Labouchere Dec 3
01 / 51
When y brght a bill into ye H of C last Sepr to amend ye patt laws, I did not trouble y on ye subjt I supposed yt ye mind of ye Govnmt was made up as to ye nature & details of ye measures But ye many changes wch it suffrd in ye H of C, & its final withdrawal lead
one me to suppose that it is still an open questn. I ∴ beg to trouble y wh a few obsns
It is propsd by this bill to dimsh ye Expse of obtg a patt. This is all vy well
in its way but it is not ye expse attendg ye patt but ye abve mentd expse is by no mns ye chief grvce wch ptees suffer.
If a ptt is wrth anything, it is genly worth more than a few 100 £s, so that the
sum price wch ye Govt chooses to place upon ye patt is not so vy material.
The real prbm is ye misble state of ye law protectg patts It is unwrthy of a gt natn to obtn money under false pretces At present ye Britsh Govt sells to an invr at ye price of £100 or £200 what professes to be an exclusve privilege of manufactg & vending his invn As soon as he has disclosd his secret perhaps many persns begin to pirate ye invn Ye ptee flies for protectn to a Court of Law &
then exhbts his patt expectg perhaps yt his rights wll be immy recognized, & enforced by some judgmt or decree of ye Court But he is told yt his mere possessn of ye patt proves nothing as to his right, yt it is not even a primΰ facie evidce in his favor, sufft to induce ye Court to interfere He is compelled to bring an regular expsve actn at law, terming perhaps at length with nomnal damges in his favour, but estabg his right After wch the Courts will interfere in his favour agst subseqt infringements But many patees are unable to sustain ye expse of these proceedgs & ∴ all ye fruits of their work & labr are lost to ym.
Take the following [illeg del]
of an actual occurce instce of hardship a foreigner comes to London & brings wth him a quanty of some patd article wch he proceeds to sell. The ptee applies to ye Crt of Chancy for an injunctn & ye Court directs an actn at Common law to try ye validy of [illegible] patt. This is accordly commenced attempted, but but has not hardly commenced when ye foreigner havg disposed of all his goods, quits ye country, to be succeeded perhaps not long afterwds by a host of similar adventrers But when these grievces are compld of, lawyers are wont to reply It wd never do, for ye Court to grant an injn before ye ptee has establd his right at Commn Law Otherwise a person who had ptd an invn wch was not a novelty might stop a manufy in full work & cause great damage to ye proprietor before ye error cd be rectified
There can however be no difficty one wd thk, in framing regulatns wch wd prevent ye possiby of any such injustce or inconvce<.> The follg is only thrown out as a hint Might there not be
a Board Commission of Patents, composed of persons havg knowledge of Trade and of ye Arts & Sciences, such as I believe were formerly called in France prudhommes or experts. An person inventor havg obtd a patt shd be allowed to present it to the Board of Commrs paying them at ye same time a certain fee & askg ym for a certificate of its being (in their opinn) a new inventn. They shd exam. it & either give their Certifte or else refuse it as ye case may be. The refusal shd not debar ye ptee fm any rights wch he has at prest of maintg his patt in a Court of law, but ye grantg ye Certifte shd have this effect viz. that the Court of Chancery or any 1 of ye Common law judges, shd upon ye productn of this Certifcte
Labouchere 31 Dec/51 /2
Certifcte grant an injunctn to restrain the Party charged with infringing the patt fm doing so unless the defendt shd deny the validy of ye patt &
pay undtake to defend the pff [3 illegible words] bring his actn [illeg x 3] the injunctn to be suspendd until ye result of ye trial is knwn.
This plan does not delegate any judicial power to ye board of commrs nor make their decisn in any way definve They wd be only as it were ye advisers of the Court & wd be above any suspicn of interestd motve wch is not always ye case now when ye Court asks ye opinn of scientific men placed in ye witnessbox.
[centred on verso of the 2ndsheet: Labouchere]
30 31/18 51
When you brought a bill into the House of Commons last September to amend the patent laws, I did not trouble you on the subject. I supposed that the mind of the Government was made up as to the nature and details of the measures. But the many changes which it suffered in the House of Commons, and its final withdrawal lead
one me to suppose that it is still an open question. I therefore beg to trouble you with a few observations.
It is proposed by this bill to diminish the Expense of obtaining a patent. This is all very well
in its way but it is not the expense attending a patent but the above mentioned expense is by no means the chief grievance which patentees suffer.
If a patent is worth anything, it is generally worth more than a few hundred pounds, so that the
sum price which the Government chooses to place upon the patent is not so very material.
The real problem is the miserable state of the law protecting patents- It is unworthy of a great nation to obtain money under false pretenses- At present, the British Government sells to an inventor at a price of £100 or £200 what professes to be an exclusive privilege of manufacturing and vending his invention- As soon as he has disclosed his secret, perhaps many persons begin to pirate the invention- The patentee files for protection to a Court of Law and
then exhibits his patent expecting perhaps his rights will be immediately recognized, and enforced by some judgment or decree of the Court. But he is told that his mere possession of the patent proves nothing as to his right, that it is not even a primΰ facie evidence in his favor, sufficient to induce the Court to interfere- He is compelled to bring an regular expensive action at law, terminating perhaps at length with nominal damages in his favour, but his establishing his right- After which the Courts will interfere in his favour against subsequent infringements- But many patentees are unable to sustain the expense of these proceedings, and therefore all the fruits of their work and labour are lost to them.
Take the following
[illegible] of an actual occurence instance of hardship a foreigner comes to London and brings with him a quantity of some patented article which he proceeds to sell. The patentee applies to the Court of Chancery for an injunction, and the Court directs an action at Common law to try the validity of [illegible] patent. This is accordingly commenced attempted, but but has not hardly commenced when the foreigner having disposed of all his goods, quits the country, to be succeeded perhaps not long afterwards by a host of similar adventurers- But when these grievances are complained of, lawyers are wont to reply It would never do, for the Courts to grant an injunction before the patentee has established his right at Common Law- Otherwise a person who had patented an invention which was not a novelty might stop a manufactory in full work and otherwise cause great damage to the proprietor before the error could be rectified-
There can however be no difficulty, one would think in framing regulations which would prevent the possibility of any such injustice or inconvenience. The following is thrown out as a hint- Might there not be
a Board Commission of Patents, composed of persons having knowledge of Trade and of the Arts and Sciences, such as I believe were formerly called in France prudhommes or experts. An person inventor having obtained a patent should be allowed to present it to the Board of Commissioners paying them at the same time a certain fee and asking them for a certificate of its being (in their opinion) a new invention. They should exam it and either give the Certificate or else refuse it as the case may be. The refusal should not debar the patentee from any rights which has at present of maintaining his patent in a Court of law, but the granting the Certificate should have this effect, viz., that the Court of Chancery or any one of the Common law judges, should upon the production of this Certificate grant an injunction to restrain the Party charged with infringing the patent from doing so unless the defendant should deny the validity of the patent and pay undertake to defend action at law, and pay £100 into Court to abide the event of the action this sum to be payable if the plaintiff succeed in his action- If the defendant take this course, the plaintiff bring his action [illegible] the injuction to be suspended until the result of the trial is known.
This plan does not delegate any judicial power to the Board of Commissioners nor make their decision in any way definitive They would be only as it were the advisers of the Court and would be above any suspicion of interested motive which is not always the case now when the Court asks the opinion of scientific men placed in the witnessbox.
[centred on verso of the 2ndsheet: Labouchere]