From the Dutch Government Memorial
The project of law, which is accompanied by an extensive memorial of explanation, contains the following stipulations:—
Article 1.—From and after the 1st of January, 1870, no fresh Patents for inventions and improvements, or the first introduction of objects of art and industry, shall be granted, those only excepted for which application shall have been made previous to that date.
Article 2.—The term for Patents formerly granted or deliverable within the provisions of Article 1 of this law may be extended in accordance with the law of 25th January, 1817. (Vide “Staatsblad,” No. 6.)
The memorial says, inter alia:—
“In order to let Netherlands industry and Netherlands people reap the benefit of the bulk of improvements in industry, the best course to take appears to be the repeal of the Patent-Law.
“The first requisite of a reform of the existing legislation on Patents would be to more completely guarantee their rights to inventors, they being by no means sufficiently protected by the provisions of the law now in force.
“Considering, however, the consequences of any kind of Patent-Law, the means that are to be employed and the expenses to be incurred, so as to render all parties interested quite familiar with the Patents granted; the fact that, in consequence of the development of industry, the number of Patents is increasing, the result of which is more and more to burden the exercise of the sundry branches of industry with a larger portion of obstructive privileges, besides the abuses and wrong practice to which they lead; in one word, the price which the public have to pay, compared with the very few inventors, whose advantage is even at best uncertain—considering all these points, there can hardly be a doubt as to the choice the Netherlands ought to make, placed as they are between the dark path leading to more obnoxious privileges and the highway where freedom of movement prevails.”
We subjoin the following, with which we have been favoured, on the same subject:—
The project of law to repeal the Act of 1817 for granting exclusive rights on inventions and improvements of objects of art and industry, has given general satisfaction in four Committees of the House, and many have received it enthusiastically. By introducing this Bill, Government has satisfied a desire which of late was frequently manifested by members of the House. The memorial of explanation, with its vouchers, gives full particulars of the objections raised against the Patent system. Most members, in fact, simply gave their adhesion in substance, without considering it necessary to “motivate” their opinion.
A few Members of one of the Committees did not agree with absolute repeal, and even held such a measure to be at variance with justice and equity; they recognised the law of 1817 to be defective and in many cases impracticable; they granted that when a reform might be arrived at “Patents of admission” ought not to remain in force; but they did not see why, on account of the insufficiency of the law in this country, “Patents for invention” should be abolished as well. There are a good many industrial inventions which cost the originator vast mental labour, sometimes even heavy pecuniary sacrifice. By means of his invention he renders society a service which entitles him to enjoy, for a fixed period at least, the exclusive benefit of bringing it into operation. Should this benefit be denied him, it would be but fair that the State should give him a reward; this, however, is subject to difficulties of a peculiar nature.
The opinion that the repeal of the law would leave intellectual property altogether unprotected, may be refuted by the fact that the principle of intellectual property cannot possibly form the basis for a Patent-Law. Although it was emphatically proclaimed in the French Legislature of the first years subsequent to the Revolution of 1789, it will not stand the test of sound criticism. Could right of property be admitted in this case, it ought to be permanent, and not temporary. Yet no Legislature ever dared to extend the so-called right, even for the inventor’s lifetime; the terms were generally ten, twelve, fifteen, and, at most, twenty years. Another circumstance, which is in downright contradiction with the notion of right of property, is the fact that everywhere Patents are granted only on payment of a certain sum.
If Patents are to be defended at all, better try to do it on a principle of utility. Some appearances are in favour of the plea that anticipation of reward and pecuniary benefit originates useful inventions; but pecuniary experience has taught that although every now and then this may be the case, still the very existence of a strict Patent-Law, is, on the whole, a decided hindrance to industry; that the inventor’s benefit from his Patent is, in most instances, but doubtful, whereas by doing away with this artificial encouragement, inventions will not, on this account, remain in the bud undeveloped.
A strict Patent-Law is subject to strange drawbacks, which have been chiefly demonstrated by the inquiry in England; whilst in Holland the well-known decision of the Supreme Court of 1846 has well-nigh vitiated it.
Under the circumstances, no choice was left our Government but between a stricter law than before and complete freedom. Very justly it has declared in favour of the latter, and, as it states, chiefly Switzerland in its eye, where very many branches of industry are in a most flourishing condition, ascribable, in part at least, to the very absence of Patent-Laws, with their escort of drawbacks and law-suits. There the manufacturer goes upon his own errand, avails himself of inventions made by others, and, if he cannot at once get at the bottom of the same, tries to arrive at them through his own exertions and his own ponderings.
The step taken by Government deserves the more approbation, inasmuch as no legislation can sufficiently guarantee to the real inventor that exclusive right which is considered a reward for the service rendered to society. Not seldom it happens that the inventor is a scholar, who makes the fruit of his labours public, leaving to others the deriving pecuniary benefits from it.
Some persons, adverse to Patent-Laws, cannot yet make up their minds as to the new system being in accordance with morality, and perhaps be an encouraging of the dishonesty which lies in the appropriation of another man’s invention, thereby reminding the Netherlander of Güttenburg. To this we may bring forward the argument that, as far as the deed ascribed to that German falls within the limits of theft, or of violation of contract between master and servant, nobody will defend it; but in the circumstance that Güttenburg, having once mastered the art, applied it to bring it into operation, and by exerting his intellect, raised it to a much higher pitch of perfection, there lies nothing dishonest. If these proceedings be incriminated, then the principle ought to be transferred to another field—that of trade. Then the merchant who takes advantage of a new outlet or a new branch of commerce inaugurated by another, ought to be reprobated; but if so, farewell to all competition—nay, to the very principle of free-trade.
A few of the supporters of the Patent-Law ask whether Copyright does not rest upon the same basis as the exclusive right to inventions, and whether the new law will not be followed in its wake by the ignoring of literary property. But against a few similarities we have a material difference in substance.
If not all, yet most literary productions bear such a marked stamp of individuality, that intellectual property cannot be contested. However it may be, the different subjects have each their own laws, and both authors and publishers we quite leave out of the question.
Opinion of the Leading Journal of Holland, the “Algemeen Handelsblad.”
In the history of the Netherlands economy, the 22nd June, 1869, will be long remembered. Whatever shall be the decision of the First Chamber, the fact of the Law [Bill] having passed the Second Chamber by 48 yeas against 8 noes is a highly gratifying occurrence.
The chief feature in the opposition on the part of the Conservatives was the able speeches made by their leader, M. Heemskerk, in order to prove that invention confers a right of property. Without going into the merits of the case, we cannot help recording that, in the opinion of those that side with M. H., it must be a suggestive circumstance that, despite all the earnest pleading of the honourable gentleman, 48 out of 57 representatives, of men of the highest moral and intellectual standing, did vote for abolition, and still did not intend despoiling anybody of his own.
Invention is the effusion of thought, and just as thought cannot but be free, so invention must be the same.
We hope that the Netherlands will not long remain alone in this instance. At any rate, we may be proud of the overwhelming majority of men able to understand the real means of progress.
Extract From an Obliging Private Letter
Amsterdam, June 28, 1869.
... In some respects, the rather powerful arguments of the members who were favourable to the continuance of the system of Patents—and who contended that an inventor, the same as an author, has a right to protection of his individual mind-work—were defeated, principally by the pretty general opinion of the majority that it would be next to impossible to adopt any new Law on Patents efficient to protect one inventor without at the same time injuring not only some brother-inventor, but also the public at large.
From the “Frankfort Journal,” July 21
The abolition of the Patent-Laws in the Netherlands will, it is evident, not remain without influence on the decision which other European States, and in particular those of Germany, will form in regard to these laws. Of the two countries, one of which is in possession of the sources of the Rhine, and the other of its mouths—the former the most industrious country in the world, never had a Patent-Law; the latter, eminent for its foresight, dispenses with those laws. Through this act are intensified the unsatisfactory circumstances which the existence of these laws produces, and the want of confidence which is felt in their advantage to inventors and the public. The number of their defenders is constantly declining. People are daily more and more becoming convinced that these laws belong to the same category as the Usury-Laws and the Corn-Laws, and other similar excrescences introduced by bureaucracy, and that they should be thrown into the lumber-room of laws which effect the very reverse of what they profess to do. They stop progress. Inventions of importance can always be made useful to the inventors without Patent-Laws. Great inventors might perhaps be indemnified by Government on behalf of a nation, but as for the innumerable herd of small inventors who prosecute inventing as a trade, they cause the consumer severe injury instead of benefiting him. Since Patents for inventions in Germany do not extend to protection against dealing in foreign articles patented here, we may consider the abolition of Patents in the Netherlands a reason why Patent monomaniacs should now ask themselves whether the cost is likely hereafter to yield a good return.