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diff --git a/23872.txt b/23872.txt new file mode 100644 index 0000000..586d655 --- /dev/null +++ b/23872.txt @@ -0,0 +1,1266 @@ +The Project Gutenberg EBook of The Professional Approach, by +Charles Leonard Harness and Theodore Lockhard Thomas + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Professional Approach + +Author: Charles Leonard Harness + Theodore Lockhard Thomas + +Illustrator: Schoenherr + +Release Date: December 15, 2007 [EBook #23872] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK THE PROFESSIONAL APPROACH *** + + + + +Produced by Greg Weeks, Stephen Blundell and the Online +Distributed Proofreading Team at http://www.pgdp.net + + + + + + + + + + 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. + + + + + +End of the Project Gutenberg EBook of The Professional Approach, by +Charles Leonard Harness and Theodore Lockhard Thomas + +*** END OF THIS PROJECT GUTENBERG EBOOK THE PROFESSIONAL APPROACH *** + +***** This file should be named 23872.txt or 23872.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/2/3/8/7/23872/ + +Produced by Greg Weeks, Stephen Blundell and the Online +Distributed Proofreading Team at http://www.pgdp.net + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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