Proposition for the Abolition of Patents in Holland
SECOND CHAMBER OF THE NETHERLANDS LEGISLATURE, SESSION OF 21st JUNE, 1869.—DISCUSSION ON THE ABOLITION OF EXCLUSIVE RIGHTS IN INVENTIONS AND IMPROVEMENTS OF OBJECTS OF ART AND INDUSTRY—(PATENTS).
M. van Zinnicq Bergmann was not sufficiently prepared for the discussion while the project was in Committee. He feels much sympathy for all such measures as tend to do away with impediments to trade and industry. At the same time, people ought to discriminate between the kind of protection which is a hindrance to industry, and may be called monopoly, and the one to which property is entitled on the part of the State.
At this part of his speech the hon. member indulges in extensive remarks on the right of property. According to Roman law, the right of property was a “jus quod natura omnia animalia docuit.” But that definition is not a correct one, as the right of property is especially maintained in civilised society.
After that, the hon. member launches himself into allegory. Try, quoth he, to drive the lion from his den; he will defend it until his last drop of blood! Look at the boy who snatches the young and tender bird from its nest; the mother will pursue the robber, and not leave him. Now, he should like to know whether an artist, an inventor, an author, has, or has not, a right of property in his work which entitles him to the benefits to be derived from it? This question he answers in the affirmative, and refers to Soy, Massé, and the “Assemblée Constituante” of France in December, 1791. And why should there be no right of property? Perhaps on account of an article in the Civil Code, which says, “possession vaut titre,” or of a restriction to a greater or smaller lapse of time? We are continually referred to England and the United States. But what is England? England is a country at the same time emancipated and in course of emancipation. Duly considered, England will be found to be, internally, in about the same state in which the Netherlands were before 1795, or before the end of the sixteenth century—(laughter)—but, the hon. member adds, always accompanied by such improvements as rulers have successively granted with regard to Patents. England may have had its commotions; but, nevertheless, charters have never been otherwise but granted, and the privileges, exacted though they may have been, were received at the hands of the King. And what have we been doing? We expelled our Stadholder, and got annexed to France; the principles of 1798 have taken root in our country, and continue to be the basis for present action. The hon. member further argues that Patents are granted to emancipated slaves, but free citizens take out “brévets d’invention.” He is of opinion that it is a wrong impression that Patents are to be placed upon a line with the abolition of guilds. There is no connexion whatever between these institutions, and this he demonstrates by reference to French authors. Even taking Michel Chevalier’s doctrines for granted, he asks, “Could such difficulties not be obviated through a reform of the Patent-Law?” Once at a time, Alexander made himself famous by cutting through the Gordian knot. That was a despot’s doing; he might have deserved more fame had he succeeded in disentangling the knot. Such should be the final aim the legislator ought to strive to reach. Finally, the hon. member puts forward the question, whether the passing of the law now before the House might not involve the country in international troubles; for, Switzerland alone excepted, every country in Europe has its Patent-Law. Besides, we are aware that, as far as literary right of property is concerned, a neighbouring country has, against its will, been compelled to maintain it. We, at our turn, might once have to come back to what we want at present to repeal. Let us, therefore, be cautious.
M. Heemskerk Azn remarks that continued allusions are being made to reaction. Generally speaking, such allusions are made out of personal motives; but he should very much like to see a real live reactionist, who would like to repeal what progress has brought us. There may possibly be people extant who would wish to do so, but as for him, he is not aware of any reactionary plots against our institutions, or the effects of science and progress; yet this very project now before the House, which he considers to be reaction, has been most favourably received in Committee. Should the Netherlands Legislature sanction it, then he shall have to believe in the existence of reaction. For it is an easy thing to find evidence of reaction in the project under discussion. M. van Zinnicq Bergmann has already more or less demonstrated it. He (M. Heemskerk) will add a few more particulars. Where, the hon. member asks, lies the origin of Patents? In the cultivation of a free spirit, and the ennobling of labour; and of these, the right of protection existed since time immemorial. Deviating from the civil rights, the Stuarts, through favour or arbitrary motives, granted “privileges;” but the Free Parliaments saved Patents, that protect inventions. Moreover, this principle has been adopted in the most freedom-advocating of constitutions—viz., that of the United States. The same may be said with regard to France. On the 31st December, 1790, the “Assemblée Constituante” resolved that the right [of property] in inventions should be guaranteed, and in this resolution originated the first French Patent-Law. The Netherlands would be the very first country on earth (with one exception only) to deviate from the principle of a right of property in inventions, in a moment, when public opinion, dissenting thereby from a few economists, everywhere declares in favour of Patents. He reminds the House of the immense influence inventions have had on history and society, such as the invention of printing, of the compass, steam, gas, &c. And would it be fair to withhold from those who promote progress that protection which is legally due to them; whereas there is no end of provisions in the code protecting mere material property, such as the right of inheritance until the twelfth degree, lotteries, stock gambling, and the like? Government has evidently been aware of the circumstances standing in the way of the project, as is proved by page 1 of the Memorial of Explanation; but it shrinks from the logical consequences. The Patent system is based upon the principle that nobody should enrich himself by another man’s property. This has also lately been argued at length in Savornel Lohman’s pamphlet. The hon. member gives it as his opinion that in this matter an author is in exactly the same position as an inventor. If Patents be abolished, we shall logically have to come to repealing Copyright as well. A counterfeited edition is nothing else than the imitation of an object of industry; the writer is an author, but the inventor is no less an author. Amongst others, he refers to a speech from Lamartine (as reporter of a Committee in the French Legislative Chambers, which consisted of the then most eminent economists) on the Patent-Law of 1844, which is still in force. He insists that the justice of his system of maintaining the right of property is proved beyond a doubt by the ever and again recurring circumstance of an inventor lacking capital for a practical application of his lucubrations. Still, he often obtains the requisite means; and now everybody will be enabled to imitate the result of his thoughts and labour, and to reap the profits to accrue from the same. He points to Professor Visvering’s work on practical economy, who also recognised that, if no exclusive Patents be delivered, still inventors had a right to a remuneration of some kind. Those who oppose the Patent-Law contend that an inventor is not entitled to a reward; he admits that no reward should be expected, but most assuredly the inventor may lay claim to remuneration for the labour expended on the invention. We are referred to Switzerland, where no Patents are given. But what of that? In the first place, most of the industrial Cantons of Switzerland are clamorous for a Patent-Law; secondly, the Swiss, as a body, equally want the measure to be put through; and, in the third place, the hon. member points to the large benefits which, according to Klosterman’s recent work, Swiss industrials derive from foreign Patent-Laws. It is alleged that the number of Patents which are being delivered [in Holland] is but small. But, says M. Heemskerk, foreigners, on the contrary, claim that the number is large. There exists apprehension of law-suits; but can that be brought to bear upon the repeal of the Patent-Law? In that case, landed property would be the least tolerable, as the proverb says—“Qui terre a, guerre a.” Moreover, no three law-suits are known to have sprung up from Patents in this country since the law has been in force. In Belgium, it is true, much action has of late been taken in order to do away with Patents; but there, as well as in Prussia, the movement is rapidly decreasing. The hon. member refers to the “Nederlandsche Industrieel,” a periodical which, though strenuously in favour of abolition of Patents, nevertheless mentions in its issues of 14th and 21st of February, and 20th of June, what has lately occurred in this respect in Germany and elsewhere. In Great Britain also the question has lately been discussed in Parliament, but the member who moved it did not even take the votes upon it, but quietly dropped the matter; such was the impression made upon his mind by the arguments brought forward [!]. The subject has equally engrossed the attention of the “Société Economique” of Paris, when eminent economists, amongst whom Wolowski, declared in favour of Patents. This is mentioned in the Economistes of June [see page 164]. For all these reasons the hon. member recommends to the serious consideration of the House that, for the time being at least, the rash Act be not consummated. Do not throw such a stain upon your Legislature, he emphatically exclaims. Do not step backward; beware of relinquishing the protection of any description of property. Do not cripple the law by ignoring a principle which protects the fruit of human intellect. Beware of laying violent hands upon property, of whatever kind it may be. Let us do better than that; let us reject the bill. Persuade Government, there being no haste whatever, to propose to the Chambers that the subject be deferred until next Session. At all events, nothing would be lost by it. Meanwhile Government would be enabled to reconsider the subject, and to make inquiries abroad as to the state of legislation on this head. No prejudice would be occasioned by deferring the matter; for the hon. member expresses his firm belief that a dangerous measure is about to be adopted with regard to a subject with which the utmost caution should be observed.
M. de Bruyn Kops would not enter into all particulars, the matter having been treated at length in the sundry documents relating to it; but he would restrict himself to a refutation of M. Heemskerk’s arguments. He is in a position to place himself on a very simple point of view. The law of 1817 is generally disliked, in principle as well as in its details. It has been admitted that it does not give the inventor any guarantee, and this on the ground of the issue of some law-suits which have sprung up from it. So Patents, far from giving a security, hinder the general public and impede industry. It is a fact worthy of notice, that the leading industrial organs, such as the Chambers of Commerce and Factories, the Industrial Society, the Union for Promoting Mechanical and Manual Industry, and the Nederlandsche Industrieel, unanimously have declared against Patents; so have a score of industrials. Are these not facts worth more than a few considerations about a right to special protection? Add to this the circumstance that in those countries where Patents do exist difficulties are gradually increasing; as, first of all, the question arises, whether the invention is really a new one; and to ascertain this is very often a most arduous task. Then, again, Patents are being asked for mere trifles. Within a short period, 126 Patents for improving bicycles have been taken out in England. It thus becomes necessary to make a minute inquiry into the usefulness of the matter. This has been the cause that in France they have gone to the other extreme—granting Patents “without guarantee by Government.” Patents are not consequent upon the recognition of man’s, or inventors’, rights; they are the remainders of the guild system, and of protection to national industry in exclusion of foreign. It cannot be a question of right of property, for, if such were the case, Patents would not be granted for a fixed term of years. If invention means right of property, why, then, that arbitrary restriction? Originally the idea may have been a good one, but in the sequel it has proved a failure. There are examples of different persons having made the same invention without having any knowledge of each other. It is consequently becoming almost a matter of impossibility to ascertain priority. The hon. member says that all endeavours to bring about a practical result out of an originally elevated idea have utterly failed; that the guarantee of the right is, as has been proved by means of the report in England, at best uncertain and unsatisfactory; and that when the project shall have been made law, he will rejoice at his country having been foremost in leaving the wrong track.
Session of Tuesday, 22nd June
The President reads an address from the Board of Directors of the Union to Promote Mechanical and Manual Industry, of Rotterdam, in which they support the project now pending before the House.
The discussion on the subject is continued.
M. van Houten observes, that M. Heemskerk has given the epithets of “reactionary” and “ruinous” to the measure proposed by Government. By opposing the project, that deputy did his duty, but at the same time it more than ever becomes the duty of those who strenuously support it openly to express their convictions, and to show that they know what they are about. His opinion is that M. Heemskerk’s arguments have been tested, and did not stand the test. M. de Bruyn Kops having refrained from arguing on the ground of theoretical considerations, he (M. Van Houten) will say a few words in that direction. The main question is this: Is prohibiting the imitation of an invention lawful, and shall it or shall it not be upheld? Those who want to let things remain as they are talk of rights acquired; but on what are these so-called rights based? Certainly on no very solid basis; for, if a right it be, why is only a temporary protection granted? A right is permanent, and cannot be taken away but through expropriation for the common weal, and even then in consideration of an indemnity only. M. Heemskerk argues two points: 1st, The inventor has a claim of priority, as the first who takes possession. 2nd, The imitator enriches himself at the expense of the inventor. But, says the hon. member, M. Heemskerk loses sight of the fact that first occupation can only take place of “corporeal” effects; not of an invention which may be made, and is often being made, by others at the same time. Besides, he contends that it is not the imitators, but the public, who enrich themselves and benefit by the invention. He is of opinion that the Patent system remunerates where no labour has been expended; whilst claiming Patents has become an industry prejudicial to the general public. It has been urged to frame a “good” Patent-Law; but that the hon. member holds to be impossible. Whatever might be its provisions, monopoly must needs be created by it. And if this is such an easy matter, why did M. Heemskerk not introduce a bill for a new law? It is alleged that if everybody is allowed to imitate, the inventor works for nothing. But how is it with so many gratuitous appointments? Is that a question of right? Certainly not. As M. Heemskerk, in his speech, invoked Providence, he should like to know whether it can be supposed that Providence intends enriching an individual or society at large? On that ground, we may safely set the public’s right against the inventor’s. Hereupon the hon. member considers the question from an economical point of view. In the first place, Patents are useless for such objects as baffle imitation—like the Krupp guns, for instance; and then objects emanating from the inventor direct are, as a rule, preferred. As for petty inventions, he would say that, it being the normal course of social development that every branch of industry should steadily progress, so it is the case with them. On that field, everybody is more or less of an inventor; and with regard to petty inventions, Patents not only are superfluous, but noxious. M. Heemskerk, it is true, has rather spoken with a view to great inventions, and the hon. member fancies he has given evident proof that no harm can be done by abolishing Patent-right on the latter. It is these great inventions that the public at large benefits by. He denies M. Heemskerk’s assertion, that in the absence of Patents no capital would be forthcoming for the practical application of an invention, for, pending the tests and experiments an inventor subjects his invention to, no capitalist loans him money. He equally contests what M. H. said about the logic of repealing Copyright, should the Patent-Law be put aside, and that, by doing the latter, violent hands would to a certain extent be laid upon the right of property. The hon. member thinks that no such comparison can be drawn, as the law providing for Copyright does by no means prevent anybody from applying any published work to further development of science. Copyright in no way interferes with public interests. The member for Gorcum has called the project a “reactionary” measure. This will frighten neither him nor us, for it matters little what is called reactionary, but much what is reactionary. The project is closely connected with the historical development of society, and the liberation of labour and industry. The Patent system may be placed upon an equal footing with the exclusive right to discoveries and other similar privileges of yore. We have given up all those things. Each and every benefit derived from them becomes a public one, and so ought every new outlet for trade to be. On these grounds, the hon. member advocates the removal of those impediments.
M. Godefroi said:8 I rise to make some observations on three points in the speech, containing so much that is valuable, delivered by M. Heemskerk. These points are, first, the legal basis; secondly, treating the question on the footing of Copyright; and, thirdly, the reference to the practice in foreign countries. The speech of the hon. gentleman who preceded me has made my task with reference to the two first points peculiarly easy, so that I can content myself in a great measure with simply referring to it. His confutation of the legal basis, as laid down by M. Heemskerk, appears to me conclusive. To speak of occupation in a non-material sense, to say that the primus occupans can maintain for himself or make over to another, on certain conditions, does seem to me an untenable position. We must take into consideration what the preceding speaker has already proved, that occupation from which a claim can be made, and which one can consider as equivalent to the right of possession, is inconceivable when the right is of a temporary nature. But this is not all. How can any one acquire by occupation anything that another at the same moment may occupy in precisely the same way? How is it possible that two persons at precisely the same moment (and this possibility is here not to be denied) can by occupation be possessed of the same right? I shall say no more on the first point. The second point, treating the question on the footing of literary property, or Copyright. I freely admit that, if I were convinced, in case of our consenting to pass this Bill, we should be pronouncing the abolition of Copyright, I should recoil from giving my vote in its favour. But the preceding speaker has, in my opinion, most clearly shown the points of difference between industrial and literary property. I think I may be allowed to refer, for further confirmation of the view I am taking, to the observations of a man held in general consideration, and of especial weight in this case, inasmuch as he was President of the Commission appointed by the British Government to inquire into the question of the retention or abolition of the “Law of Patents.” I refer to Lord Stanley, who, in a debate in the House of Commons on the 29th May, to which the hon. member for Gorinchem appealed, expressed himself with regard to the difference between Patent-right and Copyright in a manner so clear and distinct that I cannot even now see how I can improve upon his distinctions. Lord Stanley said, speaking of the distinction: “The analogy seemed a plausible one, but he thought that, on being looked into, it would not hold water. The difference was simply this: he did not rest it on any abstract ground as to the distinction between invention and discovery, but on the obvious fact that no two men ever did or ever would write, independently of one another, exactly the same book; each book, be it good or bad, would stand alone; whereas it might happen that two or three men, quite independently of one another, would hit upon the same invention. That alone established a distinction between the two cases.” And he was perfectly right. While it is impossible for two men, independently of one another, to write the same book, it is not only possible, but such a case has occurred, for two men to make the same discovery—to light upon the same invention. There are examples of this in the history of French industry. Daguerre and Niepce both pursued that line of thought from which photography took its rise, and the fact is so well ascertained that when the French Academy of Sciences had to come to a decision about assigning a reward for the invention, they divided the reward between Daguerre and the children of Niepce, then deceased. In a report made by the present Minister of Public Works in Belgium, M. Jamar, with reference to property in drawings and models of machinery, the question of Patents is treated, and I notice in it one highly important observation applicable to this subject under discussion. It is known—it appears also in the supplement annexed to the Official Report—that at the conclusion of the first Great Exhibition in London, the French Commission brought out a report, in which the renowned politician, Michel Chevalier, as the result of conclusions drawn from the Exhibition, declared himself in favour of unconditional abolition of Patents. How did Michel Chevalier come to that opinion? The report to which I refer informs us, and from it I extract the following passage: “On seeing at the Exhibition in London, at a few paces from each other, the same machines, the same tools, new productions, invented or discovered a thousand miles apart, by men who arrived at the same result sometimes by different ways, legislators and magistrates felt themselves bound to ask to what principles of justice and equity could one of these inventors appeal, that he might obtain a temporary monopoly rendering abortive the efforts and experiments on the part of ten other inventors as persevering, as conscientious, and as intelligent as himself?” When Michel Chevalier, at the London Exhibition, had seen a few paces from each other the same inventions, presented as the mental produce of persons who lived thousands of miles apart, and knew nothing of each other, he might well say that it is impossible to recognise an exclusive right. But here is another proof that industrial property and Copyright cannot be put upon the same footing. Moreover, Patent-right precludes the possibility of the same thought being carried out, at least for a time, but Copyright does not. Lastly, the third point—the appeal to the feeling in foreign countries. M. Heemskerk, in his excellent speech of yesterday, made it to appear that the feeling on this subject in foreign countries was that the abolition of Patents was condemned. It is perfectly true that at this moment, in most of the European States, there still subsist laws for conferring Patents. But must we thence infer in foreign countries an overwhelming conviction, that there must be no abolition? I do not think so. There are, in fact, evidences on this point worth attending to, which I shall proceed to lay before the House. How is it in France? The law of 1844 is still in force; but is it approved in France? Certainly not. They are convinced that the operation of this law has given rise to the most serious difficulties. This is a fact; and this fact has led to several proposals for modification which have been pending for some years, and are still pending, although the French Chambers get through their work more rapidly than we do. The proposals have been already for several years pending, because the carrying them out is hindered by the impression which the valuable report of Michel Chevalier has produced, for every day the doubt gains force whether it is a question of improving the law, or whether it is not much rather a question of putting an end to the granting of Patents. England—it is known that two investigations have taken place in that country. One in 1851, by the Upper House; the other in 1862, by a Government Commission, which issued its report in 1865. What was the result of the investigation in 1851? I find the result in the report of M. Jamar, which I just now referred to. I will read the following extract: “The result of this inquiry was remarkable. Lord Granville had been President of the Commission charged with presenting the Bill, which, while it modified the Law of Patents, respected or left untouched the principle. The inquiry so completely modified his convictions, that he did not hesitate to declare, in the sitting of the House of Lords on the 1st July, 1851, that he considered the issuing of Patents was an advantage neither for the inventors nor the public.” So the Commission of Inquiry, which undertook the task of discovering what amendments could be made in the law, came to the conclusion that it would be better to abolish Patents. I should occupy the House too long were I to quote all that M. Jamar, in his report, borrowed from this Commission of Inquiry. I will content myself with remarking that, among the witnesses examined, and on whose testimony the opinions of the Commission were founded, there were men perfectly well qualified to form a judgment. They were not only economists, men of science, but also men of business, practical men: Cubitt, President of the Institution of Civil Engineers; Brunel, the celebrated engineer; Ricardo, Member of Parliament; Reid, President of the Committee for carrying out the Great Exhibition of 1851; and other industrial and commercial witnesses, so described in Jamar’s report. According to the same Belgian report, the testimony of the English judges was very remarkable. They almost unanimously declared that it was impossible to apply the law, and that they did not ascribe this impossibility to the application of the principle in itself. Lord Granville declared also, in a sitting of the Upper House, on July 1st, 1851, that his opinion was formed from the sentiments of the judges; and he added: “The only persons who derive any advantage from the Law of Patents are the lawyers. Except, perhaps, warrants for horses, there is no subject which gives such an opportunity for roguery as the Law of Patents.” And one of the law lords of the Upper House, Lord Campbell, declared, after hearing the speech of Lord Granville, that having been for nine years legal adviser of the Crown, and having had some experience in the matter, he coincided perfectly in the opinion of Lord Granville. The inquiry made by the English Government Commission led to the same result. In the sitting of the Lower House on May 28 of the present year, of which I have already spoken, Lord Stanley distinctly said that he had taken his place in the Commission with the impression that the business before them was not to abolish Patents, but to take measures for the amendment of the English law on that subject. During the inquiry, however, together with those who took part in it he had come to the conclusion that not only the existing law, but every law on Patents, would meet with almost insurmountable difficulties, because these difficulties do not lie in the application, but are inherent in the principle. M. Heemskerk made it appear yesterday that the result of the discussion of May 28 in the Lower House was in favour of the continuance of Patents. I cannot go to such a length in my estimate of that discussion. A motion was brought forward by Mr. Macfie, [an ex-] President of the Liverpool Chamber of Commerce, to declare that the time had now arrived for the abolition of Patents. At the end of the debate the motion was withdrawn by the proposer. Now, the hon. member for Gorinchem has drawn the conclusion, from the course pursued, that the proposer durst not put his motion to the vote, because he was certain of a minority. The conclusion is somewhat hasty, for nobody can tell—we at least cannot—what the vote of the Lower House would have been had the motion been put. Besides, the object of the motion appears in the speech of the proposer. His chief aim was to invite discussion, “to lay a general view of the subject before the House,” as he expressed it, rather than to get a decision. In his speech he also gave it as his wish that the subject should be again investigated by a Government Commission. I am of opinion that, from what I have said with reference to England, the conclusion cannot be drawn that the retention of Patents is there the unqualified and prevailing determination. Belgium: The last law on Patents, the law of 1854, is there in operation. I know not if it works well, and perhaps it would have been worth while for the Government to get such information. Meanwhile I have a thick volume here before me, containing a commentary on the law, which I have not read completely through. It contains 300 pages, but I have run through it, and it appears to me that the so-called commentary is in very many respects a criticism on the law, and affords a proof that it by no means works so extremely well. Last of all, Germany: M. Heemskerk spoke yesterday of the unanimity of the Germans on the subject of maintaining Patents. I should not like to admit that unanimity so unreservedly; there are facts, at least, opposed to that assertion. This fact, for example, which we have extracted from an article in the Nieuwe Groninger Courant, just sent to us, a proposal for the abolition of Patents made to the North German Bund; and if this is carried out, no more Patents will be granted in a great portion of Germany. Another fact: so far back as 1864 the Prussian Government asked the opinion of the Chambers of Commerce on the question whether or not Patents should be maintained, and of the 47 there were 31 for the abolition and 16 against it. I scarcely venture to speak of the economists, otherwise I would appeal to the German Economic Congress of 1863, which pronounced Patents injurious to the national welfare. But there is one argument which has more weight with me than any other. I am thoroughly persuaded that a good law on Patents is an impossibility. It is, indeed, matter of regret that the hon. member for Gorinchem, when he was in the Ministry, did not try to present a good law to the Legislature. He was the right man for it. He will, however, do me the justice to believe that, when I say this, I do not mean to censure him; what I do mean is to express my regret. He is open to no censure, for during the time he held office he attended so assiduously to his duties that even his most violent political opponents were compelled to do him honour. But yet it is to be regretted that when he was Minister he did not propose an amendment of the law of 1817. We should then have seen whether it was possible or not to have a good efficient law on Patents. For my part, I have arrived at the conclusion that it is an impossibility. This is the impression made when one goes over foreign laws on Patents. There is not a single good one among them, nor one which does not give rise to difficulties which hitherto have been found to be insurmountable. But there is a further objection. According to my notions, there is a formidable stumbling-block which is directly encountered when one sets to work to frame a law on Patents. The question at once presents itself, must it not be proved that the person who demands the privilege has a right to it? When has the claimant that right? When it is proved that his invention has for its object a new industrial product, or a new operation, or a new application of an operation already known, to obtain an industrial result or an industrial product. The words which I here employ are taken from Art. 2 of the French Law, which, in my opinion, exactly express the object of the law. I now ask, if a Government is in a position, in this sense, to examine the claim of an applicant for a Patent? I shall endeavour to prove that a Government is not in such a position, and I cannot do better than quote the words of the author of the report on the French Law of 1844, the celebrated Philippe Dupin. We know that the French Law does not undertake the preliminary investigation; and, therefore, as we have been already reminded by M. de Bruyn Kops, when an announcement is made of articles for which a Patent is granted in France, the letters S. G. D. G. (sans garantie du Gouvernement) are generally added. Now, hear what Philippe Dupin says in justification of that principle of French Law, and to prove the impossibility of a preliminary examination on the part of the Government: “The preliminary examination would be the establishment of a censorship in matters of industry. And how could this censorship be carried out? How, for example, are we to decide that an industrial fact is new, and that it has not been produced in the course of manufacture or in the retreat of an obscure and industrious workman? How are we to foresee and judge the amount of utility in a discovery just made, before it has been developed, before it has been put to the proof? Who will take part in this debate? Who will represent the parties interested? Where are the judges to come from? Who will exercise this jurisdiction by guesswork in the regions of thought and futurity? Shall it be a clerk turned into a judge of what he does not understand? Shall we take a practical man, who is often only a man of routine, to judge a man of theory and inspiration? Shall we invite philosophers? But if they are philosophers, they are not to be supposed to know everything, and they have their preferences, their prejudices, their own sets; and the applicant, perhaps, contradicts their doctrines, their works, their ideas. These are incontestable impossibilities. It has been said, with as much wit as reason, in such matters the only suitable proceeding is experience, the only competent judge the public.” So much for experience. But, Mr. President, if a Government is not in a position to decide whether the claimant of a Patent has a right to it, can it be sanctioned in granting a privilege blindfold which establishes a temporary monopoly? According to my view, this is a formidable, almost insurmountable, stumbling-block, which, in my deliberate opinion, will always stand in the way of a good and efficient Law of Patents. I, therefore, am of opinion that no other satisfactory course is open to us than to abolish Patents.
M. van Voorthuysen will not enter into many details, the subject having been considered both from a juridical and an economical point of view. He will, therefore, restrict himself to a few remarks on M. Heemskerk’s speech. The hon. member acknowledges the satisfaction the project gives him; it gratifies the feelings to which he has given vent a great many times. It has been said that the measure was a step backward, as Patents have taken the place of exclusive privileges to guilds. At the time the Patent-right was assuredly an improvement on the then existing system; but we have been progressing so much since then that at present nothing short of abolition will satisfy the wants of progress. He also refers to the conclusion arrived at by Lord Stanley, which point M. Heemskerk has left unnoticed—viz., 1st, that it is impossible to reward all who deserve to be rewarded; 2nd, that it is impossible to reward adequately to the service rendered to society at large; 3rd, that it is impossible to hold third parties harmless from damage. And, in fact, the alleged instance of the Daguerre prize having been divided with another who equally proved his claim to the invention, speaks for itself. It is doubtful who was the first inventor of the steam-engine; there are several, at least, who claim the invention as their own. There is another point he feels bound to refer to. M. Heemskerk has said that abolishing Patents constitutes an attack upon the right of property, and that deputy cautions against a first step, perhaps to be followed up by others. This being a very serious inculpation, the hon. member has asked the opinion of an eminent jurist, whom he will not name as yet, whose authority M. Heemskerk is not likely to deny, and who is in many respects congenial with that esteemed deputy. The hon. member reads that opinion of one of the foremost opponents of Patent-right, who calls it an obnoxious and intolerable monopoly. And who is that clever jurist? It is M. Wintgens, who very likely owed to his extraordinary acquirements in law matters his appointment to the Department of Justice in the Heemskerk van Zuylen Ministry.
M. Fock (Secretary of State for Home Affairs) will not have much to say, after all which has been argued in yesterday’s and to-day’s Session, in defence of the project. Nevertheless he will indulge in a few remarks on the final report. With a view to the same, M. Heemskerk submits the maintenance of Patents for inventions, but the repeal of those “of admission.” But the Minister calls the attention of the House to the circumstance that the Patents for inventions which are being granted may aggregate to ten a year or thereabout. What should remain for us to keep? Or else agents here will apply for Patents on foreign inventions, so that “Patents of admission” will re-appear under a different denomination. M. Godefroi has already pointed to instances abroad, and the Minister can but add that, despite M. Heemskerk’s assertion to the contrary, the Prussian Government is by no means favourably disposed to the Patent-Law. In December, 1868, Count von Bismarck addressed a message to the North German Confederation, embodying the opinion of the Prussian Government in favour of repeal, and even hinting that Prussia would not mind taking the lead in the matter.9 After entering into a few more details concerning the final report, the Minister once more demonstrates that Patents are great impediments to industry and free-trade, and that it is in the public’s interest that they should be abolished. The Netherlands, having once been foremost in doing away with the tax on knowledge, must not now shrink from conferring entire freedom on the field of industry. That is no reaction. Is it reaction to break off with an intolerable state of things? No; it is progress, and leads to free development. The Minister concludes with a citation from Michel Chevalier, and declines to take M. Heemskerk’s hint of deferring the discussion on the project.
M. Heemskerk Azn replies. He tenders thanks for the urbanity observed throughout the discussion. But it is undeniable that his opinion agrees with the existing right and the prevalent ideas in Europe and America. Of course, if revocation is intended, improvement of the law has to be given up. In reply to the Minister, he has no doubt but that the desire for revocation originated in Prussia, but he has said that in Germany the tide has turned in favour of Patents, on the strength of the “Deutsche Industrie Zeitung” and Klosterman’s recent work. The revocation of the Patent-Law may have been contemplated, but the Prussian Government is not now disposed to have the idea carried out. He asks but for what the English equally asked for—i.e., a renewed inquiry. What, after all, is foreign experience to the exercise of law in the Netherlands? How does the project tally with the establishment of a new division of industry in the Department for Internal Affairs, the chief occupation of which is the granting of Patents? He will not argue with the Minister on general remarks, but merely on the one relating to the abolition of newspaper stamps. Why has that tax been repealed? If henceforth a larger quantity of paper be covered with print, the tax has most likely been done away with to promote the diffusion of general knowledge. He supposes, however, the Minister will agree with Cicero, who says that fame acquired by means of deeds which are not useful is but vanity. The stamp duty has been repealed in order to be useful. And in the present case, will the Minister deny all benefits to him who does his utmost, so as to be useful? He replies also to the several members who have made speeches; he contradicts M. de Bruyn Kops about a general disposition supposed to exist in France towards revocation of Patent-Laws. Michel Chevalier only has changed his mind, but there is no opinion prevailing against Patents. Quite recently both Joseph Garnier and Wolowski have refuted Chevalier’s arguments.
The hon. member further insists upon his interpretation of the Parliamentary debates in England, and names several instances of inventors having acquired wealth. He does not admit that there is a difference between Patent-right and Copyright; imitation of articles of fabrication is, and will remain, as immoral as it is unfair. He shrinks from touching the legal side of the question, but asks whether, because of the Patent-right being restricted to a fixed time, the conclusion must needs be drawn that absolutely no right should exist, and that there should be no plea in equity whatever for an inventor to get rewarded for his labours? Does the abstract question of occupation of immaterial things cripple that hypothesis in any way? He considers it from a more general and social point of view, and vindicates his assertion that an inventor is entitled to a certain amount of protection for his work, by which, at all events, he renders a service to society; that Patents are incitements to many useful inventions and to industry, which is equally M. de Bruyn Kops’ opinion, as stated in his work on political economy. He has been asked why, when in the Ministry, he did not introduce a Patent Reform Law. In the first place, he begs to observe that much was to be done then, and besides, considering the smallness of our country, he indulged in the anticipation that the idea of an international agreement might gradually have gained ground. Should he, however, have lived longer (politically speaking), he would most likely have introduced a Bill for remodelling the Patent-Law. As for M. Wintgen’s opinion, it is almost superfluous to say that one is not bound to have in every respect homogeneous ideas with one’s political friends. In reply to the question why, as a member of the House, he does not make a proposal, he accepts the invitation, and will in September next be prepared to take, as a member of the House, the initiative of presenting a Bill for Reforming the Patent-Law, provided the project now pending be no longer discussed.
M. Van Zinnick Bergmann replies, and maintains his opinion about the justice of the Patent-right.
M. de Bruyn Kops refutes M. Heemskerk’s reply, and demonstrates, by means of fresh examples, that the Patent-right is intolerable and most obnoxious. He considers the question now merely economically; MM. van Houten and Godefroi having so ably discussed the legal points. The large benefits acquired by a few are, as taken from his point of view, prejudicial to the public at large, and against these few advantages there are great damages, as large capitals dwindle away in the chase for the snare of Patents. M. Heemskerk himself favours the revocation of Patents on the right “of admission.” What is left after that? Nothing but the Patents of invention. Why not try entire freedom and removal of all impediments?
M. Godefroi will add one word more with reference to M. Heemskerk’s readiness in accepting the challenge, of framing a new project of law, and he must say that, whatever be the nature of such proposal, it can hardly be expected to satisfy those who condemn the principles of Patent-Law. But the orator who is so well posted must certainly have framed already the main points from which the project would have to be formed. By stating and explaining those points, he would have done more service to the House than by mere opposition to those who favour abolition. The hon. member repeats the important query, whether Patents should be granted without previously inquiring into the merits of the case; and then Government would have to give its opinion just as well on an improved chignon as on an improved steam-engine.
M. Gefken gives his motives for voting in favour of the project. He says, where there is a right of property, it must be permanent, and even transferable to the heirs; but a guarantee for a few years would not do. He consequently does not recognise the right of property, and merely considers the question with a view to usefulness; and, as far as that goes, his experience in administrative and juridical offices has taught him that Patents are not actually useful, and, on the contrary, lead to speculation and impede the development of many a useful concern. He favours free competition.
M. van Voorthuysen will not revert to M. Bergmann’s remark about his being accustomed to recapitulate the debates, but denies having intended to force upon him the authority of M. Wintgen’s opinion. Such is not the case; but the fact of the opinions of two such jurists as MM. Godefroi and Wintgen agreeing has set his mind at rest as far as legal opinion is concerned.
M. Heemskerk Azn replies to M. Godefroi, and does not see why he should just now go and sketch his project. Give him time and opportunity, and he will introduce a Bill, provided this project be deferred; and, in fact, what are they making such haste for?
Minister Fock maintains his sayings about the Prussian Government favouring revocation, and further explains that the new division in his department has no connexion with Patents, but was made so as to concentrate all matters referring to industry. As for the right of property in inventions, he would merely add that, according to our legislation, Patents are but favours, which may be granted or not, as the case may be.
Hereupon the discussion is closed.
With reference to Art. 1, M. Lenting asks, why the date on which the new law has to take effect should be fixed for the 1st January next. He would prefer that the words be, “After the day of the publication of the law;” then no new Patents would be granted, those already applied for only excepted.
The Minister inserts the amendment, after which Arts. 1 and 2 are passed.
The project is then put to the vote, and passes the House by 49 ayes against 8 noes.
Against it voted MM. Bichon, Blussé, Vader, Hofmann, Heemskerk Azn, Van Wassenaer, and Van Zinnick Bergmann.
Notes
8 For this translation I am indebted to the Foreign-office, to whose reports I have been politely allowed access.
9 This admirable document is prefixed, see page 185.