634 



NA TURE 



[November i i, 192: 



privilege was forthcoming. The rights of the native 

 workman were carefully respected. Occasionally 

 technical points of law were reserved to the Common 

 Law Courts, and in exceptional cases parties were 

 allowed to seek their legal remedy ; but in only one 

 doubtful case during this period has any decision of 

 the Courts found its way into patent jurisprudence. 



With the Hanoverian dynasty the zeal of the 

 Council in prosecuting its industrial policy sensibly 

 abated, and about 1750, after an unseemly squabble 

 between Lord Mansfield and the Privy Council, the 

 jurisdiction of the Council was allowed to lapse. 

 Thus when the Common Law Courts resumed their 

 jurisdiction over Letters Patent they were without 

 precedent to guide them for a period of about a 

 century and a half. 



It was in these circumstances that the well-known 

 doctrine of the patent specification was evolved. 

 Interpreting the Statute of Monopolies by the con- 

 temporary meaning of its language, the Courts 

 construed the phrase " true and first inventor " in its 

 modern sense. This left the Statute devoid of any 

 expressed consideration ; for it invested the inventor 

 with rights without any corresponding obligation. 

 True there was a clause in the Letters Patent of 

 recent introduction which made the validity of a 

 patent contingent upon the filing of a specification 

 within a fixed period, but there was also an older 

 final clause waiving a full, or indeed any, dis- 

 closure. By emphasising the former and ignoring 

 the latter clause, Lord Mansfield laid down that the 

 patent grant was made in consideration of the filing 

 by the patentee of such a description of his invention 

 as would enable a skilled artisan in the trade to work 

 the invention. The effect of this judgment was to 

 make the validity of patents conditional upon their 

 compliance with an uneconomic and, from an ad- 

 ministrative point of view, impracticable standard of 

 novelty ; for the decision involved the shifting of 

 novelty from the practice of the trade to novelty 

 of disclosure within the realm. By depreciating the 

 security of the patent it lowered its commercial value 

 — while discouraging the importation of industries not 

 practised within the realm. As, however, no attempt 

 was made to bring administrative practice into har- 

 mony with the legal requirements, applicants continued 

 to obtain their patents on the old basis. 



In 1905 a fifty years' search through British patent 

 specifications came into operation. It was instituted 

 as an instalment of a wider scheme of examination to 

 be introduced at a future date. The effect of official 

 examination is always to reduce the restraining power 

 of a monopoly in a degree corresponding with the 

 extent of the search. A representative of one of the 

 largest patent-owning firms in the United States once 

 said to the present writer, " Our American patents 

 are not worth a d — n ! We take them out because 

 they are cheap ! " Without applying this dictum 

 wholesale as a criterion of the value of the patents 

 issued by any office which examines for novelty, it is 

 clear that the effect of official examination is to reduce 

 a large proportion of its grants to the level of com- 

 ii" i' 11I advertisement. If it be alleged that the 

 object of the above measure was to harmonise the 

 law and practice of patents, it must be pointed out 

 that the framers of this Act introduced at the last 

 moment a clause to " round off " the official search 

 by removing British patent specifications not retained 

 on or included in the official files from the stock of 

 public knowledge. Thus the Common Law standard 

 was sacrificed to official convenience. In this manner 

 tin English Law of Novelty has been made to box 

 the compass. Valid patents can now be obtained 

 without any consideration, for the disclosure may be 



NO. 2767, VOL. I 10] 



identical with that already disclosed and published. 

 The latter cannot be cited as evidence of prior anticipa- 

 tion. Let it be granted that no public inconvenience 

 has arisen under the operation of this clause : but 

 this admission undercuts the whole case for official 

 examination so far as that examination is conducted 

 through specifications of lapsed patents. The law 

 obviously stands in need of a clear and business-like 

 statement of its principles. An attempt in this 

 direction was made in the Patents Act of 1919, which 

 explicitly reaffirms the doctrine of the old Law as 

 to "working"; but as no concurrent relief was 

 provided for the patentee on proof of commercial 

 working, the value of the British patent continued on 

 its downward path. 



One step only remains to be taken to deprive our 

 patent law of its last vestige of biological significance, 

 namely, the abolition of protection to the importer 

 of a new industry. This change, however, is fore- 

 shadowed in the Report of the British Empire Con- 

 ference of 1922, the delegates to which suggest that 

 this principle should be sacrificed on the altar of 

 imperial uniformity. 



Is this country so far ahead of others in its in- 

 dustrial lead that it can afford to discard from its 

 armoury the competitive principle which formed the 

 basis of its early practice, securing for it that lead 

 which it is frittering away to-day ? The period 

 of industrial progress, which dates from 1770, was 

 marked by a continuous and fairly parallel growth in 

 population and patent statistics which culminated in 

 the year 1910. In 1911-12-13 the patent statistics 

 began to fall away, and in the same year, 191 1, the 

 rate of growth of population showed a flattening 

 tendency which has persisted to this day. These 

 unfavourable symptoms are not equally reflected in 

 the corresponding statistics of other countries. 



Hence a case appears to be established for an 

 inquiry into the working of a system which, as the 

 result of successive modifications during the last fifty 

 years, has lost all claim to industrial value, con- 

 sistency, or administrative economy. In this inquiry 

 all considerations of international or imperial comity 

 should be subordinated to the national interest. 

 The services of the inventor should be competed for 

 by offering him the widest security for his monopoly 

 compatible with the state of the national industry. 

 On proof of commercial working, the validity of his 

 patent shotdd be freed from attack by proof of prior 

 publication within the realm, and the patent freed 

 from the payment of further renewal fees. On these 

 lines the law and practice could be made consistent, 

 effective, and economical. The cost of administra- 

 tion would be materially reduced, delays would be 

 avoided, and a broad claim to the invention made secure 

 so soon as the full consideration of the patent was 

 given by its reduction to practice. There would, no 

 doubt, be some increase in litigation, but patent 

 litigation is a sign of healthy progress. These are 

 matters clearly within the control of human agency, 

 but courage and conviction are needed to bring about 

 the reforms. When a vacancy occurs in a university 

 readership the stipend is fixed at a figure calculated, 

 as Lord Bacon says, " to whistle for the ablest men 

 out of all foreign parts." Educationists do not 

 accept the latest thesis as a substitute for personal 

 service. In the same way, new teachers in industry 

 should be requisitioned to keep our manufactures 

 abreast of foreign enterprise. A nation which aspires 

 to maintain its place in the hierarchy of power must 

 conform to the teaching of natural laws. 



E. W. Hulme. 



Gorseland, North Road, 

 Aberystwyth. 



