Journal of the Society of Arts : Volume XLIX, No. 2527 [‎701r] (27/36)

April 26, 1901.]
JOURNAL OF THE SOCIETY OF ARTS.
439
These rules are to prevent men of straw or
speculators, who buy up patents, from black
mailing - the public, and to enable licensees to
protect their interests in cases where theycannot
induce the patentee to prosecute third parties
for infringement.
On the other hand, it should not be possible
to invalidate a patent which has been worked
for more than two years on a commercial scale
by the patentee or his licensees, except by
proving that the invention was in use on a
commercial scale for a reasonable time before
the first application for the patent was made.
It is a matter for discussion whether such prior
user ought to have taken place in the country
where the patent in question has been granted,
or in any country belonging to the International
Union. In the latter case the inventor would
have the advantage of the earliest date of
application in any one of the countries.
What is a “reasonable time” depends so
much on the nature of the invention that it
seems preferable to leave its determination
entirely to the Court before whom each indi
vidual case is tried, and not to attempt to
define precisely for what length of time a
process should have been worked to become a
valid anticipation.
The effect of this provision would be to make
a patent almost indefeasible during the
remainder of its term after the invention
has been worked or made on a commercial
scale for two years. Until that time the patent
would fall under the provisions of the present
law. It stands to reason that each patentee
would use his best efforts to obtain the
powerful protection of this provision for his
invention ; and this would place him in a posi
tion to make extortionate demands for the use
of his invention were it not for the system of
easily obtained compulsory licenses.
It is very essential that “ use on a com
mercial scale ” be proved to avoid the failure
that has invariably attended the “working”
clauses of some Patent-laws, where it is suffi
cient to manufacture once every year or once in
every two years in the presence of a public
notary.
As alluded to in the discussion of
M. von Hefner Alteneck’s paper, most of
the large firms have a special department for
watching the progress of their particular
branch of industry and for investigating all
the complaints about technical deficiences,
which the customers of the firm may make
from time to time.
If necessary, this department conducts a
series of experiments on the lines indicated by
the wishes of customers, and the usual practice
is to patent all modifications that may suggest
themselves to the trained staff working in the
department.
It is also undeniable that the introduction of
a modification depends only on its commercial
value, so that it may easily happen that a firm,
after taking out a patent for a modification,
does not find it advantageous to adopt the
same for its own use, or some unexpected
difficulties present themselves, which, for the
time, make the modification impracticable.
Under modern conditions it is quite possible
that another firm might discover the same
modification, or a very similar one, and succeed
in overcoming the difficulties w'hich deterred
the first firm from proceeding with the modifi
cation.
In such cases, the second patent should not
be invalidated by the publication of the first
patent, unless the first patent was valid when
the second patent was applied for, or unless it
can be proved that the second inventor was
acquainted with the first patent before he
applied for a patent himself. A similar rule
should apply to other publications, so that they
should not be available as proof of anticipation,
wffien they are more than fifteen years old at
the time the patent is applied for.
By the adoption of these rules actions for in
fringement would be considerably simplified
both for the plaintiff and for the defendant, as
it would not be necessary as at present to
search far back for publications, which might
be interpreted as being anticipations ; but the
commercial use of the invention w^ould have to
be proved, which is more a questiou of fact
than one of opinion. The questions of ingenuity
or of usefulness would not be raised at all in
such a suit, so that the difficulty of exactly
defining wffiat really constitutes an invention
would be altogether eliminated. This view is
endorsed by Mr. Abel, who in discussing what
is a patentable invention, says, “ that it is the
result that one should look to before all else,
and that an advantageous result should be
held to infer an exercise of ingenuity worthy of
being rewarded by a patent.”
An ideal state of affairs would be reached if
the Patent-laws of all civilised countries were
made identical, on the lines sketched out in
this paper, so that a patent taken out in one
country could be registered, at the option of
the inventor, in all the others, without any
further examination of any kind, and in the
case of litigation the commercial use in one