Swartz comment 2

Mitchell Swartz has continued his conspiracy complaints. still using image. He changes the image.

“A court investigation.” Courts don’t investigate, except rarely. Normally, plaintiffs and defendants investigate, and present evidence and arguments, including legal arguments. Mitchell is here talking about two things: a “rotten apple,” in his view, and the law and legal process, and he thinks in terms of “proof,” which is the realm of fanatics and the obsessed. In real life and in real law, setting aside criminal law for a moment, the standard of judgement is not proof, but the preponderance of the evidence, and the system attempts to create a presentation of evidence and argument from both sides (and amicus briefs may be entered if others from the public are concerned; those were entered in prior Swartz cases, not in this one). So right off, Swartz has some fundamental misunderstandings of the American system, which is adversarial, not inquisitorial.

So

“The proof is that the Decision of the Panel in 18-1222 is a farce is this:”

First, this was a decision per curiam, i.e., unanimous. So three Appeals Court judges signed off on it. These were PROST, Chief Judge, NEWMAN and LINN, Circuit Judges. Swartz had been before the U.S. Court of Appeals twice before, in what this ruling calls “Swartz I” and “Swartz II“.

Swartz II (2002): CLEVENGER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit Judge.

Swartz I (2000): PLAGER, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.

Swartz I and Swartz II were appeals from decisions of the United States Patent and Trademark Office (PTO) Board of Patent Appeals and Interferences. In Swartz v. PATO, Swartz was directly appealing to U.S. Federal District Court, and without following the full PTO process (including an appeal to the Board). Lack of due process was one of the issues. The District Court judge who dismissed his lawsuit was

Judge Leonie M. Brinkema.

So Mitchell is calling the unanimous opinion of nine U.S. federal court judges, in four contexts, a “farce.” What does this tell us about Dr. Swartz?

So now the “proof”:

“The Decision did not mention and did not substantively address the actual submitted NEW Evidence (which, of course, is the basis of a Complaint under § 145).”

There are two kinds of “new evidence.” There is the evidence submitted in the District Court, and then even newer evidence that Swartz attempted to submit in the Appeal. An appeal of a court decision cannot normally consider any presented evidence that was not available to the lower court. (It may consider new legal arguments, of course.) Swartz did attempt to submit entirely new evidence in his rejected Memorandum, a supplement to his Reply brief. The Order rejecting that explained the matter, well (link added):

Second, as a court of appeals, our review is generally limited by the record before the district court. See Fed. R. App. P. 10(a). This Court generally does not accept new evidence for consideration in the first instance. Moreover, Appellant has not shown that this new evidence is material to the issue at hand.

So there would be no “new evidence” before the Court of Appeals. Only new legal arguments, contained in the Corrected Opening brief and  the Corrected Appendix filed by Swartz. Reading the Opening brief, there are references to new evidence, but no clear list of such. The matter is complicated by asserting “new evidence” that is also described as “old evidence,” but there is a claim that the USPTO did not log it.

At that point, any evidence needed that was not logged would be “new evidence,” and new evidence could be considered in the District Court filing, but only in the Appeal if provided to the District Court.

So did the Appeals Court consider the issue of new evidence, aside from the above? Swartz covered the new evidence issue on pages 18-21 of his Opening brief (pdf pages 24-27). I will create a study of what is claimed there. However, at this point, did the Court of Appeal consider this?

The first issue to address is “evidence of what?” The stopping point for many cold fusion applications is “utility” and “enablement.” The matter has become confused because the USPTO normally has relatively loose standards, unless there is some special reason to call these into question. If a claim contradicts common opinion among “those skilled in the art,” it may be questioned, and then the burden of proof shifts to the applicant. That is what has happened with many cold fusion patents since the earliest ones were rejected. The evidence demanded would be of utility and enablement (those are two separate issues, actually). Most of the evidence I have seen from Swartz was instead directed at and impeaching the common opinion about cold fusion, but the only way to impeach that is by, not merely a declaration of utility and enablement, but by evidence of it, and the existence of some scientific effect and the acceptance by some — or even many — of cold fusion as a legitimate field of inquiry does not show that Mitchell’s specific inventions have utility and are adequately described for enablement “without undue experimentation.” That Mitchell’s reports have been seriously discussed does not show these things. So the prime question will be whether or not the evidence establishes, by a preponderance of the evidence (not merely as a possibility for the future), present utility and present enablement.

This is what the Appeals Panel wrote: (my emphasis)

. . . The PTO carries the initial burden of challenging the utility of an invention. In re Brana, 51 F.3d 1560, 1566 (Fed. Cir. 1995). However, the PTO carries that burden if the patent “suggest[s] an inherently unbelievable undertaking or involve[s] implausible scientific principles.” Id.  As we have held, cold fusion suggests such an inherently unbelievable undertaking. Swartz I, 232 F.3d at 864. The burden therefore shifted to Swartz to show sufficient evidence to convince an ordinarily skilled artisan of the inventions’ utility. Id. at 864. The evidence and arguments Swartz presents do not satisfy this burden.

That prior “holding” is not a “scientific conclusion.” Ontologically, I notice that it is about belief and what is “believable,” which will vary from person to person. They are talking about an “ordinarily skilled artisan,” which here must be glossed as a person in the “mainstream.” All that has been established is that cold fusion is an “extraordinary claim,” and that, therefore, to overcome the presumption requires extraordinary evidence. That does not prevent a preponderance of the evidence conclusion, and the USPTO does weigh and balance evidence. What they have cited in the past, not controverted by Swartz’s evidence, that replicating cold fusion results being difficult and not reliable, not yet, plus many thing it “impossible.” It is therefore “reasonable” to doubt utility and enablement. I would recommend a careful reading of In re Brana.

There is one problem with the ruling: the language is legal and directed to legal experts, and the ordinary meaning of “inherently unbelievable” can create an impression that such is inherently unpatentable. But the purpose of the court writing the order is to resolve the case, not to explain the law to the public as it relates to cold fusion.

David French did that with his paper in 2014, and that’s what I’m aiming for here. Cold fusion devices, if ready to be developed so that proof could be supplied within a few years, can be patented, even if they claim energy production or nuclear reactions. They may be patented more easily if whatever is considered inherently unbelievable is avoided.

The order goes on:

Swartz makes two inconsistent arguments: his inventions are not directed to cold fusion or LENR, and he presented new evidence to the district court proving the utility of LENR technology.

That is, attempting to prove. (That’s one of the meanings of “prove,” to attempt to show.)

First, Swartz’s assertion that his inventions are not directed to cold fusion or LENR technology is baseless. The references Swartz relies on here are related to LENR technology. Moreover, the parent applications were expressly directed to cold fusion, as we previously held.

And Swartz claimed his priority date from those earlier applications. Rossi didn’t, and so was not bound by what was in the earlier applications.

Second, the new evidence submitted by Swartz does not cure the lack of enablement or utility. The new evidence comprised reports by the Defense Intelligence Agency (“DIA”), Defense Threat Reduction Agency (“DTRA”), and other scientific articles.

By presenting a pile of evidence that did not “cure the lack” of “enablement or utility,” Mitchell distracted from what might have shown this. But I don’t think it exists, i.e., we don’t have what has been called a “lab rat,” a reliable experiment, at least not one with sufficient practical utility.

The ruling’s expression here is slightly defective. The issue is not the reality of the invention as to utility or enablement, but whether or not this has been shown to the reasonable satisfaction of the Patent Office — or the Board or the Courts.

In any case, the Court certainly did consider the evidence presented. My emphasis.

The DIA report cited Swartz’s research to support the statement, “In May 2002, researchers at JET Thermal in Massachusetts reported excess heat and optimal operating points for LENR manifolds.” That same report indicates fundamental skepticism about the result of the research. It notes that scientists from various nations “are devoting significant resources to this work in the hope of finding a new clean energy source. Scientists
worldwide have been reporting anomalous excess heat production, as well as evidence of nuclear particles and transmutation.” It also states, “If nuclear reactions in LENR experiments are real and controllable, DIA assesses that whoever produces the first commercialized LENR power source could revolutionize energy production and storage for the future.” The DIA report also states that “much skepticism remains” about LENR programs. The DTRA reference strikes a similar note. It explains that LENR reactions “are showing some remarkable progress . . . but experiments remain only thinly reproducible,” that they “suffer[] from a basic lack of understanding of the governing physics,” and that “it seems unlikely that deployable/useable devices could be expected within a five to ten year horizon.”
These references do little to overcome the presumption of no utility. At best, they demonstrate some positive experimental results attained by Swartz, tempered by much remaining skepticism and uncertainty about the utility of the discussed technology. With respect to the remaining declarations and articles, the district court correctly concluded, “nowhere, for example, does [Swartz] explain how an invention described in any of the relevant patent applications was used in the course of any of the referenced demonstrations or experiments.” District Court Op. at 11.

So what Dr. Swartz has been claiming is directly and blatantly incorrect, and he should know better.

Mitchell’s complaint on Cold Fusion Times continues:

“In its stead, the flawed Decision mislabels old evidence as ‘NEW Evidence’ and ignores the New Evidence.”

I haven’t seen that. This is more conclusory claim from Swartz. If anything in this report is incorrect, or even if Swartz simply wants to comment, he may comment here, and it will be incorporated, or he may send me email. That’s standard journalism. Swartz could even argue his entire case here, I’d make space for it. But I would also comment on it, and I would flag clear deception.

The Panel did address what Swartz had called “New Evidence,” and if they mislabelled something, it’s very likely moot.

“The decision does not even describe the New Evidence and does not even address it.”

As can be seen above, this is false. The decision describes what is relevant to the issue before the Court of Appeals, and it explicitly refers to the DIA and DARPA reports.

As only one example, astonishingly, the flawed Decision is void of any discussion of any of the Declarations – despite many of our fellow colleagues having taken the time to submit their Affidavits. Now why would that be?

It would be because they are irrelevant. How much time people spent writing them is also irrelevant. Mitchell wasted their time, perhaps, but we have them. Unfortunately, it is image pdf. Maybe it can be OCR’d. 18-1122-21, 267 pages, 29.6 MB, is his Appendix file with the Appeal, with the declarations. He did not provide it to me, what he gave me, called that, was only

Again, the Declarations are mentioned. The problem is that if any of them are actually relevant to the issue before the Appeals Court, Mitchell did not show it. Mitchell, in general, appears to not understand the issue, though it’s been explained to him many times by multiple Appeals courts.

What I sense is that he reacts to the legal reality as “unfair,” and that leads him to reject the explanations.

“This is why => In a case of utility 35 USC §101, the Law says that one (1) Declaration is sufficient to prove utility. But not for THIS subject. “

The last sentence is correct. I’ve been reading the manual that instructs Patent Examiners how to assess these things, because David French cited it. The “Law” does not state what Mitchell wrote, but it is normal practice to accept declarations of utility without demanding proof. However, then,  exceptions are described. An exception applies to “cold fusion” and other inventions commonly considered impossible. This will continue to apply until two things happen: it becomes common to understand that “cold fusion” (or LENR) are possible, and it has been shown that practical devices are also possible, not merely experiments that prove reality, or even toys. (But a toy may be patented as a toy.) The issue of utility is far more complex than Mitchell thinks. Getting a Stirling engine to spin from low power isn’t considered “useful.”

Mitchell attempted to overturn the “impossible idea,” but the issue is much deeper than that. The patents were not rejected because they were impossible, but because there was doubt as to utility and enablement. The impossibility idea calls attention to that. So the burden of proof, normally on the USPTO to show that the patent is defective, shifts to the applicant, to prove utility and enablement.

For any invention actually ready to be patented, that should not be difficult. The problem is that many patents, and not just with cold fusion, are not ready. Many won’t work and couldn’t work. But “normal” patent practice, because of the importance of priority date, are filed when not ready. Because applications can be continued, that’s not a terrible problem, as long as one does actually create real devices that show substantial utility, and that can be made, and work, from the patent instructions.

It is not enough that a device demonstrates some effect. It must actually be useful. If Mitchell has that, he’s been hiding it. Why isn’t he selling them?

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