15 SEPTEMBER 1883, Page 7


AMONGST other New Year's gifts, the results of what some people falsely call a wasted Session, her Majesty's Ministers have in hand for the public the Patents Act, which comes into force with the first moment of 1884. This measure would have made the fortune of many a Conservative Government, and if it does not add much to the achievements of the present Government, that is only because Mr. Gladstone has accustomed the people to expect so much from Liberal Ministries, and because Mr. Chamberlain, who had the Bill in hand, took the shine out of his own measure by passing the Bankruptcy Act as well. But it may be questioned whether the Patents, Designs, and Trade Marks Act of 1883, to give it its full title, is not of as great, and perhaps more lasting, im- portance than many a more pretentious measure. It may not save so much money as the Bankruptcy Act, but it is likely to help the making of a good deal more. It does not, like the Agricultural Holdings Act, give security for the past, but it opens up the vistas of hope for the future to many to whom they were before closed by a gate only unlocking to a golden key.

The main end and object of the Patents Act is to enable a man to obtain the product of his own brains. Just as the Agricultural Holdings Act aims at securing to the farmer the work of his own hands, the product of the expenditure of his own capital and farming skill, so this Act aims at securing to the mechanic or artisan the work of his own brains, the out- come of his own energy and inventive genius. As the land- lord has hitherto been directly empowered by law to " annex" the farmer's profits, so the capitalist has hitherto been too often enabled to swallow up the working inventor's profits. The great requisites for the reform of Patent law, as of most other branches of law, have been cheapness and easiness. These requisites have already been attained by our American cousins, and to that, in part, may be attributed the immense number of inventions which we owe to them, from sewing- machines to egg-whisks. The obstacles in the way of inventors in this country were many. The steps they have had to take to protect their inventions from theft were very numerous ; they were very hard to find, very difficult to guard, and very expensive. Before the present Act, there were no less than nine Acts of Parliament relating to patents, and six to copy- right of designs. To obtain a patent, the would-be patentee had to apply at the Patent Office at least seven times, to use four different documents, and to make four separate payments. These four payments amounted in all to £75 for three years' protection, and £175 for the full term of fourteen years. It was necessary to pay down £25 before getting even provisional protection. The result was that not only did the inventor, if a working-man, have to borrow•money to pay his fees, but he also had to resort to the expensive professional guidance of solicitors or patent agents to enable him to pay his fees in the right way, and to comply with all the other mysterious requirements of the Patent Office, which, after all, did nothing for him. Now, all these complicated enactments are thrown into one single Act, which foims a complete code of the subject. There is no necessity for the inventor to go personally or send an agent to the Patent Office at all. He can send his application by post, on a form which he can get at any place where bill stamps are sold ; and he has only to pay £1 in the first instance, and £3 within nine months afterwards, to secure protection for four years. He can, if he likes, do the whole thing in one job, by sending a complete specification of his invention in the first instance, and paying £4 down. Moreover, the inventor is not to be left helpless, and to be driven into employing a patent agent. Wben an application is made for a patent, the application is sent to an Examiner, paid by the Government, whose duty it is to see that the invention has been fairly de- scribed, that the specification and drawings have been properly prepared, and that the title of it shows what the subject- matter is. The Examiners are not, however, given power, as in America, to reject an invention for want of novelty. It was thought that to enable them to do this would be to throw on the State work which the individual ought to do for himself. The budget of the Patent Office would be vastly increased either at the expense of the general public, or at the expense of the general body of Inventors. In the latter case, the bona fide inventor, as to the novelty of whose patent there could be no doubt, would be mulcted to save the unoriginal inventor the costs and trouble of finding out whether the work which he put forward was his own, or was of any value or not. That mode would be handicapping the clever and careful for the sake of the stupid and lazy. But if the public in general were made to pay, they might very naturally object to have an additional tax imposed on them not merely in the immediate interest of a few, but that the few might have the power of imposing still further taxation, in the shape of the price of patented articles or licences for their manufacture. It is, no doubt, eminently desirable to avoid patent litigation ; but it may be possible to pay too high a price even for peace, especi- ally when it is not possible litigators, but other people, who have to pay the price. But the Patent Office, though it will not undertake to decide on the novelty of inventions, will not leave the inventor wholly in the lurch. It proposes to give him every assistance towards enabling him to find out for him- self whether he is an inventor or not. The Patent Museum is to be placed under the Department of Science and Art, so that it may be made more generally useful and accessible. A public Register of Patents is to be kept. The Comp- troller of Patents—a new officer of the Board of Trade— is to publish an illustrated Patent Journal, with accounts and drawings of patented inventions, reports of patent cases, and everything else likely to be useful to inventors. He is also to keep on hand copies of the specifications of all patents for the time being in force, to publish abridgements of the most important ones, and indexes, catalogues, and all other aids to research which may help the inventor to the knowledge of what others have done before him. But the Patent Office does not, and cannot, undertake to prevent all litigation. Litigation which turns on purely formal matters will be, to a great extent, prevented by the preliminary examination. Pit- falls which now beset the feet of the unwary in proceedings in " Seim facias," of which a legal journal has stated that "it is hardly going too far to say that there is no one who can state with certainty what steps must be taken, and in what order, to repeal a patent in this way," are to be stopped up by the abolition of these proceedings. But the substantial ques- tion of novelty, or of the title to an invention, will still re- main, and must be fought out at law, either in an action to restrain an infringement of a patent, or in a peti- tion for revocation. But in either case, the issue will be decided with the ordinary weapons, in the ordinary Courts.

The confidence of inventors in those Courts is to be strengthened by the right given to either side to insist on a specialist being called in as Assessor to the Court, and stringent rules are laid down as to the particulars to be given in any such action as to the real points in dispute. In fact, every effort is made so far to ensure cheapness and speediness in dealing with patentees in the Courts.

But there are one or two points in the Act which, though minor ones, are very decided blemishes in it. The Law Officers of the Crown who have by an historical accident, depending chiefly on the payment of fees, become connected with the grant of patents are still to be so connected. They are not jointly, but singly, to be a Court of Appeal from the Comp- troller of Patents, in such matters as whether an application for, or specification of a patent is to be awarded, whether a patent is to be granted when it is opposed on the important ground of want of novelty, or whether a patentee is to be allowed to correct or explain his specification after the patent is granted. There are many objections to this jurisdiction. It is an appeal from one single officer to another ; it is an appeal from a quasi-judicial officer to an advocate ; and it will in nearly every case be an appeal from one who knows more to one who knows less about the particular matter in hand. However fitting it may be that the Attorney-General's head should repose on the pillow of a Chief-Judiceship when he retires from office, while he remains in office he is essentially and par eminence an advocate, and not a Judge. He is, more- over, not necessarily particularly well acquainted with patent law, and very unlikely to be well acquainted with science, and he does not, as a rule, remain in office long enough to master the subject, even if he could. As the Law Officers of the Crown may be petitioners to the High Court of Justice for the revocation of a patent, they may possibly be judges and advocates in the same cause. Altogether, they have been placed in a false position, to which the symmetry of the whole system has been sacrificed, for the sake of preserv- ing a merely historical tradition. A similar anomaly has been preserved, for the same reason, in retaining for the Judicial Committee of the Privy Council the jurisdiction in cases in which a prolongation of the patent beyond four- teen years is asked for. The Privy Council is a very august, but it is a very slow-moving and expensive body, and, like the Law Officers, is wholly without any special knowledge or apti- tude for dealing with patents. As the Board of Trade is very properly set up as the Patents authority, it seems a pity that what is really an administrative question or one of policy should not also be placed in its hands.

Another point which is open to criticism is the retention of the large amount of fees payable in respect of patents after the first years. Under the old system, besides £25 at the first, £50 had to be paid at the end of the third year, and £100 at the end of the seventh. The new originating fee is, as we have said, only £4 at first, but £50 is still to be required afterwards, though at the end of the fourth instead of the third year, and the further fee of £100 at the end of the eighth, so that the total amount still stands at £154 for a fourteen years' patent. This is still too high. The ideal thing would be to bring patents within the reach of a man in receipt of weekly wages, without imposing on him any extra- ordinary strain. The initial fee should be reduced to half-a- crown on application, and 17s. Gd. to complete the pound on completion of the specification. At the end of the fourth year £5 more might be demanded, and protection secured for seven years. That would give ample time for any one to ascertain whether his patent was of value, and to have got his share of that value, and a fee remunerative to the Office of £50, or even £100, might then be exacted. Happily, however, the scale of fees is not fixed once and for all by the Act, but power is reserved for the Board of Trade to reduce them, with the consent of the Treasury. Experience will prove whether there is or is not room for reduction in the direction indicated. At any rate, there can be little doubt that a great stimulus to invention will be given even by the present scale, and that the field of inventors will be largely increased. We cannot, in- deed, hope all at once to rival the inventive productiveness of the United States. As the American manufacturer put it to his English brother," If a boot-boy were to come to me, saying he had got an invention, I should go into it, and try to help him to work it up ; whereas, if yours ever summoned up cour- age to speak to you about it, you would probably tell him not to be a conceited young jackanapes, and to mind his own busi- ness." We in England have not got the same feeling, if not of equality, yet of the possibility of equality, which the people have in the States, nor does every one live in that atmosphere of pro- gress which is native on the other side of the Atlantic. But the Watts, and the Arkwrights, and the Stephensons were born in the old country, and we may fairly hope to see their number largely increased under the stimulus of this Act.