedes the introduction of such an improvement. The existence of a great number of patents has first of all involved the Electric Telegraph Company in an enormous outlay for the purchase of patents; and, secondly, it has prevented them from actually introducing improvements of their own, because they might have endangered their own privilege.'

The patentee enters not in himself, and suffers not to enter those that would. It has been urged that the exclusive use of each invention by a single inventor economises the inventive genius of the country which is thus turned to fresh inventions; but it is somewhat strange in the original country of Free Trade

* Evidence before House of Lords' Select Committee (920).

to be told that competitive production is wasteful. In point of fact, patents lead to constant waste of time and labour in the repetition of old inventions. Misled by the hope of a monopoly and a fortune, and being neither able nor willing to study the thousands of specifications in the Patent Office, a man shuts himself up and works at his idea, and incurs by that means great suspense and loss of time and money, and the chances are one hundred to one, that if he does succeed in taking out a patent, he discovers the next day that the thing has been better done before, or that if he had consulted a workman more immediately engaged in the branch to which his supposed invention relates, he would have found that it was impracticable, or that there was no particular demand for the article.' *

Those who contend that without the hope of a monopoly much of the labour and cost now spent on invention would not be so spent are therefore partly in the right. If inventors were delivered from false hopes as well as from real dangers and instructions, much laborious re-invention would be saved. It is maintained, however, by some that great mechanical combinations would not be invented if there were no patents, since to invent them is hard and to copy them is easy. But it has already been shown that some of the greatest inventions that ever were patented would have been more profitable without a patent, and that great combinations are necessarily surrounded with difficulty and danger by the Patent Law. And, what is still more conclusive against the necessity for a Patent Law, numbers of great inventions, in spite of the danger created by such a law, have been made without patents. The case of Crompton has been mentioned. Few of Cartwright's numerous inventions were patented. Of Maudslay Mr. Smiles relates:

'Although Mr. Maudslay was an unceasing inventor, he troubled himself very little about patenting his inventions. He considered that the superiority of his tools and the excellence of his work was his surest protection. Yet he had sometimes the annoyance of being threatened with actions by persons who had patented the inventions which he himself had made.'t

Of another considerable inventor the same writer says:

'Another of Mr. Clement's ingenious inventions was the Planing Machine, by means of which metal plates of large dimensions were planed with perfect truth and finished with beautiful accuracy. Cle

* I. K. Brunel, Esq., Evidence before House of Lords' Select Committee (1775).

† Industrial Biography, p. 233.

ment took out no patent for this invention, relying mainly on his own and his workmen's skill in using it.'

Mr. Brunel has spoken for himself:

1768. Have you had any experience as to the operation of the Patent Law?-Yes; ever since I first entered my profession, I have seen a great deal of the operation of patents.'

1773. Can you state generally what is the result of your ex-, perience?-One result has been that I have never taken out a patent myself, or ever thought of taking one, or I hope ever shall take one; and certainly from the experience I have had, and all I have seen of the operation of patents, I believe them to be productive of almost unmixed evil with respect to every party connected with them, whether those for the benefit of whom they are apparently made or the public.'

*

The evidence of Mr. Fairbairn on the point is the more striking, as he expressed the opinion in favour of patents already mentioned:

(1140.) In the event of an important improvement being made, is not the inventor of the improvement generally the person applied to for assistance by the trade, even independently of the patent?—I am of opinion that the Patent Laws are of no very great value, because I have five or six patents myself, and it is not any great advantage which I receive from the patent as a patent; but it gives me precedence over all other parties who are not inventors of the same article, whereby as a matter of trade, customers come to me in the first instance for the machine I have invented, rather than go to the copyist.

(1141.) Knowing that you are the author of that machine?— Yes, I stand as the author of that machine, even without a patent; and the impression upon the public mind is, that as an inventor, I know more about the machine, and can work out the details and make it better than anyone else.

These facts fully bear out the opinion expressed by Sir W. Armstrong in answer to a question put by Mr. Fairbairn himself as a member of the late Royal Commission on the Patent Law:

(1110.) (Mr. Fairbairn.) How would you give these rewards in the absence of a Patent Law?-As a matter of opinion I believe that if you let the whole thing alone, the position which a man attains, the introduction and the prestige, and the natural advantages which result from a successful invention, and from the reputation which he gains as a clever and able man, will almost always bring with them a sufficient reward.'

This species of reward, founded on a man's character and

* Evidence before House of Lords' Select Committee, p. 400.