The Law and the Inventor.
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From the Inventor's Point of View.
By E. W. S.
• I have always been of an ingenious turn • . I have been twenty years, off and on, completing an invention and perfecting it. . . . All the money I could spare, I had laid out on the model.' . . . .
"Thomas said to me when we parted, 'John, if the laws of this country were as honest as they ought to be, you would have come to London, registered an exact description and rlrawing of your invention, paid half a crown or so for doing it, and therein and thereby have got your patent."—(From " A Poor Man's Tale of a Patent,' by Charles Dickens.) " During last year there were considerably over 30,000 applications lodged at the British Patent Office. . .
"A glance through the adveitisement pages of any 1.,ading motor journal, dealing with either the industrial-vehicle, or the pleasure-car side of the business, will not disclose more than one or two patented s_pecialities which have the field in any substantial degree to themselves. Patented carburetters, spare wheels, magnetos, ignition plugs, acetylene generators, non-skids, ball bearings, engines, and a host of other components and accessories : practically, in no one of these cases can it be indisputably claimed that the patent has secured to its owner a monopoly of the fruits of his idea." (From a recent Editorial in THE COMMERCIAL Moms.) The popular notion of the inventor is that of a wild-looking, poverty-stricken individual, careless in dress and somewhat indifferent to personal cleanliness, who lives in a garret and starves himself, in order to squander his substance on his Great Idea. In novels and plays, he is represented as sttuggliug along for years in this romantic but depressing sort of way, until at last he obtains a " Patent." As soon as the word " Patent" is mentioned, all is changed. It seems to be a sort of magic word, almost as good as Mesopotamia in fact. In a single dayf the hero of the novel or " heavy lead " in the piece is raised from a state of appalling misery, to one of almost equally-appalling luxury.
Before he " got his Patent," he lunched by looking in at the windows of the numerous excellent "tea and lunch places" which adorn our streets, or by sniffing the savoury odours from the fried-fish shops. Afterwards, the best the Carlton can produce is not rood enough for his delicate palate ; and he has an ocean-going steam yacht, a shooting box in Scotland, a little place near the best hunting counties, a house in Park Lane, a château in Normandy, a large fleet of 90-h.p. motorcars, several aeroplanes—and a castle in Andalusia! All from his " Patent." This is the dramatic or literary-fiction view of the case.
Now in reality, the average inventor does none of these things. He does not starve himself in order to produce a marvellous invention ; still less does he rise at one bound from the depths of . poverty, to the heights of wealth, merely by obtaining a patent.
" Inventors," says " The Engineer," " are of two classes. One class consists of scientific persons who patiently pursue a series of experiments, in order to test the truth or falsity of a scientific theory. Inventors of this type base their investigations on accepted principles, and proceed along strictly-scientific lines. The other class consists of amateurs, often highly-imaginative individuals, who frequently chase the will-o'-the-wisp of their elusive and usually wholly-umsractical ideas, till they flounder into the morass of bankruptcy. At the same time, successful inventions have been completed quite as frequently by these " impossible " sort of people, as by the learned scientists. Many very-clever and useful devices have been patented by the most-unlikely persons. In some cases, they have brought their discoverers large monetary reward. For instance, the man who invented • water-tabbies" in the 18th century, made his discovery simply because he was addicted to the ulgar and disgusting habit of spitting. Yet, according to Webster, he made a considerable fortune from his invention. It was not an engineer nor a great scientist who devised the rim-held pneumatic tire. Richard Arkwright, the famous inventor of the " spinning frame," began life as a barber. James Hargreaves, whose discovery of the "spinning jenny" was productive of equally-important results to the cotton trade, was originally a carpenter. The late Monsieur Leon Serpollet started in humble circumstances. And many other instances are not wanting. On the other hand, there is a long list of eminent scientific inventors, from the days of Archimedes, or even, as some people say, from those of Tubal Cain. As for example,. Leonardo da 'Vinci, Galileo, Faraday, l3runel, Stephenson, and so forth, down to the late Lord Kelvin, Sir Hiram Maxim and the Chevalier Marconi in our own day. Inventors who have produced and patented successful devices, and who have, at the same time, been fortunate enough to enjoy a share in the profits produced by these devices, are in the minority. Of the 30,000 odd patents mentioned at the head of this article, by far the greater proportion will never be heard of again. Those which, either from the pushfulness of their owners, or from their own innate merits, do attain any measure of notoriety, will most likely only achieve it by occupying the attention of the Courts for several days. It is most probable, too, that of those, which reach even this pinnacle of rather-doubtful fame, a considerable percentage will only do so at the moment of extinction—or in other words when they are held to be invalid. Thus, in 1910 there were some 58 odd actions in which patents were more or less remotely involved. In some 21 of these cases, the existence of the monopoly created by Letters Patent was in issue. Out of this number, there were six cases where patents were upheld by the Courts : in 10 cases patents were held to be invalid ; in three cases patents were revoked ; and in one case the order for the revocation of a patent was discharged, and in one case a petition for the extension of the term of a patent was refused. Now why is it that the popular idea of a patent is totally wrong ? Why is it that instead of being a source of wealth to its proprietor, it is more-usually productive of a great deal of worry, annoyance, and expense ? The answer is, that the inventor falls into one of those vast and yawning chasms, which divide the theory from the practice of Law. Theoretically speaking, inventors are entitled to a monopoly of their invention, for a certain limited period.. The possession of this monopoly is supposed to enable the inventor to reap such profits from his invention, as will repay him for the time, trouble, money, and "brain waves" he may have expended in order to produce it. The State may be considered to say to the inventor, " In return for the laying of your invention before the public, in such a manner that they may be able to use it after the period of your monopoly has expired (which period is, Wen entendu, definitely limited by me to the brief space of 14 years), I will protect you, and will assist you to preserve your monopoly during that period."
Now, in theory this is all very beautiful, but in practice it works out very differently. In practice, and in plain non-legal terms, the possession of a patent implies nothing more nor less than.. a right to go to law. Under certain circumstances " a right to go to law " may possibly be a valuable property, but as a general rule the average man .would prefer not to have anything to do with such rights.
The State does not in reality say, " 1 will protect you," to the inventor. No. It says,. " If you will pay me very-heavy fees and if you will disclose the essence of your idea, so that the public may be able to use it either at the end of the term of your monopoly, or if your monopoly should be suddenly term i 'ruled, I will then give to you the right, to fight expensive legal battles in order to attempt to keep
up your monopoly." Now I am well aware that, as I have stated it, this view runs counter to many strongly-held opinions. Many individuals, both among inventors and among those members of the legal professions whose practice lies amongst patents, would adversely criticise this statement. They would instance those patents which have proved of very-great value indeed to their fortunate possessors ; they would point to the almost fabulous sums which have been gained in some cases by the owners of patent. monopolies. As, for instance, the pneumatic-tire patents, or the aniline-dye patents. But in how many of these cases have the owners been able to keep up their mono polies, and make these large profits. without going to law ? Further, in how many cases has the original inventor benefited by the profits arising out of his invention? Then again, how much of the un doubted success of certain patented articles is due, not to the fact that they are valuable and clever in ventions, but merely to their being exploited in the most-advantageous manner by astute, commerciallyminded business men?
Turning now to the question of the law, a thing which inventors too often forget is that the patent law is not supposed to exist even mainly for the benefit of inventors. On the contrary, it is designed in order to get inventors to disclose their inventions, so that new manufactures may be started, and so that the public may have the benefit thereof.
The fact is, that inventors, being an entirely-inchoate mass of individuals, are never likely to re ceive much consideration at the hands of modern legislatures. Organized, and if possible noisy de monstration, is the method by which concessions are obtained nowadays. It is hopeless to expect in ventors, who are, by the nature of things, hostile to one another, to unite into an effective " fighting " body. When any new law about patents is passed, the only people who are not consulted on the matter are inventors.
Learned counsel, patent agents, solicitors, manufacturers, and a number of well-meaning but extra ordinarily-obtuse M.P.'s„ all have their say about it, but no one thinks of getting the opinion of inventors. Patent agents, and counsel on these ocea sums, if supposed to represent the inventors' view, but, it I may respectfully say so, they do not. Thev cannot.. With the very-best intentions in the world, their views are professional views, and necessarily bear the professional stamp. They do not represent what the inventor thinks, but what his professional advisers imagine he ought to think. it is acurious and instructive fact that those very ela uses. in Mr. Lloyd George's Patent Act of 1907* which were received with an almost-universal chorus of laudation, and which have undoubtedly done much to bring about the establishment of new industries in
See sections 27 and 27 Patents and Designs Art 1007. —
this country, viz., the clauses relating to the revocation of patents for non-working in England, and to the terms under which licences shall be granted, were embodied in the Act chiefly in order to please a certain small but influential section of the Government's. supporters. Under the existing Patent Law (prior to 1907), the owners of a certain set of patents were able practically to dominate an entire industry in England, to which these patents applied. The firms engaged in that industry considered that the terms. ofthe licences, granted by the owners of the patents. for working under the patents, were somewhat onerous. They then attempted to evade the patents, but discovered that the owners were not only powerful financially, but also that they held patents covering practically the whole field of the industry, so that there was no way of escape. The patented articles were an absolute necessity to them, and, therefore, they had to take licences from the patentees. As soon as the position became thus clearly defined, these industrial corporations decided, since other methods had failed, to seek the aid of the Legislature. In other words, they determined to try what political pressure would do. Most of the individual members of the various firms were strong supporters of the Government of that day, and many of them indeed were politicians of some eminence. It is, of course, quite obvious, that an organized trade will always wield a good deal of political influence: When this influence is exerted at the right moment, and in the right way, the Legislature responds accordingly. In this particular case, the psychological moment was seized, and the Country thus enabled to observe the somewhat-remarkable anomaly of a confessedly Free Trade Government passing what is in reality a verystrong Protective measure.
Now, could anything be done to close up the gap. which lies between theory and practice in this branch of the law, and further to protect the inventor, without at the same time trespassing on the rights of the public? In my humble opinion, a very-great deal might. be done to benefit both the inventor and the public alike, for it cannot be denied that inventors are a very-useful class, despite the extravagant and unpractical ideas of a few of them.
After all, the rapid progress in engineering and applied science, which has been made since the beginning of the 19th century, is mainly due to inventors.
Now, to my mind, the first thing that should be done by the State is to reduce the fees necessary to obtain and keep up a patent. True, the fees have been spread out, and the larger sums to be paid by a patentee now do not become due, until the patent has been in existence for some time, but still the State takes £100 in all from the inventor. There is a considerable difference between this sum and Dickens's ideal amount! The present system often acts very harshly in the case or engineers or manufacturers who are struggling to establish new busi
nesses. Even so simple a machine (comparatively speaking) as an ordinary stationary gas engine
may well be the subject of half-a-dozen different patents. Where the article is more complicated, as for instance in the case of, say, a motor lorry or a locomotive, patents may be taken out for smite a. large number of details. It is an undoubted hardship, that a young business should be burdened with these heavy patent fees, just as it is, as it were, getting into its stride.
Secondly, a great deal might be done to simplify and cheapen the procedure in patent eases. First of all the appeal to the Law Officer from. the Comp troller's decisions, in Opposition and Amendment cases, should be abolished. Either an officer of the High Court, of the standing of, say. a Master, or a. special Judge, should be appointed to hear these appeals. They have of late years become quite
numerous, and the Law Officers have far too much political work to do to allow them to devote the
necessary amount of time to the hearing of these appeals. The result is, that many unfortunate in ventors have the lives of their patents diminished by sometimes a year, or eighteen months, while an appeal is pending. And in the meantime rival inventors are perfecting their productions.
But although a new tribunal might with great advantage be substituted for the Law Officers, in my humble opinion, such a tribunal would be worse than useless, if it were a more-formal, or in other words, of more-expensive type than the present one. In a ntitshell, expedition and economy should be its watch words.
Thirdly, in my humble view, some check should be placed on the riotously-expensive manner in which patent actions are now fought. A " poor " patentee
has no chance • a rich one is in too strong a position. A rich patentee, who is able to command the services
of the best counsel at the Patent Bar, and the best
expert witnesses in England, and who is prepared to fight every case to the Lords, if necessary, can
often keep up his monopoly, though his patent may be decidedly "rocky." On the other hand, a "poor " patentee, unless he can obtain financial sup port somehow, is often obliged to let a thoroughlysound patent go by the board, for want of funds to fight infringers. Some sort of sumptuary law should be brought into operation, by which the heavy expenditure on experts, models, drawings, etc., etc., could be avoided. I do not mean by the taxation of costs. This is worse than useless, since it acts in precisely the contrary manner.
Fourthly, under the present system it is often possible for deliberate and persistent infringers, who are prepared to face the expense, practically to destroy the money value of a patent, by forcing the patentee to fight for his rights again and again, until his profits are entirely swallowed up in legal expenses. This may appear to be a contradiction in terms, of what I have said above, respecting the powers of the rich patentee ; but in reality it is nothing of the kind. In practice, everything turns on the relative positions of the patentee and the infringers. In the case of the trade above mentioned, the patentees were powerful and the infringers weak ; in another case I know of where the owner of the patents is a company which is attempting to exploit an invention that has become literally a household word, practically the whole of the profits have been expended in a series of patent actions they have been forced to fight. Asum of some £20,000 or more has been thrown away in these costly legal struggles. Thus, what is in reality a striking economic success has been converted into a failure, merely owing to the cost of obtaining justice.
Some further protection should be given to a patentee who has fought one action, and succeeded in supporting his patent. There ought to be some cheaper and quicker process, by which deliberate infringers, who have had notice of the first action, could be brought to book. The existing legal remedies in such cases are not cheap enough, nor effective enough. If a patentee has to be continually fighting different infringers, the monopoly value of his patent, estimated in terms of ths net profits
which he receives on account of possessing it, is rapidly depreciated. Lastly, I should like to recommend Punch's advice to those about to marry, to such of your readers as may be contemplating taking out a patent, " Don't. '
But if any of them feel absolutely that they must indulge in this form of spending money, may 1 respec.fully submit the following suggestions to their
(1) Read 'a good short book on the subject of Patents, e.g., Thornton on Patent Law ; Roberts and Fletcher Moulton on the Patents and Designs Act 1907; or Gordon on the Patents and Designs Act 1907.
(2) Get a good patent agent to draft the specification and make the necessary drawings for the Patent Office. It is cheaper in the end..
(3) Claims. In my humble opinion, it is better that the claims should be, if anything, too narrow than too wide. It is true that if they be too wide they may be amended, whereas if too narrow they cannot subsequently be made to include more ; but on the other hand, amendments may be forced on one in the middle of an action, involving trouble and expense. If the claims are narrow the patent may not be of very-great value, but at least it is sound as it stands. Further, amendments, whether made voluntarily or owing to the exigencies of an action, often leave a patent much narrower in scope than it might have been, if less-wide claims had originally been adopted. (4) If possible get. the invention thoroughly tested before submitting it to financiers or manufacturers. Remember that the earlier financial assistance is sought, the more onerous will be the terms on which it is afforded. An inventor, who submits a few rough sketches of his idea, is hardly likely to get people to put up money for its development, as the man who produces a complete and working machine, and who is able to say, "Observe now what my machine will do," at the same time giving an actual demonstration of it capacities.
(5) Be careful as to the agreement which may be drawn up. Many inventors have signed away valuable rights without meaning to do so, and without comprehending what they were doing.
(6) Do not expect too much. Remember that manufacturers and financiers will give no more than a tithe of the profits they hope to make, to inventor. nventor. It follows, therefore, that they must hope to make considerable sums before they will make an attractive proposition to the patentee.
. (7) Take great care not to disclose the invention before provisional protection has been obtained. Many a good patent has been lost owing to the invention that it was intended to protect having been technically " published" before it was Rrotected. (8) Remember that the real value of a patent is not its monopoly value, but its commercial value.
(9) Lastly, avoid dealing with Government Departments. As a rule they are worse than any City "shark " that ever was heard of.