TREATISE ON THE JUSTICE, POLICY, AND UTILITY OF ESTABLISHING AN EFFECTUAL SYSTEM FOR PROMOTING THE PROGRESS OF USEFUL ARTS, BY ASSURING PROPERTY IN THE PRODUCTS OF GENIUS.
TO WHICH ARE ADDED, OBSERVATIONS, ON THE DEFICIENCY OF, AND EXCEPTIONS TO THE BILL REPORTED IN MARCH 1792.
WITH NOTES, TENDING TO DEMONSTRATE, THAT NO PROPERTY IS SECURED IN THE PRODUCTS OF GENIUS, UNDER THE EXISTING PATENT SYSTEM.
ALSO, THE PRINCIPLES UPON WHICH A BILL OUGHT TO BE FORMED, TO BE EFFECTUAL AND EQUITABLE.
By JOSEPH BARNES.
PHILADELPHIA: PRINTED BY FRANCIS BAILEY, NO 116, HIGH-STREET.
M DCC XCII.
TREATISE ON THE JUSTICE, POLICY, AND UTILITY OF ESTABLISHING AN EFFECTUAL SYSTEM FOR PROMOTING THE PROGRESS OF USEFUL ARTS, BY ASSURING PROPERTY IN THE PRODUCTS OF GENIUS.
JUSTICE.
THE principle of justice in society, is that virtuous principle which prohibits one person from taking another's property, but for an equivalent; by which alone property is, or can be effectually secured.
But few of what we conceive to be real enjoyments are given us from the open and liberal hand of Nature; however, by industry and art we can acquire them in profusion: hence the idea of property necessarily arose; the securing of which, is, in fact, one of the primary objects of society, and the only effectual stimulus to induce individuals to acquire, and, consequently, possess it.
And, as individuals constitute society, or the nation, of course the sum of individuals wealth makes the national wealth. It therefore necessarily follows, that the nation is benefited, or injured [Page 4] precisely in a ratio to the prosperity, or the adversity of the individuals who constitute it; or, in other words, in the same ratio in which each individual's wealth is to the national wealth, will the nation or society be benefited by his prosperity, or, on the contrary, be injured by his adversity.
Consequently, the security of property, and the protection of person, are essential to national prosperity, and these are, in fact, the sole and primary objects of its existence.
The only question then, is, In what does property consist? Unquestionably, in any thing which it is lawful for any person exclusively to use or enjoy.
Of property there are two species, viz. local and mental. By the former is understood personal and real property; the utility of securing which, the long experience of nations fully demonstrate [...]: by the latter, is understood the products of genius, which consists in discoveries in science, and in the useful arts; by means of which agriculture, navigation, manufactures, and manual labor are, not only facilitated, but much promoted; and, indeed, to these they owe their present state of perfection.
Since, therefore, the improvements in the arts are so necessary in the chain, and do so essentially, not only enhance the value, but increase the net product of the sum-total of the local property; 'tis therefore the interest of the nation, that both should be equally secured.
But, however obvious this may appear, there are several objections raised against it, of which the following appear most worthy of notice.
1st. It will be said that all discoveries ought to be free—Pray, why more free than local property? Was not the fertile soil, or land on which we live, previous to society, common property? and has [Page 5] not long experience fully established, not only the justice, but the utility of securing to the locators, their heirs and assigns, a perpetual right in their respective possessions? Unquestionably it has.
Again, says popular prejudice, genius is the gift of the Deity, therefore its products ought to be common right—So is equally the land; which, upon the same principle, ought to have continued common right; the contrary of which, experience, the grand teacher, has long demonstrated.
Another popular objection, is, that discoveries cost but little, if any thing—Neither in the first instance did the land; but, to demonstrate the contrary of the last objection, when they advert, that, in most instances, the most important discoveries are brought into existence and matured only by a series of experiments, in making of which, not only some years, but several thousand dollars are expended; surely they will not deny but such inventors have property in their respective discoveries: this admitted, it follows, that since justi [...] consists in doing equally and substantially right to all, which, in fact, is equity; and since equity i [...] the great standard rule of right, inventors are equally entitled to have property secured in the products of their genius, thus brought into existence, as in the product of industry, or in possessions of local property.
On the contrary, the adverse tendency of a levelling principle, relative to property, is too obvious to escape notice; suppose, for instance, that all the laws which secure property were repealed, what would be the consequence? Indubitably, the grand excitements or soul of society being destroyed, all industry would necessarily cease, and the poor would subsist on the property of the rich, till the whole mass of wealth would be expended; hence the whole order of men would be reduced to a [Page 6] level, or to a natural state, in which they would necessarily continue till the cause were removed. Which being done, by a revival of all such protecting laws, consequently the revival of the soul of society, or the grand stimulus being the cause, the natural and necessary effect will be, a rivalship who should obtain and possess the most property, and, of course, a general attention to industry, till all things again were in the highest state of improvement.
Since necessary causes will eternally produce necessary effects, the consequence will follow relative to the improvements in the arts: for who, however great his genius, having but a competency, would spend his time and money in a series of experiments to mature any discovery, when, its utility being demonstrated, every person who pleased would enjoy it equally with himself, and, indeed, in most instances, in a much greater degree; for the inventor having nearly exhausted his resources, [...]uld not be able, whilst others with capitals would carry it into productive effect?
Besides, this would be to confine improvements to the opulent class of men, among whom real genius seldom appears.
On the contrary, an effectual system being established for securing mental property, or property in the products of genius, or for giving other adequate rewards, being a cause, acting impulsively on the genius of men, will necessarily have the happy effect to bring into active existence many useful and important discoveries.
A most remarkable instance of this is recorded concerning Archimedes, an eminent mathematician at Syracuse, who, in consequence of a promised reward, effected one of the most important discoveries.
And as some of the particulars relative to this [Page 7] fact, may serve as a proof of what I have advanced, it may perhaps be proper to relate them.
Hiero, king of Syracuse, had given a workman a certain quantity of gold to make a crown, which, when done, and presented to the king, he perceived to be alloyed with silver, and wished to know the proportion, but, as it was elegantly executed, he was not disposed to have it fused for that purpose; on this, he desired Archimedes, to find the precise quantity of gold and silver which was in the crown; the king also offered a handsome pecuniary and honorary reward for the discovery, which tho' a necessary cause, operating impulsively on the genius of Archimedes, yet a considerable time elapsed without effect; at length, however, in the moment of relaxation, he discovered the principle by the simple, tho' natural, circumstance of going into his bathing tub, which being full of water, the idea of the crown being predominant, he observed, and was forcibly impressed with the idea, that the quantity of water which his body displaced, must necessarily be equal to the bulk of his body, including even the hair of his head, consequently, that the same principle would determine the bulk of the crown, which was the first thing he wished; he was so elated with the idea, that forgetting his situation, he instantly jumped out of his bath, and ran about the house crying out, "I have found it! I have found it!" 'Tis saidthat he offered a hecatomb * to Jupiter for having inspired him with the idea. Upon which, however, he immediately proceeded to experiments, and determined precisely the proportion of gold and silver in Hiero's crown. Thus was discovered one of the most useful sciences, to wit, that of weighing in fluids; and, in fact, the only unerring means in nature by which the solid contents of bodies, or their specific gravity, can be determined.
[Page 8] For this purpose alone do all enlightened nations uniformly hold out inducements to genius: Some by bounties, and others by systems for securing the right in discoveries.
For this purpose the English nation have had for many years a system for securing to inventors, by letters patent for a limited time, the sole right in their respective discoveries; by means of which it has concentrated such discoveries and improvements from the several parts of the globe, as now enables them to manufacture with such facility, in such quantities, and at so low rates as to undersell almost every other nation.
To this it owes, not only its eminence in manufactures, but the greater part of its wealth.
For this purpose, the Portuguese uniformly hold out encouragement to genius, by giving liberal bounties for any new and useful discovery.
And in those cases, where the discovery is considered to be of great importance, they also confer some honorary title.*
The National Assembly of France, considering the justice and utility of securing to inventors their property in the products of genius, have passed an act for that purpose in January, 1791, which, though in some instances defective, is by far the most persect of any patent system now extant.† In the preamble to that act, that august and truly enlightened body thus express themselves, That ‘not to regard a discovery as the property of the author, would be to attack the rights of men in their essence.’ And who, after observing that the want of such a system had tended much to discourage all improvements in France, it having caused numbers of their most distinguished artists to emigrate, [Page 9] and carry with them into foreign countries many new inventions, by which that nation ought to have been first benefited, add, ‘In fine, considering that every principle of justice, public order, and national interest, positively commands to fix for the future, the opinion of every French citizen on this species of property by law; which shall be secured, and which shall be protected.’ This is a language worthy of freemen, of men who wish for the prosperity of their country, who well understand the rights of mankind, and by whom those rights will ever be held most sacred.
'Tis, indeed, not only, cause of great astonishment, but of much regret, that the American nation, tho' first in freedom, should be last, or at least should so long protract, or hesitate to establish an effectual system, for promoting science and useful arts.
For, 'tis acknowledged by all enlightened men who have attended to the object, and an experienced fact by some on whom it operates, that the effect of the existing patent system is infinitely worse than none: consequently, it ought, at least, to be annihilated from the archives, for the credit of the United States.
But, there is still more reason for amazement, when it is considered, that free governments have been always found most disposed to encourage the rise and progress of science, and the arts; for this obvious reason, that in republican governments merit alone is, or ought to be the standard for character; which necessarily excites that laudable spirit of emulation, so essential in society; and which never fails to produce celebrated philosophers, statesmen, husbandmen and artists; the necessary effect of which, is, not only, the promotion of science and useful arts, but, the happiness [Page 10] of men,—the primary, the grand object of their existence.
On the contrary, in despotic governments, the great mass of men, are from their infancy so oppressed with the infernal yoke of tyranny, that they have not even time to acquire useful knowledge; of necessity, they want, not only, the means, but the propensity to make useful researches.
Besides, 'tis a fact acknowledged by the most celebrated philosophers, that in a precise ratio as the human species are degraded, so equally are their minds: which is but the consequent effect, from the cause; to wit, the annihilation of all rewards for merit, consequently, of all laudable motives.
On the contrary, it is a fact equally acknowledged, that the genius of men is exalted in the same ratio with their persons. In republican governments, there are many instances demonstrative of this principle; as for example, certain individuals, by a chain of fortunate circumstances, have rendered themselves famous in some particular profession; happy in the esteem of their fellow-citizens, and anxious to merit the continuance of it, they will make the greatest exertions, and thus become truly celebrated: whereas, but for this cause, they would have remained common citizens.
All these circumstances tend to demonstrate, that, free governments are the only asylum and nursery for science and the arts.
Philosophy being the source of liberty—liberty, of all the improvements in science and the arts; the improvements in science and the arts, of all the real accomplishments of the human species; consequently, philosophy is essentially the source of all virtue*—virtue, of all the happiness of the men kind. [Page 11] O Philosophy! thou art of all, the most revered▪ of names, to whom I shall ever be proud to bow.
POLICY.
POLICY consists in always chusing, of all the objects, or circumstances which present themselves, those, the tendency of which will most promote the interest, and happiness of the selecting party.
Consequently, to demonstrate the policy of establishing an effectual system for promoting useful arts (a much-desired object), 'tis sufficient to show, that society-will thereby necessarily be benefited; to prove this, it is only necessary to take a retrospective view, and contrast the former, with the present degree of perfection to which science and the arts are brought; by the aid of which all the objects of society are effected with equally advanced degrees of facility: and to reflect, that this degree of perfection, is the necessary effect, from the cause, to wit, the uniform inducements which have, for many years, been held out in Europe, by bounties, and by systems for the advancement of science and the arts.
UTILITY.
BY utility is comprehended, that property in any object, by which it tends to produce benefit, advantage, good, pleasure, or happiness to the party whose interest is contemplated.*
To demonstrate the utility of establishing an effectual system for promoting science and the arts; and, that the great national society, will derive [Page 12] more than a proportionable advantage from a perfect system assuring mental property, or property in the products of genius, than from an equally-perfect system for assuring local property; I proceed as follows—
1. Discoveries, however important in their nature, have their origin, and exist but in the minds, and, consequently, are exclusively the property of those who have conceived them: it necessarily follows, if sufficient inducement be not held out by a system, or by other means, to excite such genius to disclose their discoveries, they will, of necessity, sink into oblivion at the death of the inventors; consequently, society will lose the benefit which would have resulted from them.
2. 'Tis a well known fact, that patents for securing mental property, or property in the products of genius, of however great utility, are granted for but a limited time; after which the discoveries, which are the objects of them, become common property; of course, every person, who may have occasion, in addition to his usual stock of property, will avail himself of their advantages; by means of which, the whole mass of the people will be benefited, in a certain ratio.
On the contrary, patents for land are granted to the locators, their heirs and assigns, for ever.
3. Suppose, for instance, a person to have made such discovery, or improvement in the arts, that by the aid thereof one man could raise from his land a quantity of produce equal to that, which, previously, would have required two men to effect; it follows, that by means of such discovery, the addition to the net produce of the sum total of the local property, would be as 1 to 2.
Even, upon a more moderate calculation, supposing, by the aid of such art, three men would only be enabled to effect as much as four men otherwise [Page 13] could do, he would add to the net product of the sum of local property, as 1 to 4.
Again, supposing a genius to have made such discovery or improvement in hydraulics, as to cause an equal quantity of water, under equal circumstances, to produce twice the effect, which otherwise can be produced, (and proofs are not wanting, of this improvement being now accomplished;) and, suppose the relative number of mills in the United States, to be 1 for every 50 farms, and that the average product of the mills were but equal to the average product of the farms; it is obvious by such discovery he will add to the net product of the sum of local property, as 1 to 50.
On the contrary, supposing a man to have located, surveyed and patented a tract of uncultivated land, and cultivated the same; and suppose there exists in the United States 500,000 equally cultivated farms (which, agreeably to the census, is nearly one farm for every eight persons), he thereby adds to the net product of the sum of local property, but as 1 to 500,000; from which, to find the ratio in which society is more benefited by such discovery, than by such additional farm, we need only divide 500,000 by 50, and we will find the quotient to be 10,000. So that the ratio in which society is benefited in the former, to the ratio▪ in the latter, is, as 10,000 to 1; consequently, he who made such discovery, has rendered service to society, greater, than he who added such tract of land, in the same advanced ratio. And, as services rendered to society ought to be the only standard of merit, it follows, that the former is entitled to merit in proportion to his superior services.
Another demonstrative instance is, the improvement in the manufacturing of flour, by Mr. Oliver Evans, as represented by a writer in the Delaware Gazette; who observes, ‘It must afford great [Page 14] pleasure to the friends of the American manufactures, to see the rapid improvements, which, within these few years, have been made in machinery, within the United States; nor, can too much praise be given to those individuals, who, notwithstanding the numerous obstacles which present themselves against new inventions, in a young country, by study and perseverance complete valuable machines.’ After passing some encomiums on said Evans's mill, further observes, ‘From a certificate lately published in the Delaware Gazette, signed by Messrs. Shallcross and Stroud, it appears, that four men, with the aid of Mr. Evans's machinery, will do the business of two mills, with as much ease as four men, without them, did the business of one mill; thereby saving one half the labor.* In consequence of which, if we suppose 2000 mills in the United States,† each to have adopted said machinery, and by means of which two men are saved in each mill, there will be a saving of the labor of 4000 men at 200 dollars per annum, which amounts to a saving of 800,000 dollars annually.’ Though this calculation is extravagant, yet 'tis possible; therefore tends to demonstrate the proposed object. Even supposing the said calculations to be much more moderate, the advantages society will receive, from said improvements, will nevertheless be in a much greater ratio than those derived from a common citizen; and hence the inventor is entitled to merit, in proportion to his superior services.
[Page 15] To which it may not be improper to add, a statement, conformably to the latest British writers, of the amazing number of persons employed in various manufactures in England, consequent on the great improvements made in, and degree of perfection to which the arts are carried in that country.
'Tis said, that Mr. Peele, member of the House of Commons for Tamworth, & Co. employ, in their manufactory at Manchester, from 19 to 20,000 work-people.
That Messrs. Philips & Co. employ from 12 to 15,000 ditto.
That Sir Richard Arkwright,* in his cotton manufactory, employs from 8 to 9,000 persons.
That, Mr. Wodgwood, in his potteries, about 20,000 persons.
That, Messrs. Barclay & Co. about 1,000 persons.
That, Messrs. Bolton and Watt,† at Brimingham, in their metallic manufactures, about 400 persons.
These various manufactures are of much a greater advantage to the people of England, than almost any person can at first conceive; for, exclusive of the amazing wealth brought into the country for articles exported, they cause a considerable trade in the several parts of the country with each other, by means of which the people are, not only reciprocally [Page 16] accommodated, but benefited: for instance, if the country trader sells to the manufacturer any rude material to the amount of 20s. and in exchange receives goods on which he clears 5s. he undoubtedly gains 25 per cent.—and, on the other part, if the latter sells the manufactured article, made of the 20s. worth of rude material, for 25s. he also makes 25 per cent.; consequently, each party has an equal balance of trade in its favor. Which, necessarily adds 100 per cent more to the net product, than if either the rude material, or the manufactured article was imported from any foreign country; which, of course, is so much added to the wealth of the individuals concerned. Hence, (according to the previous position, that, in the same ratio in which each individual's wealth is to the sum of individuals wealth, will the national society be benefited by his prosperity, or the contrary, by his adversity) the nation must necessarily in a ratio thereto be benefited.
Exclusive of the above reasons, which I humbly conceive fully demonstrate the intended object; and, exclusive of the natural and equal right which inventors have to claim of society to have property secured in the products of their genius, as in the products of industry or local property; each American citizen has a constitutional right to claim that his property in the products of his genius, should be secured by the National Legislature.
And, it being, not only, an acknowledged, but an experienced fact, that, the existing system produces the contrary of the intended effect; 'tis therefore his indispensible duty, constantly to solicit till the object shall be obtained.
It has been already proved, that great advantages would accrue to society, from the establishment of a proper patent system: and, as there is not a possibility that any loss should arise from it, [Page 17] either to the public or to any individual, it is somewhat surprising, that there should be any objection to it. That no evil can accrue from it, is obvious from the following considerations—
First, Because they are left in full possession of every thing of which they ever were possessed.
Secondly, Because, it being optional with the public or the people, the inventor must necessarily make it their interest to purchase his discovery, otherwise they surely would not; consequently, he would derive no benefit from it. Hence, the public have no more to apprehend from establishing a system for securing mental, than from a system for securing local property.
Since, therefore, the fact is, that the public cannot be injured, but may be greatly benefited; surely the utility of the object must appear too obvious, to every intelligent being, to admit of any further hesitation.
OBSERVATIONS, RELATIVE TO THE DEFICIENCY, AND EXCEPTIONABLE PARTS OF THE BILL REPORTED IN MARCH, 1792, BY A COMMITTEE OF THE HOUSE OF REPRESENTATIVES, APPOINTED IN OCTOBER, 1791, FOR THE PURPOSE OF AMENDING THE ‘ACT TO PROMOTE THE PROGRESS OF USEFUL ARTS*.’
It is deficient,
1. IN that, it does not contemplate any patronage or relief to those, whose only crime consists, in having been, by the great genius of Nature, inspired with inventive talents, and who of necessity, have brought into active existence some arts highly useful to their fellow-men, and necessary in the great order of things, previous to the existence of the present non-effectual system; and who, of course, had no other alternative, but to take patents under the same.
2. In that no provision is therein made, to prevent one of the most heinous of crimes, to wit, plagiarism.
It is exceptionable,
1. In the provision therein made, for those, whose applications, on the passing of the same, [Page 20] were pending before the existing patent board; because 'tis contemplated not to give such applicants equal protections, as those who shall after apply.
2. In the provision therein made, by which interfering claims for patents shall be determined.
3. In that, it contemplates, at the expence of the American genius, to import European arts and literature!!!
As the Philosopher can always discover the cause from the effect produced, so he can equally discover the motives which induced the production of the parts of said bill, from the face of the same; but respecting which he shall at present be silent.
Relative to the first specified deficiency; as the great object of the United States Legislature, is, not to do partial, but equal and substantial justice, I therefore flatter myself, that, notwithstanding the purport of said bill, there yet exists a sufficient spirit of patriotism in the representatives of the people, to cause said bill, on its passage thro' the House, to be so amended as to supply this deficiency, by extending its influence, or the influence of another in its stead, equally to all those who have either obtained, or whose applications for patents, on the passing of the same, were pending before the existing board, as to those who shall after obtain patents.
Relative to the second specified deficiency; I humbly conceive the supplying of this, to be highly essential to the purpose of the bill, because, if such provision be not made (as the disposition is not wanting), men having the means, would but too frequently supplant the first and true inventor, whose residence fate may have fixed in a remote part of the states; and although the said inventor may, not only, have devoted many years, but even the whole of his property to the maturing and perfecting of an improvement of the utmost [Page 21] consequence to the community, another whom it has cost nothing can appropriate the whole benefit to himself.
In this there is something so contradictory to the very first principles of justice, that one would think there would be little occasion for arguments to induce the national Legislature to pass an act for the protection of this most valuable of all property; as it is, nor only, of the highest value to the proprietor, but to society in general.
'Tis not sufficient as provided in the 5th section of said bill, that such inventor can make void a patent for a discovery, having been filched from him; because, this would be but negative patronage—but negative reward indeed for merit; more especially as he had not been a defaulter, had not committed a crime; consequently had not given any cause on which the public could have the least right to found a plea to forfeit his rightful property in the products of his genius; a genius which he had received—not of men, but of the great GENIUS of Nature. Wherefore, consistently with every possible construction of equity, the great standard rule of right, such inventor ought equally to have his property secured in his discovery, having been so filched from him, and patented by another person, provided he shall have commenced the action within one year after the date of such patent, by which the same was made void, as though it had not been so filched, patented, and made void. It must therefore intuitively appear to every intelligent mind, to be essential to the purpose of the bill, that a proviso be added, to the 9th section, giving the true inventor, who shall have been supplanted, one year to come forward and commence an action, to make void a patent for his discovery, having been so obtained, and to obtain one in his own name for the same thing.
[Page 22] Note—The first specified exception, being obviated by the provision suggested to supply the first deficiency, I therefore pass it.
Relative to the second specified exception; as this also relates to one of the principal objects of the bill, I beg leave to observe, that the m [...]de proposed in the 8th section, in and by which all interfering claims for patents shall be determined, is highly ineligible: first, because it will be attended with much greater delay and expence than claimants for patents are generally able to bear, it being a known fact, that inventors generally have been, and are rather necessitous, and, in fact, their discoveries of necessity; for, as the great first and perpetual CAUSE of all existing order, relative to men, must have instruments to bring into effect his purposes, and having proposed to cause new and useful arts to be introduced into the world, for the convenience and happiness of men, and, having inspired certain men, on the several parts of the globe, with inventive talents, he, of course, so orders their local circumstances, as necessarily to induce them to exert their mental faculties; and thus useful arts are introduced.
This being the fate of an inventor, it will by no means suit his circumstances, after having come seven or eight hundred miles to the seat of government, to claim a patent for his discovery, upon any persons presenting a caveat, however groundless, to be obliged to wait the next supreme, or circuit court of the United States, and give bond and security to prosecute his rightful claim, and to pay such costs as may be incurred; in addition to which, to run the risk, in case of default, of losing his discovery:—This, indeed, would create a source of evil; suppose, for instance, the meritorious tho' necessitous inventor having thus come forward, fond of every appearance of patronage, to have [Page 23] communicated his discovery to a designing pecuniary character, who, being impressed with its importance, shall have indirectly, in another's name, presented a caveat to stay the issue of the patent to such inventor, and the matter and decision of course referred to the next supreme or circuit court of the United States. Pray, what would be the consequence? Such inventor being discouraged at the idea of the procrastination, which would necessarily be the result of such litigation; and having employed an attorney, though with but a small stimulus, would dejectedly return to his obscure residence; and such pecuniary character being present with his influence, would, in all probability, cause the trial to be put off till some circumstance should cause a default on the part of the inventor, then the adverse party having obtained a copy of the same, and presented it to the Secretary of State, would, instead of the inventor, obtain a patent for the thing in question.
Since such the negative patronage of the law, should the bill pass in its present form, hard indeed would be the fate of the inventor.
Again, 'tis a well known fact, at least, by all who understand the subject, that, in all instances of interfering claims for patents, for any new discovery, the first question or inquiry, is, to determine whether the discovery so claimed, be substantially the same, both in principle and operation; which involves the most complicated philosophical and mechanical principles; and, 'tis equally a well known fact, that a jury is entirely incompetent to make such enquiry, consequently, to determine such question.
To enforce this fact, I beg leave to query, whether from the House of Representatives, the collected wisdom of the United States, twelve gentlemen could be selected, who would be fully competent [Page 24] rightly to decide on such principles: if, then, it be admitted, that twelve men selected from 360,000 persons, would not be competent; pray, what would be the decision of twelve men chosen in any township? surely superficial and improper—not philosophical—not mechanical enquiries, but facts are the sole object of a jury, and in which alone it is competent. The law must specify the penalty, and the jury having enquired into and determined the facts, the penalty lies of course.
Since, therefore, the mode proposed in said bill, for deciding interfering claims for patents, will be attended with great expence▪ protraction, and risk to the real inventor—since it is an axiom in philosophy and mechanics, it must be equally so in politics, to wit, that the most simple is the most effectual mode of effecting any object—since a few philosophical mechanists can in most cities be selected, who would be fully competent to determine the most minute distinctions in the most involved principles which may occur—and, since a reference to such characters, would be, not only, the most simple, least expensive, and most speedy, but the most certain and equitable mode of determining interfering claims for patents for mental property; in the name of simplicity, and equity, why not adopt this mode? that is, in all instances, interfering claims for patents shall be determined by referees chosen by the parties, as follows, to wit, each party to chuse one, and in case of disagreement, they two shall choose the third, whose decision shall be final.
Relative to the third specified exception; from the face of this 10th section, 'tis in full demonstration, that a tax is contemplated on the American GENIUS. I therefore beg leave to query: If this was contemplated by the people, in their original character, who formed the federal constitution? [Page 25] If this be the mode to promote the progress of useful arts? If this be the means to foster and nurse the infant, the growing genius of America? Surely not, but the contrary. The extensiveness of the territory of these United States, the novelty of the arts, and the want of experience of the utility of the same, are demonstrative reasons against the contemplated tax.
In addition to which, the time which will necessarily be required, and the money expended in convincing the people of America, who are scattered over such an expanse of country, of the utility of any new art, however important, before it can be introduced into such general use as to be advantageous to the public, or productive to the inventor, is, another equally demonstrative reason against the proposed tax.
Finally, in fact, the public have no right, neither natural nor constitutional, to oblige any person to pay for his discovery, for the following obvious reasons, to wit, The property or right in a discovery being exclusively the inventor's, having had its origin, and existing but in his mind; it follows, that a system for securing property in the products of genius, is a mutual contract between the inventor and the public, in which the inventor agrees, on proviso that the public will secure to him his property in, and the exclusive use of his discovery for a limited time, he will, at the expiration of such time, cede his right in the same to the public: thenceforth the discovery is common right, being the compensation required by the public, stipulated in the contract, for having thus secured the same.
The inventors, however, will most chearfully pay to the officer who shall be employed in making out patents, a sum fully adequate to his time [Page 26] and attention; because they do not solicit any favor, but their constitutional right, of their Representatives in Congress.
NOTES, RELATIVE TO THE DEFICIENCY OF THE EXISTING PATENT SYSTEM; TENDING TO DEMONSTRATE THE NECESSITY FOR THE ESTABLISHMENT OF AN EFFECTUAL SYSTEM.
FROM the deficiency of said system, added to the indeterminate principle upon which patents are granted under the same, no property is secured in any new discovery, however important in its nature, for the following obvious reasons; to wit,
1. Because the penalty which the existing patent law inflicts on any person who shall have constructed, without licence, any patented machine, or art, being only such damages as a jury may assess, will not amount to a prohibition; for, 'tis a well-known fact, that the people, in the remote parts of the states, for want of right information, are opposed to all patent rights, upon this principle, that they conceive them to be monopolies: in consequence of which, should one of their neighbours construct, for instance, one of J. R.'s improved mills, by which they were really benefited, it naturally follows, they would not be disposed to assess damages against such neighbour; therefore, in all probability, a jury of them would bring in a verdict of one dime * damages in favor of the patentee, as an indication for him, not to visit them again.
2. Because, consequent on a resolution of the existing patent board, patents are granted to two [Page 28] or more persons at the same time, purporting to secure to each the sole property in the same thing; and, of course, if any number of others were to apply, they would all obtain patents for the same object. In consequence of which, the original inventor is under the unhappy necessity of going throughout the Union to seek, bring actions against such patentees, and make void their patents, or they will respectively enjoy, in his discovery, equal benefits with himself; which, however, they will do till such actions shall be determined. And, should he be so circumstanced, as not to be able to prosecute the suits (which, as the law now stands, may often happen), he must submit to live in indigence and obscurity, whilst the other, who has filched from him his property, may arrive at affluence and independence.
Even suppose the original inventor to have resources sufficient to prosecute actions against all those who shall have obtained patents co-equal with, and after his patent for the same discovery—Pray, what would be the consequence? That, in all probability, with all his efforts, he would not get such actions decided in less than two years; in the mean while, all such subversive patentees, conscious of not being the real inventors, would exert their ut most powers to dispose of as many privileges as possible, and at such low premiums as would, not only effectually prevent the real inventor from disposing of any, during such periods, but, in consequence thereof, the public would be so generally possessed of his discovery, that it would produce him but little, if any thing, after he shall have obtained a determination of all such actions; supposing no other persons, during such period, shall have obtained patents essentially interfering with his discovery. But, the presumption being, that many such interfering patents would be obtained during [Page 29] such period, of necessity, such litigations would end but with his patent term.
But, supposing the latter part of his patent term to be free from litigation, yet, in consequence of there being equal to no penalty for the violation of his patent-right, the public would possess themselves of his discovery, of which he therefore could not dispossess them, consequently, he could derive no benefit from his discovery the latter part of the term on that account.
So, that from the whole, under the existing system an original inventor has not the least grounds on which he can rest a hope of obtaining any advantage or profit from his discovery.
But, on the contrary, when such inventor adverts to the complicated scene of litigation, into which he must, of necessity, be involved, and which will necessarily exhaust all his resources and invaluable time; in this dilemma, notwithstanding all his efforts of genius, his time and money expended in bringing into active existence and maturing his discovery, and notwithstanding its importance and promising utility, he will necessarily be induced, as the least evil, to chuse the disagreeable alternative of desisting, or giving up his pursuit, and of seeking some other more peaceful and profitable vocation.
In this unhappy predicament stands J. R. in suspense! from which he can only be relieved by the most speedy establishment of an effectual system; otherwise, his rightful property in the products of his genius will be irrecoverably involved, or so involved, that it would be impossible for him to recover it again to any advantage.
☞ J. R. has very great cause to complain, not only of the negative patronage of the United States, relative to his discoveries, but, from the principle upon which patents have been [Page 30] granted, they have violated his rights in the same; in that, thereby they have equally vested in, and secured to other persons, the property in his discoveries, which he had previously secured in two of the most important states, by legislative grants, under a positive penalty of one hundred pounds, exclusive of jury damages, for a violation of his rights in his discoveries, secured by such grants; and that, too, for the above specified reasons, without the means of recovering the same.
PURPOSE.
THE essential purpose of a patent system, being to promote the convenience, and, consequently, the happiness of society: And, it being an incontestible fact, that, necessary causes, will eternally produce necessary effects; it follows, that, an effectual system for securing mental property, being a cause, operating as a grand stimulus impulsively on the genius of men, will necessarily have the effect to bring progressively into active existence, all the improvements in science and the arts, of which the capacities of men are capable, or that can tend to facilitate the objects of society.
In order that the proposed system may be coincident with the title of the law, or that it may be as perfect as the nature of circumstances will admit; it should be formed upon the following principles, to wit,
ARTICLE I.
I. An officer should be created, whose object, or duty it shall be to grant patents under legal regulations; for which he shall receive limited fees.
II. A person shall be entitled to obtain a patent, provided he shall have discovered a new principle, [Page 31] in case of machines, or shall have discover [...] improvement in the principle of any machine which is free, or patented; the latter to be called a perfect patent; or a new art, or process in case of a composition of matter.
III. But, he who makes an improvement in the principle of any machine, shall not be at liberty to use the original discovery or machine, but with the consent of the first inventor; nor, shall the first inventor be at liberty to use the improvement, but with the consent of the improver.
IV. Nor, shall changing the form, or proportions of any machine, in any degree, be construed to be a discovery.
V. In all instances, of interfering claims for patents, for the same object, the anterior shall be the only one successful.
VI. But, if on enquiry it shall be found, that he who is posterior has discovered an improvement in the principle of the original machine, he shall be entitled to obtain a patent for such improvement, equally as though a patent had been granted to the anterior applicant.
VII. Interfering claims shall, in all instances, be determined, at the option of the parties, either by the patent officer, or by referees, whose decision shall be final; and who shall receive for each decision, or for each day whilst making such determination, limited fees. In the latter case, each party shall chuse one, and in case of disagreement they two shall chuse a third; to whom no objection shall be made, unless interested.
ARTICLE II.
I. The nation ought not to require of a patentee, fees of office exceeding a liberal compensation [Page 32] to the officer employed in making out the pa [...].
II. Nor, on the delivery of the patent, to require of the patentee [...] accurate specifications, with drawings and references of the thing so specified.
N. B. In case of a composition of matter, only specification can be given.
III. The penalty for violating a patent right, by constructing without license any patented machine, or composition of matter, ought to be high and positive; and in a ratio to the value of the machine so constructed, or composition of matter so made; say, at least, three times the sum for which such machine or composition of matter shall be licensed, with prostration.
IV. The people ought, at all times, to be at liberty to claim their rights.
ARTICLE III.
I. A patentee's right in his patent shall cease, and be declared void under the following specified circumstances, that is to say,
First, On proof being given of his not having specified the true means of producing the proposed effect.
Secondly, On proof being given of his having obtained a patent for a discovery which shall have been in use, or deposited, or published in any printed work anterior to the period at which he alledges to have made such discovery.
Thirdly, On proof being given of his having obtained a patent simply for a change of the form, or proportions of any machine in free use, or patented; or of his not having discovered a new process in any composition of matter which shall have been free, or patented.
[Page 33] Fourthly, On proof being given, of his having obtained a patent surreptitiously, for another's discovery; provided that if in any and every such instance, in which the action shall have been commenced within one year after the date of such patent, the first discoverer shall be entitled to obtain a patent for the same thing, having been by him discovered.
To demonstrate the necessity of creating the proposed officer, it will be sufficient to observe, that, no withstanding the acknowledged abilities of the Secretary of State,* whom the aforesaid proposed bill contemplates to be the patent officer; the nature and importance of the business of his office, at this time, requiring his whole attention, of course, he must necessarily order patents to issue to all applicants without any enquiry relative to, either merit, or originality; the consequence of which will be, that patents will often be granted for assumed discoveries, or for things which are not new: hence the public will frequently be involved in unnecessary and expensive litigations, in suing for their own property or right. Which would, not only, be contrary to the purpose of the patent system, but to that which ought to be the standard maxim in legislation, viz. not in any instance to make it the interest of any person to do wrong, that is to say, to do any thing offensive or injurious to society; but ever the contrary.
Which evils will be almost, if not wholly avoided by the existence of the proposed officer, having competent abilities, whose duty it shall be, previous to issuing a patent, to enquire, so far as he can [Page 34] conveniently obtain the means, whether the thing [...]lledged to be discovered be really new.
And to whose judgment interfering claimants will generally submit the decision of their claims, because, it will be the most simple, speedy, and least expensive mode. And who shall receive for his compensation a limited fee for each patent.
N. B. It will, however, be most consistent with the above standard maxim, for the money to be received into the treasury, and the patent officer to have an equivalent salary, paid out of the treasury of the United States.