Note: Most science fiction stories do not very accurately portray the Patent system and how it works. This story, from 1955, was apparently written by a Patent Attorney, as it cites proper Rules and Law (for its era) and even relevant case law. Enjoy.
The Professional Approach
The trials of a patent lawyer are usually highly technical tribulations— and among the greatest is the fact that Inventors are only slightly less predictable than their Inventions!
by Leonard Lockhard
"Sometimes," said Helix Spardleton,
Esquire, "a patent case gets away
from you. As the attorney in the case,
you never quite see it the same as
everybody else. You stand isolated
and alone, unable to persuade the Patent
Examiners, the Board, the courts,
possibly even the inventor, to accept
your view of the case. Nothing you
do or say matches anyone else's thinking,
and you begin to wonder what's
the matter with everyone."
I nodded. This was my favorite
time of day. It was early evening in
Washington, D.C., and my boss, Helix
Spardleton, patent attorney extraordinary,
was relaxing. His feet
were up on one corner of his desk,
his cigar was in the Contemplation
Position, and the smoke curled slowly
toward the ceiling. His office was
a good room in which to relax. It was
filled with fine, old well-scratched
furniture, and the walls were lined
with books, and there was the comfortable
picture of Justice Holmes on
the wall looking down with rare approval
on what he saw. Susan, our
secretary, had made the last coffee of
the day, and had kicked off her shoes
the better to enjoy it. The three of us
just sat in the deepening dusk, and
talked. We didn't even turn on a
light. It was a shame I wasn't paying
close attention to Mr. Spardleton.
I said, "Yes, I know what you mean
about other people's not seeing things
the same way you do. I've seen something
like it at work with some of my
friends just before they get married.
They think their brides are just about
the most beautiful women in the
world, when they are really quite
homely—wouldn't even hold a candle
to our Susan here."
Mr. Spardleton looked at me and
then at Susan, and Susan looked at
him and then at me in that sober
wide-eyed way she has, and then they
looked at each other and smiled. I
guess they realized that I had said
something pretty funny.
Mr. Spardleton said, "I understand
why you think of the situation in
terms of brides, but I always think of
it in terms of a proud father who sees
nothing but perfection in his newborn
son."
"Yes," I said, "that's a good way to
put it, too."
"There are," he continued through
a cloud of gentle smoke, "two different
ways in which a patent case can
get away from the attorney. The first
doesn't happen very often, but when
it does it has a tendency to set the
world on fire. That's the case that has
true merit to it—high invention, if
you will—but the invention is so
subtle that nobody can see its importance.
Only the attorney who
wraps the case around his heart can
appreciate its vast potential. He goes
through the prosecution before the
Patent Office and possibly before the
courts shouting high praises of the
invention, but all the tribunals turn a
deaf ear. Sometimes the attorney
finally reaches Nirvana; the invention
comes into its own. It shakes the
world, just as the attorney had always
known it would."
I nodded and said, "Elias Howe
and his sewing machine, McCormick
and his reaper, Colt and his pistol."
Mr. Spardleton had taught me well.
"The other way is more common,"
he continued. "There the attorney
never sees the case in its true light.
He is blinded by something in it and
thinks it is greater than it is. He
wastes a lot of time trying to persuade
everybody that this very ordinary
invention is the wonder of the
decade. He thinks of the invention
the way a father does of a wayward
son—he sees none of its faults, only
its virtues, and he magnifies those."
I shifted into a more comfortable
position in my deep chair. Mr. Spardleton
must have thought I was going
to say something. He looked at me
and added hastily, "Or rather, as
you'd have it, the way a bridegroom
looks at his prospective bride. That
better?"
"Oh yes. Those fellows are really
blinded. They just can't see anything
the way it really is."
Mr. Spardleton said, "Most patent
attorneys are unable to tell the difference
between the two ways a case can
get away from them, once they get
caught in it. They always think that
nobody else agrees with them because
nobody else understands the case. It
is quite a blow when it turns out that
they are the one who has been wrong
all along. Yes, sometimes an understanding
of the facts is as difficult as
an understanding of the law."
"Yes," I said sleepily. "Sure must
be."
If I had known better that evening,
I would never have allowed myself
to get so sleepy. I should have
listened for the meaning in Mr.
Spardleton's words instead of merely
listening to the words themselves. I
have seen Patent Examiners act that
way—they hear the words, but the
meaning does not come through. We
locked the doors and went home,
then. How I wish I had listened!
Dr. Nathaniel Marchare is unquestionably
the greatest organic chemist
the world has seen since Emil Fischer.
His laboratories in Alexandria, Virginia,
constantly pour out a host of
exceedingly important inventions.
The chemists, physicists, physical
chemists, and biologists who work under
him are all dedicated men and
women, gifted with that scientific insight
that so often produces simple
solutions to great problems. Dr. Marchare
and his people are the principal
clients of the firm of Helix Spardleton,
Patent Attorney, and as such they
are very important to me. Nevertheless,
I always get a queasy feeling in
my stomach when Dr. Marchare excitedly
calls up Mr. Spardleton, and
Mr. Spardleton turns him over to me.
Dr. Marchare is a very nice person,
not at all mad as people are prone to
say. He is tall and gaunt and slightly
wall-eyed, and he seems to live in a
great, flopping laboratory smock, and
his hair is always wild, and he seems
to look around you rather than at you,
but he is a very nice person and not
at all mad. His main trouble is he
does not understand the workings of
the United States Patent System. After
I have explained to him the operation
of the Patent Law on some particular
situation, Dr. Marchare frequently
begins to mutter to himself
as if I were no longer in the same
room with him, and I find this most
discouraging. As if this were not bad
enough, many of Dr. Marchare's scientists
have acquired the same habit.
It was a bright fall morning when
this particular call came through. I
hadn't heard the phone ring, nor did
I hear Mr. Spardleton answer it in response
to Susan's buzz. But some sixth
sense brought me upright in my chair
when I heard Mr. Spardleton say,
"Well, how are things out in the
Washington suburbs this morning?"
I felt the hairs tingle at the base of
my neck, and I knew that Mr. Spardleton
was talking to Dr. Marchare.
I heard, "Certainly, why don't I send
Mr. Saddle out. He's worked with
Callahan before—on that Pigeon
Scarer Case, as I recall—and the two
of them can decide what to do. That
sound all right?"
I am afraid it sounded all right,
because there was some chitchat and
then the sound of the phone's banging
into its cradle, and Mr. Spardleton's
booming voice, "Oh, Mr. Saddle.
Will you come in here a moment,
please?"
I took a quick swallow of milk of
magnesia, an excellent antacid, and
went in. Mr. Spardleton was busy so
he came right to the point. "They've
got some kind of problem out at the
Marchare Laboratory—don't know
whether to file a patent application
right now, or wait until the invention
is more fully developed. Will you
hop out there and get them straightened
out? Callahan is the chemist,
and you know him pretty well."
I certainly did. Callahan's name always
reminded me of the time I took
testimony in Sing Sing Prison on a
Callahan application in Interference.
But I nodded numbly and went back
to my office and finished the bottle of
milk of magnesia and caught a cab
to the Marchare Laboratory.
It was cool in the lab and the air
smelled faintly of solvents. I liked
the smell, and I sniffed it deeply and
tried to distinguish one from the
other. My chemistry professor had
often told me that I had the best nose
he had run across in twenty-five years
of teaching. I picked out the pungent,
aromatic odor of toluene and
the hospital smell of diethyl ether,
and I thought I could detect the
heavy odor of lauryl alcohol. Underneath
them all was a rich, sweet smell
that I had smelled before, but I couldn't
tell what it was. I decided it was
a lactone, and let it go at that. I
nodded as I went past the receptionist,
and her smile made me feel uncomfortable
again, just as it always
did; there was too much of a leer in
it. I never stopped to tell her where
I was going; I just went in unannounced.
I went up the stairs and down the
hall to Callahan's lab, next to Dr.
Marchare's. I went in. Henry Callahan
stood at a bench pouring a colorless
liquid down a chromatographic
column. He looked over at me and
said, "Well, Carl Saddle. How are you,
man? Nice to see you."
Callahan was a big man, heavy-set,
with bright blue eyes, and a shock of
light-brown hair. For all his bulk he
moved lightly as befitted a former
stroke on the Penn crew. I was
fond of Callahan, even with all the
trouble his inventions caused me; I
knew he couldn't help it. I said,
"Hello Henry. How have you been?"
And we exchanged some more amenities.
Finally he said, "Carl, we have
quite a problem here, and we don't
know what to do about it. Here's the
situation."
I swallowed, and took out my notebook
and pencil, and laid my pocket
slide rule in front of me. I always
put the slide rule out where the inventor
can see it to remind him that
he is talking to another technical
man, not just a lawyer. This helps
make him stick to the facts. I didn't
need the rule with Callahan, but habit
is hard to break.
Callahan said, "Some time ago I
made a polyester, used adipic acid
and an amino alcohol. On a hunch I
dropped in an aluminum alkyl, and
then pushed the polymerization along
with both ultraviolet and heat. Got
a stiff gel out of the pot and drew it
into a quarter of a pound of fibers.
I only had time to determine that the
fibers were amorphous—no time to
draw them further to see if they
would develop crystallinity. I put them
in an open-mouth jar which I later
found had been used to store mercury.
One evening I took them out and
found they had developed crystallinity
on standing. Furthermore, the fibrous
ends had split, and the split ends
seemed to be tacky—seemed a natural
to me to make a sheet of paper
out of it."
I nodded as I worked furiously on
my notes. All of Marchare's people
talked that way. They did the most
fantastic things sometimes, and then
talked about them as if anyone would
have done the same thing. I had complained
about this oddity to Mr. Spardleton
when I first came to work for
him; I was used to inventions that
were made in understandable ways.
He had smiled and asked me to
quote the last sentence of 35 U.S.C.
103, the statute that set forth the
conditions for patentability. It was a
good thing I had memorized the
statute. I recited the last sentence,
"Patentability shall not be negatived
by the manner in which the invention
is made." Well, here it was again.
I asked Callahan, "Did you make a
sheet of paper out of it?"
"Sure did. Made a hand sheet in a
twelve-by-twelve inch mold. Pressed
it out, dried it, then got busy again
so I couldn't test it for a week. When
I did I started working nights to see
if I could duplicate my results. Just
finished this morning. Here's the
hand sheet, the second one."
He handed me a sheet of paper,
snow-white in color. I put aside my
pencil and notebook to examine it.
As I took it in my hand it was obvious
that it was something unusual.
It was softer than a cleansing tissue,
and probably even more flexible. I
rubbed it between my fingers, and it
had the most remarkable feel of any
paper I had ever felt—soft and clinging
and cool, and exceedingly pleasant.
I knew the paper chemists called
this property "hand." Callahan's paper
had the most remarkable hand I
had ever seen.
"Tear it in half," Callahan said.
I took the sheet between my thumbs
and forefingers and gingerly pulled,
expecting the light and soft sheet to
part easily. Nothing happened. I
pulled harder, and still nothing. I
smiled at Callahan, got a better grip,
and gave it a yank. Then I twisted
opposite corners around my fingers
and frankly pulled at it. The absurd
sheet refused to tear, and I realized
how ridiculous I must look to Callahan
to be unable to tear a flimsy sheet
of paper. I suppose I lost my temper a
little. I gathered as much of the paper
as I could in each hand, bent
over to put my hands on the inside
of my knees, and pulled until I heard
my back muscles crack. I let out my
breath explosively and looked helplessly
at Callahan.
He said, "Don't feel bad, Carl. Nobody
has been able to tear it."
"You mean it?" I asked. I found
myself puffing; I had not realized I
was straining so hard.
"Yup. That paper has a tensile of
2,800 pounds per square inch, and a
tear strength equally unbelievable."
I looked at the little sheet and
great possibilities began to occur to
me. "Clothing," I said. "Great heavens,
think what this will do for the
clothing industry. No more weaving.
Just run this stuff off on a paper machine
at five hundred feet per minute."
I stopped and looked at Callahan
and said, "You will be able to
make it on a paper-making machine,
won't you?"
"As far as I know."
"Good," I said. "When can we try
it in the pilot plant."
"Well, that's where the problem
comes in, Carl. I have to leave for the
West Coast tomorrow, and I'll be
gone for six months. There's nobody
else around here to take it through the
pilot plant. What's worse, one of my
technicians left this morning to take
a job with Lafe Rude Consultants,
Inc., up in Boston. The technician is
an ethical man, and all that, but I'm
afraid the word will be out on this
paper now."
My heart sank. Callahan said, "I've
already started another of my technicians,
John Bostick, on the process to
make certain he can repeat my work.
But that's all we can do for a few
months around here. The laboratories
have never been so busy. What do
you think we ought to do?"
The answer was obvious. "We've
got to file a patent application right
away. It isn't ready to file, but we've
got to do it anyway."
Callahan said, "Oh, we're in good
shape. We know it works."
I nodded and said, "What acids
other than adipic will work?"
"Oh, azoleic, sebacic, a few others,
I suppose."
"What else other than amino alcohols?
What other catalysts? Do you
really need mercury vapor? Will some
other metallic vapor do? What about
temperature variations in making the
polyester? How long a cure time?
How much ultraviolet? Will the fibers
be better if you draw them more?
Can you get those tacky fiber ends in
any other way? Can you improve
them? What about the sheet-making
conditions? Does oxygen in the air
catalyze...?"
Callahan held up his hands and
said, "O.K., O.K., we don't know anything
about it. But we're not going to
find out these things until we open
a research program, and we can't open
a program for at least six months.
In the meantime that technician may ..."
I held up my hands this time, and
he fell quiet. We stood silently until
I asked, "All the information in your
notebooks, Henry?"
He nodded, and I continued, "Well,
I'll be back tomorrow to talk to you
and Bostick. We'll just have to file a
patent application on what we have."
We chatted a while about his work
on the West Coast, and then we shook
hands and I left. I had a few moments
to think in the cab before I
talked with Mr. Spardleton. Here I
was in that situation that a patent
attorney dreads. I had an incomplete
invention, one that required a great
deal of work before it could be filed,
yet I had to file now in the incomplete
condition. With it all, here was
a most significant invention, one that
would make the world take notice.
This was one of the rare ones, I could
feel it in my bones. It was obviously
an industry-founder, a landmark invention
on a par with the greatest,
even in its incomplete condition. By
golly, I was going to do a job on this
one.
Mr. Spardleton was in a bad mood
when I entered his office. I didn't
have a chance to say a thing before he
bellowed at me, "Mr. Saddle, do you
know what a plasticizer is?"
"Why, ah, yes. It is a material, generally
a solvent, that softens and
renders another material more flexible."
"That's right." His fist banged on
the desk. "Yet here," he waved an
Office Action at me, "is an Examiner
who says that the term 'plasticizer' is
indefinite, and I must give a list of
suitable plasticizers when he knows
that Rule 118 forbids me to put in
such a list. Can you imagine? He is
saying in effect that a chemist who
works with synthetic resins does not
know what a plasticizer is, and I must
take him by the hand and teach him
something he learned in freshman
chemistry. It has nothing to do with
the invention, either. I am claiming
a new kind of lens holder, and I point
out that the interior of the holder
may be coated if desired with a plasticized
synthetic resin coating. My, I
don't know what the Office is coming
to. The Patent Office is the only institution
in the world that does not
know the meaning of the phrase
'room temperature'. Some day....
What's the matter, Mr. Saddle?"
I had pulled up a chair and
hunched down in it. Mr. Spardleton
recognized the symptoms. He put
down the offending Office Action
and settled back and waited for me to
tell him my troubles.
I said, "I've got a hot invention. It
is a paper that will replace cloth,
strong, flexible, cheap too. We've only
made one version of it, though, and
I have to file an application right
away because one of Callahan's technicians
left, and we can't risk waiting."
He nodded, and I went on, describing
to him all the details of the
invention and the situation. When I
finished I stared morosely at the floor.
Mr. Spardleton said, "What's the problem?
File a quick application now,
and later on when you have more information,
abandon it and file a good,
full-scale application."
I looked at him in surprise and
said, "But somebody else has just as
much information as we have, and he
may start to experiment right away.
That technician knows as much as we
do. In another six months they could
file a complete application and beat
us out on dates; they'd be first with
the complete application."
"Well, what do you propose to do
about it?"
I shrugged. "I'll have to make up as
good an application as I can right
now. We'll make some guesses at how
the research would go, and put it in."
"Oh now, look. You don't know"—he
began ticking off the points on his
fingers—"if you really need the trialkyl
aluminum, or the mercury-treated
glass surface, or the heat, or the radiation,
or any combination of them.
You don't have any idea of the conditions
that are necessary to produce
this paper."
"I know."
"All you've got is a single example
that works. If you make your claims
broader than that one example, the
Examiner will reject you for lack of
disclosure. This is basic in patent
law. Ex parte Cameron, Rule 71, and
35 U.S.C. 112 will do for a starter."
But I hadn't worked with Mr. Spardleton
for nine years for nothing,
and he had taught me how to play
this game pretty well. I sat up
straighter in my chair and said, "Yes,
but in Ex parte Dicke and Moncrieff
the disclosure of nitric acid as a
shrinking agent for yarns was enough
to support a claim for shrinking
agents broadly; the claim did not
have to be limited to nitric acid."
"Only because nitric acid was already
known to be a shrinking agent
for yarns."
I said, "Well, adipic acid is a known
polyester ingredient."
"And all the other ingredients?"
I did then what he had carefully
taught me to do when I was losing an
argument: I quickly shifted to another
point. "In Ex parte Tabb the applicant
merely disclosed raisins and
raisin oil, but that was enough to
support claims to 'dried fruit' and
'edible oil'."
"But in that case the Board of Appeals
said they allowed such terminology
only because the equivalency of
the substances could be foreseen by
those skilled in the art, foreseen with
certainty, too. Can you say that about
your substances?"
I hesitated before I answered, and
that was all he needed to take over.
"A large number of ingredients was
recited in In re Ellis, and since there
was no evidence to show that they all
would not work, the applicant was
allowed broad claims. But you'd have
trouble making your guessed-at ingredients
stick. In the case of Corona
Cord Tire Company v. Dovan, the
court said the patentee was entitled
to his broader claims because he
proved he had tested a reasonable
number of the members of a chemical
class. Have you?"
I started to answer, but Mr. Spardleton
was in full swing now, and he
said to me, "No, sir, you haven't. You
are not ready to put in broad claims
on a half-baked invention."
It was the "half-baked" that did it.
Controlling my temper I rose to my
feet and said in a purposeful, quiet
voice, "I think I see clearly how this
case should be handled in this situation.
I shall prepare it in that manner,
and file it, and prosecute it, and obtain
a strong patent on a pathfinder
invention. I'll keep you posted." I
turned and walked out. Just as I
passed through the door I thought I
heard him say softly, "Attaboy, Carl,"
but I must have been mistaken. Mr.
Spardleton never calls me Carl.
I got right at it the very next morning.
I opened the office myself and began
studying my notes to see how
broad a claim I could write for the
Tearproof Paper Case. I listed all the
ingredients in one column, and then
filled up the adjacent columns with
all the possible substitutes I could
think of. I didn't even know it when
Susan arrived at the office, stood in
my doorway for a moment, and then
tip-toed away. Later on Mr. Spardleton
looked in on me, and I wasn't
aware of that, either. It was ten o'clock
before I finally came up for air, and
then I dashed out to the Marchare
Laboratory for another talk with Callahan.
I explained how I was going to
handle the case to make sure we got a
good, broad patent application into
the Patent Office.
"Can you do that?" he asked.
"Oh, yes. We can put in all the
things we think will work, but if we
are wrong we are in some degree of
trouble. But I feel that with both of
us working on this we ought to be
able to turn out a good sound job.
I'll keep sending you drafts out in
San Francisco until we finally get one
we think good enough to file. But
we can't waste time. This is a hot one,
and we want to get it in as soon as
possible."
He shrugged his shoulders, and we
sat down to work on my lists. Neither
one of us realized it when lunch time
came and went. But that's the way it
is with world-beater inventions; they
sweep you along. Early that afternoon
I dictated my first draft to Susan.
Callahan and I went over the draft,
and then he left for San Francisco.
The next time around we had to use
air mail. With each new draft we added
more to the basic information we
had, rounding out the invention in
ever greater detail. I added example
after example, being careful to state
them in the present tense; I did not
want to give the impression that the
examples had actually been run.
In a month's time I checked with
John Bostick. Bostick had been able
to duplicate Callahan's work, and we
had three more, flimsy, diaphanous
sheets that could not be torn
by human hands. That was all I
needed. Now I knew that anyone
could duplicate the Tearproof Paper,
and I had at least one, good, substantial
working example for my patent
application. The knowledge gave me
greater confidence in the alternate
materials and procedures that Callahan
and I had dreamed up. I prepared
a final draft containing twenty-three
pages of detailed specification and
eleven examples and topped it all off
with forty-six claims. It was a magnificent
application, considering what
I had to start with. I handed it to Mr.
Spardleton and sat down to hear
what he had to say about it.
I watched him out of the corner of
my eye as he read it, and I had the
pleasure of seeing his cigar slowly
swing outward until the glowing end
was almost beneath one of his ears.
This, I knew, was his Amazed Position,
and it was rare indeed that I or
anyone else ever saw it. Mr. Spardleton
was a man who does not amaze
easily.
He finished and looked up at me
and said, "I assume this is the same
invention you told me about last
month?" When I nodded he continued,
"And I further assume that you
have no experimental data in addition
to that you described last month?"
Again I nodded, and he said, "All of
this is paperwork with the exception
of Example I?" I nodded again, and
he put the draft down in front of him
and stared at it.
I began to grow uncomfortable in
the silence. Then he said, so softly
that I could hardly hear him, "I remember,
many, many years ago, answering
the phone, Cliff Norbright—great
chemist—telling me he had
smelled phenol when he heated ethylene
chlorohydrin in the presence of
holmium-treated silica gel in a test
tube. I wrote the greatest patent application
of the age based on that
evidence. Just like this one." He laid
a hand on it, and shook his head, and
smiled.
"There is no crude guesswork on
this product," I said. "The work has
been duplicated, and I've seen many
specimens of this paper. I tell you,
sir, there never has been anything
like it. Why, even Callahan ..."
"Yes, tell me about Dr. Callahan.
He is usually a pretty conservative
fellow. How does he feel about this
completely untried product?"
I sat up straighter. "This is not an
untried product, Mr. Spardleton. It
has been made and duplicated. It has
all the properties that the application
says it has. And Dr. Callahan has just
as much faith in it as I have."
Mr. Spardleton looked at me, and
smiled, and slowly handed over the
draft. "Mr. Saddle, I wish you all the
best in your prosecution of this case.
Please call on me if there is anything
I can do to help. In any way, don't
hesitate to call on me."
I stood up and took the draft and
turned to go, but Mr. Spardleton
thrust his hand out. I shook it and
said, "Is anything wrong with it?"
"Not that I am able to see, Mr.
Saddle. It is a most remarkable job,
and bespeaks of ingenuity, resourcefulness,
and skill. You have come a
long way to be able to write such an
application."
I didn't know what to say, so I
smiled and bobbed my head and
walked out still looking at him and
smiling, which made it necessary for
me to walk sideways, and thus made
me look, I suppose, somewhat like a
crab.
Susan put the case in final form.
We sent the papers to California for
Callahan's signature, then we filed
the case, and things got back to normal
with me. It was a great relief not
to have the strain on me night and
day. That's the trouble with an important
case. You live with it too
much.
It was seven months before I got
the first Office Action in the Case. I
read the first few paragraphs and they
were quite normal. They rejected the
Case in the usual manner by citing
prior patents that had nothing to do
with my application. This kind of
thing was just part of the game of
prosecution in which the Patent Examiner
makes rejections because that
is what he is supposed to do no matter
what the invention; they don't
have to make much sense. But then
came a paragraph that went way beyond
good sense and proper rejection
technique. It said:
The specification is objected to as
containing large portions that are
merely laudatory. See Ex parte Grieg,
181 OG 266, and Ex parte Wellington
113 OG 2218. These portions are
superfluous and should be deleted,
Ex parte Ball, 1902 CD 326. The
specification is unnecessarily prolix
throughout and contains an unduly
large number of embodiments, Ex
parte Blakemen, 98 OG 791. Shortening
is required.
I didn't wait. I grabbed the file of
the Case and almost ran over to the
Patent Office to straighten out the
Examiner on a few things. As usual,
Herbert Krome was the Examiner,
so I charged up to his desk and immediately
began explaining to him the
importance of the Tearproof Paper
Case. He seemed to pay no attention
to me, but I knew him; he was listening.
When I finally paused to let him
say something, he looked at me quizzically
and said, "Mr. Saddle, aren't
you aware of the Notice of October
11, 1955?"
I looked at him blankly and said,
"What's that?"
"It says that interviews with Examiners
are not to be held on Fridays
except in exceptional circumstances."
I gulped and said, "Is today Friday?"
He pushed his desk calendar toward
me. It was Friday all right, and
the thirteenth at that. I was too embarrassed
to speak, and I got up and
began to walk out. Mr. Krome called
after me. "This must be an important
case, Mr. Saddle. I'll expect to see you
the first thing Monday." I nodded,
and left.
By Monday, my embarrassment had
not diminished. I had really done an
unheard-of thing in patent prosecution.
In patent prosecution, the patent
attorney has six months to respond
to an Office Action. Since attorneys
carry a docket of cases adapted
to fill all their time, an attorney in
most instances requires the full six
months to respond to an outstanding
Office Action. Industrious attorneys
with relatively light dockets might
respond in five months' time. This
may also happen when the attorney
is trying to get a little ahead so he
can go on a vacation. There are rare
instances of record when an attorney
had taken some action in three or
four months. But here, in the Tearproof
Paper Case, I had actually gone
for an interview on the very first
day. I couldn't possibly go back on the
following Monday; my pride would
not allow me. I waited until Tuesday.
By that time I had gone over the
entire rejection and planned my complete
response to the Examiner. I sat
down with Mr. Krome on Tuesday
morning and talked steadily for fifteen
minutes before I realized he was
watching me instead of paying attention
to the case. I said, "What's the
matter."
He said wonderingly, "I've never
seen you like this before. You are
acting almost as unreasonably as an
inventor. You don't even want to
hear what I have to say about this
case. You should relax, Mr. Saddle.
You are here as an advocate, not as
a midwife."
"I don't think that's very funny,
Mr. Krome," I proceeded to explain
the high merit of the case, and he
seemed to listen then. Before I left
he promised to give the case careful
consideration. This was all he ever
promised, so I thanked him and went
back to my office. I filed my amendment
in the case the next day. It was
eight months before I got the next
Office Action.
Callahan returned in six months
and immediately opened a project on
the Tearproof Paper. The two of us
sat down together to determine the
best way to handle the research.
I said, "Henry, we have already
drawn up a complete research program.
All we have to do is follow it."
"We have?" Callahan was surprised.
"Sure." And I laid out in front of
him a copy of our patent application,
and riffled through its pages. "All we
have to do is go through all the examples
here to make certain they all
work. If they do, the program will be
complete, except for the product
itself and commercial production. Our
patent application will make the best
research guide we could get."
"Why certainly," said Callahan.
"We have already spent a great deal
of time working out all kinds of substitute
and equivalent reactions. It's
all here. Good. I'll set it up."
Callahan began distributing the
work to various groups, and I went
back to my office. Every Friday afternoon
thereafter I went out to the
laboratories to see how things were
coming along. They came along well.
From the beginning the actual results
reached by the research teams
matched the predictions we had made
in our patent application. At the Friday
afternoon meetings Callahan and
I got into the habit of tossing pleased
and knowing glances at each other as
the streams of data continued to confirm
our work. Several months rolled
happily by. Then came a letter from
the Lafe Rude Consultants, Inc., up in
Boston. The letter said that their people
understood that the Marchare Laboratories
had under development a remarkably
strong paper, and they
would be very much interested in discussing
licensing possibilities with us.
I grabbed the letter and stormed into
Mr. Spardleton's office.
"Just read this," I almost yelled as
I handed him the letter. "This is the
outfit that hired Callahan's technician.
Now they know all about the Tearproof
Paper. That technician has told
them everything. I think we ought to
sue them—inducing disclosure of
trade secrets, or something." I added
a great deal more as Mr. Spardleton
finished the letter and sat holding it
looking up at me as I paced back and
forth in front of his desk. As I walked
and talked, I finally became conscious
of the fact that Mr. Spardleton was
waiting for me to finish; I could tell
by the expression on his face. I pulled
up in front of him and fell quiet.
He said, "Don't you feel it is significant
that this letter was sent to
us, lawyers for Marchare Laboratories,
rather than direct to the Laboratories?"
I thought about it, and he continued,
"Furthermore, as I understand
it, the Lafe Rude people have a good
reputation."
That was right, too, and I saw what
he was driving at. People of good
reputation don't try to pull a fast one
by immediately alerting the lawyers
for the other side. In fact, when I
stopped to think about it, I could see
that they were bending over backwards
to be careful in this situation.
Mr. Spardleton said, as he handed
back the letter, "I suggest you clear
with Dr. Marchare, and then make
arrangements to talk to these people
and see if you can negotiate some
kind of profitable license. Marchare
is pretty fully committed right now,
and I don't think he has time to exploit
this paper, even if it turns out to
amount to something."
I looked at him, aghast that he
should still be doubtful of the paper
at this late stage of the game. He saw
my look and said, "Oops, I mean this
milestone in paper technology once
it is announced to the world."
That seemed better, more to the
point. I called Dr. Marchare and
found that Mr. Spardleton was right,
as usual. Dr. Marchare would welcome
a beneficial licensing arrangement. I
then called the Rude Associates on
the phone; it seemed more expeditious
than writing. I set up a meeting
date as soon as possible, one week
away.
The day before I left for Boston I
checked in with Callahan to make
certain all of our data were correct.
We went over every aspect of the
Tearproof Paper Case. I picked out a
dozen good samples of the paper of
varying composition and thickness
and put them in my briefcase along
with a copy of the patent application.
I had decided that I might even show
them a copy of the application if it
might help show what a marvelous
discovery we had made. Callahan and
I shook hands solemnly, and he wished
me the best of luck. I went back to
my office for a final quick check, got
interested in Zabell's book, and went
home without my briefcase. There
was no harm done. My plane did not
leave until ten in the morning and I
had planned to go back to the office
anyway. I said good-by to Susan and
Mr. Spardleton, retrieved my briefcase
from over by the radiator where
Susan had put it the night before,
and caught the plane.
It was a cold damp day, and the
threat of rain was in the air. In Boston
I caught a cab for the Massachusetts
Avenue laboratories of Rude
Associates. Dr. Rude himself was at
the meeting, along with half a dozen
of his associates. Dr. Rude was a small
man, dapper, totally unlike a research
chemist, and his speech and manner
were as impeccable as his dress. Only
his hands were a giveaway; they were
stained with yellow and black stains
that looked completely out of place
on the man. Dr. Rude opened the
meeting with an explanation concerning
the technician he had hired from
the Marchare Laboratories two years
earlier. "Just a week ago," said Dr.
Rude, "we put him on a problem of
paper chemistry. He told us that the
properties we sought—and more—had
already been found by your laboratory.
He said no more, and we
would not have allowed him to say
any more, except that you were the
patent lawyer who was working on
the case. That is all we know about it.
We hope you have something of mutual
interest, but we don't know any
more than what I have told you."
I said, "Thank you, Dr. Rude. I understand
how it was. I assure you it
never crossed our minds down in
Washington that anything could
have been out of line in any manner
whatsoever."
The assembled group smiled, and I
smiled back, and we all felt friendly
with one another. Dr. Rude cleared
his throat and said, "Well, is there
anything you can tell us about this
tearpr ... about a paper having
some of these very interesting properties?"
I said, "There is a great deal I can
tell you about the paper we have, but
suppose I let you see some specimens
before I say anything. There's nothing
like the actual goods themselves
to do most of the talking."
We all laughed as I took half a
dozen twelve-by-twelve hand sheets
out of my briefcase and passed them
around the table. I watched the chemists
finger the sheets, savoring their
soft coolness, and I heard the whispered
comments, "good hand," "excellent
softness," "fine color," and a few
others. Dr. Rude said, "Are these
'breaking samples', Mr. Saddle? Do
you mind if we tear them?"
Well, you can see that this was the
question I was waiting for. I sat back
and allowed a slight smile to play over
my face. I said, "Oh no, gentlemen.
Go ahead and tear them."
I saw several of the people take the
sheets between their thumbs and
forefingers, and gently pull. I saw the
sheets tighten momentarily, and then—as
if the sheets were no more than
ordinary cleansing tissue—I saw the
fibers pull apart as each man easily
tore the sheet in half.
I felt the blood drain from my
face, and it seemed to me that my
pounding heart must have been visible
right through my clothes. I swallowed
and tried to say something, although
I had no clear idea of what I
was going to say. Words would not
come. I leaned over and took another
sheet from my briefcase and tugged
at it. It tore in half with practically
no effort. I took another, same results,
and still another. I dimly realized
that all the people at the meeting
were staring at me, but I wasn't
concerned. I knew something must
be wrong with all the specimens;
possibly I had placed regular cleaning
tissues in my briefcase, or maybe Susan
... but even as I thought it I
knew such a mistake was impossible.
I reached over and tried tearing
one of the sheets I had passed out to
the others. It tore into quarters as
easily as it had torn into halves. That
finished me. I leaned back and looked
around at the silent group and wondered
what Mr. Spardleton would
have said at a time like that. I started
to smile and discovered that my original
smile was still frozen on my face.
I stood up and began retrieving the
torn papers; they passed them back
to me without saying anything. I replaced
them in my briefcase, closed it,
said, "Gentlemen, Christmas falls on
Friday this year," and walked out.
It was raining outside, but I scarcely
noticed. I hailed a cab to the Logan
Airport, changed my reservations
to an earlier plane, and returned to
Washington. It was a slow trip. The
planes were stacked up in the rain at
the Washington International Airport,
but I did not notice the passage
of time. I was too stunned to think
clearly, but I kept trying. I got quite
wet in Washington, but I was in a
hurry to see Mr. Spardleton and I did
not bother to change my clothes.
I burst into his office. He looked
up and said, "Well, I didn't expect to
see you until tomorrow. How did...?"
He saw my face.
I plopped my briefcase on his desk
and pulled out all the specimens and
dumped them in front of him. I said,
"Just look at these. This 'Tearproof
Paper' has deteriorated. These specimens
are useless. Right in front of
all the Rude chemists, they go bad.
Most of them are new ones, too. How
can this be possible? Just look at
them."
Mr. Spardleton picked up one of
the sheets, rubbed it, and then tugged
at it gently to tear it. It did not tear.
He pulled harder, and then harder,
and it did not tear. I stared at him in
disbelief and said, "Oh, Mr. Spardleton,
this is no time to play games
with me."
I took one of the sheets and yanked
it, and almost cut my fingers. I bent
over and put my hands on my knees
to get better leverage just as I had
the very first time, but the sheet
would not tear. I threw it on the desk
and tried another with the same results.
One after another I ran through
them all while Mr. Spardleton sat
back and watched me. I was wild-eyed
when I finished.
Mr. Spardleton said, "Mr. Saddle,
would you mind telling me what has
happened?"
I pulled up a chair, groped for my
voice, and finally got the story out.
He looked at me strangely, tried to
tear another of those miserable little
sheets, and said, "Mr. Saddle, do you
feel all right?"
In Boston I had been completely
deflated and bewildered, but now I
was mad. I grabbed up the phone
and called Callahan. I had barely
started to pour out the story when he
said, "I'm glad you called, Carl. We
seem to have run into something on
this paper thing. Looks bad. Can you
come out?"
"Be right there." I hung up.
Mr. Spardleton went out with me;
he didn't want me to go anywhere
alone. Callahan was holding two
sheets up to the light when we went
into his lab. He said, "Two identical
sheets, except for the moisture content.
Moisture is the devil. One of
these is dry, the other contains three
per cent moisture. Here's the dry
one." He tore it in half effortlessly.
"Here's the moist one." And he
strained at it, but it would not tear.
"We just ran across this effect last
night, and finished checking it out an
hour ago. Have you been to Rude
Associates yet?"
I nodded.
"Too bad. We'll have to show them
what can happen."
Mr. Spardleton said, "They already
know."
Callahan said, "This kicks the
whole thing in the head. The paper
can never be more than a laboratory
curiosity, as far as we can see. The
sun, a dry climate, heat, any of these
things will drive off the moisture,
and the paper will lose its strength.
There's no way we can market a product
like that when it might lose its
strength at any time. I'm afraid the
'Tearproof Paper' must join the huge
list of fine products that can't be sold
because of one small flaw."
It was Mr. Spardleton who steered
me out of the labs. He slipped an
arm through mine and said, "You
can refile the patent application and
add this information about the moisture
content. You ought to get the
patent without too much trouble
even if the product is of no commercial
value."
I nodded as we stood in the rain
waiting for a cab.
He said, "I never told you what
happened in that Phenol Case of
mine many years ago. It turned out
that the man at the next bench had
spilled a little phenol on the bench
top. That's what my inventor smelled;
there never was any phenol in the test
tube. We all fall over the facts of a
case now and then." He squeezed my
arm, and the rain did not seem to fall
quite as hard.
* * *
Thomas, Theodore, L
(1920-2005) US author and lawyer, prolific in the magazines under his
own name, which he sometimes rendered as Ted Thomas, and as
Leonard
Lockhard, the pseudonym he used for his
Patent Attorney spoof series (eight stories 1952-1964 in
Astounding/
Analog), some of which were with Charles L
Harness, including
The Professional Approach (September 1962
Analog;
2007 ebook). He had begun publishing work of genre interest with two simultaneous stories, "The Revisitor" for
Space Science Fiction in September 1952, and "Improbable Profession" for
Astounding in September 1952 as by Leonard Lockard with Charles L
Harness,
and appeared frequently in the magazines until 1981 with tales
competently designed for their markets, the most effective perhaps being
those, like "The Weather Man" (June 1962
Analog), set on a future Earth dominated by a Weather Control Board (see
Weather Control). With Kate
Wilhelm he wrote two novels,
The Clone (December 1959
Fantastic as by Thomas alone; much exp
1965) and
The Year of the Cloud (
1970), both featuring unnatural
Disasters. The eponymous menace in the first novel represents a rare use in sf of what is a
Clone in the strict biological sense; the interstellar cloud into which the Earth plunges in the second turns water to gelatin.
