De la propriété des inventions ou des procédés industriels.

CHAP. 29: On the property of inventions or industrial processes.

The act of taking possession of a thing that has no master, with the intention of appropriating it, has been considered from all time as one of the first means of acquiring property. This way of judging is even so natural to us that the least enlightened man who saw taken from him a thing he had acquired in this manner, by one who had no right prior to his own, would believe himself the victim of a manifest injustice. He would submit, without hesitation, the judgment of such a spoliation to people who had no more enlightenment than he, and he would believe himself sure of winning his case, if he had the certainty that his judges would be neither deceived nor corrupted.

Nations have adopted, in their mutual relations, the principle they apply to individuals in the relations they have among themselves; they have considered themselves proprietors of the unoccupied lands, discovered in expeditions they had ordered, and of which their agents had taken possession in their name. It is on this title that they have established colonies in America, in a part of Africa, and in the numerous islands they occupy in the two oceans. It has sometimes been sufficient for a people to have discovered a trade route across the seas, for it to declare itself exclusively the proprietor thereof, by title of first occupant. Portugal, for example, formerly claimed to have the sole right to trade with the Indies by the Cape of Good Hope, on the grounds that, having been the first to discover this passage, it had acquired it by occupation. Grotius believed he could not repel these pretensions except by proving that the seas were free by their nature, and that, consequently, they were not susceptible of an exclusive occupation.

It appears that, in the sixteenth century, some Englishmen, having introduced into their country branches of industry or commerce, claimed that the principle admitted by the jurisconsults relative to the occupation of things that had no masters ought to be applied to the discoveries they had made in the domain of the arts. It was natural that, on seeing governments have the seas explored to seek new lands, and take possession of the countries their agents discovered, the men who obtained from their research in industry products hitherto unknown, should aspire to obtain the exclusive enjoyment of the processes they had invented. Was not the discovery the product of their labor and their genius? Were they not also the first occupants?

It would have required more enlightenment and more respect for the liberty of labor than then existed in governments, to perceive the vice of this reasoning. One could well, in effect, find some analogy between the pretension of exploiting, to the exclusion of all other men, an industry one had invented, and the pretension of the Portuguese to navigate, to the exclusion of all other nations, on the seas they had discovered; but was it possible to perceive any resemblance between a material object, circumscribed within narrow limits, such as a space of land or a piece of game, and an industrial process? Could one, with any appearance of reason, assimilate the invention of an art to the occupation of a precious stone that the waves of the sea have pushed upon the shore, or of a fish that a fisherman has taken in his nets? Was the exploitation of an art by one individual an obstacle to the same art being exploited by others?

But governments did not then look very closely when it was a matter of liberty, industry, or commerce; they attributed to themselves the power to arbitrarily give privileges to men who had imagined nothing new; with all the more reason must they have believed that it was permissible for them to give to the author of an invention or to the introducer of a new commerce, the privilege of exploiting it exclusively, for a determined number of years; having the faculty of conceding without reason all sorts of monopolies, they had no other motives to give for their concessions than their power or their will.

However, whatever may have been the pretensions of the authors of industrial discoveries, never has the English government proclaimed, in principle and in an absolute manner, that every invention is the property of the inventor, and that the first who occupies a branch of industry or commerce acquires the right to exploit it exclusively; never has it made a law having for its direct and principal object to guarantee this supposed property. The prerogative, which the crown had seized, of granting privileges to inventors for the exploitation of their inventions, was maintained only by exception, when all other monopolies were abolished, and when it was admitted, in principle, that the crown could no longer grant any. Queen Elizabeth having reduced to monopolies almost all the branches of industry or commerce that had any importance, the English nation rose up, under her successor, against a state of things that had become unbearable. An act passed in the twenty-first year of the reign of James I (ch. 3), declared null and contrary to the laws of the kingdom all monopolies previously established, and forbade the granting of new ones. All persons and corporations were declared incapable of exercising or having exercised any in the future, and it was ordered that any man who was harmed by a monopoly would have the right to triple the damages he had suffered, and to double the costs he had paid to obtain justice.

Article 5 of this act added, that nevertheless the preceding dispositions did not extend to letters patent and to concessions of privileges, granted for the term of twenty-one years and under, to the inventor of a new merchandise, for the manufacture and sale of that same merchandise, provided, however, that no one was, before the concession of the privilege, in possession of manufacturing or selling similar objects. It was recognized, by art. 6, that the dispositions that prohibited, for the future, the creation of monopolies, would not apply either to letters patent or concessions of privileges that would be granted for a term of fourteen years or for a lesser term to the inventor or inventors of any product whatsoever, for the manufacture and sale of that same product. However, this exception was admitted only in the case where no other person was, before the concession of the privileges or the letters patent, in possession of manufacturing similar objects. These two articles declared, moreover, that it was well understood that the inventors who had obtained letters patent could not use them in such a way as to violate the laws or to cause prejudice to the State, by raising the price of merchandise within the country, or by harming commerce by any means whatsoever [^212].

The prerogative of granting a temporary monopoly to an inventor for the exploitation of his invention has not been placed by English jurisconsults in the rank of exceptions to the common law of their country. Richard Godson affirms, on the contrary, that the statute of King James has always been considered as purely declaratory of the existence of this prerogative. He observes, however, that the princes had so rarely made use of this power for the profit of inventors, that the parliament, in abolishing at a single stroke all the baneful monopolies, was obliged to offer an encouragement to ingenious artists. One must not lose sight, moreover, that in affirming that, according to the common law of England, the crown has the prerogative of giving to inventors the privilege of exclusively exploiting their inventions for a determined time, this writer does not say that, according to the same law, every inventor was the proprietor of his invention, and could prevent any other person from making use of it.

When the French Revolution broke out, the men who were occupied with the perfection of the laws turned their gazes toward England to seek models; for Great Britain was then the only country governed by a king in which there existed any liberty. They found that the authors of industrial discoveries there enjoyed the privilege of exploiting them exclusively for a certain number of years, under certain conditions, and they established the same regime in France.

On 31 December 1790, the Constituent Assembly, at the request of some artists, proclaimed that every discovery or new invention, in all genres of industry, was the property of its author, and that any means of adding to any fabrication whatsoever a new genre of perfection would be regarded as an invention; it went further, it declared that whoever would be the first to bring a foreign discovery into France would enjoy the same advantages as if he were its inventor.The Constituent Assembly did not think it was establishing, by these dispositions, privileges or monopolies to the prejudice of the mass of the population; it believed, on the contrary, that it was recognizing rights inherent in the nature of man. It even seemed to it that it ought to explain itself in this regard in such a formal manner that, in the future, no one could raise doubts about the nature of these rights. Here are the motives that serve as a preamble to its decree, and the dispositions by which it guarantees to inventors what it considers to be their natural rights.

“Whereas every new idea, whose manifestation or development can become useful to society, belongs originally to him who conceived it, and that it would be to attack the rights of man in their essence, to not regard an industrial discovery as the property of its inventor;” Whereas at the same time, the lack of a positive and authentic declaration of this truth may have contributed until now to discouraging French industry, by occasioning the emigration of several distinguished artists, and by causing a great number of new inventions, from which this empire ought to have drawn the first advantages, to pass to foreign lands;

» Whereas, finally, all principles of justice, public order, and national interest, imperiously command it to henceforth fix the opinion of French citizens on this kind of property, by a law that consecrates and protects it;

» Decrees as follows:

» Art. 1. Every discovery or new invention, in all genres of industry, is the property of its author; consequently, the law guarantees its full and entire enjoyment, according to the mode and for the time that will be hereinafter determined.

» Art. 2. Any means of adding to any fabrication whatsoever a new genre of perfection will be regarded as an invention.

» Art. 3. Whoever shall be the first to bring a foreign discovery into France shall enjoy the same advantages as if he were its inventor [^213]. »

The Anglo-Americans, who have departed from the legislation of their mother country only by exception, had not, however, adopted the principles followed in Great Britain on inventions. Having rejected all privileges as contrary to their declarations of rights, they would have believed they were placing themselves in opposition to their own principles if they had established monopolies in the arts or in commerce. But after the Constituent Assembly, which, following the example of the United States, had made a declaration of the rights of man, had proclaimed that one could not, without attacking these rights in their essence, not regard an industrial discovery as the property of its inventor, the American congress followed the example of England and France [^214].

On 21 February 1793, it passed a law by which it guaranteed to the author of any industrial invention, who had regularly applied for it, the privilege of exploiting it exclusively for fourteen years, on the condition of submitting to certain conditions determined by the same act. This guarantee was not given only to the citizens of the United States, and to persons who resided on the national territory; it was granted indistinctly to all persons who applied for it, whether they resided on the territory of the confederation, or whether they lived in a foreign country. It was thought that one ought not to adopt, for industrial discoveries, the distinction that had been made relative to literary compositions.

There is in the declaration of the Constituent Assembly a confusion of ideas that must be cleared up, if one wishes to disentangle error from truth, and not admit in principle propositions that would lead to consequences that good sense would force one to disavow.

Every person who makes a discovery in the arts certainly has the right to exploit it for his profit. To recognize the existence of this right, and to guarantee its execution, a special act on the part of the public authority is not necessary. It is sufficient, for the inventor to be able to enjoy it without trouble, that the liberty of industry be proclaimed, and that all properties be guaranteed. The general principles of law are sufficient to protect him in the use he makes of his goods and his talents.

But between the right to practice an industry one has discovered, and the right to prevent others from practicing it, the difference is great; the existence of the former is far from supposing the existence of the latter. The former can be called into question only in countries where one still finds remnants of slavery; the latter can be put in doubt in the freest and most well-policed countries. If the faculty of exclusively exploiting an art one has invented were not guaranteed by a special act of the government, could one claim it by virtue of the principles that guarantee to each the disposition of what belongs to him? The Constituent Assembly appears to have believed so, since it proclaimed loudly that every new idea, whose manifestation can be useful to society, belongs originally to him who conceived it, and that one cannot contest an inventor's property in his invention without attacking the rights of man in his essence. However, if no special law had been made in this regard, it is doubtful that a tribunal would have been found to enforce this supposed natural right.

The Constituent Assembly has evidently applied to industrial inventions the principle followed by all nations for the occupation of things that have not yet been appropriated. It does not require, in effect, in order to grant an individual the exclusive exploitation of an art or a branch of industry, that this individual has devoted himself to long labors, or that he has made certain expenditures: it asks only that he prove that he is the first occupant, and that he has had his occupation recorded. Even if another individual were to prove that he had made the same discovery by his own efforts, and that he had no knowledge of the first inventor's works, he would nonetheless be deprived of the faculty of putting his invention into practice. The dispositions of French law, English law, and Anglo-American law are uniform in this regard: which proves that, in all three countries, they have equally allowed themselves to be guided by the principle of occupation.

But is this principle, in effect, applicable to discoveries made in the arts? Does there exist any analogy between a material object, such as a space of land or a movable object, and a process by means of which a new product is formed? From the fact that one admits that an unoccupied land, a precious stone found on the seashore, or a wild animal, belong to the first individuals who seize them, does it follow that the first who discovers the art of creating a new product has the sole right to put this art into practice? I do not think so; the governments that have granted privileges to inventors have not themselves believed it, and they could not believe it.

The Constituent Assembly declared that every new discovery is the property of its author; but it did not act in conformity with this declaration. In the very law in which it proclaimed the existence of this property, it has denied it, since it has limited the exclusive enjoyment of the inventor to a small number of years. To act consistently with its declaration, it would have had to guarantee this enjoyment in perpetuity; but then it would have arrived at the absurd; the arts and commerce would have been reduced forever to a monopoly, for the profit of a small number of families: the human race would have been condemned, in the name of natural right, to remain stationary.

Nations admit among themselves the principle of occupation for purely material things; but they are far from admitting it for discoveries made in the arts. A discovery made in France gives the inventor no privilege in England. French law is so far from recognizing the property of discoveries made and exploited in other countries, that it encourages nationals to introduce them into France. He who imports a new branch of industry among us can obtain the exclusive exploitation of it, even against the inventor. One cannot say, however, that the Constituent Assembly proposed to encourage theft.

If it were true that every new idea, whose manifestation can become useful to society, belongs originally to him who conceived it, and that it would be to attack the rights of man in their essence to not regard an industrial discovery as the property of its inventor, it would follow that, at the instant an industrial process had been found and put into practice on one point of the globe, the entire human race would have to forbid it to itself, and that no one could make use of it without injuring the rights of man in their essence.

Having had occasion to examine elsewhere the principles proclaimed by the decree of the Constituent Assembly, and the doctrines of the writers who have developed them, I must limit myself here to recalling the motives that have made them seem doubtful to me.

One sees, in the preambles of the decree of the Constituent Assembly, as in the writings that have developed them, two kinds of motives: the principal ones are drawn from the natural right that every inventor has to exclusively exploit the kind of industry he has discovered; the others are drawn from public utility. The latter are purely hypothetical; they exist only by supposition. No one affirms that the lack of a monopoly in favor of inventors has discouraged industry and occasioned the emigration of several distinguished artists. It is said that it may have produced such effects: but as this is only a secondary motive, one does not even deign to examine whether it is justified or contradicted by the facts.

There are legists who see in laws only the consequences of a small number of principles placed outside the domain of reasoning, and who reason like veritable theologians. In effect, as soon as one ceases to treat these principles as dogmas, and refuses to believe in them without examination, they no longer mean anything, even for those who invoke them. How would one prove their truth, since they form the first elements of reasoning?

But, it is said, these principles have no need of demonstration; they are evident by themselves: it is sufficient to state them for everyone to recognize them; the author of nature has engraved them in all minds. Here are facts affirmed in a very positive manner; but where is the proof? Who are the men who have ascertained their existence and their universality?

That is not necessary, it is added; one no more proves evidence than one proves light: those who are not organized in such a way as to be struck by it immediately, are not organized in such a way as to understand its demonstration. There is nothing to reply to this reasoning, and it only remains for us to examine in what proportion the blind are to the seeing. This examination will not be useless; for it could well have for its result to prove to men who believe themselves organized in such a way as to be struck by the light, that they are no less blind than those who, to believe in the existence of light, ask that one give them proofs of it.

It is therefore as clear as day that a man who makes the discovery of a process, who perceives what others have not perceived before him, who makes a use of his organs that others have never made of them, who gives to matter a kind of utility that no one had given it, acquires by that very fact the exclusive right to create this kind of utility, to make such a use of his organs, or to execute such a process. This right that he acquires by his invention is not attributed to him by the laws of his country, since it is, on the contrary, the basis on which the laws rest. It is eternal, immutable, independent of any institution; it is consequently universal, and is limited neither by the borders of States, nor by mountains, nor by seas.

Here are truths evident by themselves, engraved in all minds and in all hearts, and which can be contested only by men who have closed their eyes to the light. Let us follow them in their application, and we will be even more vividly struck by them. The first man who conceived and executed the idea of transforming a piece of wood into a pair of clogs, or an animal skin into a pair of sandals, acquired by this sole fact the exclusive right to shoe the human race. From that moment, all men found themselves under the obligation to walk barefoot, or to go and provide themselves with footwear from the fortunate inventor. If the discovery was made by an inhabitant of the boreal pole, the inhabitants of the austral pole could not, without injuring the rights of man and without violating the principles engraved in all hearts, permit themselves to wear clogs without having bought them from the other extremity of the globe. If the inventor could not manufacture a sufficient quantity to shoe all the nations of the world, or if he put a price on them that one did not have the possibility of paying, one had to go without footwear and skin their feet, for fear of injuring the rights of nature. All this is clear as day, incontestable as the light for some of our doctors.

It is no less evident to their eyes that the first man who, discovering a grain of wheat, took it into his head to deposit it in the bosom of the earth, to make it multiply, and to make bread, acquired the exclusive right to feed himself and to feed the human race with this new kind of food. From that moment, the peoples of all races, white, black, yellow, red, and swarthy, had to cross the seas and the mountains to go and provide themselves with bread from the inventor. Those who could not make the journey were obliged to continue eating snakes, rats, or frogs, or even to eat one another, to remain faithful to the rights of nature. If a great part of the earth is today cultivated, one can attribute it only to the profound corruption of the human race which violated the natural, exclusive, and imprescriptible rights of the first cultivator and the first maker of bread.

We must say as much of the man who, to form a shelter for himself, was the first to take it into his head to bend tree branches or to dig a hole in the earth. This discovery gave him the exclusive right to protect himself and to protect others from the inclemencies of the seasons. Every man who took it into his head to follow his example, without having obtained his permission, was a violator of the natural law; he disregarded the principles engraved in ineffaceable characters in his mind by right reason....

We observe that, in the preambles of the law we have cited, the authors of this law declare first that it would be to attack the rights of man in their essence to not regard an industrial discovery as the property of its author, and that all principles of justice, public order, and national interest, imperiously command it to henceforth fix the opinion of French citizens on this kind of property, by a law that consecrates and protects it; and then we read with astonishment in the third article:

“Whoever shall be the first to bring a foreign discovery into France shall enjoy the same advantages as if he were its inventor.”

But if this is so, what becomes of the rights of man? Would the foreigner who invents not be a man? Would his invention not be his property? Does his right not exist independently of your law? Would the monopoly you give to the first imitator be an encouragement to theft? Is this a good means of consecrating, of protecting this kind of property which is an essential part of the rights of man? If the inhabitants of your frontiers made excursions into the land of neighboring nations to engage in pillage, you would punish them as brigands. Yet you assert that inventions are the property of inventors, you say that you want to make this kind of property respected, then, you incite your compatriots to go and surprise the secrets of foreign inventors; you assure them the monopoly of the inventions they have stolen!....

It will be said, doubtless, that it would not be reasonable to oblige the inhabitants of one country to go and seek the objects they need from another nation that might be located at an immense distance; that this nation could refuse to sell them these objects, or put an excessive price on them; that it could also not manufacture a sufficient quantity to supply the demands of other nations. But these answers, which would prove that the principles given as eternal truths are subordinated to needs and vary with them, would not be satisfactory. Is it more reasonable, in effect, to compel the inhabitants of the department of Ain to go and provide themselves with the things they need from the imitator in Brest, rather than from the inventor in Geneva? Would the inhabitants of the port of Calais have more trouble providing themselves with certain objects from an inventor in London than from an imitator in Toulouse or Perpignan?

The foreign inventor could, it is said, refuse to sell his productions, or put too high a price on them; but does the national imitator not have the same privileges? Are these privileges not guaranteed to the one and the other by the monopoly? An inventor might not have the means to supply all nations; that is incontestable; but is one sure that an imitator will have the means to supply a single one? Would it be easier for a poor imitator from the Landes or the Pyrenees to supply all of France, than for a rich inventor from London or Amsterdam? Does an inventor who cannot supply all demands not have, moreover, the recourse of ceding the right to exploit his discovery in certain determined places?It is not only by granting a monopoly to the imitators of foreign inventions that the authors of the decree, by article 8, attack the rights of man they proclaimed in the preamble; it is also by limiting to a certain number of years the monopoly that natural law, according to them, grants to the inventor. If it is true, as they say, that every invention is the property of the inventor; if this property cannot be attacked without the rights of man being violated in their essence, it is difficult to understand why it is less sacred after the fourteenth year than after the first day. To not be inconsistent, one would have had to declare either that all properties would become common after fourteen years of enjoyment, or that the monopoly of every inventor would be perpetual [^215].

The authors who adopted the maxims of the Constituent Assembly perceived that they led to inadmissible consequences; they therefore attempted to modify them with the aid of another principle. After having recognized the exclusive rights of the inventor, they admitted, on the other hand, that everyone has the right to use his thought, whatever its origin, and to impress upon any portion of matter of which he is the master, the form of the invention understood by his intelligence and identified with his thought. I will not examine here how they reconcile this contradiction: this examination would take us too far from the subject of this work, and would have little utility.

The exclusive exploitation of an industrial discovery, guaranteed to the inventor for a determined time, has and can have for its sole object to give an encouragement to industry. It would therefore be necessary, to appreciate this kind of monopoly, to examine whether the advantages they produce exceed the disadvantages that result from them. If it were demonstrated that the hindrances imposed on industry by the privileges given to inventors, and the disputes and lawsuits that are a natural consequence of them, cause, in the end, more harm than the encouragements produce good, it is clear that there would be no reason to place hindrances on industry.

It is said, to justify these monopolies, that every new invention is profitable to society, and that society owes an indemnity to those of its members who make sacrifices for it; that it would be difficult and often impossible to estimate in an equitable manner the advantages that society derives from certain inventions, and that the surest way to reward an inventor according to his merit is to guarantee him, for a determined time, the exclusive exploitation of his discovery.

A nation must, doubtless, indemnify every individual for the particular sacrifices it demands of him; when it has attached a reward to a service, and that service has been rendered, it is evident that it owes the reward. But is it bound to indemnify citizens for the sacrifices they make in the management of their private interests, when it happens that these sacrifices turn indirectly to the advantage of the public? If one were to admit such a doctrine, there would be no people rich enough to pay for all the services that would be rendered to it. There are many people who ruin themselves by engaging in enterprises that are not without utility for the public; yet it does not occur to them to ask for indemnities.

It is also said, to justify the privileges granted to inventors, that the imitators of an invention have an immense advantage over its author, that they have no trials to make, and that they are spared the costs that trial and error require. But one forgets to take into account the advantages there always are, in the exercise of an industry, in being the first to present oneself, and in making a reputation for oneself by means of a useful discovery. It must be added that men are raised to practice a profession, and not to be inventors: discoveries are generally made only in the practice of the arts. Often they are but happy accidents in the lives of people who engage in the practice of industry.

If there are some that could not be put into practice without engaging in considerable expenses, the greatest number require few costs, and are sometimes due only to chance. If the laws gave no privileges to the authors of discoveries, the men who believed they had found the means to produce a useful thing, hitherto unknown, would not be in a different position from those who propose to establish an art or a commerce long known, in a place where they do not yet exist. Both have more or less considerable costs to incur and chances of loss to run; the former, like the latter, judge the goodness of their enterprise by the profits they expect from it, and not by the advantages that the public may derive from it. There are perhaps more people who have been ruined by trying to build up a clientele for a new shop, or by establishing a new manufactory of products long known, than by making trials to obtain products of a new kind. It is up to each to make his calculations well, before engaging in expensive experiments.

From the moment a law has promised the author of an invention to guarantee him its exclusive enjoyment for a determined time, any discovery made and recorded under the empire of that same law becomes the property of its author for the time that has been fixed. The inventor, in this case, can say that, if no privilege had been guaranteed to him, he would not have engaged in trials; that he would not have made certain commitments; that he would not have entered the career into which he was pushed by the lure of a reward. The abrogation of a law that had guaranteed an inventor the exclusive enjoyment of his discovery for a given time could therefore have an effect only for future inventions. It would truly infringe upon property if it acted upon discoveries made before its promulgation.

The influence of privileges granted to inventors on the progress of industry is far from being as great as some people have imagined. There are a great number of fields of knowledge that have, in a short time, made immense progress without the help of monopolies. All branches of the physical and mathematical sciences have, for half a century, outpaced in their development the progress of the industrial arts. Some branches of the moral sciences are also much more advanced than they were at the beginning of our first revolution. Yet, scholars have not been encouraged by the lure of privileges.

In the preambles of its decree, the Constituent Assembly says that the lack of a positive and authentic declaration on the property of inventions may have contributed until now to discouraging French industry, by occasioning the emigration of several distinguished artists, and by causing a great number of new inventions to pass to foreign lands; but no one has taken the trouble to show, by a thorough examination of the facts, what have been the consequences of the most complete liberty, or of the privileges granted to inventions; the motive of the Constituent Assembly is therefore only a supposition that nothing justifies. If distinguished artists had taken their discoveries to England to enjoy a monopoly there, these discoveries would have had to be published there to be put into practice; and they could, consequently, have been immediately re-imported into France. The absence of any monopoly could not, therefore, cause great harm to French industry.

The question of whether, by the nature of things, every new discovery is the property of its author, or whether the guarantee given to him of an exclusive enjoyment is a restriction placed on the liberty of all other citizens, is not, as one might be tempted to believe, without importance in practice.

If one admits, with the Constituent Assembly, that, by the nature of things, every discovery or new invention in all genres of industry is the property of its author, it follows first that the dispositions that have limited the number of years during which the inventor can exclusively enjoy his invention, and placed conditions on this enjoyment, have limited his property and restricted rights inherent in his nature; it follows, secondly, that judges must be naturally inclined to resolve difficulties that arise in favor of inventors. If one admits, on the contrary, that the natural rights of an inventor consist solely in exploiting his invention, without being able to prevent others from engaging in the same industry, it follows that the guarantee given to him of an exclusive enjoyment is a true monopoly, that is to say, that it is a restriction on the liberty of all citizens. In this supposition, judges must naturally tend to loosen the bonds placed on liberty, and to resolve doubtful cases that arise against the inventor.

The English judges, while admitting that, according to the common law of their country, the king possesses the prerogative of giving the author of an invention the privilege of exploiting it exclusively for a certain number of years, consider this privilege as a true monopoly. They interpret, consequently, in favor of general liberty, the doubts that the laws present in their application. Any inventor who has not rigorously submitted to the conditions that the laws have imposed on him is stripped of his privilege. In France, the judiciary tends, on the contrary, to restrict liberty in the interest of monopolies; this false tendency appears to be a consequence of the error into which the Constituent Assembly fell. Having admitted in principle that a discovery in the arts is the property of him who made it, and that not to guarantee its exclusive enjoyment to the inventor was to disregard the rights inherent in human nature, it was natural that one should give to these supposed rights all the extension that was not incompatible with the terms of the law.

A measure that momentarily hinders the development of a new means of existence is, in general, less disastrous than one that destroys means of existence already established, just as the act that prevents the formation of a marriage is infinitely less fatal than that which would cause the destruction of a family. The monopoly of a new branch of industry, given temporarily to the inventor, before anyone has taken possession of this industry, has no other effect than to arrest for some time the formation of new wealth; it condemns no family to ruin and destruction. All industrious men find themselves, after the establishment of the monopoly, in much the same state as they were before the invention. If some lose the chance of making the discovery themselves, all are called to enjoy the advantages it must produce for society.

There exists, therefore, an immense difference between the monopoly of an industry of which no one has taken possession, and the monopoly of an industry already practiced. The latter necessarily strips a more or less great number of persons of their means of existence, and condemns them to misery. The former has, in general, no other effect than to momentarily check the development of a particular kind of industry. This difference is sufficient to explain the rigor with which the courts of justice of Great Britain enforce the conditions imposed on inventors who wish to reduce their discoveries to a monopoly, during the time determined by law.

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Notes

[^212]: Richard Godson, Practical treatise on the law of patents for inventions, p. 379-384. [^213]: The other provisions of the decree determine the conditions and duration of the inventor's enjoyment. [^214]: Monopolies are prohibited by the constitutions of several states, notably by those of New-Hampshire, Massachusetts, Vermont, North Carolina, Ohio, and Illinois. [^215]: See Revue encyclop., year 1826, vol. 1, p. 692-696.