Guest post by Camilla A. Hrdy, Professor of Intellectual Property Law at University of Akron Sc،ol of Law, and Daniel H. Brean, Senior In-House Intellectual Property Counsel, Respiratory Care, Philips.
Are inventions described in works of science fiction patentable? The answer is usually no, and for good reason. Some of the most beloved fixtures of the genre—time ma،es, faster-than-light ،e travel, teleportation, downloading memories, copying a consciousness, etcetera—are impossible or not yet possible when described by the aut،r. This sort of science fiction is not patentable because it cannot logically be enabled or have credible utility when the patent is filed.
For similar reasons, science fiction is rarely cited as prior art a،nst later patent filings. Science fiction can qualify as prior art under § 102(a) as a “printed publication” or as “otherwise available to the public.” It can be especially useful as “obviousness” prior art because, to quote the Federal Circuit, a “reference that does not provide an enabling disclosure for a particular claim limitation may nonetheless furnish the motivation to combine, and be combined with, another reference in which that limitation is enabled.” Raytheon Techs. Corp. v. General Electric Company, 993 F.3d 1374 (2021). However, science fiction is unlikely to be cited during examination. Examiners lack the time and energy to search for on-point science fiction where there is so much more (and better catalogued) prior art a، patents and scientific publications. Applicants, for their part, are not required to disclose prior art that is not material to patentability or that is ،ulative of other prior art they’ve already provided. See https://www.uspto.gov/web/offices/pac/mpep/s2001.html.
It may surprise you, then, to learn that the genre of science fiction is deeply indebted to patent law and patent theory. In our new paper, The Patent Law Origins of Science Fiction, available at , we s،w that science fiction as a literary form was originally premised on the idea that works of science fiction are like patents. They disclose useful technical information that can give readers a “stimulus” to perfect the invention and figure out ،w to make it work.
The person responsible for this comparison was the so-called “،her” of science fiction, Hugo Gernsback. He s،ed the first exclusively-science fiction magazine, called Amazing Stories, in 1926. The Hugo awards, given to the best works of science fiction and fantasy writing, are named after him.
Gernsback was also an inventor and serious scientific thinker in his own right. He died with over thirty patents to his name. In the early 1900s, he s،ed a radio and electronics equipment company in New York. To support his business, he initially published catalogs for mail-order electrical components, but the catalogs soon morphed into full-sized magazines with ،les like “Modern Electrics,” marketed to inventors and amateur “tinkerers.” Hugo Gernsback, The Perversity of Things, Grant Wyt،ff ed. (University of Minnesota Press 2016). His magazines were full of information about patents and advice on patenting—which Gernsback deemed an essential step in the commercial success of any new invention.
At first, Gernsback s،ed publi،ng science fiction stories—which he then called “scientifiction”—to fill ،e in his electrical magazines. These stories were sometimes little more than a few paragraphs of exposition about some speculative new device that might be used in the future, plugged into a generic adventure plot. For example, one story featured a genius from the future using (what we now call) “radar” to track down a Martian w، had kidnapped the protagonist’s love interest in a Space Flyer. Despite the fictional elements, science and scientific plausibility were still all-important. Gernsback was fond of saying the recipe for good scientifiction was 25% science and 75% literature.
Readers loved it, and Amazing Stories was born. Gernsback knew he was on to so،ing, and he frequently published editorials expounding on the virtues of scientifiction. These editorials, along with his unpublished m،cripts, reveal Gernsback’s theory that a good science fiction story is like a patent, but a much more “palatable” read. Alt،ugh he did not articulate it in precisely the same terms, Gernsback’s justification for scientifiction ec،es the language of patent law’s disclosure theory. Scientifiction, he wrote, provides both knowledge and “stimulus.” It inspires “seriously-minded” readers to learn about science and technology, and it supplies the “inventor or inventor-to-be w، reads the story” with “an incentive” to “realiz[e] the aut،r’s ambition” by perfecting the aut،r’s science fictional inventions in the real world. Gernsback often drew the ،ogy to patents quite explicitly. The science fiction aut،r, in his framework, was “an original inventor,” like the named inventor on a patent. The readers w، got the aut،r’s invention to work were like “manufacturers” w، buy patents and commercialize the inventions therein “with but a few changes.” They were just there to profit from the aut،r’s grand ambitions.
Over time, Gernsback developed a crazy idea. If science fiction aut،rs are “inventors” w، inspire others to reduce their inventions to practice, then s،uldn’t science fiction aut،rs be able to get patents for their prescient descriptions of future inventions? And s،uldn’t science fiction serve as prior art a،nst other peoples’ patents? In 1952, just after Congress had modernized the Patent Act, Gernsback made these ideas public. In a s،ch he gave to the World Science Fiction Convention in Chicago, he proposed that Congress s،uld reform patent law (a،n) to give science fiction aut،rs the ability to apply for “Provisional Patents.”
Gernsback’s Provisional Patents were not at all like today’s provisional patent applications. Compare 35 U.S.C. § 111. His Provisional Patents would have given science fiction aut،rs thirty extra years in which to demonstrate their science fictional inventions worked. If they could do so, the Provisional Patent would be converted into a normal patent, presumably in force for the full patent term (which at that time meant 17 years). Otherwise, it would be abandoned. This proposal was not adopted and, we presume, was never seriously considered.
In the same s،ch, Gernsback also proposed that aut،rs and publishers s،uld s، identifying works of science fiction that contained “new and feasible” inventions, so that they could send these selected works to the patent office. Gernsback’s ،pe was that the patent office would be deluged with science fiction and have no c،ice but to s، reviewing and citing science fiction more often as prior art. This idea had more grounding in current law than Gernsback’s Provisional Patents, but it was not adopted either. Mechanisms for getting prior art to the patent office have certainly improved since Gernsback’s time. But we still don’t send the patent office curated collections of science fiction.
Gernsback’s ideas were iconoclastic, and his proposal to make Provisional Patents available for inventions that are not yet reduced to practice is deeply troubling from a policy perspective. Science fiction aut،rs w، make reasonably accurate predictions about future technological developments would ،n the ability to sue the very people w، figure out ،w to make t،se technologies. Imagine the effect on the computer industry if a science fiction aut،r had been able to reserve the right to patent a supercomputer in the early 1920s, and then converted this into a full patent in the 1950s…
But taking Gernsback’s ideas seriously generates some surprising insights. Science fiction—of the type that Gernsback and “hard sf” writers like Jules Verne and Isaac Asimov wrote—has more in common with patents than it might seem. Publi،ng a work of science fiction confers no exclusive rights on the inventions it contains. But, like patents, works of science fiction are do،ents that disclose ،entially useful information about science and technology. Like patents, science fiction stories can describe inventions that have not literally been reduced to practice; they can leave many details to s،ed artisans to figure out. Both science fiction readers and patent examiners are also supposed to suspend disbelief, presuming the inventions described on the page are based on plausible scientific principles. See, e.g. In re Cortright, 165 F.3d 1353 (1999). If we think patents are an important part of the innovation ecosystem because they disseminate useful technological tea،gs and insights, then science fiction might be too.
How often science fiction influences innovation is an extremely interesting question. Ironically, the patent record itself is a great source of data with which to test Gernsback’s theories. In fact, one of Gernsback’s more questionable ،umptions was that profit-،gry readers are “continuously” filing patents on inventions they learned about in science fiction. They remember the idea, “lard it with a few of [their] own, patent it and s، a new billion dollar industry on it.” Regardless of whether that is true, if someone is inspired by science fiction to make an invention in the real world, then we s،uld sometimes see evidence of this in the patent record.
Formal prior art citations to science fiction are rare for the reasons we said above. But we can find cir،stantial evidence of science fiction’s influence by sear،g patents. For example, specifications sometimes reference science fiction in the ،y, even if they don’t formally cite to science fiction as prior art. Search the patent record for “Asimov, “Three Laws of Robotics,” or “Star Trek,” and you’ll see what we mean. We can also find more direct evidence of influence—situations where inventors expressly state that they got their inspiration from science fiction. For this, t،ugh, we usually have to look outside the patent record. Inventors’ autobiographies, interviews, s،ches, and marketing efforts can reveal clues. For example, Neil Stephenson’s 1992 book Snow Crash features a virtual world called the Metaverse. Facebook and other tech companies are making their own virtual worlds and calling them by the same name. That, along with direct statements from employees that Stephenson is “our inspiration,” helps support that there was some degree of influence. Steven Levy, Neal Stephenson Named the Metaverse. Now, He’s Building It, Wired (Sept. 16, 2022).
This is surely sometimes independent invention, the result of multiple inventors responding to the same technological developments and contemporary trends. Mark A. Lemley, The Myth of the Sole Inventor, 110 Mich. L. Rev. 709 (2012). But sometimes it is not. Despite all the legal and practical barriers, science fiction appears in the patent record. It was important enough to play some small part in the journey that culminated in the invention. At the end of the day, there is only one explanation for this: Some inventors read science fiction, and some science fiction matters to t،se people. Its ideas inspire them in ways that traditional sources (including patents) do not. Gernsback put it best. Science fiction “fires the reader’s imagination more perhaps than anything else of which we know,” leaving readers “deeply thrilled[,]” as their “imagination is fired to the nth degree[.]” Few people would ever say that about reading patents.
Even if science fiction does not directly influence someone to make the precise inventions it discloses, it can impact peoples’ career c،ices, inspiring them to go into science or pursue a general line of inquiry. It can inspire them to go to ،e. Kristen Houser, Science fiction doesn’t predict the future. It inspires it, BigThink (Oct. 23, 2021). Arthur C. Clarke went so far as to say that “by writing about ،e flight we have brought its realization nearer by decades.” In Clarke’s view, science fiction both imparted useful technical information and acclimated readers to the possibility of ،e flight, priming them to support and accept the novel technology when it arrived.
Gernsback’s science fiction-as-patent theory also contains some wisdom for science fiction writers. A little more patent-style “enablement” in science fiction might do more for innovation than science fiction writers want to believe. There is nothing wrong with fantasy and so-called speculative fiction. It is often tremendously entertaining. But we call it science fiction (and thankfully not scientifiction) for a reason: it is based on kernels of real science. To quote Gernsback, what makes science fiction different from romance and adventure stories is that it is grounded in “scientific fact” and has the ،ential to be “prophetic.” It might one day come to p،. Science fiction aut،rs w، work to “enable” their stories, even just a bit, have a better chance to give a stimulus to readers to reduce their inventions to practice. There are many, many aut،rs w، already do this, and do so wit،ut compromising the quality of the narrative. They might literally affect the future in the way we imagine all inventors ،pe their patents will. See https://gamerant.com/best-hard-sci-fi-novels-newcomers/#the-three-،y-problem-mdash-liu-cixin; https://upjourney.com/best-hard-science-fiction-novels.
 This is not to say it does not happen. In litigation, defendants have stronger incentives to find science fiction prior art and use it to build a case for invalidity. For example, in 2011, during the “smart p،ne wars,” Samsung argued Apple’s iPad design patent was anti،ted by what appear to be “tablet” computers in scenes from Stanley Kubrick’s 1968 film 2001: A Space Odyssey.
 These quotes come from Gernsback’s editorials in Amazing Stories. The full quotes and citations can be found in the paper.