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That for the preliminary examination the assessors, if the judge require their assistance, should be two in number, named by the commissioners from the existing panel—the decision to rest with the judge. The committee also approved of the principle of compelling patentees to grant licences on terms to be fixed by arbitration, or in case the parties shall not agree to such arbitration, then by the proposed tribunal or by an arbitrator or arbitrators appointed by the tribunal.*
It will be observed that the recommendations of the committee are directed to the remedy of the three following defects in the existing system :-1. The multiplication of patents ; 2. The obstructiveness of patents; 3. The litigation of patents. These are no new complaints; they have been repeated on many occasions for the last twenty years, they were the subject of much consideration by the promoters of the Patent Law Amendment Act, 1852, and the remedies were distinctly pointed out, and to a certain extent provided for; but the precautionary and protective measures contemplated and provided for by the Act, have not been carried out, and this omission has aggravated many of the evils that have so long been the subject of complaint. Let us say a few words on each of the alleged grievances.
1. The Multiplication of Patents.—The inventor and the public are equally aggrieved by the indiscriminate issue of patents.
The loss to inventors from the grant of patents for inventions which are old or worthless amounts to a very large sum in direct money payment alone, without taking into account the cost to the inventor for time, labour, and esperiments. The inventor may be, and frequently is, honestly misled; though the means of information are accessible to those who have long accumulated experience on the subject. Inventors, it should be remembered, are taxed to a sum amounting to nearly £100,000 a year. Does not this payment give them some claim to a protection against their being misled in cases in which they are not in a position, or on equal terms, for obtaining information? Some check, in the nature of a preliminary inquiry; some sieve, as it has been termed, through which inventions should be passed, seems to be only just to persons so situated. What should be its nature and extent is too large a subject for us to enter on at the present moment, and we shall content ourselves with observing that it ought to be a very clear case in which the claim of an applicant persisting in the value of his invention should be refused. We
* The committee was appointed by the Council of the National Association on the 22nd Nov., 1859. For Report, see Transactions, 1861, p. 229.
We may also say that the objection we have heard made to such an inquiry, as derived from the practice in the United States, would be inapplicable to a system in which less was attempted than in that country. If the American system is objectionable and defective because too much is attempted, our own is doubly so; because not only is too little attempted, but that little in many cases is so managed as to be positively prejudicial and pernicious.
2. The Obstructiveness of Patents.— These words are on the lips of every opponent of the patent system, or objector to patent rights, but attempt has rarely been made to condescend on any particular amounting to a practical grievance. Stated in the strongest point of view it amounts to no more than this, that persons proceeding on a certain line of investigation and invention find that they have been anticipated in some particular, and require to use an invention the subject of a prior patent, of which they cannot procure the use on reasonable terms.
The remedy for this is obvious. Apply the principle of compulsory sale, the operation of which under the Lands Clauses Act, in cases of land required for public undertakings, is so well understood, to any case in which the use of an invention the subject of an existing patent is required for working out a further improvement, whether it be or not the subject of a patent. A suggestion much to this effect was brought before the Social Science Association by Mr. Macfie at its Meeting at Liverpool, and his paper appears in the Transac
tions of the Association for 1858.* Whatever may be the extent of the grievance, or however small when reduced to its proper proportions, it is fitting that a remedy should be applied for such a possible state of things, and it is for the true interest of the inventor.
It is sometimes urged against any system of patents, that invention by any one person is but the forestalling in point of time of that which some other person would have invented. This may be perfectly true, and a good reason for limiting the duration of the grant, and for compelling such fortunate forestaller to grant a licence to his less fortunate competitor. But what argument does this afford for depriving such forestaller of all benefit from his skill or good luck? Is this the only case in which the first occupant is the admitted legal possessor and owner in perpetuity? What is the foundation of property but first occupancy? Upon what does the right to transmit property depend but upon expediency? Is it not for the public interest that each person should have absolute dominion and control over his own property, both for the present and the future ? The distinction which exists between the enjoyment of patent rights and other rights is part of the original contract whereby the State gives to the inventor exclusive privilege for a limited time in consideration of the remuneration which he makes to the public. The patentee has occasionally been represented as a purchaser from the public for a limited time, and if this be a true
а view of the subject, no objection can be urged even in theory to his being compelled to admit others into a share of that of which he has been a purchaser under such circumstances. The objection not unfrequently urged on the ground of the extent of right and indefinite claim, or of imperfect and inadequate description contained in the specification, is founded on a misconception as to the essential conditions of the validity of a patent, which cannot be supported if the inventor claimed more extension than has been actually made, or if the same be not useful, or not
* Page 174.
described in such manner as to enable any person acquainted with the subject to put the invention into practical operation.
The power to obtain a licence under a prior patent would, in the majority of, if not in all cases, compel the parties to an equitable arrangement amongst themselves; and if the objection be well founded, and a case really exists in which a patent is obstructive of further improvement, or presents a serious impediment to trade, the licence during the short period of the duration of the patent would be an effectual remedy. Nor does this remedy require legislative enactment. It is perfectly competent for the Crown to introduce any condition to this effect into the grant of letters patent. Patents as granted under the present system contain a condition very similar to the one now proposed, in favour of articles to be supplied by the patentee for the public service; so that the evil complained of might be effectually met by a modification and extension of the existing proviso.
3. Litigation on Patents. — The difficulties in protecting property in patents so as to preserve the rights of the inventor on the one hand, and of the public on the other, are confessedly great. Every one seems to admit that the mode of administering justice in patent cases is imperfect, but opinion is divided as to the remedy. Some advocate a special tribunal, and some a modification of the existing system:
Mr. Grove, whose name both in the legal and scientific world is identified with the subject, advocates the establishment of a separate Patent Court, and our readers will probably remember that he explained his views some time since in an elaborate communication to the Jurist. Mr. Grove is for the creation of a tribunal, like the Probate and Divorce Court, presided over by a judge equal in salary and position to those who occupy the benches of the superior courts, and armed with complete and exclusive jurisdiction in all patent cases. The advantages of the plan are manifest; we should have a tribunal specially fitted for the adjudication of questions for which our courts of law are confessedly unsuited; the
judge might be empowered to try either with or without a jury, and either with or without scientific assessors ; parties would approach such a court with confidence; skilled witnesses would find there a discerning audience; and last, but not least, the judges and the Bar would be relieved of a class of cases in the ordinary courts, which impede regular business and with which they cannot adequately deal. When to all this we add that such a tribunal might take the responsibility of the primary examination of patents, now confided, rather in the way of a makeshift, to the law officers, and decide on the applications of inventors, whether in open court or in chambers, on some definite and recognisable principles, it must be admitted that the arguments in favour of a separate Court of Patents are numerous and cogent. On the other hand, it has been urged that the evil of different jurisdictions has already attained a magnitude in this country which must stand condemned alike by practical lawyers and scientific jurists; that patent business, considerable as it is, is not sufficient to justify the creation of such a court as is proposed, and that the business under a good system might be expected to decrease; that it would be difficult to find men competent to fill the office of judge; and, what perhaps is more to the purpose than the other objections, that no adequate funds exist to defray the cost, which the House of Commons would not be prepared to cast on the Consolidated Fund. Impressed with the difficulties attending so great a scheme, Mr. Webster has proposed a more modest solution, by recommending that scientific assessors should be provided for the existing courts, who should assist the judges in disposing of patent cases, and enable them to dispense with juries. In support of this plan, or of something similar, it is urged that the real trial of a patent case is in the court of appeal, and consequently that the simpler you make the determination of the issue of fact, the better for all parties. The cases in which a trial by jury as ordinarily constituted can be of service are rare; the whole trouble of preparation and the expenses of