The Project Gutenberg EBook of The Professional Approach, by
Charles Leonard Harness and Theodore Lockhard Thomas
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Title: The Professional Approach
Author: Charles Leonard Harness
Theodore Lockhard Thomas
Illustrator: Schoenherr
Release Date: December 15, 2007 [EBook #23872]
Language: English
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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
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."
[Illustration]
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."
[Illustration]
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.
Transcriber's Note:
This etext was produced from _Analog_ September 1962. Extensive
research did not uncover any evidence that the U.S. copyright on
this publication was renewed. Minor spelling and typographical
errors have been corrected without note.
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