To sum up, the monopoly conferred by a patent upon a specific individual is a privilegium or right granted by the Crown in virtue of the prerogative. Like rights in general, it possesses positive and negative constituents. Of the positive constituents, there is implicitly the ability, by reason of enforced absence of competition, to obtain enhanced profits by working the invention. The negative constituent, which consists in the command to abstain from the competition, is that which has mostly engaged the attention of commentators. A purchaser contemplates the enjoyment of future profits, and not the worry incidental to litigation. The action brought against infringers is for the defence and acknowledgment of the rights, and has in view the relegation of the patent-holder to the pecuniary position he would have occupied if no infringement had taken place. It is not incorrect, at the present day, to speak of patents as "property," although they do not consist of physical objects. Patents present analogies to contracts between Crown and subject. Although a patentee may have rights over a materialised invention, yet he may have no proprietary interests in the substance or material which has been employed in the production of the article. Further, the right is considered sufficiently of the nature of "goods and chattels " to enable a sheriff to seize it and to negotiate it accordingly, but it cannot be taken on a tenant's premises in distraint for rent. A patent might also be conceived as occupying an intermediate position between the old-time classes to which property has been allocated, viz. "things in action" and "things in possession." Finally it has been laid down judicially that patents are in the nature of franchises, and, as such, cannot, when disputed, be adjudicated upon by the County Court. CHAPTER IV Some Legal Considerations that bear upon the Commercial Value of Patents It scarcely needs remarking that to assess the commercial value of a patent every circumstance that may bear upon the defence and working of the patent must be taken into account. Of these circumstances there stand in the forefront, the nature of the invention, the extent of the public demand, and the possibility of its continuance, whether it be due to a freak of fashion, or to the satisfaction of an important want. The selling price of the patented article and the expenses of its production enter equally into the determination of the remuneration to be expected, considerations which differ widely in the case, say, of a button which might be sold by the million, and in the case of an earth-cutting shield for tube-railways, of which a single score only might be required. Another factor is the probable effect of judicious and persistent advertising. But it is not intended here to deal with topics such as these. A few legal considerations only that enter into the question of assessing the pecuniary value of a patent will be discussed. In particular, the effect which is due to an official examination into applications for patents by countries such as the United States of America and Germany will be referred to, and the probable effects that may be expected from the English Act of 1902. Some observations will also be directed towards the bearing on the value of a patent of the opinions of legal experts that, for example, are printed in the prospectus of a company appealing for public subscription. |