[Author's draft:]

Labouchere Dec 3 01 / 51

When y br^ght a bill into y^e H of C last Sep^r to amend y^e pat^t laws, I did not trouble y on y^e subj^t I supposed y^t y^e mind of y^e Gov^nmt was made up as to y^e nature & details of y^e measures – But y^e many changes w^ch it suff^rd in y^e H of C, & its final withdrawal lead one me to suppose that it is still an open questⁿ. I ∴ beg to trouble y w^h a few obs^ns

It is prop^sd by this bill to dim^sh y^e Exp^se of obt^g a pat^t. This is all v^y well in its way but it is not y^e exp^se attend^g y^e pat^t but y^e abve ment^d exp^se is by no m^ns y^e chief grv^ce w^ch p^tees suffer.

If a p^tt is w^rth anything, it is gen^ly worth more than a few 100 £s, so that the sum price w^ch y^e Gov^t chooses to place upon y^e pat^t is not so v^y material.

The real pr^bm is y^e mis^ble state of y^e law protect^g pat^ts – It is unw^rthy of a g^t natⁿ to obtⁿ money under false pret^ces – At present y^e Brit^sh Gov^t sells to an inv^r at y^e price of £100 or £200 what professes to be an exclus^ve privilege of manufact^g & vending his invⁿ – As soon as he has disclos^d his secret perhaps many pers^ns begin to pirate y^e invⁿ – Y^e p^tee flies for protectⁿ to a Court of Law & then exhb^ts his pat^t expect^g perhaps y^t his rights w^ll be imm^y recognized, & enforced by some judg^mt or decree of y^e Court But he is told y^t his mere possessⁿ of y^e pat^t proves nothing as to his right, y^t it is not even a primà facie evid^ce in his favor, suff^t to induce y^e Court to interfere – He is compelled to bring an regular exp^sve actⁿ at law, termin^g perhaps at length with nom^nal dam^ges in his favour, but estab^g his right – After w^ch the Courts will interfere in his favour ag^st subseq^t infringements – But many pat^ees are unable to sustain y^e exp^se of these proceed^gs & ∴ all y^e fruits of their work & lab^r are lost to y^m.

Take the following [illeg del] of an actual occur^ce inst^ce of hardship – a foreigner comes to London & brings w^th him a quant^y of some pat^d article w^ch he proceeds to sell. The p^tee applies to y^e C^rt of Chanc^y for an injunctⁿ & y^e Court directs an actⁿ at Common law to try y^e valid^y of [illegible] pat^t. This is accord^ly commenced attempted, but but has not hardly commenced when y^e foreigner hav^g disposed of all his goods, quits y^e country, to be succeeded perhaps not long after^wds by a host of similar advent^rers – But when these griev^ces are comp^ld of, lawyers are wont to reply “It w^d never do, for y^e Court to grant an injⁿ before y^e p^tee has establ^d his right at Commⁿ Law – Otherwise a person who had pt^d an invⁿ w^ch was not a novelty might stop a manuf^y in full work & cause great damage to y^e proprietor before y^e error c^d be rectified –

There can however be no diffict^y one w^d th^k, in framing regulat^ns w^ch w^d prevent y^e possib^y of any such injust^ce or inconv^ce<.> The foll^g is only thrown out as a hint – Might there not be a Board Commission of Patents, composed of persons hav^g knowledge of Trade and of y^e Arts & Sciences, such as I believe were formerly called in France prudhommes or experts. An person inventor hav^g obt^d a pat^t sh^d be allowed to present it to the Board of Comm^rs – paying them at y^e same time a certain fee – & ask^g y^m for a certificate of its being (in their opinⁿ) a new inventⁿ. They sh^d exam. it & either give their Certif^te or else refuse it as y^e case may be. The refusal sh^d not debar y^e p^tee f^m any rights w^ch he has at pres^t of maint^g his pat^t in a Court of law, but y^e grant^g y^e Certif^te sh^d have this effect viz. that the Court of Chancery or any 1 of y^e Common law judges, sh^d upon y^e productⁿ of this Certif^cte

Labouchere 31 Dec/51 /2

Certifc^te grant an injunctⁿ to restrain the Party charged with infringing the pat^t f^m doing so unless the defend^t sh^d deny the valid^y of y^e pat^t & pay undtake to defend actⁿ at law, & pay £100 into Court to abide y^e event of y^e actⁿ this sum to be payable if y^e plaintiff succeed in his actⁿ – If the defend^t take this course, the p^ff [3 illegible words] bring his actⁿ [illeg x 3] the injunctⁿ to be suspend^d until y^e result of y^e trial is knwⁿ.

This plan does not delegate any judicial power to y^e board of comm^rs nor make their decisⁿ in any way defin^ve – They w^d be only as it were y^e advisers of the Court & w^d be above any suspicⁿ of interest^d mot^ve w^ch is not always y^e case now when y^e Court asks y^e opinⁿ of scientific men placed in y^e witnessbox.

[centred on verso of the 2^ndsheet: Labouchere]

[Expanded version:]

Labouchere
December 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 primà 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 2^ndsheet: Labouchere]