Wikipedia on cold fusion patents

This is a subpage of jcmns/v13/p118, a review of an article by David French on Patents and Cold Fusion

https://en.wikipedia.org/w/index.php?title=Cold_fusion&oldid=852432636#Patents

Patents

Although details have not surfaced, it appears that the University of Utah forced the 23 March 1989 Fleischmann and Pons announcement to establish priority over the discovery and its patents before the joint publication with Jones.[30] The Massachusetts Institute of Technology (MIT) announced on 12 April 1989 that it had applied for its own patents based on theoretical work of one of its researchers, Peter L. Hagelstein, who had been sending papers to journals from the 5 to 12 April.[174] On 2 December 1993 the University of Utah licensed all its cold fusion patents to ENECO, a new company created to profit from cold fusion discoveries,[175] and in March 1998 it said that it would no longer defend its patents.[75]

The U.S. Patent and Trademark Office (USPTO) now rejects patents claiming cold fusion.[88] Esther Kepplinger, the deputy commissioner of patents in 2004, said that this was done using the same argument as with perpetual motion machines: that they do not work.[88]

It’s a problem when Wikipedia alleges a current state of affairs with “now,” especially based on an old source. Reference 18 is to this article, from 2004. From that article, this:

… The U.S. Patent and Trademark Office has refused to grant a patent on any invention claiming cold fusion. According to Esther Kepplinger, the deputy commissioner of patents, this is for the same reason it wouldn’t give one for a perpetual motion machine: It doesn’t work.

This is popular language, not a legal position. Perpetual motion machines violate a strongly-held understanding of thermodynamics, so any claim of one is going to be met with skepticism, and if skepticism is broad and wide on a particular class of inventions, and if the USPTO notices this, and if an invention actually claims what is considered impossible (that is not the same as actually being impossible), it will require proof of utility and enablement. 

These problems, Hagelstein and McKubre argue, are all tied to the 1989 DOE review. While the report’s language was measured, pointing out the lack of experimental evidence, “it was absolutely the intention of most of the framers of that document to kill cold fusion,” McKubre says.

McKubre was probably correct about that intention, though the document itself was modified to avoid that, in theory (it actually recommended research). However, the intention, whatever it was, is irrelevant to the patent situation. What is the problem is a widespread belief that cold fusion experiments are not reliably reproducible, or not reliably reproduced from a specific protocol, or . And that belief happens to be reasonable, it’s also understood by many LENR researchers, and that bears directly on patentability.

Not all real effects are patentable. They must actually be useful, and not merely potentially useful at some point in the future, but in the present. The enabling description in the patent must be adequate to generate practical results, of practical utility, when implemented by a Person Having Ordinary Skill In The Art (PHOSITA), and not only that, the patent and evidence shown to the USPTO must be such as to convince such persons that the invention will work. (or at least is likely to work!)

There came to be, after that rushed 1989 report, plenty of experimental evidence that there was a real effect, and even that the effect was nuclear in nature. (Some of that evidence shows the reality without requiring reliability, through correlation; specifically, the effect is difficult to set up, but when it does occur, there are reliable correlates.)

[. . . ] According to McKubre, the reason cold fusion experiments can’t be reproduced on demand is a materials issue: It’s a matter of developing a form of palladium, or another metal, with the right mix of impurities. With help on that issue and more funding, he suggests, a small cold-fusion-powered heater or generator could be ready in as little as two years.

And that’s the rub. That “issue” is still unresolved. If it were resolved, the suggested possibility is not unreasonable. With such a material to specify, if it were creating reliable heat and if this heat were adequate for practical use, not merely measurable experimentally — which would be enough for science — then such a generator could be patented. Until then, once the substantial doubt has been raised, clear evidence is required to rebut the skepticism.

This is often considered unfair, because most patents don’t need to provide that kind of proof. However, the courts have again and again supported this position, and I have to agree that it is sensible. There are ways for inventors to proceed, if they actually have found a way to make a practical device.

Patent applications are required to show that the invention is “useful”, and this utility is dependent on the invention’s ability to function.[176] In general USPTO rejections on the sole grounds of the invention’s being “inoperative” are rare, since such rejections need to demonstrate “proof of total incapacity”,[176] and cases where those rejections are upheld in a Federal Court are even rarer: nevertheless, in 2000, a rejection of a cold fusion patent was appealed in a Federal Court and it was upheld, in part on the grounds that the inventor was unable to establish the utility of the invention.[176][notes 5]

Yes. (This is much better than what the article used to have on this topic, by the way.) Note 176 refers to In re Swartz, called “Swartz I” in the 2018 Swartz v. PATO rejection.

A U.S. patent might still be granted when given a different name to disassociate it from cold fusion,[177] though this strategy has had little success in the US: the same claims that need to be patented can identify it with cold fusion, and most of these patents cannot avoid mentioning Fleischmann and Pons’ research due to legal constraints, thus alerting the patent reviewer that it is a cold-fusion-related patent.[177]

The issue is not the name, so much as the claim. Patents have been granted which were cold-fusion related. One of the problems is that “cold fusion” is a loose popular name for the Fleischmann-Pons Heat Effect, and there is a large family of such effects, more commonly called Low Energy Nuclear Reactions, and that the “reactions” are nuclear in nature is a matter of theory, and only in a few instances, strong and direct evidence. Mostly what is seen is anomalous heat. “Little success in the US” is a bit misleading. Looking up the source, this was Voss, in Science, 1999, ‘New Physics’ Finds a Haven at the Patent Office and I doubt he understood the real situation (he seems to think that fringe science should not be patentable). Few cold fusion related patents had been granted by 1999, and there are fast-approval exceptions, for example for the age of the inventor. There are more, now. I don’t have the article (paywall). There was a sidebar, though, referring to Thomas Valone case. A Free Energy Enthusiast Seeks Like-Minded Colleagues. Valone won an arbitration with the USPTO. 

David Voss said in 1999 that some patents that closely resemble cold fusion processes, and that use materials used in cold fusion, have been granted by the USPTO.[178] The inventor of three such patents had his applications initially rejected when they were reviewed by experts in nuclear science; but then he rewrote the patents to focus more in the electrochemical parts so they would be reviewed instead by experts in electrochemistry, who approved them.[178][179]

Note 178 refers to Voss and gives the three patents:

US 5,616,219  US 5,628,886  US 5,672,259 are broken links. These work:  US5616219 US5628886 US5672259 .  These are Patterson patents. My understanding is that these were issued under a fast-track rule for inventors over 70 years old. So these have nothing to do with normal Patent Office practice.

Note 178 refers to a Law Review article, which I found of high interest. 2006 Wis. L. Rev. 1275 (2006) They cite an Internet Archive copy, this is the original publication: A Case Study of Inoperable Inventions: Why is the USPTO Patenting Pseudoscience, Daniel Rislove. Rislove covers the patenting of inoperable inventions, recognizes the difficulties involved, but seems to think that nevertheless the USPTO should protect the public by not issuing patents to “pseudoscientific” inventions. However, the mission of the Patent Office is not to protect the public, but to benefit inventors. The problem is that the issuance of a patent can appear to support an inventor’s claim of legitimacy, in some cases. The problem is actually public ignorance and the ability of some inventors to deceive the public or investors as to the utility of their inventions, by the fact of a patent. Rislove seems to believe that that problem is insoluble, therefore the Patent Office should avoid harm to the public by taking greater care to reject inoperable inventions. But this will raise costs to inventors, and can also harm the public (he is aware that what is considered impossible might not actually be so. Perhaps an invention operates by an unknown principle, instead of what the inventor thinks. Patents are not scientific theories, and are not “pseudoscientific,” if described accurately.

The FDA is mentioned, but the mission of the FDA is to protect the public. At least in theory! There are other legal institutions that can protect the public from fraud and fakery. On the patent issue, every patent could be accompanied by a disclaimer that the patent does not guarantee operability or suitability for purpose. It could be made a form of fraud to claim that a patent shows these things.

When asked about the resemblance to cold fusion, the patent holder said that it used nuclear processes involving “new nuclear physics” unrelated to cold fusion.[178]

The quoted phrase is not found in source 178. Rislove does cite Voss so maybe the Wikipedia editor was confused. However, that would be a generic argument. “New nuclear physics” is not inherently incredible. “Cold fusion” conjures up a specific idea that is probably impossible under the relevant conditions. But there can always be new physics, including new nuclear physics. It’s merely unlikely, and until and unless the new physics is confirmed, the USPTO may have a basis for challenging it. But it is not clear to me that this right is actually useful for the purposes of patent law. Such rejections, as Rislove points out, are rare, but plenty of garbage is patented.

Melvin Miles was granted in 2004 a patent for a cold fusion device, and in 2007 he described his efforts to remove all instances of “cold fusion” from the patent description to avoid having it rejected outright.[180]

The source is an article, Cold fusion is back at the American Chemical Society It quotes Miles:

Miles is also careful to avoid using the words ‘cold fusion’. “There are code names you can use,” he says. In 2004 Miles and colleagues were granted a US patent for a palladium material doped with boron for use in low-energy nuclear reactions, but if the patent application contained the CF words it would never have been granted, Miles says. “We kind of disguised what we did.”

The Wikipedia link for the patent is dead. US6764561B1 Remarkably, though, the patent does cover the use of his material for generating energy. My emphasis:

The present invention generally relates to processes for the production of a high-strength alloy that may be used as a gas purification membrane, as an electrode for numerous applications including the generation of heat energy or other electrochemical processes, and more particularly to the preparation and use of two-phase palladium-boron alloys which have greater strength and hardness than other palladium metals or alloys and which thus can be advantageously utilized in a variety of applications including hydrogen purification membranes or electrodes.

And then in the Background, again my emphasis:

. . . the demand for energy increases each year while the world’s natural energy sources such as fossil fuels are finite and are being used up. Accordingly, the development of alternative energy sources is very important and a number of potential new energy sources are under study. Although there have been many attempts to develop a palladium compound which can be utilized in processes to generate heat, such as through the introduction of aqueous deuterium, none of these attempts have been successful or repeatable, and there is thus a distinct need to develop palladium alloys which can be utilized for the generation of heat as a potential energy source.

So he is claiming a possible use, but not standing the patent on “nuclear reactions,” even though he is obviously talking about what is known as “cold fusion.” He is centrally claiming an alloy with multiple uses. It is not “incredible” that an alloy can be made. The utility of such an alloy might be claimed, but this is where the burden of proof would be on the USPTO, to show that it is not useful.

At least one patent related to cold fusion has been granted by the European Patent Office.[181]

The Davis patent I have cited elsewhere, which is a US patent which clearly cited Fleischmann and Pons, also cites this patent, EP0568118, “Process for storing hydrogen, and apparatus for cold nuclear fusion and method for generating heat energy, using the process.” application 1990, granted to Canon in 1993.

There are other European patents, for sure, but Wikipedia can only cite what is in reliable secondary sources, and the source here was a 1994 article in New Scientist.

A patent only legally prevents others from using or benefiting from one’s invention. However, the general public perceives a patent as a stamp of approval, and a holder of three cold fusion patents said the patents were very valuable and had helped in getting investments.[178]

Yes. Patents are not stamps of approval. Period. You want approval, for safety, go to Underwriter’s Laboratories. For drugs, go to the Food and Drug Administration (in the U.S). For investment in cold fusion inventions, scream and run in the opposite direction unless you have experts with you. Even scientists have been fooled by “demonstrations.”

What is required for validation is verification by independent experts, in circumstances under the control of those experts. For an investor, the most important word in this is “independent.” Cold fusion is not impossible, we know that, because of controlled experiment, multiply confirmed. (But the word “fusion” could still be misleading.) As it stands, a lot of very smart people have worked for decades to create reliable devices and they have failed. So a reliable cold fusion device is quite unexpected. The US Patent Office, rightly or wrongly, wants to see proof of utility and enablement, and if you actually have such a device, proving it should not be all that difficult. Unless you want to keep secrets, or don’t actually have something reliable, then it could be impossible.

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