Patents and Cold Fusion

Subpage of JCMNS/V13

Copy of paper.  (103 KB)

Copy of paper as linked within the journal. (23.2 MB)

J. Condensed Matter Nucl. Sci. 13 (2014) 118–126
Research Article

David J. French
CEO of Second Counsel Services, Ottawa, Canada
∗E-mail: David.French@SecondCounsel.com

Abstract
Patents are available for any arrangement that exploits Cold Fusion. The arrangement must incorporate a feature which is new. However, for Cold Fusion inventions the Patent Office may require proof that the procedures described in the patent actually work. And the description must be sufficient to enable others to duplicate the invention.
© 2014 ISCMNS. All rights reserved. ISSN 2227-3123
Keywords: Cold fusion, Description, Patents, Utility

Copy of paper.

Review and commentary.

That first sentence in the abstract contradicts common ideas about cold fusion. See a study of the Wikipedia article on cold fusion, the section on patents.

From the article:

. . . You must have a successful technology before a patent becomes relevant. But if you do have such a technology success, patents can enhance the profitability of marketing that technology. Patents enhance profitability by allowing producers to charge customers more for the product.

Notice: “successful technology.” A patent that does not work is not a “successful technology.” If one has a successful technology, it should not be difficult to obtain a patent, provided that it is new, even if it’s about “cold fusion.” But mentioning “cold fusion” may be a bad idea. If the thing works, saying “cold fusion” will not make it work better. Nor, if it works, and it turns out that cold fusion is completely bogus, will  the technology become useless. After all, it works! Maybe it works by something as yet completely unknown, and many, many inventions were like that. It is not necessary to have a theory to patent a device that produces useful results.

Yes, if one has a plausible theory — and “plausible” means as it will appear to a Patent Examiner — it might help to state the theory. But while some scientific journals have rejected papers on cold fusion for lack of an explanatory theory, that’s not how patents normally work. A patent describes a device, how to make it, such that it can be made with no further instructions, by any Person Having Ordinary Skill in the Art (PHOSITA), but the underlying physical laws need not be mentioned at all.

An if a theory is proposed that is considered incredible, and “cold fusion” represents a theory explaining heat that is widely considered that way, an invention that actually works might be challenged. I.e., if the stated use of the invention is to “create cold fusion,” and even if the device actually sets up the Anomalous Heat Effect, it will almost certainly be challenged and proof demanded. Yet claiming anomalous heat might be possible, even more likely to succeed, though still tricky, would be claiming a use for investigating reports of anomalous heat. Those exist (“reports”!) and millions of dollars have been spent investigating them. But if “cold fusion” is mentioned, the patent runs a high risk of not surviving challenge, at this point.

David is correct, patents are available, but not if one pokes the examiner in the eye. They don’t like that. I would recommend that any inventor tempted to patent a cold fusion device study the cases, I’m providing some resources here for that, and find a patent agent familiar with cold fusion issues. It’s possible to file without an agent, but … if you really have something, and file without skill, you could lose . . . how much did you say this patent could be worth?

A trillion dollars? Yes, you could lose a trillion dollars, billions at least, by filing and prosecuting the patent incompetently, if what you have is actually a useful application for cold fusion. So get help or study well and thoroughly, and don’t be fooled, because, as Feynman said, you are the easiest person to fool.

Okay, I’ve got an idea for a device to demonstrate cold nuclear reactions at home. A science toy, basically. Some scientific papers are being written about what amounts to cold fusion science toys, at best. They might be quite useful for investigating the effects. But not for “generating energy” in useful quantity. I might get away with mentioning “cold fusion,” if I don’t mention energy generation. In fact, there is a patent issued for generating particles, including neutrons. Granted. Making a few neutrons is remarkable, to be sure, but not known widely as “impossible.” And more to the point, not known to be very difficult to replicate.

But the value of the patent and its ability to deliver enhanced profits only arise if the business itself is delivering a successful product to the marketplace. Patents cannot enhance profits if the product itself is not a success.

We have seen an inventor spend almost thirty years attempting to win patents for inventions originally filed as applications in 1989. Those devices, were they useful as originally claimed, would have been successful products by now, because the patent process, while pending, does not prevent an inventor from developing the product. On the other hand, if the product as described in the patent isn’t adequate, if more experimentation is needed to make it practical, it was actually not patentable, if that were known as a fact.

As I’ve been reading, if the patent as filed is inadequate, there is a limited time in which to correct that, before the opportunity is lost. You can file a new patent, based on those “improvements.” It can be tricky, whether or not to cite the original filing for “priority date.” You have a period of time where the patent application is secret. If you cannot reasonably expect to complete the necessary tweaks to make successful devices, within that time, it would probably be better to postpone application. You don’t yet have a technology that is patentable.

But if you avoid hot-button claims (and “cold fusion” is certainly one), then you can go ahead and file and if your invention is not blatantly and obviously implausble — and even sometimes if it is! — you can get a patent. And with that and a nice frame, you can have an impressive wall decoration.

Seriously, before diving into a patent declaration, find trustworthy and knowledgeable people to discuss it with. If this is about cold fusion, I can’t commit David French, but he talks with many people about cold fusion patents. If one has questions about this, I’d be happy to look at them, but, please do remember, IANAL, I Am Not A Lawyer. I merely know some, and have some experience watching them in action, and reading case law.

(1) There must be a feature or aspect of the arrangement which is new; a difference [2],
(2) The arrangement must actually work and deliver a useful result, and
(3) The patent disclosure document that accompanies a patent application must describe how others can obtain the promised useful result [3].
Those are the three requirements for patenting. They are simply stated but require careful contemplation to appreciate their effect completely.

I want to underscore “careful contemplation.” “Useful result” can be subjective. If an extraordinary (implausible) claim is not made, the USPTO will largely accept the inventor’s word that the arrangement is useful. But if a challenge for lack of utility is made on the basis of widespread scientific opinion, even if that opinion might be nothing more than a glorified rumor sometimes written in books, not actually scientifically verified, the USPTO has the right to demand proof of utility.

The same is true for enablement, the description of how “others can obtained the promised useful result.” The examiner practice manual suggests that if an application is rejected for lack of utility, that it also be rejected for enablement. These are intimately connected.

In the case of Cold Fusion, the Patent Office is also concerned about whether the new arrangement actually works and has been described in a manner that will enable others to achieve the promised results. This concern is not restricted only to patent applications directed to Cold Fusion technology. It exists for all inventions where the represented utility of the invention is dubious [4].

The basic problem with cold fusion, from day one, has been reproducibility. Pons and Fleischmann applied for patents March 13, 1989, before the press conference March 23. The rejection of cold fusion was largely a result of many “negative replications.” But … those were often based on very shallow information about the FP experiment. One of the patents filed: Method and Apparatus for Power Generation.

Fact obvious in hindsight. Pons and Fleischmann did not have a method of generating useful power. We still don’t. The patent does not describe how to make a device that will reliably accomplish that, unless one of the many speculations were to pan out, but they didn’t pan out, if they ever will, in time to rescue the patent. The theory in the patent was wrong. Their neutron results were an error. That neutron report then caused many would-be replicators to look only for neutrons, avoiding messy heat measurement. It was a perfect storm.

There has been a lot of discussion, and criticism, of the United States Patent Office for refusing to grant patents that address Cold Fusion inventions. This is not as unreasonable as it may first seem. A patent can only validly issue for an arrangement that delivers the useful result promised in the disclosure. Normally Examiners take it for granted that the applicant’s description of a machine or process meets this requirement. But at any time, if an Examiner has good reason to suspect that the promised useful result is not available, or if the Examiner simply suspects that the disclosure is inadequate to allow other people to build the invention, then the Examiner may require that the applicant provide proof that these requirements are met [8].

It would be possible to modify the patent regulations to allow patents to be issued to protect inventions that don’t work. This is not the situation at this time. That is, many patents are issued for such inventions, but if a claim is made of something implausible, that doesn’t work, and suspicion is aroused in the examiner’s mind, the examiner may demand proof. The inventor’s statement and even some kinds of evidence, may not be enough.

If the problem of ignorant reliance on patents as some kind of approval were addressed directly, I find the harm of issuing unworkable patents obscure. Rather, the purpose of patents is to secure benefits for inventors, not to protect the public from phony inventions. Quite simply, the system doesn’t do that, examples abound. But this is a political problem. Legally, the examiners may do what they have been doing, and the functional response to a demand for proof is to provide the proof.

What has happened, though, is that at least one inventor has provided piles of evidence that the prejudice against cold fusion was wrong. That is not proof of the utility and enablement of his invention. That the inventor has degrees and recognition and has published papers is not evidence for these things, either.

If a general scientific consensus appeared that cold fusion was real, then the suspicion from a claim of cold fusion would no longer be reasonable and could be challenged, and probably successfully. That consensus has not appeared. There is an easing, to be sure, but not enough to transform how the USPTO views cold fusion.

In the case of applications that apparently are directed to perpetual motion mechanisms, the Examiner may require the applicant to provide evidence demonstrating that the system will work and that the description of how to achieve the useful objective of the invention is sufficient.

It’s important to recognize here that “perpetual motion” is a common example. Perpetual motion violates the laws of thermodynamics, which are regarded as fundamental, but, in theory, a perpetual motion machine (I’m not exactly sure what that is) that works and produces utility could be patented if adequate evidence of it working and being enabled in ithe patent were produced.

In other words, an apparent violation of the laws of thermodynamics could be allowed, with sufficient evidence. Producing that evidence has never been done.

Fortunately or unfortunately, patent applications that are directed to Cold Fusion effects are treated as if they were equivalent to a claim to perpetual motion [9].

I.e., as if the claim is implausible, there is evidence that it is implausible (such as many articles and books on cold fusion) and therefore it is reasonable for the examiner to question it and require proof.

This means that any applicant who proposes to patent a specific arrangement that will produce unexplained excess energy from Cold Fusion will be subject to a challenge from the Examiner who will say: “Prove it!” The burden then shifts to the applicant to file evidence from reliable sources confirming the key representations being made in the patent application.

Notice: evidence that “cold fusion” works from “reliable sources” doesn’t apply to the invention. The specific representations must be confirmed. There is no exact specific way of doing this, but I would imagine, were I an examiner, that I would want to see a report from an independent expert — or competent technologist, or anyone clearly credibiel — that they made the invention as described in the patent and found that it worked, making useful energy, if energy is claimed. It would not be enough to, say, buy a product and test it and report that it works. That would be evidence of utility, but not of enablement. But that’s just my thinking.

If you think about this last sentence, you will see that it is greatly in the interests of the patent applicant not to make extravagant representations in a patent application. In fact, you should never say that the invention is superior, cheaper or otherwise better in ways that will be hard to prove if challenged by the Examiner. It is sufficient to simply say: “I am achieving a useful result and there is something about what I am doing that is new.” A patent application is not a place to include a sales pitch.

I’m surprised to see some patents, apparently prepared by lawyers, that go on and on about theory, a complete distraction from what must be established, and if the theory is “incredible,” that could torpedo the patent. And it did.

French covers the Godes patent application. Godes, my guess, prepared this patent from his theory. The claim:

(To be continued)

 

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