Case 6. Patent-right

Caius, the procurator of a certain college, heard that a certain Titius was selling Welsbach Incandescent Burners at a much lower price than that at which they were sold by the company to which the exclusive right of selling them had been granted by civil law. Although he suspected that Titius was violating civil law, Caius bought a large quantity and thus notably reduced the expenses of the college. When Julius, the procurator of another college, had heard this, he accused Caius of injustice because he had violated not only civil law but also the natural law which concedes to all the fruits of their own industry. Greater weight was added to his opinion after Titius, having been summoned into court, was condemned to a large sum of money by way of compensation; hence Caius began to be solicitous about his own obligations. It is asked:

1. What is a patent-right, and what is established concerning it by English law?

2. Is that right from natural law or from positive law?

3. How do civil laws which grant some right affect conscience?

4. What is to be said of the case?

1. What is patent-right and what does English law lay down about it ? Patent-right is the exclusive right for a term of years to the proceeds of an invention. The term, according to English law on certain conditions, is fourteen years, and this may be extended to a further term of seven or fourteen years, if the inventor has not, at the end of the first term, reaped the full benefit of his invention, and his patent is for the public benefit. In the United States the term is seventeen years.

2. Is patent-right of natural or positive law ?

The question is disputed among jurists and divines. The better opinion is that natural law grants the right in an imperfect and indeterminate way, and that it is determined by positive law.¹

1 Manual of Moral Theology, vol. i, p. 347.

3. How do civil laws which grant a right affect the conscience ?

The civil laws which define and determine natural rights or obligations bind the conscience under sin, for they derive their force chiefly from the law of nature which they determine. With regard to other civil laws much will depend on the intention of the legislator. With reference to English-speaking countries we shall probably not be far wrong if we say that positive laws which confer a right which is not derived from the law of nature, such as prescription, may be interpreted in this sense; the party whom the law favors may use the right granted, but if he does not move in the matter, there is no obligation on the party burdened voluntarily to yield it to him.

4. The case. Patent-right is rooted at least in natural law though it is determined by positive law. Hence Titius violated justice by infringing the rights of the company which owned the patent of Welsbach Incandescent Burners. But when the cheap burners were being publicly offered for sale, Caius was justified in buying them at the market price. He was under no obligation to defend the rights of the patentee. There is no reason, then, why his conscience should be disturbed, even after the lawsuit. Titius will make compensation for the loss which the company has suffered. Nor does Caius commit sin by co-operating with the sin which Titius commits by selling the burners, for as I may for grave reason borrow a loan at usurious interest, although by lending it the usurer sins, so the burners might be bought though not sold without sin.¹

1 St. Alphonsus, book ii, treatise 3, no. 47.