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

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.”