“The nonobviousness concept of ‘long-felt need,’ framed ‘as of the date of an articulated identified problem and evidence of efforts to solve that problem,’…might sometimes stem, ever so slightly, from a science fictional origin.”
I recently noticed that, among the Cited References in each of dozens of Apple design patents (some of which issued in the past few months), the following line-item appears: “Clarke, ‘Newspad by Authur C. Clarke from 2001: A Space Odyssey,’ published 1968, 3 pages,” where the website shows this image:
This is charming, even if potentially unnecessary. I like to imagine the drafter grinning and reflecting on the science fiction that inspired the invention. Indeed, let’s run with this and go beyond design patents: why don’t utility patents, at least to a substantively prudent extent, discuss science fiction? Well sometimes, they do, and those patents are better for it!
I want to salute the patents that, every so often, reference science fiction. Please stop reading if you’re looking for deep, doctrinal substance. Stick around, however, if you have a few minutes to loosen up.
These enhancements make patents more fun. Not so long ago, U.S. Supreme Court Justice Elena Kagan drew headlines in Vanity Fair and People by weaving Spider-Man references into her opinion in Kimble v. Marvel Entertainment. Surely, we’re not more uptight than the Supreme Court, right? Beyond lightheartedness though, these enhancements might make patents more meaningful. Camilla Hrdy and Daniel Brean recently commented in the Michigan Technology Law Review that “many inventions that were originally introduced in science fiction also end up in the patent record.” Although some of their commentary might overlap with my point here, I want to instead focus on science fiction as a fun and useful tool.
Science Fiction Inspires
From dystopias to utopias, science fiction portrays numerous possible futures. We revisit science fiction to ask whether today’s technologies have caught up to past predictions. Stanley Kubrick’s 1968 film, 2001: A Space Odyssey, based on Arthur C. Clarke’s novel, is a frequent target of such analyses, as articles at WIRED, Cosmos Magazine, and the University of Michigan Computer Science and Engineering Department show.
Similarly, patents sometimes ask the “Are we there yet?”-question. A 1995 patent to a “video telephone station” notes that the “[v]ideo telephone. . . was even predicted to be commonplace by the year 2001 according to . . . ‘2001: A Space Odyssey.’” Patents discussing “automated speech recognition” and “natural-language interactions” reference the anthropomorphic computer, HAL 9000, from 2001. These Kubrickian relics help a reader understand the invention. Sometimes too, these references might trigger what literary theorist Wolfgang Iser categorized, in the context of the written word, as the aesthetic, which represents the reader’s personal realization of an author’s words. Personal experiences can help a reader draw meaning, based on the references, beyond the words as explicitly written.
Indeed, just a few words can spark much imagery. One patent describing a “4D hologram” describes virtual meetings that use “a photo-realistic 3D experience of the meeting (like a Star Wars®-type hologram experience).” Perhaps Princess Leia imploring Obi-Wan Kenobi for help comes to mind? And where a patent is directed to “energy relays for energy directing systems,” citing Star Trek’s “holodeck” can conjure up a fantastical sequence, with the reference more deeply illustrating the concept than a few, uninspired paragraphs (lacking such a reference) might otherwise achieve.
Science Fiction Helps Define Ethics
Fiction—for our purposes, science fiction—sharpens our decision-making. Steven Pinker, in How the Mind Works, points out that fiction “suppl[ies] us with a mental catalogue of the fatal conundrums we might face someday and the outcomes of strategies we could deploy in them.” These challenges, which science fiction often poses, can function (albeit indirectly) like broadened metaphors, which the philosopher Max Black describes as sparking “extended meanings” and bridging “initially disparate realms,” which “can neither be antecedently predicted nor subsequently paraphrased in prose.” Science fiction can help the reader draw common lessons, where appropriate, from seemingly separate scenarios.
Isaac Asimov contemplated the conundrums that intelligent machines might someday create in his 1942 story, “The Runaround,” with his three “Laws of Robotics.” These require that a robot (1) “not injure a human being, or, through inaction, allow a human being to come to harm”; (2) “obey the orders given it by human beings except where such orders would conflict with the First Law”; and (3) “protect its own existence as long as such protection does not conflict with the First or Second Laws.” Asimov described the moral and practical challenges in complying with all three laws and the laws appear in patents as ethical guideposts. When one patent refers to how conscious machines may cooperate and compete in ways resembling the “[b]iological behavior in social animals,” a reference to Asimov’s laws, in just a few words, implicitly incorporates the tension between servitude and self-protection that Asimov proposed.
George Orwell’s Nineteen-Eighty-Four, likewise, evokes ethical conflicts, especially in our watchful, data-filled world. Thus, a patent directed to the “exchange of sensitive information” among devices can analogize “Big Brother” with “Big Business,” to draw attention to the “considerable amount of personal information about their subscribers” plucked from mobile devices. The brief reference highlights fraught developments about privacy and autonomy that technology forces us to contemplate, without explicitly listing them.
Am I overromanticizing a few, short excerpts? Are the opportunities to incorporate science fiction limited to only certain technical fields? Maybe. But I offer a nod to science fiction references because they’re fun, illuminating, and might even offer substantive benefit. As Joelle Renstrom, a lecturer at Boston University, observes, in “sci-fi there’s a problem and an idea to solve it—and some of those ideas are real or have borne out.” Similarly, the nonobviousness concept of “long-felt need,” framed “as of the date of an articulated identified problem and evidence of efforts to solve that problem,” Texas Instruments v. US Intern. Trade Com’n, 988 F. 2d 1165, 1178 (Fed Cir. 1993), might sometimes stem, ever so slightly, from a science fictional origin.
You might not have time for such trifles. Robert Frost complained about something like “hours to bill before I sleep,” right? This article salutes the “happy trees” in patents. I simply offer a tip-of-the-hat to the drafters who give the extra effort.