The Patent Law Origins of Science Fiction


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 machines, faster-than-light space travel, teleportation, downloading memories, copying a consciousness, etcetera—are impossible or not yet possible when described by the author. 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 against 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,. . .. 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 among patents and scientific publications. Applicants, for their part, are not required to disclose prior art that is not material to patentability or that is cumulative of other prior art they’ve already provided.

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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, . . . we show 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 how to make it work.

The person responsible for this comparison was the so-called “father” of science fiction, Hugo Gernsback. He started 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 started 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 titles like “Modern Electrics, marketed to inventors and amateur “tinkerers.” . . . . 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 started publishing science fiction stories—which he then called “scientifiction”—to fill space 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 who 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 something, and he frequently published editorials expounding on the virtues of scientifiction. These editorials, along with his unpublished manuscripts, reveal Gernsback’s theory that a good science fiction story is like a patent, but a much more “palatable” read. Although he did not articulate it in precisely the same terms, Gernsback’s justification for scientifiction echoes 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 who reads the story” with “an incentive” to “realiz[e] the author’s ambition” by perfecting the author’s science fictional inventions in the real world. Gernsback often drew the analogy to patents quite explicitly. The science fiction author, in his framework, was “an original inventor,” like the named inventor on a patent. The readers who got the author’s invention to work were like “manufacturers” who buy patents and commercialize the inventions therein “with but a few changes.” They were just there to profit from the author’s grand ambitions.

Over time, Gernsback developed a crazy idea. If science fiction authors are “inventors” who inspire others to reduce their inventions to practice, then shouldn’t science fiction authors be able to get patents for their prescient descriptions of future inventions? And shouldn’t science fiction serve as prior art against other peoples’ patents? In 1952, just after Congress had modernized the Patent Act, Gernsback made these ideas public. In a speech he gave to the World Science Fiction Convention in Chicago, he proposed that Congress should reform patent law (again) to give science fiction authors the ability to apply for “Provisional Patents.”

Gernsback’s Provisional Patents were not at all like today’s provisional patent applications. . . . His Provisional Patents would have given science fiction authors 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 speech, Gernsback also proposed that authors and publishers should start 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 hope was that the patent office would be deluged with science fiction and have no choice but to start 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.

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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 authors who make reasonably accurate predictions about future technological developments would gain the ability to sue the very people who figure out how to make those technologies. Imagine the effect on the computer industry if a science fiction author 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. Publishing a work of science fiction confers no exclusive rights on the inventions it contains. But, like patents, works of science fiction are documents that disclose potentially 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 skilled 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. . . . If we think patents are an important part of the innovation ecosystem because they disseminate useful technological teachings 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 assumptions was that profit-hungry 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 start 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 should 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 circumstantial evidence of science fiction’s influence by searching patents. For example, specifications sometimes reference science fiction in the body, 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, though, we usually have to look outside the patent record. Inventors’ autobiographies, interviews, speeches, 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).

Link to the rest at and thanks to C. for the tip.

PG notes that the OP includes many links he has removed. However, PG didn’t hit a paywall when he clicked on the link, so, if your OCD is kicking up, you should be able to go to the OP, click on the links and learn much more.

7 thoughts on “The Patent Law Origins of Science Fiction”

  1. Right off the top of my head:

    See Heinlein’s “waterbeds” and “Waldo”.

    Also, see Original Star Trek “communicators” and “flip phones”.

    – The Dream inspired the Real.

    The Golden Age of SF was all aspirational, best summed up by:

    “If you want to build a ship, don’t drum up people together to collect wood and don’t assign them tasks and work, but rather teach them to long for the endless immensity of the sea.”

    — Antoine de Saint-Exupery

    These were people who grew up reading fiction that was full of Wonder, and were swimming in Mysticism. Madame Blavatsky’s Theosophical Society was a major driver of all that.

    At the heart of every Technologist was a full blown Mystic trying to encourage people to make “Real” their Dreams.

    – See Jack Parsons who built JPL while practicing sex magic as example:

    Jack Parsons

    Following some brief involvement with Marxism in 1939, Parsons converted to Thelema, the new religious movement founded by the English occultist Aleister Crowley. Together with his first wife, Helen Northrup, Parsons joined the Agape Lodge, the Californian branch of the Thelemite Ordo Templi Orientis (O.T.O.) in 1941. At Crowley’s bidding, Parsons replaced Wilfred Talbot Smith as its leader in 1942 and ran the Lodge from his mansion on Orange Grove Boulevard. Parsons was expelled from JPL and Aerojet in 1944 owing to the Lodge’s infamous reputation and his hazardous workplace conduct.

    There are plenty of videos about Parsons on YouTube. There is even a series about him.

    Strange Angel Season 1 First Look | Rotten Tomatoes TV

    Parsons was not the extreme example. History has been sanitized, their actual stories forgotten.

    Think the book “The Da Vinci Code” and the secret history Brown told. Now realize that the same thing could be written about most major Technologists, if you could see beyond the hagiographies that remain.

    • I watched a YouTube video a few years back on the use of a very real looking iPad on the 70’s era Tomorrow people. apparently it was just painted wood.

  2. I’m puzzled by the idea that Science Fiction was invented somewhere around 1926. Thuvia, Maid of Mars is earlier by a few years. There is an anonymous Science Fiction book on Project Gutenberg Australia that has a date in the 1800’s and it isn’t the only one. I haven’t read it nor others that are listed there with dates in the late 1800’s because they don’t appeal but I’ve seen them. What about Jules Verne?

    • Before the genre was created or invented, these stories would’ve been classed as Romance (the original description for flights of fancy, not kiss, kiss, bang, bang). See The Seven Basic Plots: Why We Tell Stories is a 2004 book by Christopher Booker.

      The tendency to retroactively classify books that the original author wouldn’t have thought of as SF is a modern trend by those within the genre to shake-off the stigma of being classified as stories about squids in space.

      • All classifications are applied retroactively. It’s the nature of the beast.

        People didn’t say, ‘Let’s invent a category called science fiction! Now maybe we’d better have some stories that belong in it.’ They came up with the label to describe a type of story that already existed, but did not have a name of its own. Gernsback coined the ugly neologism ‘scientifiction’ for marketing purposes, so he could easily explain to people what he was selling in his magazine. But other SF magazines came along within a couple of years, and they quickly settled on the term ‘science fiction’ to refer to their contents. There was no question of any stigma to shake off. The stigma actually came later, when bottom-feeding pulp publishers started printing copycat SF magazines and filling them with whatever rubbish they could buy for half a cent a word.

        By the way, all those magazines, in the early years, relied heavily on reprints of older works. Edgar Rice Burroughs, I believe, appeared regularly in Amazing Stories, though as far as I know he never wrote an original story for that market. But he was still living, and I have never heard that he objected to having his stories classified under either version of the newfangled label.

  3. Hugo Gernsback, unfortunately, couldn’t literature his way out of a damp paper bag (his Ralph 124C41+ is, considered as literature, awful), and the idea that SF is about technology and prediction of the future is considered hopelessly old-fashioned now, on a level with “geography is about maps and biography is about chaps”. So this is more interesting as a comment on the early days of the genre than today.

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