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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 Drawing on previously unpublished sources, the Article shows that Hugo Gernsbackthe so-called "father" of science fiction who started the first all-science-fiction magazine in 1926-believed that works of science fiction are analogous to patents. Like patents, science fiction stories can disclose useful information to the public about new inventions. Like patents, science fiction stories can influence future inventors and drive innovation. Gernsback went even further, positing that some of the inventions depicted in science fiction should themselves be patentable. In 1952, he urged Congress to reform the Patent Act to make so-called "Provisional Patents" available to science fiction authors who depicted major technological developments before their time. He argued that science fiction authors who filed for Provisional Patents should get an extra thirty years in which to show their invention worked. If they could do so, they would thereafter be able to obtain an ordinary patent, to last another twenty years.Many will find Gernsback's proposal deeply problematic from the perspective of patent policy, and rightly so. Granting patent rights too early in an invention's lifecycle creates new and unjustified opportunities to hold up innovation. A science fiction author who obtained a Provisional Patent for a theoretical invention could crawl out of the woodwork half a century