Patents and Science Fiction: Does Science Fiction Promote Innovation?

Dan Brean and I have just posted a new essay called Enabling Science Fiction. We wrote the essay for the upcoming Association of American Law Schools panel: Science Fiction and the Law, co-sponsored by Biolaw and Intellectual Property. The panel, put together by Nicholson Price, will take place at AALS on January 8th at 11AM EST, and will feature myself (Camilla Hrdy), Dan Brean, Marc Blitz, Deven Desai, and Victoria Sutton.  

The full version of Enabling Science Fiction can be downloaded on SSRN. The essay itself, which will be published in a symposium issue in Michigan Technology Law Review, is under 8000 words. This is like 20% of an average law review article, but below is an even shorter excerpt. We welcome your comments! (chrdy@uakron.edu).

In recent years, patent scholars [such as Janet Freilich and Lisa Ouellette] have [observed that, thanks to lax disclosure and enablement rules] patent examiners are allowing inventors to achieve patents on what seems, quite literally, like "science fiction."

But of course, this is an exaggeration: what’s acceptable in patent law pales in comparison to what is acceptable in literary science fiction. In science fiction, undue experimentation isn’t just permitted, it’s encouraged. Reduction to practice can be, literally, light years away.  ...

However, we argue that, counterintuitively, the genre of science fiction has its own unique enablement requirement: works of science fiction must sufficiently explain—enable—the technologies and inventions that they posit.  ...  

The lodestar for science fiction enablement—which we’ll sometimes call “Sci Fi Enablement,” to keep the two standards clear—is not reduction to practice. It’s reduction to plausibility, based on current science knowledge and based on the way the posited science is explained and theorized to the reader. ... Science fiction has to work with, relate to, or differentiate itself from real-world scientific facts or hypotheses.  ... 

When science fiction authors posit technologies without explaining them, this is often referred to as hand-waving, like a magician with a wand. Fans and critics are apt to call out hand-waving when they see it. For example, the well-known science fiction writer Kim Stanley Robinson (whom we interviewed for this Essay) recently accused himself of engaging in “a little bit of science fictional hand-waving,” by introducing “diamond spray” as a water-proofing substance for his book about a future New York City that is flooded due to global warming. 

An oft-cited hand-waver is H.G. Wells. As Professor Gary Wolfe [creator of the outstanding lecture series, How Great Science Fiction Works] puts it, in Wells’ most famous work, The Time Machine (1895), "Wells hardly bothers trying to rationalize time travel; his time traveler ... simply argues that time is merely a fourth dimension and that logically, if we can travel in the other three, we ought to be able to travel in this one, as well." ... 

So where does science fiction's enablement standard come from?  ... In patent law, enablement is required by law and is judged through the lens of the PHOSITA, a hypothetical artisan in the field who is assumed to know all prior art in the field and be conversant with the entire state of the art' at the time of filing. 

In science fiction, in contrast, enablement is judged and enforced by the fans: the "fan of ordinary skill in the art" or the FOSITA, if you will.  ... Since the genre’s origins, the FOSITA has demanded that the inventions depicted in science fiction meet a minimum standard of scientific plausibility. Otherwise, the material is denigrated as lazy hand-waving or, worse, "mere fantasy." ...

[So] what does it mean that science fiction is enabled? Why does this matter? ... [W]e propose that the disclosures in works of science fiction—because they are to some degree enabled—serve a similar purpose to the disclosures in real patents. 

The main justification for the enablement requirement in patent law [to quote Jeanne Fromer] is that disclosure of information about inventions "stimulates productivity ... by supplying information that scientists and researchers can use, both during the patent’s lifetime and after it expires." ...   

[We argue that] [t]he technical disclosures revealed in enabled science fiction can serve an important disclosure function that is similar to patent law’s. By stimulating new and nonobvious ideas for future technologies, science fiction can influence the direction of science. We find support for this thesis in the patent record itself, where patents for inventions like the submarine and the cellphone drew inspiration from works of science fiction. ...

 For more, see the full essay.