Judith Merril - The Year's Greatest Science Fiction & Fantasy 6

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.”