The Patent Law Origins of Science Fiction

Abstract

This article reveals the surprising role of patent law in shaping the literary genre of science fiction. Drawing on previously unpublished sources, the article shows that Hugo Gernsback—the “father” of science fiction who founded the first exclusively-science-fiction magazine in 1926—believed that works of science fiction are analogous to patents. This theory informed Gernsback's vision for the genre of science fiction and its role in society. In Gernsback’s view, both science fiction and patents disclose useful information to the public and can give rise to the inventions of the future. For decades, Gernsback wrote editorials expounding his theories for how science fiction influences inventors and drives innovation. At the 1952 World Science Fiction Convention, Gernsback took his ideas to the next level, proposing that Congress should reform the Patent Act to make patents available for science fiction authors. His proposal, although it was never adopted, was sincere, and very specific. He argued that science fiction authors who described new inventions in their stories which appeared “feasible and technically sound” should be able to obtain what Gernsback called a “Provisional Patent.” This new form of legal right would have given science fiction authors thirty years in which to prove their invention worked; if so, the science fiction author could procure an ordinary patent, giving them control over the invention for a term of (what is now) twenty years.

Many will find Gernsback’s proposal deeply problematic from the perspective of patent policy, and rightly so. Giving out patent rights—even provisional ones—too early in an invention’s lifecycle creates new and unjustified opportunities for patent law to hold up innovation. Science fiction authors who obtained these new patent protections could crawl out of the woodwork up to half a century later and sue the very people who figure out how to reduce their inventions to practice. Gernsback’s ideas for patent reform were half-baked and, the article shows, probably self-serving. Nonetheless, exploring the connection he cultivated between patents and science fiction yields many surprising insights for science fiction and for innovation policy. Science fiction has more in common with patents than it might seem. Although science fiction does not typically impart enough information to “enable” others to make and use the inventions it describes, science fiction can inspire readers and supply them with a motivation—in Gernsback’s words, a “stimulus”—to implement science fictional inventions in the real world. Science fiction, like patents, can play a role in promoting innovation.

Keywords: patents, science fiction, Hugo Gernsback