Ostara Nr. 24
A translation
On Patent Law and the Rightlessness of the Intellectual Worker
by J. Lanz-Liebenfels
Publisher: “Ostara”, Modling near Vienna.
Price: 40 Heller – 35 Pfennig
Contents: The current patent law – a state monopoly on the exploitation of inventors. The barriers of annual fees. Advertising and combat patents. Proposals. The patent trial. Rewarded intellectual theft.
The “Ostara” appears in irregular sequence. A single issue costs (including postage) 40 Heller – 35 Pfennig. Ten issues prepaid: 3 Kronen – 2.50 Marks. Orders are accepted by any bookstore and by the editorial office of “Ostara” in Mödling near Vienna.
Editor and publisher: J. Lanz-Liebenfels, Mödling-Vienna.
The “Ostara” is the only and first journal for Aryan racialism and the right of the master race, which intends to put the findings of racial science into actual practice, in order to preserve the Aryan noble race through systematic selective breeding and the right of the master race from destruction by socialist and feminist wreckers.
Foreword
Through many conversations with experienced people we have become convinced that a great injustice is contained in the patent law, that it does not correspond to the intended purpose, that it is in fact directly opposed to it, and that it is more suited to suppressing the inventive spirit than to encouraging it. So many are its victims year after year. Even the lottery is a state institution that makes its victims. People say it is a tax on stupidity. Nevertheless, it is immoral.
One should not catch the stupid officially with the state’s net. Many have already been found who opposed the lottery swindle, but no one has been found who would stand up against the pernicious effects of the patent law. We want to undertake this.
The patent law is an instrument of robbery of the worst kind, which places intelligence under pressure under the pretext of protecting intellectual property, which it does not grant.
We want to make this clear in the following essay and ask for the cooperation of experts in order to further develop the subject and to prepare the way for an improvement of these intolerable conditions.
We believed we should append the satire on the patent trial to the serious, factual essay. A satire does not claim to be taken literally, but it does demand serious consideration. What is said here outlines disturbing defects in our administration of justice, and we are certain that many will be found who will hardly feel any exaggerations in the presentation, but will fully confirm its wording. However, human life is too short, the experiences of the individual – even if extensive – are still too limited to draw apodictic conclusions from them. We therefore present the essay in this sense with due caution as a contribution.
The Editorial Board
Patent Law – Patent Suffering
In our time much is being reformed and there is no end to the overthrow of privileges. To all outward appearances it is a democratic age, an age that wants no privileges, an age that tells man: “You have what you deserve.” But if we look more closely, this is not the case at all. Old privileges are indeed being abolished, but only so that new ones may take their place. It is the old story: “Get out so that I can take your place.” All democratic efforts and movements appear to me in this light merely as circulation phenomena within the layers of humanity. Those at the bottom strive upward into the warmer, lighter heights, not in order to establish a different regime there on the basis of human equality, but to secure a place for themselves, to settle down, to surround their superior position with laws, in short, to have what they have gained privileged by the state.
The only democratic element in these ancient movements of mankind is that where formerly one individual fought against another, today an organization of many is necessary in order to achieve a result. The member of such an organization must voluntarily give up a great deal of what was formerly called freedom in order to be carried along by the powerful current. The state, however, is assigned the role of intervening on behalf of the organized against the unorganized. That is what our democracy amounts to.
Naturally, the struggle of the individual who remains outside is made so much more difficult by this that social democracy must inevitably profit from the situation. For the thought arises involuntarily: “Why does the state protect those people and not me? Am I worse? Am I any less a citizen? Don’t I work as well?”
If there were an empty space where social democracy now stands, the other currents would perhaps exhaust themselves and be led ad absurdum. One might perhaps return to that system in which everyone had to look after himself, while the state existed only to defend the community against external threats and to prevent anarchic conditions at home.
Social democracy, however, is present with its ready-made theory of placing everything under state protection and profiting from all the absurdities of the existing conditions. Thus nothing will be led ad absurdum, and one fine day we may simply confess: we are it!
We are it – namely, members of the socialist state. The transformation takes place quite bloodlessly. Social democracy only needs to wait, and it waits. The bourgeois parties, or what calls itself that, do all the work, and they do the work so well that social democracy could never accomplish it through its own efforts. For the bourgeois parties do the work by making the so-called bourgeois state repulsive to unorganized humanity and by creating socialist conditions that differ from what the socialists want only through their imperfection.
The subject of these lines, however, is not to develop this thought in all its various details, but to show how the state exploits the unorganized.
Unorganized is the intelligent class of inventors. Our time, which is storming northward in technical development, lives to a large extent from the impulses given by inventors. These are, so to speak, the ruling spirit of our age. Without them there would be no industrial prosperity and no employment for the masses who are pressing into industrial production in ever greater numbers. For since the surface of our globe cannot be enlarged, the newly arriving can only be kept occupied again and again by what is new. And it is the inventive spirit that creates this new.
The inventor is supposedly protected in his intellectual property, for there are laws about it – patent laws. However, as the matter presents itself to me in the light of my many years of experience, the patent law exists by no means to protect the inventor, but to exploit him. This is done thoroughly, and remarkably enough, while the states of the world are seldom in agreement on other questions, they are in complete agreement on the exploitation of the inventor. One state throws its inventors to the other like a juicy fruit, which is then squeezed and pressed by each until not a drop remains.
I will briefly describe the process:
Our patent law, with its complexity and its pedantic regulations regarding filing, and for other reasons as well, hardly allows an inventor any longer to apply for a patent himself. The intervention of a patent attorney increases all patent costs on average by more than 50%.
So the patent is filed, and at the same time the first patent fee must be paid – a fee that varies in amount according to the size of the different states. From the day of the patent deposit in one state, a citizen of a patent-union country does not by any means enjoy a full year’s protection of his intellectual priority in all the other states of the patent union. In most cases, however, the inventor has not yet even been granted his patent in his own country and is already forced to register patents in all the other states, which, exclusive of attorneys’ fees, amounts to a round sum of up to 10,000 Kronen. If he omits this, he can no longer acquire a legally valid patent in the neglected state.
But a year is nothing to the inventor. In this time he has scarcely gained a general orientation regarding the commercial significance of his invention, let alone made any agreements about it. Meanwhile the second annual fee for the home patent becomes due, and soon afterwards come the costs for furnishing proof of working. For the patent laws require that after a certain time one must provide proof that the invention has been put to use in the respective country. If one does not furnish this proof, or if one neglects to pay the costs required for the formality by which one can substitute for the proof of working, then one’s reward is lost. The patent lapses, together with all the amounts already paid.
But if all this has been properly attended to and money has been spent with both hands and without end – what then does one have?
Nothing but the endless trouble of convincing capitalists that the invention will bring profit and therefore ought to be carried out. Only a few favored individuals are allowed to make the first experiments with the patent at their own expense. Those who can do so are better off, because they are able to demonstrate the value of the thing ad oculos. Although even this ad oculos demonstration is by no means sufficient in most cases. For the capitalist says: “Oh, a laboratory experiment (a small-scale test) – what does that mean? I want industrial proof; only then will I invest money.” How is one to furnish that without a willing patron – and how rare such a patron is! Yes, there are patrons, but what do they look like? They take the patent for a song – usually a song without butter, often a song without butter and without bread. Who protects the inventor from such patrons?
If the inventor, through some fortunate chain of circumstances or, let us say, through the action of a universal – and therefore also commercial – genius that he happens to possess, finally succeeds in carrying out his invention, but without at the same time obtaining the protection of a powerful capitalist group, what then?
The public, which has so far been skeptical, becomes enthusiastic, for the thing has proved itself. But the very moment this becomes known, competition springs into action. It studies the patent from front to back, from outside and inside, in order to find a flaw in the wording or some loophole in the technical construction wide enough to slip through. Usually such a flaw is found. For in our pressing age the inventor is always in a hurry to secure his priority. He feels hundreds working on the same task he has undertaken. Sometimes a single day decides intellectual and legal priority. Added to this is the fact that on the day the patent is deposited he can scarcely yet survey the full scope of his invention, and therefore usually does not take into account circumstances that later prove to be extremely important. All this the sniffing competition discovers, and now patents are filed from all sides. From right and left come patent applications everywhere, or – what is even more frequent – imitations. For there are many people who say to themselves: “That patent doesn’t bother me. The man is far too poor to conduct dangerous lawsuits. A patent trial can last for years; he won’t be able to stand it. I’ll risk it in any case – let him sue if he wants.”
Thus, because the inventor was forced to make his patent public, it becomes accessible to the whole world. Everywhere people immerse themselves in the details, and the globe is far too large for any single individual to track down all patent imitations on every path and byway. His invention was dragged into the public eye by the state under the false assumption that genuine patent protection actually exists by virtue of the laws.
But if the inventor succeeds in raising the funds to conduct a patent lawsuit, what does he gain? An experienced patent attorney once told me: “Conducting a patent lawsuit is exactly like playing the lottery.” Everyone knows that nothing is more uncertain than the outcome of a patent trial. The only certainty is the terrible danger it poses. He who has nothing cannot conduct one; he who has something can lose it in the process. For if the opponent succeeds in having the inventor’s claim dismissed, the dreadful spectre of damages claims rises before him. Only he who proceeds ruthlessly in asserting his patent rights has any chance at all; a half-heartedly conducted lawsuit costs only money and offers no guarantee of success whatsoever. A sharply conducted lawsuit, however, requires the suspension of operations wherever the patented article is being manufactured or where work is being carried out illegally by means of the patented construction. Suspension of operations, in turn, gives the opposing side the right to claim damages. The inventor must bear all the court costs if he loses, and he bears every risk. Where, then, is the protection of the state? Can this be called protection – that I am allowed, at my own cost and risk, to sue under the rules of the civil code the man who has stolen from me?
If, however, the inventor refrains from bringing a lawsuit for all these reasons and dangers, the imitators become ever bolder. Soon the inventor’s process is being used everywhere, the article is being manufactured everywhere. The inventor is left with hardly any hope of making any business from his invention, for the nimble competition additionally spreads the word: “Yes, he made it, but it didn’t work. We have taken possession of the article, made improvements, and now it works.” And the credulous public believes it. Even the inventor’s friends look at him pityingly and shrug their shoulders: “Well, why didn’t you sue? You can’t just let something like that happen.” Naturally, however, the inventor continues to pay his fees despite the way things are going. For if he were not to do so, it could happen that, by virtue of some trivial so-called “improvement,” he himself would be placed in the position of no longer being allowed to use his own brainchild. For this reason he bears the ever heavier chain – which moreover grows heavier from year to year – like a galley slave for the full 15 years of the patent’s duration.
Now one may perhaps say: “There is a preliminary examination procedure. The patent office exists to check whether the subject of the application has not already been covered by a previous patent.” Such imitative patents are rejected. Preliminary examination procedures exist in Germany, Austria, America, and England. In all other states every patent applied for is granted, and the inventor must protect his rights himself. One might think that the preliminary examination procedure represents an improvement in the situation. This is by no means certain. The only thing the examination procedure reliably achieves is to make things more expensive. I know of German patents on subjects that had been patented many years earlier in another country and had even been published in well-known scientific works.
In Austria we once had a patent law – unfortunately replaced in the 1890s in favor of the German Reich model. Our patent law was on the whole like the French one, but it had one good feature: the secret patent. Anyone could obtain a secret patent. By this means the inventor established his intellectual priority and was still in a position later to apply for patents in all the other countries of the world, provided no one else had beaten him to it in the meantime. At any rate, under the cover of the secret patent he could carry out all his experiments and even his first commercial efforts. He could form a judgment about the value or worthlessness of his invention, or at least about its possible success, without first having to register more than a single patent. What an advantage that was!
Here too, as so often before, we have sacrificed our own better system to the German Reich fashion, very much to the disadvantage of our citizens. The preliminary examination procedure is outdated; it fails simply because of human inadequacy, and it also fails for other reasons. We should have quietly kept our old patent law and waited until a clear public opinion had formed about what the state owes its inventors and pioneers. For everything that exists in the world in the way of patent laws is more or less unjust. There are no worse laws in any human relationship with regard to the purpose they are supposed to serve. And what is worst of all is that precisely this law is exploited in all its ugly folds and wrinkles because industrial competition has a financial interest in doing so. Let someone make only a small formal error, and even if his patent is fundamental and pioneering, that formal error will destroy everything of pride and hope for a livelihood that was tied to it. It will render the inventor rightless and deliver him up to encirclement by disloyal competitors. The robbed inventor (and this type is the everyday one; every other is the exception) not only gets nothing from his invention, but on top of that he is personally hated by all those who have wronged him in his rights.
A special phenomenon in the field of patent matters is the ever-spreading advertising patents, as well as what I would call combat patents. In these practices, which have become established through unfair competition, one wedge drives out another. I will briefly explain the nature of the above. A firm engaged in the production of special articles takes out patent after patent in order to illustrate its particular efficiency. Such patents often have no inventive purpose, but purely a business and advertising purpose. They are usually of highly questionable content and, if there is anything to them at all, they lean on preceding genuine inventor patents, pretending to improve them. Usually these “improvements” are not improvements at all, but mostly deteriorations. The only point is: “It has to be different.” The inventor certainly knew the relevant construction just as well, but for well-considered reasons did not place it under protection, evidently of the opinion that he did not wish to compromise himself with a bad construction and that in any case everyone would have to see that his arrangement was the most expedient. But into all the relevant gaps steps the foot of the advertising and business patent people. In any eventual court proceedings that the inventor may bring against such an advertising patent – because he gradually realizes that it restricts his possibilities of exploitation – he usually comes off worse.
Exactly the same is done with combat patents. For example, a firm sees its operations damaged by a new patent because it neglected to secure the patent itself, or thought it could get around it. Now the patent meets with approval and, in skillful hands, begins to pose a serious threat. Then one resorts to a combat patent. In order to show that one is also in a position to manufacture the article, or to drive down the patent premium as long as there is still a chance of acquiring the execution rights to the patent itself. The same article, but slightly different. This naturally works to the great detriment of the genuine inventor’s patent and demoralizes the patent market. For those firms that were decent enough to pay for the patent, often at great sacrifice, realize that it was a “commercial mistake.” The competitor achieved the same thing without having incurred any costs. “Next time we’ll be smarter.” This practice, however, has yet another very significant disadvantage for inventors. They are forced into ever new expenditures for patent fees through the so-called “development” of their patent, which is nothing but a progressive detailing of their inventor’s patent in response to the imitator patents that spring up like mushrooms. The patent thus becomes an economic misery for the inventor. Whatever he may gain goes back into new patents that offer him nothing and are only supposed to protect him against ruthless competition.
Taken as a whole, the patent system is a system of suffering under all these circumstances and in no way corresponds to its original purpose. The real inventors are overrun by the sham inventors and are usually reduced to messengers. One has to be very rich and powerful to hold one’s own in the industrial storm raging around one. For here too it can be said: “Nonsense triumphs.”
To characterize the situation in general, I will quote what the English humorist and satirist Jerome K. Jerome*) said about clever people and their earthly pilgrimage: “The world must be a rough place for clever people. They are unpleasant to ordinary people and they hate each other from the bottom of their hearts. But since clever people make up such an insignificant minority in the world, it does no further harm if they are unhappy. As long as the stupid are comfortable, the world as a whole will get along tolerably well.”
I would like to write these words into the album of our patent law and go a little further. It is not only clever people who fare badly, but also honest ones. Laws such as the patent law are not laws for the protection of the honest worker, but laws for the protection of the oppressor of the latter, as soon as he has money, knows how to handle all the tricks well, and does not lack an iron forehead.
It would now be a question of making positive proposals as to how all the evils described here could be brought to an end. I will only state my opinion regarding what is most urgently needed: In my opinion, inventors’ rights should be international, but not, as they are today, in order to deliver the inventor over to international exploitation, but in order to grant him international protective rights – and indeed already on the basis of his patent application in his home country, and without his being forced to make any payments for the international protection. In this I link up with copyright. An inventor is no worse than an author. In the event that payments are required, failure to meet a deadline should never result in the loss of the patent. This is one of the worst hardships of the law.
Certain patent infringements should have criminal-law consequences, just like theft – which they also are. Upon notification, the state attorney should intervene, just as in the case of theft.
Inventors’ rights should not last 15 years, but at least for the lifetime of the inventor; in the event of the inventor’s death, at least 30 years. In the event of the inventor’s death, all rights would pass to the heirs. In addition, the inventor’s oath should be introduced everywhere, as in America. If these points were implemented, they alone would suffice to eliminate the greatest evils. With regard to detailed implementations of them, I would like to exclude further discussion here and ask those interested to send their proposals to the “Ostara.”
I will publish the proposals received in a second issue and reserve the right to a concluding word.
The Patent Trial
A satirical reflection by Freudberg
Only someone who has been through a lawsuit – and was in the right – truly knows what a trial is. I know lawyers who are quite seriously of the opinion that the only people who lose lawsuits are those who are in the right. The others win as a rule. Court officials deny this and support their contrary view with the overwhelming number of cases that end without appeal. If a court judgment is not followed by an appeal, they conclude from this that it is a causa benissime judicata (a most excellently decided case). This is of course completely wrong. The person whose rights have been violated by the court judgment rarely appeals, because he has despaired of justice. Much more often it happens that the wrongdoer appeals when the judgment has gone against him. For he has reckoned with such an outcome from the very beginning and had to reckon with it. One can generally assume that in civil proceedings the person who has been unjustly treated by the court will only appeal if it is a matter of life and death for him, or at least involves sums he simply cannot afford to lose. In that case he naturally has to play the second round of dice, whether he wants to or not.
In another pamphlet of the Ostara this phenomenon was discussed at greater length, as well as the cause of this astonishing state of affairs. In criminal law things may be different, but in civil law one observes an astonishing tenderness toward the evildoer. One absolutely does not want to hurt him. It is as if the judge said to himself: “This man is a scoundrel, but he developed into one in reliance on our laws. He thought: If I stick to the legal form, nothing can happen to me.” The judge does not want to disappoint such trust for anything in the world. What the honest man thinks is a matter of indifference to him. My God, such people just live from day to day and believe that with their old-fashioned ways one can become blessed in modern life. It never occurs to them to study the laws. They are content with “do right and fear no one” and even pride themselves on it.
How different the evildoer is. He studies the laws eagerly, gathers all his acuteness to discover their loopholes and to avoid their traps, and with heated effort he constructs a system for himself. In short, he thinks. And when it comes to the trial, the honest man again spreads himself out with his sense of justice and thinks: “I am right, so I must win. What do I need a lawyer for, or even an expensive lawyer? My right speaks for me.” He is without worry; it simply has to turn out well.
How different the evildoer. On the contrary, he knows very well how to appreciate the dangerous sides of our legislation, fears them, studies them. In addition, and naturally also because he knows that “juridical technique” can help him, he diligently studies his own case, but he also takes a good lawyer – the best, the most expensive lawyer. A lawyer who knows the judges, knows how to handle them, knows how to speak to each one according to his taste and make things comfortable for them. A man whom they understand and who understands them. How well he knows how to manipulate the legal forms, how well he can, if necessary, replace missing legal substance with juridical-technical considerations. In short, he is a modern jurist. Such a man is naturally gladly accommodated.
On the other side, what does the lawyer of the so-called honest man have to offer the judge? Precious little. Always the tedious reference to the legal standpoint (not the juridical-formal one, but the essential one!) of his client. Hackneyed stuff that anyone can say and that has nothing in common with our modern law. The judge then has no difficulty in making his choice. He decides in favor of the evildoer. What else would he be a judge for? What else would authority be for? To decide in favor of the man who is right – anyone can do that; that requires no scientific authority, no power of the curule judge’s chair.
Of course things sometimes turn out differently. For example, when chance wills it that the man who is right has a good lawyer and the evildoer has a bad one. In that case the judge knows how to help himself. Then he does not let himself be blinded by brilliant dialectics; he immediately recognizes how the lawyer is trying to bring essential right into harmony with formally juridical considerations – a sophistry of the most dangerous kind. Oh no, one does not let oneself be blinded, and one decides with sure aim and unalterably – naturally against the honest man. In short, it does the honest man no good if he takes a good lawyer, for the judge immediately sees through this deception. A good lawyer is a tool only for the evildoer.
Under such circumstances the person seeking patent protection also has little chance. If he relies on the inventive idea inherent in his patent, as opposed to the imitative idea of his opponent – my God, who is supposed to recognize that? If he relies on the formal patent law and the paragraphs are favorable to him – well, one will manage to deal with such paragraphs as well.
Added to this is the expert opinion. Today one needs an expert opinion for everything. If it is a question whether a corpus delicti is black or white, the judge certainly will not dare to decide that on his own authority. Is he a color technician? No; for such a difficult and doubtful case a color technician is appointed as expert. If he then says: black is not black, black is white – very well, then the judge decides on the basis of the pronouncement of the professional authority and can never be troubled in his conscience. And as for the experts – it is said of them: one crow does not peck out another’s eyes. For it usually concerns affairs among crows themselves, and the expert is chosen from among them. And so a patent trial can lead to very little good. Or rather – sometimes it does bring good for the patent infringer. For how often does it happen that the patent infringer imitates an article blindly, without knowing the constructive idea behind it. He gropes about in the dark, the poor fellow: given to self-deception, he unfortunately often does not get close to the task. He harms himself and his clients. How enlightening, how liberating a patent trial can be in such a case! For here the inventor must show his true colors. What did he mean? What is the deep, inner inventive idea? What is the intimate detail of the construction or of the chemical and physical manipulation? What is the distinguishing feature between the way he understands it and the way the imitator does it? The plaintiff, of course, driven by the vain thirst for glory of the inventor, does not hide his light under a bushel. Triumphantly he develops the idea and every detail to the end. There his imitator can learn a thing or two. Scales fall from his eyes, and what he had often brooded over in vain for years now becomes perfectly clear to him. There he sits in the seat of the defendant, at the side of his lawyer. He does not reply to the boasting self-praise of his accuser; he does something better. With pencil in hand he stenographs the speech of the plaintiff. The patent holder is of course dismissed and ordered to pay the costs. But for all his trouble the imitator still goes home rewarded, with a valuable document in his pocket. The patent trial was good; from now on he will do it better.
