[(To Mr. Carpmael)]
5. How long have you been a patent agent?
Twenty-nine years...
20. Is your objection, in the first place, to thet language employed?
Yes... There is a very strong objection, in my mind, to the circumstance of sending descriptions of all sorts of inventions to an individual, such as the Registrar, as suggested in this Bill, who is to have the control of the document which is registered ; I would say that with all respect for the Registrar, but I do not think that any man, however he is educated, could hold the Registrar's position as suggested in this Bill, and fulfil this duty with any degree of benefit to the country. The principle of the English patent law is to throw the responsibility of the description upon the individual who takes out the patent ; it grants the patent upon the condition that the invention is new and useful, as shown by him ; all our decisions go that that point. If you put a person or persons to control or regulate the document which is registered, they ought to know not only the particular point in question, but they ought to know the exact accurate detail of every branch of the manufacture to which it relates, so that when they get the description, they shall not only know as to the novely of the invention, but as to the sufficiency of the means of carrying it out as described by that document, and none but a man who practises it, or is intimately engaged in the particular workshop, would be able to say whether it was done or not by the particular document.
26. Does not the Attorney-general exercise his discretion as to the sufficiency of the specification?
No, only as to his understanding of the extent of the description, so as to judge whether it is like another invention ; he in no way controls it beyond that.
27. Does not the Attorney-general also consider whether the invention is useful?
No. The Report that goes to the Queen sets forth, that as it is at the risk of the petitioner whether it is new or useful, he, considering it desirable to encourage all arts and matters, recommends the Crown to grant the patent...
29. Is not utility by law one of the elements of a patent?
Yes, essentially so ; but the question is as to the control which the Attorney-general exercises over it. The Attorney-general receives the petitioner ; he hears his description of his invention, and requires him to give him in writing, or in writing aided by drawings, the nature of his invention ; he then hears the opponent or opponents in succession, and having heard the whole, he decides whether the inventions are or are not alike ; if they are not alike, he tells the petitioner that he may have his patent ; but he never goes into this question, "Will this succeed?" Ne never asks himself the question at all, "Is this a useful invention?" I never heard an Attorney-general ask that question in any way ; I do not know what the present Attorney-general may have suggested, but I know that the practive of the office is that he does not inquire into those matters. I can imagine an instance of some invention that might be dangerous, and highly improper to have conducted in this country ; but I can conceive that the Attorney-general might ask a question upon that subject, and take time to consider whether he should grant the patent or not...
31. Do you consider that any change in the second clause to the Bill could remove your objection to it?
So far as my own knowledge of any proposed change, or suggested change goes, I do not see any way or remedying it ; I think it is vicious in the extreme ; it is altering the whole state of the patent law, and brings in a new element ; and we know not what is to become of this document, how it is to get into a court of law, or what may be its effect either against the patent or for the patent.
32. Would the alteration of the patent law, by this clause in the Bill, extend beyond the particular cases of those persons who chose to exhibit, and so exhibiting to have their inventions registered?
Yes, it might go against others ; because, if a wrong party registered, and thet right party comes in afterwards, we do not know what effect this clause would have upon that case ; neither do I know what effect this document registered with the Registrar, or any other parties, would have upon the document subsequently lodged with the Attorney-general, which is called the specification enrolled with the patent. Supposing that A. registers an invention for a steam-engine ; he describes it as consisting of certain parts which are new ; he subsequently takes out a patent ; the specification contains partly that which is registered, and it partly differs from that ; it will always differ in language, because the matured knowledge which a man acquires by the time allowed for the specification, will always put a man in possession of the best mode of expressing that which he necessarily expressed less perfectly when he was registering. Now I want to know what effect the differences between the specification enrolled with thet patent, and the specification registered with the Registrar, are to have? I cannot tell, the least in the world, what the effect will be. There is nothing in this Bill that gives me any means of judging, and there is nothing that would enable a court of law to arrive at any conclusion what effect this document is to have upon any specification subsequently enrolled by the party. Therefore, as regards the party himself, there is no means of working it our. As regards the public, it may be highly injurious, if the registeree happens to be a wrong party, and not the first and true inventor.
33. Your objection would apply to the case of the first and true inventor of a matter wrongfully registered by the exhibitor?
Precisely ; I do not see what would be the effect of this registration upon any patent granted subsequently to other persons than the registeree...
37. Take the case of a person who is the first and true inventor ; supposign that a friend to whom he has confided his invention under a promise of secrecy, contrary to his duty towards the inventor, goes and registers it for the purpose of exhibiting it, what do you consider, according to this Bill, would be the consequence of that upon the first inventor?
I do now know the effect which the registration, and the deposit of a paper of this sort with somebody, is to have upon the true and right inventor ; there is nothing in this Bill that points out the effect of this document so to be deposited ; therefore I do not know either what effect it would have upon the patent itself, or what effect it would have upon the first and true inventor, if the registeree be not that person.
38. Would he be damnified by the mere exhibition of his invention, he not being protected by the words of the Act?
I think he would, because there would be a user by the public, not by the inventor.
39. The Bill only goes to indemnify against that the person who exhibits, ...[w]ho, in the case supposed, would be the knave, and not the true inventor?
Yes.
41. Might not that be altered by an amendment, indemnifying the true inventor?
Yes ; I abstained from entering into that, because that is a question upon the language of the clause.
42. Supposing the protection hereby given against the effect of the exhibition as a publication were extended, not only to the person registering and exhibiting, but also to the true inventor, do you apprehend that any risk would still be run by him in this way, that not only the exhibiting party who registered and was protected thereby, but others who saw it exhibited, might take the invention and go aand obtain a patent?
If they could swear that they were the first and true inventors.
43. Supposing they did not go and get a patent, but supposing they exhibited it themselves, would there be according to your understanding of the matter, any protection to the fist and true inventor against the exhibition?
No ; and what is still worse, if that individual, seeing it exhibited, puts it into use himself, he destroys any subsequent patent.
44. May not the same thing be done at present as the law now stands ; supposing there were no exhibition at all, might not A. steal thet invention of B., the real and true inventor, and bring it into public use, and might he not damnify the real and true inventor as much as he would be damnified by the exhibition of the invention?
Yes ; but there is no inducement to do that.
45. What is the difference between the two cases?
Supposing either a friend, or supposed friend, or a servant, to take the invention of another party, if he puts it into use for himself, the cases would be identical ; but this Bill offers a premium for a servant or any other person to go to the exhibition and to exhibit the invention of a master, or of a party who has confided in him, and to take it before the Registrar, and register it as his invention, and he is then published as the first and true inventor, and he gets the éclat during the whole time of the exhibition, of having been thet first and true inventor...
48. But independently of this exhibition, might not any person who is knavishly disposed, set up the same pretence, by any of the various means of giving publicity to falsehood which exist in this country?
Yes ; and one of the greatest objections to the Registration of Designs Act is, that it acts precisely in that way ; it is an inducement for servants and others to go and register things that they have had communicated to them.
49. The question refers to the publicity given by such means as the newspapers ; if a man chooses to do so, cannot he puff himself off as the inventor of an ingenious contrivance in the newspapers all over the country?
But we do not find that to take place, unless he has something to show that it is recognized by law.
50. How does this Act give him any benefit that he could not obtain otherwise?
I will give a case which occurred in a court of law the other day. A master instructed three of his servants to make certain machinery ; they made this machinery, and they went off to the Registrar's office, and registered three things which their master had directed them to make...They got a registered document for each of those instruments which they had been instructed to make ; they sold the instruments in many cases ; and one of the parties who purchased had notice from the party who was the real inventor, and who pursued his patent, but did not get his patent till after the registration had been effected. An action was tried, and it was proved to demonstration, even by the servants being called into the witness' box themselves, that they had stolen this ; but they said that they had had advice, that as they had altered it somewhat, they had a right to register it so altered. The Courts held, that in that case the mere depositing the documents wrongfully was not a publication of the invention ; but supposing that machinery had been taken to this exhibition, that would have been a totally different thing ; therefore, whenever there is an apparently legal grant given to an individual without any investigation whatever, that is an inducement to men to act in a manner in which they would not otherwise act, in the way of publication in the newspapers, or in showing it about and attempting to sell a thing in which they have no apparent right.
...[E]ver since the exhibition has been known, we have had inventions sent from all parts of the world, from Europe and America, for patents, and I will undertake to say, with some degree of confidence, that there is not a large number of cases requiring this Act...there is no large mass of inventions unprotected...
67. From your experience of patents, are you of opinion that a great proportion of them are taken out without any regard to anything beyond the puffing and advertising of them which the patent affords?
I should say that in modern times that is not so ; a larger investigation takes place by the parties themselves ; they are better advised in modern times than they used to be ; so far from patents being taken out unnecessarily now, I should say that in six out of every seven that come before us, we advise them not to take out patents ; still there are a large number taken out without any investigation whatever ; you cannot always induce men to tell you their inventions, nor can you induce them to investigate them thoroughly by themselves, which we put them in the way of doing, if they will do it, by reading everything appertaining to the subject ; it is a very diffcult thing to persuade them ; they are fully satisfied that it is new and useful ; they spend their money ; and when the money is spent, and the thing necessarily must be known, and the specification has to be drawn, it is found that it is not new, not at all useful, or not at all capable of carrying out what they intended...
69. Supposing the expense of taking out patents were very much diminished, would not there be a vast number taken out which at present are not taken out?
I have no doubt there would, from two causes ; in the first place, that a professional man would exert less effort to prevent persons from taking out patents ; and in the next place, that he would be so inundated that he would not be able to investigate what really existed, and it would be of less consequence, because the risk of loss would be very small ; in addition to that, people would say, "it does not matter, I will take out a patent, and I will look at it afterwards." I have no doubt that if the cost of patents were reduced one-half, there would be more than treble the number of patents taken out...I do not think the additional quantity would be patents of merit...I know of no instance up to the present time of any invention of great merit becoming possesed by the public where the party would have taken out a patent if he had had the tmeans of doing it...The actual fees are something less than 100 l., but with the specification stamp it would be 103 l. for England...For Ireland it is much higher than that ; it is about 130 l...For Scotland about 80 l. The great expense of the patent, and the whole validity of the patent, depends upon the specification ; if a professional man has to draw the specification in the face of twenty or a hundred previous specifications, he must read every one of those specifications ; he must put, so far as he is able, a legal construction upon every one of those documents, and then he must set to and draw his specification in the face of all these, because, in a court of law, he would be liable to have those brought against him ; that is the great expense, and ut must always be.
79. You can give no average of that expense?
No ; I have known the specification to cost 3,000 l. ; in lace machinery, I do not know that I ever charged for actually drawing the specification less that 50 guineas for an ordinary lace specification ; then, if a counsel settle it after me,, he cannot have less than that, because he must go through all that work in a legal point of view ; but hte ordinary run of specifications would cost reom 10 l. to 15 l. or 20 l...
102. Under the existing law, does any offer of sale of an invention, by a person not the real inventor in this country, incapacitate the real inventor from taking out a patent in foreign countries?
No ; unless it is either published in print, or before the world, an offer of sale does not touch it at all. If a party becomes possessed of an inveniton wrongfully, and he hawks it all over Manchester of Birmingham, but no public user takes place in consequence, it makes nothing against the patent in England.
103. Public user is fatal?...Whether done rightfully or fraudulently?
It is fatal, however done ; and that is the difficulty I have in working out the language of this bill.
105. Do you not consider that the proposed Exhibition will be of very great benefit to inventors, as well as to the rest of the community?
I think, as regards the progress of manufactures, so far as respects the introduction of raw materials and products of every kind, it is of infinite value ; but, as regards the extent to which it is carried out, I am afraid it will destroy the thing for any future use.
...107. Do you not consider that the bringing foreign inventions here to so great extent will be great benefit to inventors?
Very great ; because the seeing what others have done will turn their attention to doing the same thing...