Hrdy and Brean on The Patent Law Origins of Science Fiction @CamillaHrdy @AkronLaw

Camilla Alexandra Hrdy, University of Akron School of Law; Yale University Information Society Project, and Daniel Harris Brean, Independent Scholar, have published The Patent Law Origins of Science Fiction.

This article uncovers the role of patents and patent law in shaping the literary genre of science fiction. Using unpublished primary sources, the article examines the views of Hugo Gernsback, the so-called “father” of science fiction. Gernsback, who was himself an inventor and frequent patentee, is known for his firm conviction that works of science fiction can give rise to the technologies of the future. This article reveals that, in espousing this thesis, Gernsback drew an explicit analogy between the inventions described in science fiction and the inventions described in patents. The culmination of Gernsback's theory was his proposal, in 1952, that “Provisional Patents” should be available for “feasible and technically sound” inventions depicted in works of science fiction—even if they were not yet possible to implement in practice. The history of patent law’s role in shaping science fiction has been largely ignored, or derided, by the science fiction community. It is wholly unknown to the patent law community. Many will find Gernsback’s proposal deeply problematic from the perspective of patent policy. But investigating Gernsback’s views, and understanding his justifications for them, generates many surprising insights about patent law and policy, and about the genre of science fiction itself. Science fiction’s patent law origin provides a new and different justification for science fiction’s role in society. According to Gernsback, and other adherents of his philosophy like Arthur C. Clarke, science fiction is not just a form of entertainment. It is a legitimate component of innovation policy. Without science fiction, society would not have many of the innovations that surround us today—or at least would not have obtained them so quickly. This is extremely similar to the role that many commentators ascribe to patents. Gernsback’s philosophy of science fiction may seem naïve. But these beliefs, and their underlying reliance on patent theory, were nonetheless highly influential. They shaped the genre of science fiction as we know it. The patent law community, and not just those of us who are science fiction fans, also has a lot to learn from Gernsback’s views. The historical connection between science fiction and patent law forces us to take a hard look at one of patent law’s most deeply-held principles—that patents are only available for inventions that are currently possible. On the one hand, Gernsback’s extreme position reaffirms why this principle is important. It should not be easy to control the future. The law wisely incorporates doctrines that make it hard to patent inventions that are still so many years away that we call them mere science fiction. At the same time, however, Gernsback’s insistence that science fiction is important for innovation sheds light on the countless “non-enabled,” totally “incredible” visions of the future that patent law leaves out. Science fictional inventions, precisely because they are not yet possible, can impart useful information, and inspire future inventors, in ways that patents cannot. One of the most important differences between science fiction and patents, in fact, is that people actually read science fiction, and are deeply moved by it. Gernsback, as usual, put it best. Science fiction imparts “knowledge, and even inspiration, without once making us aware that we are being taught.” It “fires the reader’s imagination more perhaps than anything else of which we know.” Very few people can say that about reading patents. This matters. If Gernsback was right—and as we show, in some cases he certainly was—then science fiction has inspired some of the inventions we have today. And it did so precisely because it failed patent law requirements like enablement and operable utility, describing inventions which the author could imagine but had no idea how to put into practice. We cannot perform a meaningful empirical assessment of science fiction’s impact on innovation. But we do have evidence that some inventions, and many patents, were influenced to some degree by science fiction.

Download the article from SSRN at the link.