The Year's Greatest Science Fiction & Fantasy 6

THE LAGGING PROFESSION by Leonard Lockhard

Readers of previous S-F annuals will remember Theodore L. Thomas’s “The Far Look” and “Satellite Passage” particularly for the vivid personal realism of his near-future portraits of man in space. Mr. Thomas, who first trained as a chemical engineer and now practices law as a patent attorney, started his writing career under the pseudonym of Leonard Lockhard, and still uses that by-line for his series of humorous-instructive tales about the patent pursuits of Mr. Saddle and Mr. Spardleton.

In the introduction to “I Remember Babylon,” I made a point of the real-life elements involved in the story. Obviously this is just as true of “Leonard Lockhard’s” piece. Both authors are trained scientists as well as first-rate storytellers. Both are writing here about the same (genuine) idea of Mr. Clarke’s concerning the television satellite which has been so much discussed in the past year (and may have become a reality by the time, this reaches print). But it is important to remember that of these two pieces, only one is fact-written-like-fiction. The other is fiction-written-like-fact.

Early morning was the best part of the day in the offices of Helix Spardleton, Esquire, patent attorney extraordinary, and this particular morning in February, 1960, was no exception. Susan, our secretary, made the coffee, and she, Mr. Spardleton, and I sat around and drank it while Mr. Spardleton went through the morning’s mail. We talked of many things, but mostly we listened to Mr. Spardleton’s comments as he opened letters and packages and journals and circulars. Many of the letters were from the United States Patent Office informing us that the patent applications we had filed for our inventors were incomplete or too vague or too broad or too indefinite or were otherwise defective, and in any case the subject matter was clearly unpatentable over a host of prior patents which showed our inventions with such clarity that an eight-year-old child could understand them. Those Office Actions could break the heart of a sincere inventor unless he understood that such conduct was just part of the normal give-and-take of patent practice. With few exceptions, the Primary Examiners considered it necessary to reject all the claims in a patent application the first time around no matter how good the invention.

I always enjoyed listening to Mr. Spardleton’s remarks about the various absurd Actions of the Patent Office. “Look at this one. He cites wood pulp patents against us when all our claims cover asbestos fibers and have nothing to do with cellulosic fibers. He’s wasting our time, his time, and the taxpayers’ money. We’ll give him a short answer with sarcastic overtones. And look at this. In this one we claim a dielectric heater and the Examiner cites against us patents dealing with inductive heating; he doesn’t know the difference between a fluctuating field and a fluctuating current. Oh my, they don’t make scientific lawyers the way they used to.”

He took a sip of coffee and opened some junk mail without comment. He placed it on the pile farthest to his left, the one that Susan simply dropped into the wastebasket.

Mr. Spardleton opened another Office Action and glanced at it. He nodded and said, “Hm-m-m,” under his breath. He looked up at me and said, “Mr. Saddle, you seem to have filed a patent application for Dr. Marchare claiming a laminated wall panel that supplies both heat and light, and also serves as a heat sink. That right?”

I had to think for a moment. I had filed so many Marchare applications that I sometimes lost track. Then I remembered. That panel was going to revolutionize the building industry in the United States. “Sure,” I said. “It takes the place of all interior walls at a price so cheap you—”

“Did you by any chance check any of the published articles relating to structures that will be used under the airless conditions encountered out in space?”

“Why, I don’t remember that I did. I don’t see what that has—”

“Well, the Examiner here says that your structure is just like the one described in a published article-—a new kind of domed structure for use on the Moon and other airless sites. The Examiner may have something here; he seems to have written a good Action. Let’s see.” He looked at the name at the end of the page, on the left side, and he nodded. “I might have known. Herbert Krome. Well, you’ll have fun getting this one through.” He put the Action on the pile that was to come to me, and picked up the next piece of mail.

“Well,” he said. “Speaking of space, we seem to have a letter from Mr. Arthur C. Clarke. You’ve heard of him, I presume?”

Susan and I nodded. “Yes,” I said. “I’ve read two of his novels. What’s he writing to us for? Copyright problems?”

By this time Mr. Spardleton had the letter open and was glancing down it. “It looks like we have a new client. Mr. Clarke has a patent problem, and he wants to talk to us about it. He says he believes he is the first to conceive of the twenty-four-hour satellite and its use in communications. He wants to know if we can take out a patent on it for him. He’ll be in to see us next week.” ’

Susan beat me to the question. “What kind of satellite?”

“The twenty-four-hour satellite. It completes one revolution around the earth every twenty-four hours, which means that it is motionless overhead with respect to a point on the surface of the earth; the earth revolves once every twenty-four hours too. Well, such a satellite would make an excellent relay station for television signals. Mr. Clarke says here that with three twenty-four-hour satellites spaced one hundred twenty degrees apart in a plane around the earth, a television signal can be beamed from any place on the earth’s surface to any other place without worrying about cables or line-of-sight problems. He wants us to patent the arrangement for him. Well, Mr. Saddle, what do you think?”

I had been working with Mr. Spardleton for eight years. I had learned in that time that I must be ready to answer some pretty interesting questions without any time for reflection. Mr. Spardleton always said that a patent attorney must be ready to answer questions by instinct; often there is no time to think. This kind of mental reflex action is necessary when arguing cases before the various tribunals. For instance, in arguing before the Board of Appeals, any of the three members might have had a bad breakfast that morning and begin tossing questions at the attorney. The same thing can happen before the United States Court of Customs and Patent Appeals, except there are five judges to contend with instead of three. I sometimes think judges never eat breakfast.

Anyway, when Mr. Spardleton popped the question to me I instinctively answered, “Oh, I think something patentable can be worked up for a concept such as that. After all, it has all the elements of patentability required by 35 U.S.C. 101 and 102.” This is one of the stunts I have learned—always go back to the statutes. Judges are always quoting the statutes, and it behooves an attorney to behave as the judges behave. Besides, when you quote a statute, other people have to stop and think about it. This gives you time to think.

Mr. Spardleton nodded soberly. “Very good, Mr. Saddle. Just how would you write a patent claim for such an invention?” As he spoke Mr. Spardleton took the wrapper off a cigar. When he finished speaking he placed the cigar in his mouth, lit it, and blew great clouds of smoke toward the ceiling. The working day had started. Susan got up and collected the cups and saucers and coffee things, and went out of the office. That left me with a claim to talk about.

“Well,” I said. “A process claim would be quite easy. Let’s see. It could go: a method of transmitting television signals around the earth—”

“Why only television signals?” Mr. Spardleton said.

I nodded and tried again. “A method of transmitting radio and television signals around the earth—”

“Why only radio and television signals?”

I nodded and tried again. “A method of transmitting electromagnetic radiation from one point to another on the earth’s surface without the need for cables and the like which comprises transmitting said radiation to a satellite in orbit around the earth, said satellite being adapted to retransmit said radiation to another point for ultimate reception.”

Even as I said it, I could think of things wrong with it. I said so. Mr. Spardleton nodded thoughtfully. “Yes, but that’s not bad for a first try. We are already learning something about Mr. Clarke’s process. For instance, you did not find it necessary in your claim to say that the satellite was a twenty-four-hour satellite. Why not?”

“The period doesn’t seem to be important. It is only important that a satellite be in position to receive and retransmit.”

The cigar was at an angle of about forty-five degrees above the horizontal—the jaunty angle. Mr. Spardleton smiled approvingly. “Very good, Mr. Saddle. So long as one or more satellites is in position to retransmit signals to the ground or to other satellites, it seems to me that Mr. Clarke’s system will work. We will have to ask him about that if we write a patent application for him. So much for the method claim. Do you think you could write an article claim for this invention?”

I had been thinking about that, knowing the question was coming. Not knowing what else to say, I naturally went back to quoting statutes. “Well, Section 101 defines the inventions that are patentable, and it says they must be a ‘process, machine, manufacture, or composition of matter.’ So we have to figure out where Mr. Clarke’s invention fits under that Section. We already have the process, so that’s out. The invention certainly is not a composition of matter, so it must be either a machine or a manufacture. I don’t think this system of his can be called a machine, so it must be a manufacture if it is anything.”

“I think so. According to patent law a manufacture is any man-made object or article that is not a machine. How would you define this manufacture in a patent claim? Will you include the earth as a reference point?”

“Possibly. Let’s see. How about this: a relay system for electromagnetic radiation comprising a series of satellites in orbit around the earth, said satellites being so positioned that—” I stopped and said, “Then go on from there defining the positions that are necessary to make the system work. Mr. Clarke could tell us what the minimum conditions would have to be.”

“Yes. We would need a greater number of satellites if they all were in orbit close to the earth. We’d need fewer as their orbits move out farther. Mr. Clarke says that when they are out just far enough to give them a twenty-four-hour period, three of them will be enough to blanket the earth, and that seems to be the system he prefers. Well, we’ll discuss it further with him when he comes in next week. Here, take your mail with you.” He shoved one of the piles toward me.

I took it and went back to my office to get to work. I fully intended to do some reading on satellites before our meeting with Mr. Clarke, but I never quite got to it. The only reading I have time for is the reading that has to be done when I get ready to write a case or brief or something like that.

Before I knew it the week had passed, and the day arrived for Mr. Clarke’s visit. I went through a series of interviews with Examiners earlier in the morning, so I was feeling out of sorts when I went into Mr. Spardleton’s office for the meeting with Mr. Clarke. What happened there did nothing to make me feel any better.

Mr. Clarke was a sandy-haired, quiet man, with a surprisingly gentle manner. He and Mr. Spardleton had been talking about Ceylon, where Mr. Clarke lived these days, and about skin diving. I joined in and listened a while, and then Mr. Spardleton pulled a pad of paper in front of him. I knew he was ready to go to work. He said, “Now, have you ever reduced this concept of yours to writing—ever written it down and shown it to somebody else?”

“Oh, yes,” said Mr. Clarke. “I published an article about it. I have a reprint here.” He reached into his briefcase and pulled out a thin sheaf of papers and handed them to Mr. Spardleton. I got up and went over to the table to get a pad of paper. As I was picking up the pad I heard Mr. Clarke continue, “I’m quite certain I was the first to conceive of the twenty-four-hour satellite, because, as you can see, I published this article back in 1945. October of 1945, to be exact.”

Well, I did not turn around. There was, from Mr. Spardleton, one of those silences that can be felt, an ominous suggestive silence that fills a room. Mr. Clarke noticed it and said, “What’s the matter?” I decided I would not need a pad after all, so I went back and sat down without it.

Mr. Spardleton said, “There is a provision in the patent law of this country that says no one can get a patent if the invention was described in a printed publication more than one year before the date on which the patent application was filed in the Patent Office. Such a publication would be a bar to the grant of a patent; it is called a statutory bar. Your article was published in 1945, so we are barred from applying for a patent for anything that is in it.”

Mr. Clarke said, “Is that true even if I was the one who wrote the article?”

“Yes. The bar arises without regard to who wrote or published the article. Mr. Saddle, will you read the pertinent provisions to Mr. Clarke, please?”

I stepped to the bookcase. The Rules of Practice was handiest, so I pulled the book down. “Let’s see,” I said. “That provision would be 35 U.S.C. 102. Yes, here it is. Paragraph (b). ‘A person shall be entitled to a patent unless —(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.’ There’s a lot more, but that’s the provision we want.”

“I see,” said Mr. Clarke. “Well, I guess that is that.”

‘“Let’s take a close look at that article you wrote,” said Mr. Spardleton. “Maybe there is a gap in the description; we might be able to find something to try to patent. Let’s see. Published in Wireless World, a British publication, Volume LI, No. 10, October 1945. Title of the article: ‘Extraterrestrial Relays.’ Well, the title is certainly explicit enough. I hope the rest of the article isn’t as clear.”

Mr. Spardleton read, passing each page to me as he finished. As he read he said, “On page 305 you mention television several times, and you have a graph showing the variation of orbital period and velocity with distance from the center of the earth. Page 306 has a couple of figures that show exactly what you are talking about. You even describe the broadcast frequencies that can be used with the satellites. On page 307 you discuss the power needed to operate one of the satellite transmitters, remarkably small, isn’t it?” Mr. Clarke nodded.

I read the paper too, and I must say it was complete. Toward the end, on page 308, there was even some discussion on rocket design.

Mr. Spardleton said, “Mr. Saddle, do you see any way around this?”

I thought frantically, but I couldn’t think of a thing. I shook my head.

Mr. Spardleton puffed cigar smoke at the ceiling in silence while we watched him. Finally he shook his head and said, “I’m afraid not, Mr. Clarke. In my opinion the bar is complete. There is no way a patent application on this subject matter can properly be filed for you at this time; you simply cannot sign the oath that says none of these statutory bars exists.”

Mr. Clarke nodded. “I was afraid of something like that. Is that true of other countries, too?”

“Yes, at least all the major countries.”

I decided to inform Mr. Clarke of what he should have done to obtain a patent on his concept, so I said to him, “You should have filed a patent application within one year of October 1945; that way you’d probably have the patent now.”

Mr. Clarke looked at me strangely and said, “Thank you.”

Mr. Spardleton puffed out a great cloud of smoke and said half to himself, “Great heavens.”

Mr. Clarke and I waited. I noticed that the cigar gradually took up an angle of sixty degrees to the horizontal— the fighting angle.

Mr. Spardleton said, louder now, “No, by heavens, you couldn’t have.” He turned to Mr. Clarke. “Mr. Clarke, even in 1945 you could not have received a patent. You were too far ahead of your time. You could not have described at that time how to put a satellite in orbit; it couldn’t be done then. And the law requires that you describe your invention in ‘such full, clear, concise, and exact terms as to enable any person skilled in the art to make and use the same.’”

“35 U.S.C. 112,” I murmured.

“So back in 1945 when you published your article it would have been impossible for you to meet the requirements of the patent law. Let me see that Wireless World article again, please. I seem to remember your saying something to that effect.”

Mr. Clarke handed him the article, and Mr. Spardleton scanned it. “Yes. Here in the first column of page 305 you say, ‘Many may consider the solution proposed in this discussion too far-fetched to be taken seriously.’ Then on page 306 you use the phrase ‘seem fantastic.’ You also point out that your concept needs for its fulfillment rockets twice as fast as those in the design stage.” Mr. Spardleton handed the article back to Mr. Clarke saying, “There’s no doubt of it, Mr. Clarke. You could not have got a patent back in those days.”

Mr. Clarke said, “As I understand it then, if a man is way ahead, he cannot obtain a patent because he cannot carry out the invention. Then, at the time he is able to carry out the invention, it is too late to obtain a patent.”

“That’s about the size of it. Maybe Abraham Lincoln was wrong when he said, ‘The patent system adds the fuel of interest to the fire of genius.’” He stopped and shook his head and said, “There’s a case on this point somewhere, but I can’t—”

I was surprised. This was one of the few times I had seen Mr. Spardleton at a loss to remember a case.

Mr. Clarke said, “Well, if you could patent all these untried ideas, there would be a lot of crackpot patents coming out all the time.”

“Undoubtedly,” said Mr. Spardleton. “But today’s crackpot is sometimes tomorrow’s genius. Besides, crackpot patents would do no harm; we have them now. The good ones, if any, would reap the usual rewards. The whole situation would stimulate people to invent for the future. Nothing but good would come of it.”

We all sat quietly and thought about it. I said to Mr. Clarke, “There is one consolation. Even if you had patented your communication system back in—oh, say 1947, the patent would expire in 1964. That’s only four years from now, so you probably would not have made any money on the patent anyway.”

Mr. Clarke looked at me in surprise and said, “That’s right at that. It will probably take just about the remaining four years to set it up.”

Mr. Spardleton smiled and said, “I’ve seen this many times. Seventeen years, the life of a patent, seems like a long time to you young fellows. But it goes by awfully fast.”

“I suppose it does,” said Mr. Clarke.

“You know,” said Mr. Spardleton, “we would not be out of the woods even today in getting this patent for you if we could properly apply for it. Could you—even now— give us all the details necessary to put a satellite in orbit? Or is all that kind of information locked up in a government vault somewhere?”

“I see what you mean. I think we could work something out that would satisfy the Patent Office. It would take a lot of work, though. I—”

“Moffett versus Fiske,” Mr. Spardleton shouted. “Please forgive me, Mr. Clarke; I just remembered that case. Moffett against Fiske. Mr. Saddle, will you pull the case, please? It’s a Court of Appeals case, decided in the early thirties, about Volume 50 of the Second Series, I think.”

I stepped into the library and had the case in less than one minute. It was in Volume 51. I returned and handed the book to Mr. Spardleton. He scanned the case, extracting from it all the pertinent points at an unbelievable speed. He glanced up and said, “Yes, Bradley A. Fiske, a graduate of the United States Naval Academy at Annapolis in 1874, worked his way up to become an admiral. He became concerned about the ability of the United States to defend the Philippines, and in 1910-1911 devised many plans to recapture the Philippines if they should be captured by an enemy. Then he made his invention—a weapon—so that an enemy couldn’t capture the Philippines in the first place. He filed his patent application, and the patent was issued in July of 1912. Know what the invention was?”

We shook our heads.

“The torpedo-carrying airplane. Admiral Fiske was the inventor of the torpedo-carrying airplane, but he was too far ahead of his time. He tried to enforce his patent by suing the navy later on. The District Court that tried the case added some nice fuel to the fire by giving the admiral a judgment of $198,500, a large judgment for those days, but then the Court of Appeals put the fire out; it reversed the District Court. For one thing, the Court of Appeals held that the government was entitled to a license under the patent. Admiral Fiske was known to have inventive ingenuity, and his invention was really a war plan, so the government was entitled to use it.” Mr. Spardleton looked up and said, “You know, I can’t really quarrel with that part of the decision.”

Mr. Clarke nodded. “It makes sense that a weapon invented by a naval officer in the line of duty could be used by the navy.”

Mr. Spardleton said, “Yes, although the admiral tried to interest the naval authorities in his invention, and they would have none of it. Well, the Court went on to state the law that now keeps far-sighted men from getting patents. It said there was no airplane in existence capable of carrying the torpedo required, and no torpedo able to sustain the shock of being dropped from an airplane. The admiral said he felt sure the airplanes would rapidly grow bigger and stronger, but the Court said, ‘... at a time when airplanes were hardly capable of rising from the ground, Admiral Fiske presumes a plane capable of carrying and discharging a torpedo weighing a ton.’ To summarize the whole affair, the Court says here on page 872 that the admiral’s invention required a plane then unknown to the world, and a torpedo equally unknown. So they threw him out. And there, Mr. Clarke, you have it. You could not have obtained a patent on your communication system when you invented it back in 1945; your rockets and satellites did not exist. The patent system lags behind technology.”

Mr. Clarke nodded and sat quietly staring at the floor. He said, “Then any scheme having in it some feature not yet in existence will not be patentable, and by the time it does become patentable, it may be too late. This is true even though one knows for certain that the nonexistent feature will be developed.” He looked up questioningly.

Mr. Spardleton and I nodded, and he continued, “People will be able to patent the hardware and the fuels and things like that, but they cannot patent any of the early, necessary plans and system relating to space.”

We nodded again.

Mr. Clarke stood up and said, “It appears that the patent system is not geared to the space age. Now, if you gentlemen will excuse me, I must send a telegram. There’s an article I wrote that... well, there’s no sense in letting it be published now. I’ll wait a few years.