What is, in reality, this grant of a monopoly? A simple acknowledgment, a declaration.Society, wishing to favor a new industry and enjoy the advantages which it promises, bargains with the inventor, as it has bargained with the farmer; it guarantees him the monopoly of his industry for a time;
but it does not create the monopoly.The monopoly exists by the very fact of the invention; and the acknowledgment of the monopoly is what constitutes society.
This ambiguity cleared up, I pass to the contradictions of the law.
All industrial nations have adopted the establishment of a temporary monopoly as a condition of a contract between society and the inventor.....
I do not take readily to the belief that all legislators of all countries have committed robbery.
M.Renouard, if ever he reads this work, will do me the justice to admit that, in quoting him, I do not criticise his thought; he himself has perceived the contradictions of the patent law.All that I pretend is to connect this contradiction with the general system.
Why, in the first place, a temporary monopoly in manufacture, while land monopoly is perpetual? The Egyptians were more logical; with them these two monopolies were alike hereditary, perpetual, inviolable.I know the considerations which have prevailed against the perpetuity of literary property, and I admit them all; but these considerations apply equally well to property in land; moreover, they leave intact all the arguments brought forward against them.What, then, is the secret of all these variations of the legislator? For the rest, I do not need to say that, in pointing out this inconsistency, it is not my purpose either to slander or to satirize;
I admit that the course of the legislator is determined, not by his will, but by necessity.
But the most flagrant contradiction is that which results from the enacting section of the law.Title IV, article 30, 3, reads: "If the patent relates to principles, methods, systems, discoveries, theoretical or purely scientific conceptions, without indicating their industrial applications, the patent is void."
Now, what is a principle, a method, a theoretical conception, a system?
It is the especial fruit of genius, it is invention in its purity, it is the idea, it is everything.The application is the gross fact, nothing.
Thus the law excludes from the benefit of the patent the very thing which deserves it, -- namely, the idea; on the contrary, it grants a patent to the application, -- that is, to the material fact, to a pattern of the idea, as Plato would have said.Therefore it is wrongly called a patent for invention; it should be called a patent for first occupancy.
In our day, if a man had invented arithmetic, algebra, or the decimal system, he would have obtained no patent; but Bareme would have had a right of property in his Computations.Pascal, for his theory of the weight of the atmosphere, would not have been patented; instead of him, a glazier would have obtained the privilege of the barometer.I quote M.Arago:
After two thousand years it occurred to one of our fellow-countrymen that the screw of Archimedes, which is used to raise water, might be employed in forcing down gases; it suffices, without making any change, to turn it from right to left, instead of turning it, as when raising water, from left to right.Large volumes of gas, charged with foreign substances, are thus forced into water to a great depth; the gas is purified in rising again.I maintain that there was an invention; that the person who saw a way to make the screw of Archimedes a blowing machine was entitled to a patent.
What is more extraordinary is that Archimedes himself would thus be obliged to buy the right to use his screw; and M.Arago considers that just.
It is useless to multiply these examples: what the law meant to monopolize is, as I said just now, not the idea, but the fact; not the invention, but the occupancy.As if the idea were not the category which includes all the facts that express it; as if a method, a system, were not a generalization of experiences, and consequently that which properly constitutes the fruit of genius, -- invention! Here legislation is more than anti-economic, it borders on the silly.Therefore I am entitled to ask the legislator why, in spite of free competition, which is nothing but the right to apply a theory, a principle, a method, a non-appropriable system, he forbids in certain cases this same competition, this right to apply a principle?"
It is no longer possible," says M.Renouard, with strong reason, "to stifle competitors by combining in corporations and guilds; the loss is supplied by patents." Why has the legislator given hands to this conspiracy of monopolies, to this interdict upon theories belonging to all?
But what is the use of continually questioning one who can say nothing?
The legislator did not know in what spirit he was acting when he made this strange application of the right of property, which, to be exact, we ought to call the right of priority.Let him explain himself, then, at least, regarding the clauses of the contract made by him, in our name, with the monopolists.
I pass in silence the part relating to dates and other administrative and fiscal formalities, and come to this article:
The patent does not guarantee the invention.
Doubtless society, or the prince who represents it, cannot and should not guarantee the invention, since, in granting a monopoly for fourteen years, society becomes the purchaser of the privilege, and consequently it is for the patentee to furnish the guarantee.How, then, can legislators proudly say to their constituents: "We have negotiated in your name with an inventor; he pledges himself to give you the enjoyment of his discovery on condition of having the exclusive exploitation for fourteen years.But we do not guarantee the invention"? On what, then, have you relied, legislators?
