Patent to inventor only.

:(f.) The expense of obtaining a patent should be moderate; but, in the interest of the inventor, a progressive scale of fees should be established, enabling him to abandon, when convenient, a useless patent.

(g.) Facilities should be given, by a well-organised patent office, to obtain in an easy manner the contents of the specification of a patent, as well as to ascertain what patents are still in force.

(h.) It is advisable to establish regulations according to which the patentee should be compelled, in cases in which the public interest may require it, to allow the use of his invention to all suitable applicants fortan adequate compensation.

(i.) The non-application of an invention in one country shall not involve the forfeiture of the patent, if the patented invention has been carried into practice at all, and if it has been rendered possible for the inhabitants of such country to purchase and make use of the invention.

(k.) In all other respects, and particularly as regards the proceedings in the granting of patents, the Congress refers to the English, American, and Belgian Patent Laws, and to the draft of a Patent Law prepared for Germany by the Society of German Engineers.

Most of the foregoing paragraphs were treated as distinct sub-resolutions, and passed separately after amendment and discussion; they were subsequently passed altogether as one resolution. It will be convenient to consider each separately, in the order in which they stand.

(a.) Only the inventor himself, or his legal representative, should be entitled to a patent.

In the discussion on this sub-resolution special reference was made to the practice (referred to in the memorial to Earl Granville, Appendix D., p. 410), of obtaining early information as to inventions in one country, and applying for patents for the invention in another country, by persons having no connection with, or any authority from the inventor.

Attention was also called to the granting of patents for inventions in use in other countries, but not known in the country to which the invention was so imported or introduced. The practice in Englamd is to grant patents for any invention not in use within the realm; the applicant represents himself either as the true and first inventor within the realm, importation. or, as in possession of an invention by reason of a communication from some person (naming him) abroad. In case of his acquiring personally the knowledge of an invention by

Patents of

England,

foreign travel, he simply represents that he is the true and first inventor within the realm, or that he is in possession of Practice in an invention which is new to the best of his knowledge and belief within the realm, such statement being verified by the affirmation, oath, or solemn declaration of the applicant. To this practice various objections were urged. Reference was made to the recommendation of the Select Committee of the House of Commons, as follows:- "That letters Resolution " patent shall not be valid for an invention which has been as to. " in use in a foreign country, unless a patent for the same. Proceeding "shall have been granted in such country, and unless such 1873. " letters patent shall have been granted in this country to "the original inventor, his assignee, or authorised agent."

6 & 7 Aug.

inventions.

The expression "his legal representative" was understood Foreign in the discussion to include his nominee or authorised agent. With this explanation the sub-resolution was accepted by the Congress as sufficient to secure the rights of the inventor in all countries; some difference of opinion was expressed as to what period, whether six months or two years, should be given to the inventor for the assertion of his rights in other countries.

The practice in different countries as to granting patents Practice in for inventions not the invention of the grantee or in use in States. other countries is very various. In the United States any invention in use in other countries may be patented, provided the same has not been in public use in the United States for two years prior to the application, and has not been patented or described in a printed publication. If the same has been patented in a foreign country or countries the patent will only be granted to the grantee of that patent or his representatives, and the patent so granted will expire with the expiring of the first of such foreign patents. In Austrian In Austrian Hungary the patent is granted only to the inventor or his Hungary. accredited agent, and for an invention not in use within the empire. The practice in some other countries is to grant the patent only to the true and first inventor or his accredited agent. The general recognition of this as the law and practice in all countries would be the first step, and is, in fact, essential to the establishment of any system deserving the name of international. In such a system there must be no conflict as to the character of the person to whom the patent is granted. In most countries the term of the imported patent expires with the original patent. The practice in England of extending the term of patents by a fresh grant to the original grantee or to his assignee does not in any way militate with the above resolution, inasmuch as the

Patent to a foreigner.

Examination and Proclamation systems.

assignee is supposed to represent the whole merit of the inventor. The Judicial Committee of the Privy Council in several recent cases have refused to recommend the extension of a patent to the grantee of an imported invention in cases in which one of several foreign patents had expired.

The grant of letters patent to the inventor only, or to his representative, may be regarded as an effective means of checking the system of stealing and patenting inventions in other countries by persons on the look out for and obtaining early information as to what was going on, a practice (already referred to) and described as of common occurrence.

(b.) A patent should not be refused to a foreigner. The foregoing has reference to a practice formerly existing, but now abandoned in most countries, of either refusing a patent to a foreigner, or to any but citizens, or subjecting aliens to discriminating charges or other disadvantages. Many of the earlier patents in Great Britain were granted to foreigners and aliens-alien enemies as well as alien friends, the policy of that country being to attract inventions from all parts of the world as the basis of a home manufacture. In Austria-Hungary, in Belgium, France, Prussia, in the United States of America, and in most other countries, no regard is paid to the nationality of the applicant, but patents are granted alike to citizens and strangers. In Saxony, Bavaria, and Wirtemburg the application of a foreigner must be made by a native as the bearer of the patent, and only responsible person. In Canada, until the recent Act, which came into operation 1st September 1872, and in some other countries patents are refused to aliens, but this is now a rare exception. If the granting of patents be sound policy and for the interest of the State all such impediments are contrary to public policy. Invention is the prerogative of man and belongs to no country or clime; the laws of chemistry, mechanics, physics, and nature are the same everywhere, and the invention and inventor of any country should be equally respected without regard to nationality.

(c.) It is advisable, in carrying out these principles, to introduce a system of preliminary examination.

Two systems exist of granting patents, -the one described as the examination and the other as the proclamation or publication system; the former prevailing in the United States of America, in Prussia, and in some other countries; the latter prevailing in the United Kingdom of Great Britain and Ireland, in Austria, Belgium, France, and other countries. Under the proclamation or publication system a patent is

granted, as of course, at the sole risk of the applicant, provided the documents are in due form.* Under the examination system patents are granted for what appears, after due official examination by competent examiners, to be new, and refused for what appears to be old.f

In theory, an examination system may be said to exist in the United Kingdom; the Act of 1852 was supposed to have provided for it; its adoption has been repeatedly recommended on high authority; the law officer is to be satisfied of the sufficiency of the provisional specification; the opposition of persons interested is invited by advertisement: but practically the system is non-existent; the theory is a dead letter; the proclamation system virtually prevails, and patents are granted as and for whatever the applicants may ask, provided the documents are in due form, at their own risk, and without any guarantee. The fact that patents are frequently granted for the same invention within the six months during which the provisional specification is secret is strongly confirmatory of the absence of any practical check on the issue of patents for the United Kingdom.

system

The opinion of the great majority of inventors and paten- Examina tees in the United States is said to be in favour of the tion examination system; some are found to raise their voice approved by against it and in favour of the proclamation system, as would reasonably be expected, seeing that under the operation of the examination system as many as one-half the applications in one year have been rejected. Of late years, however, the proportion rejected has not been so great, as will be seen hereafter on a comparison of the number of patents applied for and issued in the United States of America.‡

title.

It is the opinion of some that the examination system Indefeasible might be carried to such an extent as that a guarantee or indefeasible title to an invention might be given, but suggestions to this effect have received little encouragement, and are deemed by many as altogether impracticable.

The extent and nature of the examination may vary, but the importance of some such system, as a check on ignorance and on imposition, can hardly be doubted.

Consequences of system.

Examination system.

Examination limited

An examination, if not essential to carrying out the principle above announced as to the grant of patents to the inventor only, or his representatives, and to the exclusion of mere introducers, will materially facilitate the adoption and success of that system. The check, which an efficient examination will interpose to the grant in one country, to a stranger, of a patent for an invention already the subject of a patent in another country, will go far to extinguish the demoralising practices complained of and already referred to. Any furtive attempt by a stranger to appropriate in one country an invention the subject of a patent in another country would be so probable of detection that the practice would cease to be profitable as a trade.

The examination system in the United States was represented as having great effect on the security of patent property, as practically a guarantee of validity, as influencing litigation to such an extent as to remove the charge made against litigation on patents in England "as a speculation on the ignorance of judge and jury." The examination system is a sort of trial before, instead of after, the patent is granted.

The effect of the examination system is shown by the security felt in the application of capital to working out patent inventions. It was stated on good authority that one half of the patents granted in the United States are remunerative, and that from six to seven eighths of the manufacturing capital is based on patents; results which will contrast most favourably with the system of any other country.

No inquiry takes place as to the merit of the inventor, or to novelty. the utility of the invention; the examination is limited to

Examination in Prussia.

novelty only. The strongest advocates of examination have invariably excluded all questions of, merit, practicability, or utility, as beyond the province of inquiry, and as being in that state of the invention within the region of opinion and not of fact. This is in accordance with the conclusions of the Royal Commission presided over by Lord Derby (then Lord Stanley), and of the recent Select Committee of the House of Commons. (See post 393.)

The examination system as practised in Prussia was severely commented on, special reference being made to the fact that a patent had been refused to Bessemer for his improvements in the manufacture of iron and steel. His ap-plication for a patent had been delayed from time to time and was finally refused on the ground that the invention at the time of that refusal was the subject of a printed and published description, namely, the specification of his own