International > Committee on Intellectual Co-operation

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The arguments adduced against M. Barthelemy’s system, to the effect that it would still
further complicate and overtax the ordinary patent system, may possibly, in our opinion, be
rebutted when we have determined more precisely than M. Barthelemy has done both the relation¬
ship of the person to whom this category of patent is granted towards the holder of an ordinary
scientific author’s right, and the relationship of this "principle” patent, the ordinary patent. We
do not think it is for us to undertake this definition, because we should be led to engage in too
detailed a controversy. It is true that the first point should not offer any great difficulty, because
as this author’s right also has to be defined, it may be established so as not to conflict with the
“principle” patent. In any case such patent could not, in our opinion, have any force in this
connection other than that of a specially conclusive form of publicity. When, however, we come
to consider the question of ordinary patents — which are already recognised in all legislations
it is clear that the question becomes far more complicated. We should indeed have to distinguish
between the various categories of patents which are already recognised, since one law recognises
only one variety, while another law recognises two, three or even four. Again, we should have to
consider the question of the period of exploitation, which is not universally countenanced. We
should, finally, have to consider whether a preliminary investigation should or should not be required
before the granting of the patent, what the scope of this investigation should be, etc. However,
we do not think that these difficulties are insuperable. There already exists in several countries
a system somewhat resembling that of the “principle” patent, which it is proposed to establish.
Instances in point are the 'precautionary patent, established by the Argentine law of 1864 and the
Bolivian law of 1916, and again the provisional patent or caveat, recognised by Canadian legislation,
which is granted to a person who intends to apply for a patent but who has not yet perfected
his invention and fears that he may lose his right of priority.
4. Finally, the ordinary patent. We may note that the scope of a patent of this kind will be
extended in two directions, that is to say: [a) when biological or pharmaceutical products have
been recognised as capable of being patented, without the former limitations; and (6) when the
protection accorded to pure discovery inevitably leads to a diminution of the severity hitherto
exercised in examining the character of a patentable invention.
All these methods cannot be said to cause overlapping, but rather to constitute an ascending
scale towards a more explicit and material crystallisation of the idea of priority in discovery,
each of them being adapted both to the diversity of the inventions and to the diversity of their
authors’ characters, the latter being free to make their own choice between ordinary publication,
special publication, the perforated envelope system, the “principle” patent, and the patent estab¬
lished by the ordinary law.
VII. The*right of the scientist, since it is assimilated to that of the artist or the man of
letters, ought to have a duration analogous to that established, in the case of authors’ rights, that
is to say, the life of the author, plus 50 years after his death, in accordance with the general law
of the international convention in force.
Nevertheless, since discoveries weie involved from which society as a whole might derive an
immediate and concrete benefit, it was necessary to invoke a principle different from that governing
artistic and literary creations, for which the question does not arise. In other words, the author
is not refused the monopoly of the exploitation of his discovery in order to be granted simply a
part of the profits derived from such exploitation by others, except, of course, if the author suc¬
ceeds in obtaining an ordinary patent and is thus able to take advantage of the general law. In
this case, he retains the advantages derived from the longer time-limit fixed for authors rights.
Nothing, indeed, prevents the continuance of the original right, once the patent has ceased
to be valid. The proposition set forth below, and formulated by M. Lucien Klotz (La Propriete
Industrielle, 1923, page 82), seems to us very reasonable; moreover, an assembly of noted scientists
has put forward the recommendation “that when a patent has become invalid from any cause
whatsoever, the inventor should have a droit de suite (continued rights) to his invention for
a period of time to be determined”. This period can be none other than that fixed in general for
the duration of scientific authors’ rights.
VIII. Questions arising between nationals of the same State with legard to the priority of
a discovery, or with regard to the amount of royalty to be paid to the author of the discovery by
the person exploiting it, will, of course, be decided in accordance with the laws of the State to
which the two parties belong.
But the situation assumes a particularly delicate aspect when a question of this nature arises
between nationals of different States. The rule that the nationals of one of the countries members
of the Union shall enjoy, in any of the other countries members of the Union, the same rights as
the citizens of the country in question does not completely meet the needs of the cases with which
we are concerned, even if it may be considered adequate in cases of a different nature. It has been
demonstrated that in no other field is national pride more excitable, more prone to take offence
and more unjust. It is fatally unjust and one may even say that it is unjust in perfect good faith.
Has not the credit for the greatest discoveries often been claimed by several nations at the same
time ?
The much-desired establishment of an international jurisdiction to decide questions of this
nature is still too problematical and, in any case, too remote, in spite of the ardent wishes which
have recently been expressed in favour of this new means of instituting the reign of justice among
the nations (see § 8).
The establishment of obligatory arbitration, presenting sure guarantees of competence
and objectivity, seems to be for the moment the most effective solution of the problem. In order
to establish such arbitration, it seems reasonable to appeal to the aid of professional represen¬
tatives, who are themselves assuming to an increasing extent an international character — a