Isambard Kingdom Brunel (1806-1859) fue uno de los más grandes ingenieros civiles de la Historia: constructor de puentes, barcos, túneles y ferrocarriles en Inglaterra durante el siglo XIX.
Hace poco terminé de leerme una biografía de Brunel, escrita por su hijo Isambard Brunel, y me encontré con estas reflexiones en torno al sistema de patentes:
On the question of the patent laws, Mr. Brunel held the opinion that the system of protecting inventions by means of letters patent was productive of immense evil.
He was, from the necessity of his position as a civil engineer, himself an inventor; he had in his staff and among those with whom he acted many inventors; he did not, therefore, underrate the benefits conferred on science by those who, by inventing, add to its resources.
He was continually being trammelled and thwarted in his various undertakings by patents, and he therefore could judge of their evil effects upon the progress of practical engineering; and, lastly, he had the best possible means of judging of their effects upon the inventors themselves, both from his opportunities of becoming acquainted with the fate of others, and from his own experience.
Memorandum for Evidence before the Select Committee of the House of Lords on the Patent Laws, 1851.
I have for many years had considerable experience of the operation of patents. I have been engaged under my father in the working out of numerous inventions of his, and the taking out of patents on his account, also in advising others professionally with him, and _by myself, and have been engaged in numerous questions of disputes resulting from patents; and I have had frequent occasion to use the patents and inventions of others. I have also had to introduce improvements of my own without patents, and to defend my use of them against patents.
I have thus for the last twenty-eight years been in the midst of everything connected with inventions, and in constant contact with the operation of the patent laws. I have been behind the scenes the whole time. T
The result has been that I have never taken out a patent myself, or ever thought of doing so; and I have gradually become convinced that the whole system of patents is, in the present advanced state of arts and science and manufactures, productive of immense evil.
I think that it does nothing of what it professes to do, and which I believe to be impracticable in the present state of things, but that, on the contrary, it impedes everything it means to encourage, and ruins the class it professes to protect, and that it is productive of immense mischief to the public .
I should wish to observe that my opinions are not formed from any theory, or from any consideration of what are or ought to be the laws of patents, or whether the details of such laws are capable of improvement or otherwise; but they are simply the result of a very long and tolerably intimate knowledge of the operation of the hope of protection held out, and the operation of that protection such as it can be when obtained; and these results do not, in my opinion, depend at all upon any question of whether patents are cheap or dear, whether they are granted sparingly or profusely, by a simple or by complicated machinery; it is the ruinous effects upon the class of inventors, of the false dreams and hopes excited by the system, and the injurious effect upon improvements of the greater or less degree of exclusive privilege which is attained, which I have had constantly before my eyes for so many years, and which must be increased by any real improvement of the patent laws.
I should, therefore, be an advocate for very cheap patents granted with great workman, as well as to the rich manufacturer with his counsel and agents, and as well protected as legal ingenuity can devise. 
If the system is good in principle it must bear extension, but I believe it could not stand a twelvemonth under such a test—every evil now inherent in the system would be greatly increased in quantity, and the absurdities which are now ascribed to errors of detail would all become so evident that the system would be abandoned by universal consent.
I believe, paradoxical as it may seem, that the privileges thus promised and granted to inventors are most injurious to them.To understand this, it must be known and borne in mind that useful inventions or improvements in the present day, certainly in nine hundred and ninety-nine cases out of a thousand, are not new discoveries, but generally slight modifications of what is already in use; judicious applications of known principles and of well-known and common parts of machinery, or of common substances, very often mere revivals or re-inventions of something which had many times previously been thought of, and perhaps tried, and failed from the want only of some substance or of some tool which has since been introduced.
I believe that the most useful and novel inventions and improvements of the present day are mere progressive steps in a highly wrought and highly steps, their whole value and the means of their application probably dependent on the success of some or many other inventions, some old, some new. I think also that really good improvements are not the result of inspiration; they are not, strictly speaking, inventions, but more or less the results of an observing mind, brought to bear upon circumstances as they arise, with an intimate knowledge of what has already been done, or what might now be done, by means of the present improved state of things, and that in most cases they result from a demand which circumstances happen to create. The consequence is that most good things are being thought of by many persons at the same time; and if there were publicity and freedom of communication, instead of concealment and mystery, ten times or a hundred times the number of useful ideas would be generated by each man, and with less mental effort and far less expenditure of time and money.
In the present state of things, if a man thinks he has invented something, he immediately dreams of a patent, and of a fortune to be made by it. If he is a rich man he loses his money, and no great harm is done; but if he is a workman, and a poor man, his thoughts are divided between scheming at his machine in secret, and scheming at the mode of raising money to carry it out. He does not consult his fellow-workmen, or men been tried, why it had failed, what are the difficulties, or (what is most probable) whether something better is not already known, and waiting only the demand. In nine cases out of ten he devotes his time and money to the idea, instead of pursuing his legitimate and natural pursuits. In elaborating this idea his whole thoughts are turned to the means of making it different from what he may happen to know of similar ideas, so that he may secure a patent, rather than to an honest endeavour to obtain the most useful result. He does not make use of other good ideas which may be already patented or in use, even if he knows of them, because his sole object thenceforth is not improvement, but ‘exclusive right.’ After much time and money spent in experiments, he takes out a patent. I will assume that the mere patent costs him nothing, but the waste of time and money in elaborating his idea is generally considerable, and far more serious in its effects upon the man than the payment of the fees now demanded for a patent. When his patent is complete, and his invention published, the chances are, and ever will be, one hundred or one thousand to one that it is not worth a sixpence as an exclusive right which others will buy of him : every chance is against him.
In the first place it must be a good thing, it must be an improvement upon the very ‘ best thing’ of the same sort: the chances are of course great against this.
Secondly. —It must be new, nothing of the sort must have been in use before—how very few things can be devised which will bear this test. I do not know of half-a-dozen clear cases of distinctly new inventions since I have been acquainted with machinery and science; and, judging from analogy, I cannot bring my mind to believe that these would bear the test of a strict and searching enquiry by interested parties. The chances are then immensely against his invention, if good enough to be disputed, proving to be new enough to stand as giving a claim to exclusiveness.
Thirdly. —It must not depend for its success upon the use of some other exclusive and privileged invention, or else of course it is of little saleable value, even if not an infringement upon the previous patent.
Fourthly. —There must be a demand existing or creatable for the article produced; or, like many other good things, it will be out of time, and drop accordingly.
Fifthly. —He must find some parties whose interest it is to encourage the introduction of the change, and who have the means of combating those interests which are embarked in previous monopolies. Since all these conditions are necessary for success, it is not surprising that the result should be, as I am positive that it is in practice, that the aggregate of greatly below the aggregate expenditure of time and money involved in the production of the whole, taking the good and bad; but the proportion of the aggregate benefits as compared with the cost to the real inventor is still less.
It is known to all persons acquainted with the subject that, in nine cases out of ten of successful inventions, the patents are not beneficially enjoyed by the original inventor. And it always must be so. The mere original invention forms generally but a small part of the whole business or merit of bringing into useful operation any new thing. Judgment, a knowledge of the world, and of business and other qualities not particularly belonging to inventors, are just as requisite as mere ingenuity, although they are not the subject of protection. Capital and connection are also generally required. All these command, as they ought to do, a large share in the ultimate profits, but it is rare that an inventor at once finds such a partner. The invention generally changes hands once or twice, or oftener, till some chance brings it into operation; and ultimately it is (as must be admitted by all who know anything about these matters) very rarely, even in the case of good things, that the party who originated the subject of the patent has ultimately any large beneficial interest in it; and certainly, from these and all the other causes mentioned, it is an undoubted fact that inventors, on the whole, make a heavy annual loss, quite irrespective of mere patent fees, by inventions and patents, and that patents are not therefore a benefit to the present class of inventors, and particularly not to the poorer members of the class. Without the hopes of any exclusive privileges, I believe that a clever man would produce many more good ideas, and derive much more easily some benefit from them. It is true that he will aim only at earning a few pounds instead of dreaming of thousands; but he will earn these few pounds frequently, and without interfering with his daily pursuits; on the contrary, he will make himself more useful.
The impediments thrown in the way of improvements by the existence of patents will hardly be credited by those who are not familiar with the operation of them. In the present state of things they create such barriers that it is almost wonderful that any patents that any improvements can be effected.
It will not be difficult to understand that, from the infinite number of patents that are now taken out, it is hardly possible to devise a mechanism or a chemical combination that does not, in some shape or other, form part of some previous invention or process. This would be the case even if patents were only taken out to secure real, or what are believed to be real, inventions. But the shoals of patents have brought into existence animals to feed upon them. There is a trade which nothing can destroy as long as patents last, and which must increase with the increase of patent”, whatever may be the mode of granting them. Patents are taken out even in very general terms, so as to embrace everything that can resemble some probable or imaginary improvement, and then, like a spider in his web, the patentee watches for his victims. Besides this, the honest but trading patentee, the more completely to secure a monopoly, often takes out several separate patents for nearly the same thing in different forms, soma avowedly worthless. In doing this, without even intending it, he includes combinations, any beneficial application of which perhaps never crossed his mind, and which, in the shape in which he suggested them were good for nothing, but which nevertheless more or less prevent anybody else from touching them, even to make a good thing.
Again, the most respectable houses take out patents merely to secure a monopoly result of all this is that it is almost impossible now to introduce the slightest real improvement in anything without infringing upon some patent, and exposing oneself to be proceeded against by some patentee. The extent to which improvements are impeded by this state of things is hardly conceivable, except to those who, like myself, are daily suffering under it. There is another very serious evil produced by the system. In taking out a patent, the necessity for avoiding all claim to anything that can be shown to have been patented or in common use before compels you in most cases to seek rather what part of it can best be patented than what it is that is good in the invention.
Comparatively trivial points are frequently patented in order to secure the monopoly of that which, although it constitutes the merit of the invention, may not happen to be so new in every respect as to admit of a patent. When the patent is taken, other modes of carrying out the real invention are discovered; these modes are patented and the original patentee is obliged to lose the benefit of his invention or to buy up these new patents. There are instances where enormous sums have been spent in this manner to protect an original invention.
And, lastly, there is an evil which acts like a numbing disease on all improvements; a patentee frequently dares not himself introduce improvements in any apparatusor process which he has patented, for fear of thus injuring his patent; and I have seen numerous cases of very important inventions where all improvement has been thus checked and resisted by the very parties most capable of effecting them, and who would have brought great talent and zeal to the work if they had been free.
Extract from Observations on the Patent Laws made by Mr. Brunel at a Meeting of the Society of Arts.
Having, then, all his life, been connected with inventors and workmen, he had witnessed the injury, the waste of mind, the waste of time, the excitement of false hopes, the vast waste of money, caused by the patent laws, in fact, all the evils which generally resulted from the attempt to protect that which did not naturally admit of protection.
He agreed as to the abstract desirability of protecting inventors in some way, provided it did not foster unhealthy invention, as he thought it desirable to protect every species of property that existed. He was disposed to encourage every step towards facilitating the obtaining patents; he hoped they would be made dirt cheap, as he thought that would be the most effectual way of destroying them altogether.
Therefore, whenever he had been consulted on the subject of the patent laws, he had always advocated the rendering of patents as open and free and cheap as possible; in the first place, because he saw no reason for attaching a price to them, and next, because they would sooner arrive where the principle would be fully tested. We were already nearly arrived at that state of things when engineers were almost brought to a dead stand in their attempt to introduce improvement. 0 , from the excess of protection.
He found that he could hardly introduce the slightest improvement in his own machinery without being stopped by a patent. He to introduce an improvement that he thought would have been valuable to the public in a large work on which he was engaged, he had no sooner entered upon it, with a willingness to incur considerable expense in the preliminary requlrements and in the trial of it, than he was stopped by a patentee; but he was fortunate enough to find that another patent existed of the same thing, and a week after a third appeared.
There was thus, fortunately, a probability that, by the destruction of all value in any of the patents, he might be able to continue the improvements he was desirous of introducing.