The Professional Approach, Charles L. Harness and Theodore L. Thomas [best ereader for epub .txt] 📗

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!

Illustrated by Schoenherr

"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