Our readers cannot have followed us thus far, without being struck with the great imperfection of the law of patents, as it at present stands. It were well if it only baffled the patentee by utter barrenness of advantage ; he is fortunate who escapes from that misfortune called a pa tent, short of very great loss, or absolute ruin. It is the only species of right known in law, which, seemingly created by grant and contract, is really created, not mere ly vindicated, by a costly law-suit, or series of law-suits. The king grants a patent—the great seal is affixed—the grantee complies with all the conditions, and the privilege is said to be conferred. Signing, sealing, and delivering, complete any other right, but they confer not the right of patent. They amount to no more than a most unenviable privilege, or rather necessity, of being ruined in a court of law ; and till the patentee comes out of court victori ous,—which, from the multifarious disadvantages under which the law places him, he does once in five or six in stances,—till not the king, but a jury, shall have confer red upon him a monopoly of the fruit of his ingenuity, he has no right for which any sensible person would give him a farthing ! Such a privilege is a mere mockery of justice and of common sense. But this is not all : Even when a patentee has, like James Watt, expended hundreds in obtaining the seeming monopoly, and thousands in esta blishing, by successive law-suits, the real one—a warfare which a poor patentee could not have maintained—his specification is most unnecessarily made public fourteen years before it can be used by the public, and serves not only as the guide of piracy at home—so that multitudes infringe the patent who are never discovered—but is forth with taken abroad, where, of course, the patent article is made, the foreign market shut against the real inventor, and the undue benefit given to foreigners, of the invention free, fourteen years before the patentee's countrymen can enjoy the same advantage. Those who have experience in patents, know too well the calm effrontery with which patents are pirated, if they be valuable enough, and the boldness with which the pirate laughs at the threats of au unendowcd, and even of a wealthy patentee, if it chance that he has, by easy access to the specification, fixed upon one of the many trifling errors in that writing, which the present law allows to void a patent right, and by which its unfortunate holder may be baffled and ruined in a court of justice. Dishonest men in the pirating trade are well aware of the great proportion of trials which have ended against the patentee ; in consequence of which piracy thrives, and prosecution is rarely attempted.
The country is itself a loser by this anomalous state of the law. Very many ingenious inventions are lost, be cause their owners have not courage or capital to declare the ruinous war of a patent. No person in his senses, who possesses a valuable secret, will dream of disclosing it for such a right as a patent assures to him. It is be come a sort of maxim, that a secret is far more valuable than a patent. But ryuoad the public, the secret is either a perpetual monopoly to its owner and his representatives, without ever being disclosed, or it dies with him, as many valuable secrets have done, altogether. Were a patent a certain right, the monopoly of secrets might be regulated —might be limited to a patent term ; but as patents are, such limitation would be the utmost injustice.
But we are not yet done with our reprobation of the present system. The courts of law themselves are most unnecessarily taxed with the labour of ascertaining the merits of mechanical and chemical inventions. This is,
perhaps, the purest absurdity of all. They must have re course to special juries, which it is very difficult to get together for such purposes; so that the jury generally comes to be composed of interested tradesmen, or igno rant persons ex astantibus, whom counsel, as they have often complained, cannot enlighten, and judges cannot direct—if, in all cases, these learned persons really un derstand the construction or composition themselves.
The cause of these aggravated mischiefs, and the reme dy, are both before our readers, when we say, 1st, That patents ought not to. be granted of course, and " at the hazard" of the patentee that a court of law shall find that they ought not to have been granted, but causa cognita, by a sufficient and competent authority, after which they ought, like other rights, to be fixed and certain : and, 2dly, That specifications; although lodged and recorded, and that before the patent is granted—an important con dition of the grant—should not he seen by the public, till they are of use to them, namely, at the end of the term of, the patent.
The expression is common, that a patent may he got for any thing; but very few are found good w hen they come to the ordeal of a jury. Is this IRA saying, in so many words, that many that have, ought not to have, been granted ; and that it is unworthy of this great country to pervert a valuable privilege, and confound the trash of every pretender, whose end is answered by the mere patent mark, with those inventions which illus trate the genius and exalt the character of the people ? We have not heard any objection to the first mentioned remedy, namely, that a patent shall be put on the legal footing of other rights, viz. granted for ascertained value, (in ingenuity, utility, and future conveyance to the public,) and then made absolute and secure. The reason given in the law books, for publishing the description of the inven tion at the beginning instead of the end of the term, is this, that the lieges shall not he led to throw away their time, talents, and labour, on the same object, or be be trayed into unintentional infringement by the concealment of the specification.
The answer to this is easy. A description, far short of a minute specification, is publication enough to inform in genious men of the nature of inventions already protected by patents; not only in machinery, where they have the farther opportunity of comparing such description with the patent article actually in the market, but even in pro cesses and chemical results. For this reason, the titles of patents should be required to be full, comprehensive, and intelligible, so as to indicate plainly what is protected, although not the mode of making the article ; and a list of these titles should not only be recorded, but gazetted. With such means of information, the ingenious would have themselves to blame if they proceeded totally in the dark. In truth, practically, the information proposed to be offered them would be somewhat better than any of them now take the benefit of, in all cases where the spe cification is not in the public journals. A list of patents, even at present, is quite warning enough; and, as a copy of a specification does cost a few pounds, no one, with the exception of the scientific journalist, thinks of having re course to the specification record, but the deliberate, spe culating, impudent pirate. But as there ought to remain, in the hands of the same competent authority which pass ed the specification, power to open it up privately at any time, ingenious men may have the decision of that au thority, on the point whether their invention interferes with any existing patent or not.