Experience in France
The following observations were published in the Avenir Commercial, November 1, 1862, and June 28, 1863, have been kindly translated and presented by the Author:—
The Results of a Bad Law
I
When you walk along a public road, if you find a watch, a diamond, a note of a hundred or a thousand francs, and, far from seeking the owner to give it back, you apply it to your own use, moral law and civil law take hold of you and condemn you without hesitation. It matters not whether he who lost what you found be rich or poor, his carelessness, his negligence, or the accident that caused his loss, give you no sort of right to use it and make it yours.
There are not two opinions on that point: the laws of all countries condemn the man who enriches himself with what chance throws in his way.
But if a scientific man—seeking some impossible discovery, finds a clue to an idea—meets with an interesting phenomenon—indicates, in some way, new properties belonging to some bodies—announces the results of some new chemical combination—it is only a scientific research. This or that other skimmer of inventions can get a Patent for the application of the idea, of the discovery, of the method; and the law guarantees his pretended right not only against all reclamations of the scientific man who has discovered the whole, but against the whole world, deprived of all possibility of making use of the discoveries of science!
And not only the law forbids every one to use this or that produce, except if made by the patentee, but it also prohibits the use of any similar produce made by different means.
Then, to prevent all inventors to approach the ground that the patentee has chosen, he takes immense care to have his Patent made of formulas so wide and elastic, that all inventions in the same course of ideas will be infringements in the eye of the law.
To these observations it is answered that industrialists or scientific men are equal before the law, that all have an equal right to its protection, but on the express condition that the invention be put in use.
We see very well where is the privilege of the chance patentee, who has made the discovery of the scientific man his own, but we do not see where is its justice or equality.
We see very well where is the privilege of the man who has had nothing to do but to apply the idea deposited in a book by a scientific man—an idea that, in fact, was at the disposal of the public, since the discoverer did not claim its proprietorship; but we do not see why the law gives a monopoly to him who has only borrowed that idea.
But we are told, the law is quite equitable, for it, says, “To every man his due. The scientific man discovers a body, glory be to him. If he will add to it some profit, let him indicate the properties that may be used industrially, and let him take a Patent for his discovery. But he must hurry, because if industry forestalls him, industry will get the profit.”6 It is exactly as if this was the law: A millionaire drops a 100-franc note. It will not make him much poorer. If he wants to get it back, let him return where he came from and seek along the road. Let him hurry, for if this note is found, he who will have got it may keep it.
Common sense and equity would join to say that when a scientific man indicates a discovery or an invention, that invention or discovery remains at the disposal of every one if the finder does not claim the exclusive right to work it. But the law is different, and the results are soon made apparent.
In 1856 an English chemist, of the name of Perkins, was seeking the way to make artificial quinine. In the course of his experiments he discovered in the laboratory of M. Hofmann the property residing in aniline of producing a violet colour by the action of bi-chromate of potass.
Perkins got a Patent for this discovery. The attention of the scientific and industrial classes being called to this property of aniline, and to the possibility of extracting from it divers colouring matters, several French and other chemists and manufacturers got Patents for many more new processes.
In 1858, Hofmann, continuing to study aniline, discovered the red colour. He sent a memoir to our Académie des Sciences, in which he gave the exact method to produce this magnificent crimson red.
Hofmann took no Patent; it seemed as if he wanted to present gratuitously to tinctorial industry a new and beautiful produce.
Six months after, a manufacturer, who as early as 1857 had tried to get patented in France the patented discovery of Perkins, sold to a manufacturer of chemical produce a process copied from the discovery of Hofmann, by which the red of aniline could be manufactured by the reaction of the bi-chloride of tin. The Patent was granted, and the produce manufactured. But very soon after, in France and abroad, more advantageous and more scientific methods, preferable to the patented one, were found.
All the French manufacturers who tried to use any of these new processes were prosecuted and condemned for infringement on the right of the patentee. It then followed that one kilogramme of red of aniline was sold abroad for £12, and the monopolisers sold it for £40 in France.
This could not last, particularly after the treaty of commerce, by which printed and dyed goods could be introduced. Manufacturers threatened to give up work, and the patentee thought proper to reduce his prices.
But another result, no less fatal to French interests, soon followed.
The most intelligent manufacturers of colouring-stuffs, those who were at the head of that branch of industry, and had concentrated in Paris, Lyons, and Mulhouse the fabrication of the finest and most delicate dyes for the home and foreign market, went to establish new factories across the frontiers.
The existing Patent prevented them from satisfying the demands of their customers abroad, who required some aniline colours, and they were obliged to carry their industry to foreign parts.
The following is the list of the manufacturers who have founded new establishments beyond the reach of the monopolising Patent:—
A. Schlumberger, of Mulhouse, new factory at Bâle (Switzerland); Jean Feer, of Strasburg, new factory at Bâle; Peterson and Seikler, of Saint Denis, new factory at Bâle; Poirrier and Chappal, of Paris, new factory at Zurich; Monnet and Dury, of Lyons, new factory at Geneve.
Five other establishments, raised by Swiss people but under the direction of Frenchmen, are being founded at Bâle, Zurich, Glaris, and Saint Gall. Then there are still to be founded, the factory of M. A. Wurtz, brother to Professor Wurtz at Leipsic; another, by M. O. Meister at Chemnitz; a French factory at Elberfeld; three, also French, in Belgium; and three others in Switzerland.
It is, in fact, a general expatriation, like the one that followed the revocation of the Edict of Nantes. It is worthy of remark that in Germany there are twelve Patents for making colours or dyes from aniline; in England there are fourteen, in France (thanks to the interpretation given to the law) there is one. “Et nunc caveant consules.”
T. N. Benard.
II
In our number of November 1, 1862, we published on this very same question an article in which we stated that about twenty French manufacturers had been forced to go abroad to escape the unheard-of exigencies of the law of Patents. We were answered by insults that we disdained; but the facts that we had revealed were not contested.
A volume just published on the legislation and the jurisprudence of the law of Patents enables us to show another side of the question, and to prove how injurious it is to manufacturers and inventors, and how profitable to certain gentlemen of the Bar who have the speciality of cases for infringement on Patents. We say it openly and fearlessly, if it was not for the lawyers who swim freely amongst the windings of that law, it would not have a supporter. Manufacturers and inventors are shamelessly made a prey to a group of pleaders who defend right and wrong with the same deplorable alacrity.
What an immense number of law-suits have arisen from the 54 articles of that law! The volume we have in hand has been written with the intention of giving to the public a view of the jurisprudence adopted by the Courts in the interpretation of each paragraph. A summary of the trials that have taken place since its promulgation in 1844 follows each article of the law.
Article I. is as follows: “Every new discovery or invention, in all kinds of industry, ensures to its author, under the conditions and for the time hereafter determined, the exclusive right to work for his benefit the said discovery or invention. This right is established by documents granted by the Government, and called Patents.”
The first trial that we find in the list took place in 1844. The question was, Whether the words all kinds of industry could be applied to things that are not in trade? The Court’s decision was for the affirmative.
The second trial was raised to know if, when a working man is only executing the orders given to him by another party, with the indications and in the interest of this last, the working man may be reputed the inventor, and if the results of his labour may have the character of an invention, so that he may claim [revendicate] its ownership by a Patent. The Court decided for the negative.
We pass four other suits running on the interpretation of this first article, that seems so innocent, so inoffensive, and come to the eleventh trial. In conferring by Article I., under the conditions that it determines, on the author of new discoveries or inventions the right of working them exclusively for his own benefit, did the law intend to deprive of all rights those who were using the same means of fabrication prior to the delivery of the Patents? The question was, in other terms, to know whether the Patent is good and legal against every one except against the party who, having worked it for a certain period anterior to the granting of the Patent, might be kept in possession of his industry? On March 30, 1849, the Court of Cassation decided for the affirmative in the case of “Witz Meunier versus Godefroy Muller.” You fancy, perhaps, that the affair is all right and settled; the Court of Cassation has spoken, and every inventor who will not have taken a Patent may work out his invention without fear of prosecution from a patentee coming long after. You are greatly mistaken. You do not know how keen, and ardent, and clever, and anxious are the seekers of Patents. Previously to that the Court Royal of Paris had declared in May, 1847, in the case of “Lejeune versus Parvilley,” that the Patent can be put in force against the manufacturer working the invention before it was patented, if he has not published it before the patentee, and if the patentee is the first who has introduced it in commerce. But in 1847 the Court Royal of Paris did not know the opinion given in 1849 by the Court of Cassation. We see how unsafe are the things of this world. Say if you can ever be sure of holding and knowing the truth.
On August 19, 1853, the same question was brought again before the Court of Cassation in the case of “Thomas Laurent versus Riant,” and the Court decided that the Patent can be put in force against whoever possessed the invention before it was patented. There is at Lyons a manufacturer who for a great many years fabricated a dye for which he has not taken a Patent, but the secret of which he carefully keeps to himself. If, by some manœuvring, by some doubtfully moral means, an industrialist—as there are too many amongst the patentees—contrived to worm out this secret, and got a legal Patent, he could work the discovery and oblige the Lyonese manufacturer to cease all productions of the same kind. Would it not be an admirable example of legality?
The contradiction that we have just noted between two verdicts given by the same Court upon the same question gives us the right to say that the magistrates ought to show a little more indulgence to those they condemn. When there is a law like that relative to Patents, common mortals are very excusable if they make a mistake in interpreting in a wrong way this or that expression, since we see the highest Court in the country giving sometimes one interpretation and sometimes another.
The first article of the law has given rise to fifteen different suits, inscribed in the pages of the volume we hold. These fifteen suits have been tried before the Civil Courts or the Court of Cassation. People may well be frightened at the mountain of papers that must have been used and destroyed by the attorneys, counsel, barristers, &c., before the public could have any clear notion of what the legislators meant.
The second article is as follows: “Will be considered as new inventions or discoveries—the invention of new industrial produce; the invention of new methods or the new application of known methods to obtain an individual result or produce.” This article, we may say, is the main beam of the edifice, consequently it has given occasion to no less than 104 suits. One might fancy that the multitude of judicial decisions given by the Courts has thrown the most brilliant light on the interpretation to be given to the three paragraphs forming the second article. Alas! these paragraphs are just as obscure as before. For instance, the Imperial Court of Paris decided on August 13, 1861, that the “change in the form of a surgical instrument, even when there may result an advantage or greater facility to the operator, cannot be patented.” But on July 26 of the same year it had decided that “a production already known—a straw mat, for instance—may be patented when its form, its size, and its length are new.” So, again, the Court of Cassation decided, on February 9, 1862, that “the production of a new industrial result is an invention that may be patented, even if it is only due to a new combination in the form and proportions of objects already known.” On the contrary, the Correctional Court of the Seine decided on December 24, 1861, that a modification of form, even when it procures an advantage, is not of a nature to constitute a patentable invention. Can we not say with the poet:
“Deviner si tu peux, et choisis si tu l’oses?”
The lawyers of Great Britain are accustomed to celebrate certain anniversaries by a professional dinner. The President of the party, after having proposed the health of the Queen and the Royal Family, calls upon his brethren to join in a toast to the prosperity of the profession they follow. This traditional toast is characteristic enough. It is as follows: “The glorious uncertainty of the law!” We think the facts we have related give to this toast a right of citizenship on this side of the Channel.
T. N. Benard.
Notes
6 Extract of a paper on the subject in the Propriété Industrielle.