Swartz comment

This is a subpage of Swartz v. PATO.

Mitchell Swartz, on his Cold Fusion Times  web site, has put up a series of “queries” or challenges to the recent U.S. Federal Court of Appeals that confirmed the dismissal of his lawsuit against the U.S. Patent Office. This is what he has, prominently, a set of images, one being text-as-image. I often wonder if some do that to make it difficult to copy and critique. Be that as it may:

These are, at least in part, rhetorical questions, incorporating rhetorical assumptions. When I learned of the appeals court decision, I looked at it, and created pages to study it, the top-level page being Swartz v. PATO, which includes the docket for the appeal and for the Virginia Federal Court where Mitchell filed.

Dr. Swartz kindly provided some of the documents, and I have been downloading more with my PACER account. Many of the filings are very large and will be expensive to download, so unless I have help and support, as I did before with Rossi v. Darden, my efforts may be limited. This case brings up important issues, easily misunderstood (as Mitchell may have misunderstood many of the problems he faced). Mitchell presented, over the years, voluminous evidence on the reality of LENR; unfortunately for his patents, the USPTO was looking for something far more specific, and most of that evidence was irrelevant, and when one submits mountains of irrelevant evidence, the useful needle in the haystack may go unnoticed. That’s reality and the legal system. Skill in presentation and argument matter, and this is why dealing with an issue of major economic import, pro se (without an attorney), is a Bad Idea. I will cover this on other pages; here I am looking at the questions and incorporated claims in that image.

Believe it or not, courts do not “investigate” in matters like this. Rather, the U.S. has an adversarial system, where plaintiffs and defendants investigate and present evidence; the court applies rules of procedure and evidence and advises the finder of fact, a jury, where a jury is demanded (as Mitchell did in his Complaint), as to what evidence it may consider and what factual questions it is to answer; in a civil case, this will be a determination of what they jury infers from the preponderance of the evidence. The jury does not investigate, and the court does not investigate, and it can be like pulling teeth to get judges to read the mountains of evidence sometimes provided (sometimes a fact is procedurally relevant, and if judges misunderstand the facts, they might err on procedure). In this case, mountains of evidence were provided before it was actually time. The result of that is often, I suspect, to irritate the judges. In this case, on appeal, no new evidence would be allowed, but that didn’t stop Mitchell from submitting it and then complaining when it was not considered.

Mitchell has developed a “story” of USPTO intransigence, prejudice, and massively unfair treatment. He’s been to court many times over this, and appears to have lost every time, which, of course, he ascribes to a conspiracy to suppress cold fusion, and “poisonous tree” refers, I think, to the idea which showed up in USPTO rulings long ago, that “cold fusion” was “impossible.” That is, in itself, a major topic, but the current operation of this is that the USPTO continues to assess the current state of wide scientific opinion as not yet contradicting the old opinions that they originally relied upon. The Patent Board of Appeals, in 2013, was still citing very early comments, when there is evidence of higher probity from later reviews, ignored. Why is that later evidence ignored? Has the point been made effectively? That’s a complex question; what I see is that in his filings in this case, Mitchell failed to make it clearly, and, more to the point, the overall view of cold fusion is not the cause of rejection. Rather, that view causes, they consider, a reasonable person to suspect that the claim is inoperable, not of adequate utility. Once that suspicion is raised, they may, by law, demand proof of utility. It doesn’t matter if the original reason for suspicion was “wrong.” They will want to see specific evidence of utility for the specific invention that is the subject of the relevant patent. If, instead, they are provided with mountains of evidence on the general issue of the reality of cold fusion, they will — properly! — ignore it.

Is it a “poisonous tree”? Is it causing cold fusion-related patents to be unfairly rejected? Maybe, sometimes, but skillfully-prosecuted patents have been granted, sometimes by procedural tricks that bypassed the “tree.” Further, a patent is not rejected for that reason alone; rather that reason (the “poison”) raises suspicion and legally, the burden of proof of utility then falls on the inventor. It is possible to avoid this by not making a claim considered impossible. Nevertheless, if the claim is essential, all that the shift of burden does is to protect the public from patents where it is considered likely to be a waste of time to attempt to use the patent for the stated purpose, and how that purpose is stated in the patent is crucial.

Mitchell made nuclear fusion claims from the beginning and it appears he tried to retroactively define a patent (“‘258”) as not related to cold fusion, but merely being about a method of measuring loading. I think he was right, that is, it has other relevance, but being right is not enough, as the case shows. If one argues “right” without skill, and with a flurry of irrelevant evidence and arguments, sometimes the true baby gets tossed with the bathwater.

“Panel” in the image refers to the Court of Appeals three-judge panel, which issued all of its decisions in this case “Per Curiam,” which means unanimously.

Mitchell clearly, and long ago, took a heavily adversarial role with the USPTO, accusing them of misbehavior. As a political reality, it can happen that bureaucrats will still deal with you fairly, but the probability of this goes down. Mitchell’s attitude may be responsible for his failure to successfully prosecute his patents. ‘258 may well have been patentable, the USPTO’s argument there is weakest, but I can see in the record that Mitchell set this up by how he applied for the patent, claiming utility for initiating a nuclear reaction. Oops!

That was not technically correct! Until the general scientific community accepts that the FP Heat Effect is nuclear in nature, in such a way that the USPTO can get the shift through their reasonably-thick skull, that claim sill sink a patent. Or one had better be able to prove it with an actual practical device, independently tested, etc., and fully described in the patent, no secrets required.

I did not see this in Mitchell’s own evidence, the relevant documents that I have seen so far were provided by the USPTO, which seemed to be operating on full disclosure, providing the only copies I see in the record of the DIA and DTRA reports, as an example . (Mitchell, to some extent, contradicts what was written in the original ‘258 patent application. As that application would be crucial to some of the arguments, and there are other possible missing documents, I am suspecting that Mitchell failed to attach a number of documents to his original Complaint (and did not notice it and then blamed the Court for not considering them, echoing his earlier conflicts with the USPTO). So, to Mitchell’s continued rant:

To make sense of “187,” I needed to look it up. This is slang for “murder,” after Section 197 of the California Penal Code. Then “Quarie” only makes sense as a bizarrely misspelled “Query.” No. the USPTO and the DOE did not “kill” cold fusion. Cold fusion hasn’t been born yet, not fully, not as a patentable device that could claim, as Mitchell claimed, “nuclear fusion.” I could present evidence that the mainstream scientifically considers “excess heat” possible; and peer-reviewed reviews of the field that consider this a nuclear effect, but these do not establish *utility,* the critical legal question Mitchell has been butting his head against, he claims for 29 years. The first Swartz LENR patent I see in mentioned in the record was ‘937, filed June 27, 1989. Wow, that was fast!

There is a very long record here and it’s going to take me considerable time to come up to speed on it.

So, “Why are the peer-reviewed papers, the open demonstrations at MIT, and the successful courses not mentioned in the corrupt Decision?”

The Decision. Those items may be great interest to us if we are trying to assess the possibility of real LENR inventions, and thus judge the PATO prejudice against “cold fusion,” but they were not relevant to the Appeals court subject matter. There is, indeed, a political issue. PATO practice may be unfair, but the executive branch has discretion, and only a gross abuse of that discretion might be actionable. We are talking about, most of these patents, very old decisions, already litigated, in at least some cases. Hence we see “collateral estoppel” brought up. Mitchell does not show an understanding of the basic issue. What he calls the “poisonous tree,” I think is the old idea that cold fusion was broadly considered impossible, back in the day when cold fusion patents were first considered. I have found reference to the idea that the PATO rejects cold fusion patents out of hand. That has never been completely true, I’m finding.

Storms has, in his 2007 book, one of the only references in the many booksI have on LENR, on the subject of PATO practice: He tells a story from personal experience, p. 15, about working with ENECO.

“In addition, Paul Eveans, a lawyer, was hired to move various patent applications, including the one describing the Fleischmann and Pons work, through the Patent Office. Little did we realize that the Patent Office, in the person of Harvey Behrend (since retired), would refuse to issue patents on the subject — of course because he followed the wishes of his boss and various political appointees. Reams of deposition, detailed published evidence, and numerous official forms were sent to the Patent Office only to be rejected because the New York Times, in one article or another, said the claims were not real. Scientific evidence we presented had no effect. More than a million dollars was spent satisfying the legal requirements and demands of Mr. Behrend, to no avail Finally, the company ran out of money and the patent application was given back to the University of Utah where it was allowed to lapse. As a result one of the great discoveries of the 20th century was not accepted in the US even though patents in Japan and in other countries were granted. Many other people had similar experiences, resulting in the absence of intellectual property protection for inventors. This failure by the Patent Office not only resulted in an intellectual property mess requiring future correction; it also forced people to keep their best ideas secret.

This appears to be a naive account, from what I’m finding. The PATO would not “reject a patent” because of a New York Times story, not like that. Rather, the widespread opinion about cold fusion would cause reasonable skepticism as to the utility of an invention that claims “cold fusion.” In the presence of that, the Patent Office decided to require proof of utility. Not proof of scientific possibility, but proof of an actually useful invention; something that produces demonstrations and measurable effects, nuclear or otherwise, is not necessarily useful. What I’ve seen with the Swartz litigation is massive evidence presented that did not show utility, and examples would be published papers (that don’t show utility for the specific claimed inventions), public demonstrations (consider the Rossi demonstrations!), and the MIT cold fusion course.

ENECO did not have a practical device, but was attempting to patent the “discovery” of an effect, in a situation where there was no way of describing how to reliably create the effect, let alone to make it useful. Yes, many inventions are patented without that proof being required, but that was a shift in patent practice in the 19th century, as I recall being told (they used to require working models). Inventor representations are taken as if true, unless some reason arises to question them, and that has happened with many patents, as, for example, some cases covered by Robert Park in Voodoo Science.

Swartz was arguing against the obvious: there is reason to doubt any claims of useful LENR devices, until strong evidence appears otherwise. And “useful” is the controlling word here, for patent law. “Real” isn’t. ENECO may have wasted a million dollars on a wild-goose chase.

Swartz has pointed to patents issued relating to astrology, but he doesn’t understand that an invention relating to astrology need not claim that “astrology is real.” It can simply be a means of displaying data. The one patent I’ve seen in the pile litigated in this case, that might have been issued if not connected with “cold fusion,” was a device for measuring loading, and the original application may have claimed usefulness in “monitoring and accelerating electrochemically induced nuclear fusion reactions,” which claim was, then, rejected as not believable. All that rejection did was shift the burden of proof to Swartz, and my guess is that, had he focused on that specific patent and corrected the point, he might have succeeded, but he mixed it — and continued to mix it — with his other applications, and I’m not sure he ever remedied the defect. Basically, the original error was in assuming “nuclear fusion reactions,” when one might want to measure loading for other purposes, including investigating the possibility of unexpected reactions at high loading.

(That Swartz may have been looking so strongly at loading in June, 1989, is remarkable! No wonder he got the Preparata Award! — except I’ve never seen any sign that the invention was actually used by anyone. It may not have actually been practical, it may have required development that was not undertaken. McKubre used R/R0, to monitor loading, which merely requires an extra wire, could be easier, though less direct.)

Bottom line, the original patent was filed in 1989 and there are still no marketable products from it, and I don’t recall seeing any papers from Swartz that used the device. It was an idea, it is not clear that it was ever realized. Yes, normally, one may be able to patent ideas, but . . . not if they arouse skepticism, in which case, proof may be required. As to how Swartz might have corrected the application, I’m not a lawyer, I merely think it might have been possible. And it is also possible (and there exists some evidence for) that there was political pressure on the PATO.

Why was the Hearing Memorandum removed before the Decision?

The Memorandum was included in this mixed Motion. It was not “removed” because permission to submit it was denied, and that was explained  in the Order of denial. (link added)

. . . 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.

If Mitchell does not understand the explanations of the Court, I’d recommend he discuss them with an attorney. He could also ask me, though I’m not an attorney. He’s been invited to comment here, which would include making corrections and asking questions.

Mitchell had already submitted his original appeal and an oversize Reply brief responding, in theory, to the arguments of the appellees. The new evidence he supplied continued to be irrelevant to the issue of the appeal. If anything, it could be read as damaging his case. The Preparata Medal was awarded, not for his inventions, per se, but for his investigations of the “anomaly.” Anomaly means something unknown, not understood, and therefore properly subject to skepticism. The Declaration of David Nagel confirms PATO claims, actually, with only minor corrections:

13. The Patent Office writes:
Slide 14: “Reproducibility and control or experiments remains problematic. The mechanisms behind LENR are still not understood.”
Slide 42: “LENR do occur, but are not understood.”
[Nagel:] The statement about reproducibility and control applies to many LENR experiments and is factual. […]

14. The Patent Office writes:
Slide 37: “LENR must be reproducible, controllable and reliable before it is
commercialized ••• The wild card is when LENR will be understood, since understanding
it will make exploitation faster and better.”

[Nagel:] These statements are also factual. Products that are not reproducible, controllable and
reliable will not succeed on the market. When LENR will be understood in the normal
scientific manner, as cited above, is unknown, and can be called a “wild card”, a
personal choice of words by the author Nagel.

The PATO position is that the status quo has been and may still be that a claim of a useful LENR device may be questioned, and the burden of proof shifted to the inventor. Whether this is in the best interests of the US government or the public is a distinct question from the right of the PATO to follow this procedure. What seems clear to me is that the policy and practice has prevented many actually useless inventions from being patented. On the other hand, there is a loss of an ability to quickly patent new ideas. I really don’t know if there is more harm than good from the policy, but Mitchell appears to think that the practice has “killed” cold fusion. However, because an inventor could still demonstrate a useful device, the only patents that have been prevented are those where there was not actually a useful device, it seems. Patents have been issued, in fact, and still there are no useful devices, not even a “lab rat,”

As part of this investigation, I have found that there really is little coverage of the patent history with cold fusion, only a few anecdotes and widespread rumor that may or may not be misleading. So I’m considering doing a far more extensive study. Comments?

Who acted as judge, jury, and executioner of the new evidence?

The new evidence was not destroyed, it’s still in the record, it still stands the same as before the judges unanimously denied permission to add it to the briefs already admitted, a few days before the actual hearing on the appeal.

Who misplaced all eight copies of the Reply brief. Why?

When one has developed a conspiracy theory, any anomaly, any unexplained event, can then be imputed to the conspiracy.

There is a mention of “eight copies” of the Reply brief in DE 34. a motion to correct the order accepting his out-of-time and oversize reply brief, arguing with what was, at worst, a totally harmless error, but wrong. The court rejected the motion as moot, and informed him of the rules regarding length. The deadline for filing the reply brief was not mentioned by Mitchell, but was in the record of the filing of the Appellee brief. He was late by ten days.

9. In summary, examination indicates that the prose Appellant’s Reply Brief was on time, was apparently within the word limit based upon the word processor’s own count of the number of words, and was accompanied by all 8 copies that mysteriously disappeared thereafter based on information and belief.

Therefore, the Appellant respectfully requests correction of the Order, or if not a full explanation of the reason for the two statements, and the then evanescently-“missing” Reply Briefs which were fortunately thereafter located.

So, Mitchell thinks it’s appropriate to demand an explanation from a three-judge panel of a transient clerical mishap? No harm had been caused. They ignored this, as I’d expect, but I have some sense of how Mitchell appeared to them. They did explain the length issue but not the time issue, and it was totally moot, as they ruled. Note to self: when a judge accepts my allegedly out of time filing and my oversize filing, say, “Thank you, your honor.” Not “I wasn’t late and it isn’t oversize! You’re wrong! And why did your clerk disappear the copies for the other parties?”

Who removed the DTRA and DIA reports from the federal court in the Eastern District of VA in 2017? Why?

Probably nobody. What is likely is that Mitchell thought he was attaching them to his complaint, but failed to do so. The reports were, however, provided by PATO in their motion to dismiss. See the Docket, DE 18-6 and 18-7.

The appeals court ruling refers to the reports. I found this in the original case dismissal Order:

Plaintiff discusses both of these reports—one from the Defense Intelligence Agency (“DIA”) and one from the Defense Threat Reduction Agency (“DTRA”)—in his Complaint. See Compl. [Dkt. No. 1] 61-69. Although plaintiff appears to claim that he attached both reports to his Complaint, see id. 61 (“Exhibit 11 is from the DIA Report. . ..”); id ^ 65 (“A closeup ofthe DTRA report is shown in Exhibit 12.”), neither report was filed with the court. Defendant included copies of both reports with his Motion to Dismiss. See Def Mem. [Dkt. No. 18] Ex. 6; Ex. 7. Because both documents were extensively discussed in the Complaint, they have been incorporated by reference and may be properly considered in evaluating defendant’s Motion to Dismiss and plaintiffs objections to that motion.

Mitchell, one would think, would have noticed the documents missing and would have taken action to file them. (He filed a series of statements from individuals with the Complaint), as separate documents. Errors like that can be fixed. It is possible that the defendants, then, would have had extra time to reply, that’s all. In fact, since the documents were provided by the defendants, as described, this was completely moot. I don’t know yet if he mentioned the alleged “removal” in the appeal, because I don’t yet have those files.

Who lied to the appellate court THREE TIMES misleading about the inventions in question?

I suspect this is about an interpretation that Mitchell disagrees with, but that the courts both seem to have confirmed, including the Patent Board of Appeals, before. Is the interpretation misleading? Perhaps. That doesn’t make it a lie. Mitchell did allege perjury, which claim often fails to go well unless it can be proven as intentional deception. The only statements tendered by the Appellees would be in the Response Brief, and if a misleading comment was material, then the place for Appellant (Mitchell) to note this would be in his Reply Brief, which followed the Response. Did he? I do have a copy of the Reply Brief.

The reply brief begins with a quite verbose rant:

There are so many errors in the Appellee’s Brief, that only the most significant can be addressed here. Briefly, the Appellee’s Brief is a rehash of past mischaracterizations and past factually false statements and new disingenuous statements without a single admission or substantive correction or discussion of the new evidence.

I don’t yet have the Appellee’s brief, so here I’m looking for the THREE LIES. Mitchell’s response has section headers and text in Red (which might not be allowed, but which the court may have ignored)

1 The Appellee’s Brief Ignores the Issues of the Complaint, the Complaint’s Detailed New Evidence, and Defendant’s Systematic Wrongdoing Against the Orders of the PTAB

Ignoring something is not a lie.

2 The Appellee’s Brief Ignores That 35 U.S.C. § 145 Claims are Supported by New Evidence

Again, ignoring something is not a lie.

3 The Appellee’s Brief Ignores Complaint’s Detailed, Factual Averments

4 The Appellee’s Brief Ignores Precise Orders to Plaintiff from the Patent Trademark Appeal Board [PTAB]

5 The Appellee’s Brief Ignores Defendant has Systematically Failed to File and/or Address Submitted Documents

I’m still looking for lies. If he’s buried them in details, they must not be that important.

6 The Appellee’s Brief Ignores Defendant’s Systematic Mischaracterizations of the Inventions

6-1 The Appellee’s Brief Ignores the actual Inventions

6-2 The Appellee’s Brief is Factually Wrong about Each Invention

Okay, factually wrong, though what is discussed is interpretive and both courts seem to have pointed to contradictions in Mitchell’s arguments. I’m still looking for “lies.”

6-3 The Appellee’s Brief Ignores that These Inventions are Not “F+P”

6-4 The Appellee’s Brief Mischaracterizes and Ignores Other Uses for These Technologies

That may be true, but the substance here is that “other uses” became mixed up with claims of nuclear fusion, and Mitchell’s attempt to detach them from the FP Heat Effect and “cold fusion” claims simply was not accepted by the PATO nor by the Patent and Trademark Appeals Board, nor by the Federal Court nor by the Appeals Court, in multiple cases, and this was, in the end, moot, because the patents were not denied because of being “F+P” but because the inventor failed to prove utility. (Most evidence provided by Mitchell was directed toward showing possible scientific reality, which is a quite different issue.)

7 The Appellee’s Brief is Factually Wrong about Operability

The legal issue is not actually operability, but rather whether or not the inventor fulfilled a burden of proof created by reasonable doubt that the disclosures were “operable,” i.e., if instructions were followed, the claimed benefits of practical utility would be obtained. Mitchell, again and again, appears to not understand what the PATO is requiring, and, as well, what the courts are requiring.

I am not convinced that there is any invention extant that would meet the heightened scrutiny of the PATO. For various reasons and because of various situations, the PATO has granted some patents relating to cold fusion. To my knowledge, none have proven to be of actual utility, yet. Mitchell wrote:

26. The USPTO has absolutely NO foundation to support their mistaken opinion.

What Mitchell appears not to understand is two-fold:

The PATO doesn’t have to prove foundation, they merely need (probably) to have some basis for suspicion of lack of utility or inoperability.

The evidence provided by Mitchell actually shows clear basis for such suspicion. Mitchell is claiming that this is “wrong,” or “mistaken,” but suspicion doesn’t have to be correct to be reasonable.

(And behind all this is that an inventor, with a practical and operability invention of real utility, should be able to provide evidence of utility. Yes, it might be unfair, but that’s the cost of working in a field that is not fully accepted. Given that a practical device doing what Mitchell claims — in this brief — should be worth billions of dollars, it’s not too much burden.)

8.DTRA and DIA Reports Proves §145 Enablement of These Inventions and Failure of Defendant to Honor Exculpatory Evidence

I have not seen where these reports do that, and this would, in any case, not represent “lies,” which is what I’m looking for, here. The dismissal order and the appeals court affirmation of the dismissal do consider those reports and deny that they “prove enablement of these inventions.” “Exculpatory evidence” would refer to evidence contrary to the blanket assumption of suspicion of lack of utility or inoperability, and once suspicion is raised, that becomes moot.

9. DIA Report Proves §145 Enablement of These Inventions

Apparently Mitchell believes it is enough that his research is mentioned, and does not cite actual evidence of operability or utility of the specific patents involved.

10.DTRA Report Proves §145 Enablement of These Inventions

Color me doubtful. I haven’t reviewed the specific reports cited, yet, but from general familiarity with similar reports, it is highly unlikely that they did what Mitchell is claiming, and the Courts both cited contrary evidence from those reports. I’m totally willing to revisit this, but … Mitchell is crying “lies” without showing actual lies, merely disagreements.

11.The Appellee’s Brief Ignores that Open Demos at MIT Proves §145 Enablement of These Inventions

It is difficult for me to understand how a demo such as those I have seen descriptions of could do this. A prototype product, independently tested, might do part of this, and an independent construction of a device using the patent information could also do this. Mere scientific reality is not enough for inventions claiming what Mitchell claimed in this Reply Brief.

I’m losing patience. So far, the most that Swartz has done is to claim error, and when he does so, he merely alleges it, he doesn’t seem to quote the alleged erroneous statement. His Reply brief does not appear to be correlated with the Appellee’s brief. But, again, I don’t yet have that brief.

In an appeal, a proper argument would be that the original court was wrong, not that the defendant was wrong. Mitchell doesn’t know what he’s doing; if he had a prayer of reversing the dismissal, he didn’t realize how to take advantage of the opportunity. He simply kept repeating a very old error, making the assumption of the impossibility of cold fusion the issue when that, in fact, isn’t conclusive, if the inventor can prove utility and operability, which are not the same as some level of acceptance of possibility and some general acceptance that there might be real effects. He’s fighting an old fight, that will soon be obsolete, once there are real devices on the market. If Mitchell had been able to show real devices actually being sold, it would have been all over. I see no sign that he attempted to do that, leading me to suspect that the PATO argument is, in his case, correct. His inventions are not yet at the stage of practicality.

He claims that the ‘258 invention was patented by someone else (at Nissan) without regard for his application. But he torpedoed that invention by claiming utility in “nuclear reactions,” which I’m pretty sure the Nissan patent did not claim! (I was correct. This is the patent. While there is a resemblance, this is a patent for a device to control fuel flow in a fuel cell. Device and method for controlling fuel cell system with vibration amplitude detection)

Reviewing the rest of the Reply brief, I find reference to claims that might have had some legs, if raised clearly and without distraction from all the claims of lying and misbehavior. The PATO issue has always been, as far as I can tell, procedural, and the existence of many claims, with voluminous evidence provided — possibly too much! — what might have been possible was lost. Procedurally, I think Mitchell may have exhausted his recourse, the possibility of a successful appeal to the Supreme Court being, I’d think,remote based on the record here. I do know that at least one attorney has reviewed Mitchell’s patent history and found that he failed to properly pursue the process. But I hope to eventually document all of it, because this is part of the history of cold fusion.  Back to Mitchell’s image:

Who lied to the federal appellate court misdescribing a method to measure loading to fabricate a “poisonous tree”?

Indeed, who? And where? Again, the only statement made to the appellate court by the PATO was the Response brief.  From Mitchell’s Reply brief:

There is nothing new in it.

Mitchell seems to think that is a problem. That is actually normal. Mitchell seems to believe that the Appeal would be like a trial de novo, and he attempted to submit new evidence. Briefs filed with an appeals court are intended to lay out, for the convenience of the Court, legal arguments and to call attention to what may be relevant within the trial record, not to introduce anything new. Mitchell had the opportunity to assert new evidence to the trial court. That court considered his evidence and arguments and rejected them as irrelevant, and, certainly, many of them were such. “The poisonous tree” claim of Mitchell’s is rhetoric aimed to create public outrage. It misses the basic point: the PATO may, as an executive decision, treat patent claims in some area as implausible, requiring evidence of utility and operability. The inventor then has recourse, and the legal issue would be, then, did Mitchell satisfy the burden of proof on the relevant issues, or did he instead attack the consideration of implausibility, which is not conclusive, but only procedural.

The multitude of problems within the Appellees Brief now includes impugning the pro se Plaintiff (now Appellant) and his several unique, novel and non-obvious inventions producing clean energy.

Once again, Mitchell, while denying that his inventions are “cold fusion” or “F-P” technology, still insists that they are “producing clean energy,” thus resting his possibly useful inventions (his loading measurement method looks like it could work to me) on a result that is still not accepted, and that is considered as questionable or not established by the very new evidence he alleges. This all seems to be about attempting to prove that he is a great scientist. He reacted strongly to the facts pointed out by the clerk and the Court in accepting his late and oversize Reply brief, as if they were “impugning” him, wasting the time of the court to argue that this was Wrong. But even if it was wrong, it was moot, because they accepted his brief, so “late” and “oversize” were harmless dicta. Unless one cannot tolerate any perceived insult, no matter how minor.

Other errors include factually false statements, repeated  mischaracterizations, systematic misdescriptions of past evidence and pleadings, and outright misdescription of the inventions submitted and the Evidence accompanying them, and a reliance on i) the proverbial “fruit” obtained from the poisonous tree — which was fabricated by the Defendant to cover up an entire clean energy field using systematic discrimination and an odious series of factually false statements. It is unfortunate that Atty. 
Michael Forman misrepresents factual information to this court. His false statements will be corrected in this Reply Brief. Most egregiously, as this Reply Brief and the record demonstrates, the Defendant’s said reprehensible actions were made during, and followed by systematic repeated attempts at exculpatory actions.

So, rejection of patents filed by Mitchell Swartz is characterized as an attempt to “cover up an entire clean energy field.” What clean energy field? Is LENR clean technology? It has the potential to become such, if developed, but this has not yet been successfully demonstrated, as to actually useful devices. Spinning a rotor on a Sterling engine is not adequately useful to overcome the skepticism, and this is well-known in the “field.” (And I am not aware of fully-independent validation of even that result. Observing a demo is not fully-independent validation. The demo was under the control of the inventor. The inventor’s scientific papers, mostly published only within the specialty JCMNS and as conference papers, are not adequate for that. There are many examples within the record I have seen, so far, of inadequate evidence presented. A vast pile of inadequate evidence might sway a jury, if skillfully presented, but obviously did not sway the PATO, nor the Patent Appeals court, nor Federal Court, nor the Appeals Court.

Who does it satisfy? I have not seen evidence yet that speaks to practical utility and operability of specific inventions. Mitchell cites the declaration of Larry Forsely:

“I have a patent issued in this field USPTO 8,419,919 that cites multiple patent applications by Dr. Swartz.”

That would be System and method for generating particles

This patent, granted in 2013,  does not claim generation of useful energy, but only particle radiation. This patent demonstrates that the PATO is not ipso facto rejecting patents because they are “in the field.” It cites many patents as possible prior related art, including the applications (date in bold shows date granted).

US20010019594A1 1991-09-17 2001-09-06 Swartz Mitchell R. / Method and apparatus to control loaded isotopic fuel within a material
US20020021777A1 1989-06-27 2002-02-21 Swartz Mitchell R. / Method and apparatus to monitor loading using vibration
A rejected application must still be cited, if I’m correct, if related, and citation does not claim actual utility of the cited invention. Reviewing the list of cited applications, what I find contradicts the common impression that has been created that the PATO denies LENR patents. It’s not just Forsley.
US6248221B1 1995-12-26 2001-06-19 Randolph R. Davis / Electrolysis apparatus and electrodes and electrode material therefor. Cites the Fleischmann et al patent! LENR.
US6379512B1 *1998-02-11 2002-04-30 Northwest Aluminum Technology / Combination for electrolytic reduction of alumina Not LENR related.
US6444337B1 2000-09-26 2002-09-03 Energetics, Inc. / Fuel cell with low cathodic polarization and high power density Not LENR related.
US6562243B2 *2001-04-05 2003-05-13 Jonathan Sherman / Synergistic combination of metal ions with an oxidizing agent and algaecide to reduce both required oxidizing agent and microbial sensitivity to fluctuations in oxidizing agent concentration, particularly for swimming pools Not LENR related.
US20030112916A1 2000-02-25 2003-06-19 Keeney Franklin W. / Cold nuclear fusion under non-equilibrium conditions LENR.
US20030213696A1 2001-05-30 2003-11-20 Energetics Technologies, L.L.C. / Pulsed electrolytic cell LENR, Superwave, abandoned.
US20050045482A1 2003-08-25 2005-03-03 Storms Edmund K. / Electrolytic heat source. LENR, abandoned.
US20050129160A1 2003-12-12 2005-06-16 Robert Indech Apparatus and method for facilitating nuclear fusion LENR.
US20050236376A1 2001-08-13 2005-10-27 Eccles Christopher R / Energy generation LENR
US20050276366A1 1995-05-12 2005-12-15 Electrochemical Innovations, Inc. [John Dash]Low temperature nuclear fusion LENR.
US20060088138A1 2004-04-07 2006-04-27 Andre Jouanneau / Method and apparatus for the generation and the utilization of plasma solid Maybe LENR (plasma). Refers to Fleischmann. Abandoned.
US20060153752A1 2002-10-11 2006-07-13 Yoshiaki Arata / Hydrogen condensate and method of generating heat therewith LENR.
US20070095823A1 2005-10-27 2007-05-03 Sedlmayr Steven R / Microwave nucleon-electron-bonding spin alignment and alteration of materials I was going to classify as not LENR, but … the inventor is chatty, this patent is a great example of how not to write an application, and he claimed utility for creating cold fusion. Hence, LENR.
US20070140400A1 2005-10-19 2007-06-21 Hodgson John A / Cold fusion apparatus LENR
US20070206715A1 2005-12-29 2007-09-06 Profusion Energy, Inc. [Godes, Brillouin] / Energy generation apparatus and method LENR.
US20070269688A1 2004-05-19 2007-11-22 Sri International / Liquid anode electrochemical cell Fuel cell, not LENR related.
US20070280398A1 2005-12-05 2007-12-06 Dardik Irving I / Modified electrodes for low energy nuclear reaction power generators LENR.
US20070286324A1 2002-05-182 007-12-13 Spindletop Corporation / Direct generation of electrical and electromagnetic energy from materials containing deuterium. LENR.
Summary: The granted patents for Forsley and Davis show that LENR patents are being approved. However, those patents did not claim practical energy production. Davis, in particular, claimed an improved electrolysis system for investigating possible nuclear effects. That is, its utility did not depend on the utility or reality of LENR. The other LENR patents did make such claims, often very explicitly.
The “poisonous tree” is the information cascade, that cold fusion was all a big mistake, pathological science, etc. And that therefore that “cold fusion” is impossible, that’s part of the cascade. This widespread idea then leads the PATO to suspect lack of utility and inoperability, so they require strong evidence, and reject weak and circumstantial evidence (such as Swartz winning the Preparata Medal, which has no bearing on the utility of his patents).
It has often been pointed out that theory is unnecessary in a patent application. The mention of fusion in the applications was a mistake, because it is still in substantial controversy whether or not the “anomalous heat effect” is fusion. So if the utility of a patent is to “create nuclear fusion,” and the method is similar to the FP methods or is connected with them, the suspicion is reasonable and they may then shift the burden of proof to the inventor.
That condition will last, I predict, until actual practical and substantially devices are constructed and available. They might be “toys,” demonstrating some effect.  Such demonstrations may have utility, but as to the energy future of humanity and Mitchell’s visions, that would not be good enough, and . . . even if it were, he hasn’t claimed that.
I disagree with an aspect of the conclusion of the Appeals Court, but it was dicta, not actually central. I have bolded it:
Finally, Swartz has not shown error in the district court’s dismissal of his challenge under the patent clause of the Constitution. His entitlement to a patent under that provision is framed and defined by Title 35 of the U.S. Code, which includes explicit requirements for utility and enablement. Because the Board and district court adequately showed that Swartz’s inventions lack utility and enablement, he is not entitled to patents on those inventions.
No, the Board did not show that the inventions lack utility and enablement. Rather, what was shown, as far as I’ve seen, was that Swartz failed to prove utility and enablement, as required, and the “new evidence” that was his basis for going to federal court did not adequately show specific utility and enablement for specific patents, but rather attacked or were relevant to the “general opinion” about cold fusion. Once the PATO has required special evidence, the only remedy for an inventor is to provide it, unless the inventor can prove some special exception, such as the corruption of an examiner.
In reality, reasonable doubt remains — within the field — as to the utility and enablement issues for Mitchell’s inventions. “Doubt” is not the same as “proof of non-existence.” Given the long history of Mitchell’s patents, and the lack of practical products, even as available prototypes, we must suspect that the original patent applications — beginning in 1989 — were not of useful inventions, but merely of possibly interesting ideas.
Who failed to log submitted Evidence and Declarations for 29 years? Why?
Indeed, who, what, where? This has been a long case, and Mitchell was dealing with a government bureaucracy. If, indeed, there were failures to log, these kinds of failures are common and do not evidence, by themselves, a pattern of discrimination. Indeed, it is unlikely that if the intention of the PATO were to wrongfully deny a patent, one would think they would exercise great care to avoid ordinary mistakes, because of the likelihood of a challenge. In his Complaint, Mitchell brings up failures to log and other alleged errors, without any showing that he was actually harmed. We can see similar behavior in the appeal, where alleged error in the Order that actually accepted his allegedly late and oversize Reply brief, is raised as if anything other than moot. The “missing eight copies” clearly, in his mind, constitute evidence of some kind of conspiracy to harm him and the entire field of clean energy.
In one case, Mitchell allegedly submitted evidence on a CD, which is not an allowed form of document submission. So those documents might indeed not have been logged or considered timely. But he could have remedied all this, there are procedures for correcting errors that don’t involve filing a federal lawsuit, and, in fact, a major ground for dismissal is that due process was not followed, and Mitchell provides an excuse that he did follow process in this or that case and it was allegedly ignored. At least that’s how I remember it.
Summary: The alleged corruption is not supported by the evidence in Swartz v PATO. There are two clear paths to LENR patents:
1. Do not claim energy production as a primary claim. Do not claim some theory of operation, particularly do not claim “fusion.” Notice that the Forsley patent claims to generate “particles,” which would be evidence of nuclear reactions, but not of practical levels for energy production (and the approach is electrolytic, unlikely to be useful for energy production.) The Davis patent does not claim fusion or nuclear process, but rather the use of the device for investigating possible reactions.
2. If a patent application must assert energy production or fusion, then be prepared to produce strong evidence of utility, not merely some experimental results. Reliability is essential. It is not possible at this time to patent LENR devices for energy production based only in an idea, not actually reduced to a practical device. That deviates from practice in many other fields, but is not illegal discrimination.
Update: Memicry
Pretending to be what one is not can be dangerous to your health. Dr. Swartz has used this meme on Cold fusion times:
Searching for the original, I came across many kangaroo court images, such as the following, which portrays what would likely have happened if Mitchell had survived the Motion to Dismiss and he actually went before a jury:
The full video is about racism and is a brilliantly produced music video:
Not very long ago, it could be a fatal mistake for someone of the “wrong race” to merely talk with someone of another “wrong race.” Dressing yourself up in a mustang and changing the appearance of your face doesn’t make you a mustang, if you are actually a zebra.
if you are a zebra, be proud! Faced with what can seem unfair — or may actually be unfair — doesn’t allow misrepresentation of reality, and Mitchell did this in his pleadings, and it was obvious to the court. He was not lying, but being quite careless of the truth, and he’s continuing it on his web site.
The simple reality for patents is that any patent that claims cold fusion or nuclear fusion from chemistry, for the production of energy, is going to be challenged as likely to be unworkable. To survive that challenge, the inventor must show more than is normally required for a patent, absent such a claim.
(This  is a general principle for anything deemed impossible — which really must be understood as “unlikely,” an “extraordinary claim,” requiring “extraordinary evidence.” This did not begin with cold fusion.)
It is still quite possible to patent cold fusion inventions, and patents have been issued, but there are obvious pitfalls to be avoided, and Swartz did not avoid them.
The error was common in many early patents, including some skillfully prosecuted, but Andrea Rossi, ironically, showed how to move beyond that (and his attorney may have learned from others who have also obtained patents).  His first patent claimed nuclear energy and mentioned “cold fusion,” but he filed a new patent that made no such claim, it only claimed heat, not making a quantitative claim, and not running into the old prejudice. The old patent is still caught in the machinery and I predict it will ultimately die. The new patent was approved, Rossi was very proud of that.
Now, Mitchell also filed new patents, but then claimed priority from his very old filings, which then caused the old claim (useful for creating nuclear fusion!) to be incorporated in the new, thus suspicion of non-utility and non-operability would continue to attach to them, and it did.
Mitchell, as well, made contradictory argument: he cited evidence for cold fusion as if this related to his invention, while at the same time attempting to deny he was claiming cold fusion. Very tricky. Not a job for someone acting pro se, unless that person were willing to learn from his own mistakes and those of others. The examples are out there, and he had been strongly instructed by previous Appeals Court decisions as to what not to do, but he did the same things anyway, deja vu all over again.
This case is definitely not to be presented as representing the community opinion about Mitchell and his patents and the dismissals. As Mitchell has been presenting it, it will mislead many and can cause harm in two ways: first, it can make the community look exactly like what the pseudoskeptics claim, a collection of die-hard conspiracy theorists, thus also discouraging, to some extent, examination of the scientific evidence for cold fusion (which the court considered irrelevant to its decision, and that appears correct to me as to law).
As with our common response to the DOE Reviews of 1989 and 2004, what were actually “not proven yet” reviews — much more so in 1989 than in 2004, where the result was more like “interesting, may be real, but more research is needed, massive program not yet justified” (which is my position and also that of DARPA and DIA in the reports Mitchell presented, apparently. By attacking those reviews, when they were overall reasonable — even though mistaken in some ways — we made ourselves look reactive and attached to belief. A more productive response might have been to thank the reviewers for their work and then hold the DOE’s feet to the fire for actually implementing the recommendations of both reviews. After all, more research was a total and real consensus in 2004. Don’t we agree with that?
Secondly, it also generates some level of doubt about Mitchell’s own scientific claims. If he can so badly misrepresent process fully shown in verifiable records, why would we trust his probity in presenting scientific evidence from his own research?
Nevertheless, there is quite good reason to suspect Mitchell has ideas and inventions of interest, and the same with experimental results. However, as with his inventions before the PATO and the court, he may exaggerate and cherry-pick evidence, his analysis may be suspect and self-serving. Not uncommon, and this is why we have peer reviewers and other analytical processes, and we need more of that, much more.
I am suggesting, in general, with all work in the field, that it be very carefully and thoroughly reviewed and critiqued, and where claims are of interest and import, that confirmation and ultimately fully-independent verification be pursued. We have too much primary evidence, already, and too little that is clearly and unmistakably confirmed. Such does exist, but can also still be improved as well as extended.
This is an issue with possible lost opportunity cost from delay of a trillion dollars per year. It’s worth finding out how to do it right.
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