Publication of a further, 3rd, International Patent Application by Francisco Piantelli – Part I

The following is a further posting in a series of articles by David French, a patent attorney with 35 years experience, which will review patents of interest touching on the field of Cold Fusion.

This will be a two-part outline of a recently published patent application originating from Francesco Piantelli. The first part will address the content of the disclosure of the application. The second part to follow shortly will address the scope of patent coverage apparently being sought.

The two prior Piantelli PCT applications

A third International Patent Application has been published naming Francisco Piantelli as an inventor. The first occurred in 1995 as International Application PCT/IT95/00008 entitled: Energy Generation and Generator by Means of Anharmonic Stimulated Fusion, filed August 3, 1995. This application was assigned to Francesco Piantelli, Sergio Focardi and Roberto Habel. The application addressed the fusion of hydrogen and deuterium absorbed on a metallic core that has been heated to above the Debye temperature for the core. The reaction in this disclosure is initiated by vibration and maintained by “a coherent multimodal system of stationary oscillations.” The 1995 International Application was eventually abandoned without issuing to a patent.

Notwithstanding the abandonment of this filing, these three individuals, or at least Piantelli and Focardi, should probably be credited with having pioneered research into nickel-hydrogen systems as a source of LENR effects.

A second application appeared in the Patent Cooperation Treaty system – PCT in 2010. This second application was addressed in an earlier posting of ColdFusionNow. The corresponding Canadian national entry filing to this PCT filing is available here.

The present, third, Piantelli PCT application

This present ColdFusionNow posting addresses the third International Application PCT/IB2012/052100 naming Piantelli as the sole inventor and published under the PCT on November 1, 2012 PCT. Key data on this filing obtained from the World Intellectual Property Organization – WIPO PCT website is as follows:

International Application No.: PCT/IB2012/052100
Inventor: Francesco PIANTELLI
Assignees: Silvia PIANTELLI, Alessandro MEIARINI, Leonardo CIAMPOLI, and Fabio CHELLINI, all of Italy.
Title: Method and apparatus for generating energy by nuclear reactions of hydrogen adsorbed by orbital capture on a nanocrystalline structure of a metal
PCT filing date: April 26, 2012
Original Italian priority filing date: April 26, 2011
International classification : G21B3 – physics, nuclear physics/nuclear engineering, fusion reactors, low-temperature nuclear fusion reactors, e.g. alleged cold fusion reactors

Summary of the disclosure: Power is generated by contacting hydrogen with the surface of cluster-nanostructures, e.g. crystals, of a transition metal, at a determined process temperature, by which the following process occurs. An orbital capture reaction of negative hydrogen ions, H- ions, is effected by the clusters followed by a nuclear capture reaction by the atoms of the cluster which is triggered by impulsively acting on the primary material to generate heat (Q1). A secondary material such as Lithium and/or Boron and/or a transition metal such as 232Th, 236U, 239U, 239Pu is positioned within a predetermined distance from the clusters of the primary material facing the primary material. This secondary material interacts with energetic protons that are emitted by/from the primary material and release secondary reaction heat (Q2). This secondary heat is in addition to the primary reaction heat. The heat produced is regulated by adjusting the separation of secondary material from the primary material. (This summary is a paraphrasing of the Abstract accompanying the application.)

The drawings as published in association with this application may be found at the PCT website . While the text of the words of the patent disclosure are available through a hyperlink on the top of the primary PCT page through the link labeled “Description”, in order to see the drawings it is necessary to first link to “Documents” and then link to “Initial Publication with ISR” in order to view all of the Figures. It may be necessary to choose the “download” version in order to view the PDF document.

The actual process occurring by which heat is generated is described more fully in the disclosure accompanying the application and referenced as “Description”. It involves:

– on average there must be at least 109 clusters/crystals per square centimeter of surface
– hydrogen, interstitially adsorbed at the grain boundaries and microfractures of the clusters, are of no importance for the purposes of orbital capture of negative hydrogen ions
– in the course of hydrogen capture, the negative hydrogen ions are transformed into protons
– nucleus capture of a proton causes transmutation, e.g. nickel transmutes into copper
– protons which fail to be captured are expelled with an energy of 6.7 million electron volts, verified by cloud chamber experiments
– subsequent atomically re-emitted protons can react with the adjacent secondary material, e.g. lithium, to produce nuclear transformations, e.g. converting lithium into beryllium and/or releasing helium as alpha particles having energies on the order of 4 – 17 million electron volts
– re-emitted protons can also react with boron to produce beryllium, carbon and/or helium, releasing energy on the order of 1-16 million electron volts
– alpha particles may react with boron to produce nitrogen and 19 million electron volts of energy
– alpha particles may react with nickel to be transmuted into the zinc, releasing 3-5 million electron volts of energy
– the secondary nuclear reactions arising from re-emitted protons can generally double the amount of heat being produced over that arising from the initial proton capture
– the amount of energy arising from the secondary nuclear reaction can be varied/controlled by adjusting the separation gap between the primary and secondary materials

This Description is well worth reading.

It is to be appreciated that these are assertions that have been made by the applicants in this application and do not necessarily reflect what is actually able to occur in the host material. If the assertions of utility are untrue or the procedures for generating energy are insufficiently described, then no valid patent can issue from this application.

For example, the setup as described does not appear to be critically dependent on the degree of hydrogen loading in the primary transition metal. The closest reference appears to be: “The primary reactions, both internal and external, globally occur generating a primary reaction heat, which is the heat that can be obtained according to the method described in WO2010058288,” This is a reference to the second PCT application published in 2010. The procedures of that application are adopted by reference, which is permitted. That application addresses the hydrogen loading ratio in the following terms: “Advantageously, the concentration of H- ions with respect to the transition metal atoms of said clusters is larger than 0,01 , to improve the efficiency of the energy production process. In particular, this concentration is larger than 0,08.” Accordingly, neither of these two references teach the use of a metal substrate which has a substantial hydrogen loading ratio, e.g. on the order of 0.7:1 or higher, as an essential condition for an LENR event to occur.

Additionally, there is no discussion of the effect of the conduction band within the transition metal which forms the clusters. There are a number of clear questions of physics to consider when reviewing this disclosure.

This concludes Part I. Part II will address the scope of patent coverage that this application aspires to achieve.

Cold Fusion Symposium at Williamsburg LENRS-12 1-3 July, 2012

The following is a further posting in a series of articles by David French, a patent attorney with 35 years experience, which will review issues of interest touching on the field of Cold Fusion.

This posting is about an event that occurred over the week of the Fourth of July celebrations. It is not an attempt to report on the science or physics presented on this occasion, but rather to remark on the special atmosphere that exists when proponents and researchers in the Cold Fusion field gather to address their favorite topic.

Over July 1-3, 2012, a group of some 40 to 50 Cold Fusion researchers and advocates assembled for a Symposium held at the University of William & Mary in Williamsburg, Virginia. The title of the event was: International Low Energy New Nuclear Reactions Seminar, ILENRS-12. The object was to exchange experiences and knowledge in the Cold Fusion field. The list of attendees was impressive. Included were: Beverly Barnhart (DoD); Jean-Paul Biberian (CINaM, France); Dennis Bushnell (NASA, LRC): Peter Hagelstein (MIT); David Nagel (GWU); Mike McKubre (SRI International); George Miley (UIll) and Mahadeva Srinivasan (BARC- retired, India), as well as many other significant participants in the field.

I arrived early, driving down from Ottawa, Canada, and was therefore sufficiently rested to attend the Sunday night, July 1, opening event: registration combined with a cocktail reception on the William & Mary campus. This was an important initial gathering which was attended by almost everyone.

From the very beginning there was a feeling of camaraderie and egality in the air at this event. While not a Solvay Conference, the importance of the subject and the potential for imminent breakthroughs that might be shortly occurring was in the air. Everyone had a sense of anticipation that perhaps someone amongst the gathering might one day be a Nobel Prize winner.

These opening social exchanges are an important part of any conference event. With only 40 – 50 participants, 10 or so of whom were to be presenters, the atmosphere was very collegial. People assembled in groups of two, three and four, changing circles every 15 or 20 minutes. Everyone present was entitled to listen-in with a certainty that if you stood by for a minute or two you would be find yourself being introduced all round and accepted into the discussion. From that moment on you would be judged by your sharing of intelligent observations and your attentive listening. There was no expectation that you would be a serious expert in the field. Everyone was there to learn.

The next day opened with short introductory remarks followed immediately by presentations by Beverly Barnhart from the Department of Defense, essentially present as an observer, and then by Dr Peter Hagelstein of MIT. Peter is continuing to carry the torch for the original Pons & Fleischmann premise that deuterium atoms can be fused together in a condensed matter environment to form helium without producing high-energy particles or electromagnetic radiation. Peter reported that he is getting close to a mathematical model which would allow direct coupling of the energy from excited atomic nuclei to be transmitted to an adjacent crystal lattice. This could help explain the “miracle” of the absence of high-energy particles or electromagnetic radiation.

Further presentations followed from George Miley who reported on the detection of ultra-high-density hydrogen/deuterium nano-clusters in metal defects; Liviu Popa-Simil who reported on his concepts for a fusion-based battery; Denis Bushnell who summarized initiatives at NASA to study the LENR phenomenon; Mike McKubre commenting on the results of exploding fine nickel wires that have been loaded with hydrogen and deuterium and others who names will eventually be provided, as well as the content of their remarks, in the report on the Symposium.

It was clear by the end of the first day of presentations that there is still no clear theory yet to explain the phenomena of “unexplained excess energy – UEE”. There were no extensive references to the Widom & Larsen theory of electron capture, with the focus being more directed towards experimental data and alternate ideas rooted in a fusion phenomenon.

After the first day’s presentations, everyone was transported by bus to the site of Yorktown on the peninsula between the York and James Rivers where General Cornwallis surrendered his British Army to the encircling French and American armies commanded by George Washington. The noise level from talking in the bus on the way out was incredible. This evening dinner event by the river provided another social occasion for people to discuss face-to-face the questions that concerned them most, and share what they could contribute to answering other people’s questions. The noise level in the bus on the return was quieter, but lots of people were still talking.

The format for the second day was, after a few presentations, a series of moderated panels in which the panelists responded to questions put to them by the moderator, or raised by the audience. The effect was in keeping with the overall objective of the entire event, to address people’s concerns and help everyone better understand what has been achieved in closing-in on the mystery of Cold Fusion, or UEE.

The best part of an event of this character is that the contributions of speakers was generously given and warmly received even though the presentations may not have been perfect. Nobody provided a report that some great breakthrough had been achieved. Great leeway and forgiveness for imperfections can always be expected when the content has potentially great value. This is not to say that the presentations were deficient. The questioning was polite and an air of geniality, graciousness and polite behavior permeated the room in which an intense desire to understand was a commonly shared objective.

Some of the arcane information shared was that permeability of Palladium containing silver reaches a maximum at a silver content of 31% ; – would this be relevant to enhancing the prospects for precipitating an UEE event? And an even more arcane observation made was that the power output in the core of the Sun is less than 1 milliWatt per cubic centimeter. This observation invoked generous laughter when it was combined with the declaration that, by comparison, contemporary Cold Fusion researchers are achieving “stellar results”.

(Support for this reality can be found in this document: CPEP: Online Fusion Course , referenced in Wikipedia, here. This figure is also supported by NASA data on the energy output of the Sun obtainable from the Marshall Space Flight Center website on solar physics.)

The reality is that the Sun is not a perpetually exploding hydrogen bomb or even a furnace of unimaginable magnitude. It is a heat-containing body that has had 4.5 billion years exposure to a trickle of core-generated energy that will not stop but which takes a long time to work its way out through the 700,000 km trip to the Sun’s surface. There are many more cubic centimeters of volume in the core of the Sun than there are square centimeters of Sun surface area to radiate this energy. This explains the Sun’s apparently modest power output on a cubic centimeter basis. Cold Fusion researchers by comparison truly are achieving stellar performance.

I personally gave a short presentation on Patents and Cold Fusion, making the point that a patent will not be available for the person who eventually provides the theoretical explanation for this phenomenon. They may qualify for a Nobel Prize, but a patent requires the identification of an apparatus or arrangement which produces a useful result.

Many patents are being filed for Cold Fusion and the US PTO as a matter of policy is requiring applicants to demonstrate that the promised results can be produced by following the instructions provided in the patent applications. I was challenged to identify a case where such evidence was successfully presented, resulting in a patent issuing in this field. I could not answer the question directly and now have my homework set out for me. I will now have to read some several dozen of the patents that I have referred to in my earlier postings as being classified under “nuclear fusion”. When I find such a reference, I will definitely share the results with everyone.

More on USPTO reluctance to patent Cold Fusion

The following is a further posting in a series of articles by David French, a patent attorney with 35 years experience, which will review patents of interest touching on the field of Cold Fusion.

On the eternal issue of concern for Cold Fusion fans: Why the US Patent Office is reluctant to issue patents in this area, I have been referred a link to the following article: Cold Fusion & Patent Office. This article by Hal Fox, President, Fusion Information Center is dated August 8, 1999 and reports on an investigation being carried out by Special Agent Kimberlee Taylor of the Office of the Inspector General, Commerce Department. Apparently this lady was assigned to investigate complaints that the Patent Office was rejecting patent applications for Cold Fusion, or low-energy nuclear reactions, as a matter of general policy.

The article identifies believed sources of resistance to this new technology and ends with a plea for readers to: “WRITE THE MEMBER OF CONGRESS FROM YOUR DISTRICT AND BOTH SENATORS FROM YOUR STATE” and copy Ms Taylor.

It is apparent from a short reading that this reference is from somebody who is greatly in favor of, and believes in, Cold Fusion technology. No matter how sincere that belief was in 1989, we are now 23 years later and still have not seen a solidly recognized commercial demonstration of a working Cold Fusion apparatus. This is actually a consideration in addressing the policies and behavior of the United States Patent Office.

Before leaving this document it is apparent that it was written by someone who has a prejudice in favor of the granting of patents. The following statement made in the document is a telling indication:

“The big issue is the denial to U.S. inventors of their constitutional rights to the protection of their inventions!”

There is no “constitutional right” for inventors to obtain protection for their inventions. The U.S. Constitution grants powers to the Federal Government to create exclusive rights under the terms and conditions that the Federal Government chooses to impose. Article 1, Section 8(8) of the U.S. Constitution states:

“The Congress shall have power…To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”

The Constitution does not create a right to obtain a patent. The Constitution creates a power in the Federal Government to grant patents on such terms as the Federal Government sees fit.

Quite rationally, the Federal Government does not want to be issuing patents for things that do not work. The problem is that persons can file for patents and if the patent is granted, members of the public may assume that this is an endorsement that the invention works. This is far from the truth.

In the case of most patents, the Examiner does not question whether the invention will work. The Examiner does not question whether the claims made in the application as to the usefulness of the invention under various conditions are all true. An applicant may file for a glue that it alleges will hold a car attached to a cable 10 feet above the ground. Perhaps the statement is true if the car is some micro-vehicle. But it might not be true if the car is standard weight. The Examiner never gets into arguing with the applicant whether these kinds of statements are true.

In all cases, the Examiner is concerned whether the exclusive rights that the applicant is requesting will interfere with anything that was previously available to the public. This is the Golden Rule of patent law. A patent may not issue for anything that was previously “available to the public”. This phrase includes not only everything that was disclosed or done before, but also includes obvious variants on all such things. Obvious variants are in the class of things previously “available to the public”. Collectively, this summarizes the famous novelty standard of patent law.

While Examiner’s focus on this novelty issue in reviewing every patent application, only in a few cases do Examiner’s undertake to question whether the statements of usefulness made in a patent application are true. In the case of perpetual motion machines, applicants are asked to file proof that their invention works. Filing a working model would be totally acceptable. This class of invention is so clearly impossible that it would be an embarrassment to the Patent Office to issue a patent for such technology.

Patents addressing Cold Fusion issues are a little different, but are treated in the same way as patents applications that purport to deliver a perpetual motion benefit. The Examiner does not refuse the application. He says to the applicant: “Prove it”; and then gives the applicant an opportunity to file papers by way of proof.

The above referenced article mentions 35 pounds of paper filed by Dr Mitchell Swartz in order to support his application to obtain a patent in the Cold Fusion field. Both the Examiner handing the Swartz filing and the Board of Appeals in the US Patent Office did not think that these 35 pounds of paper proved that the arrangement presented by Mitchell Swartz worked in accordance with his representations. Therefore they refused to grant him a patent. Perhaps they were wrong, but it would take a major effort to sort it out.

Mitchell filed an appeal to the Court of Appeal for the Federal Circuit. It is not the job of this Court to review 35 pounds of paper and they said as much in dismissing this appeal. They only look to see whether the Board of Appeals at the US Patent Office made a mistake in principle or were outrageously irresponsible. They ruled that Mitchell Swartz had not shown them that his situation fell into any of these two categories. Therefore they rejected his appeal to the Court.

This scenario has occurred repeatedly before the US Patent Office. Applicants can say almost anything they want in a patent application, but they have to accept the consequences. The claims have to pass the novelty test. And in respect of certain classes of invention, the Patent Office insists that evidence be filed demonstrating that the application passes the utility test and the sufficiency of disclosure test. The latter test requires that the patent application tell others how to achieve the benefits of the invention.

Try and see this situation from the viewpoint of the US Patent Office. Up until 1836, patents were granted without any review whatsoever, whether they were new or not. They could be canceled before a Court if they were not new. But people would actually go to the Patent Office, copy an existing invention, file for a patent on that same invention and obtain a certificate signed by the President of the United States stating that they had obtained a patent. They would then go out and pressure manufacturers who apparently infringed the claims of these patents, demanding licenses on the threat of forcing such companies into litigation. This was very oppressive. This is the reason why in 1836 the United States Patent Office was established with a mandate to carry-out an examination procedure.

Here is the danger. Today, if a company were to obtain a patent purporting to cover a Cold Fusion technology, i.e. a patent representing that its special procedures could produce unlimited amounts of energy, electricity, etc., through a low-temperature fusion effect, then many investors would buy shares in the belief that the issuance of a patent was evidence that the technology was true. In a sense, the US Patent Office might be in a situation where they are facilitating a fraud. In the case of Cold Fusion technology, as well as perpetual motion machines, the USPTO has drawn a line. If you wish to address these types of technologies, then they say that you have to prove that your invention works.

Is that so unreasonable?

David French is a retired patent attorney and the principal and CEO of Second Counsel Services. Second Counsel provides guidance for companies that wish to improve their management of Intellectual Property. For more information visit: www.SecondCounsel.com.

David French is prepared to address questions included as commentaries to any of his postings or bydirect email. In particular, he would like to learn what people need to know in order to better understand patents.

Patenting Cold Fusion technology – Navigating Patent Office Classification – Part 2 –

The following is a further posting in a series  of articles by David French, a patent attorney with 35 years experience, which will review issues of interest touching on the field of Cold Fusion.

As a preliminary matter, I have been asked why I am doing these postings.  I have a message.  That message is: 

“Patents are a vast resource for learning about what is going on.  Read them.  Understand them.  And you will make better inventions yourself.”

The present posting continues with that objective.

In Part 1 of this posting we examined how Cold Fusion applications and patents are classified under the traditional United States patent office classification system.  Patents are also classified by another system, extensively in use in Europe and elsewhere and also used as a secondary classification system within the US patent office.  This is the system of the International Patent Classification – IPC sponsored by the World Intellectual Property Organization – WIPO in Geneva. WIPO is the same organization that operates the Patent Cooperation Treaty – PCT.

Currently, US patents are simultaneously classified both under the US classification system and under the IPC.  This has not been true in the past, but it is true today.  And through back-classification, US patents from about 1902 onwards are now also classified under the IPC. 

The IPC is an intuitively designed method for classifying inventions. The first number of the class is always a letter of the alphabet that corresponds to one of the following:

International Patent Classification 

Section A — Human Necessities

Section B — Performing Operations; Transporting

Section C — Chemistry; Metallurgy

Section D — Textiles; Paper

Section E — Fixed Constructions

Section F — Mechanical Engineering; Lighting; Heating; Weapons; Blasting

Section G — Physics

Section H — Electricity 

The section that concerns us is: G-Physics. Subsection and further subsections that concern us are: 

G21

NUCLEAR PHYSICS; NUCLEAR ENGINEERING

G21B

FUSION REACTORS (uncontrolled fusion, applications thereof G21J

 G21B 3/00

Low-temperature nuclear fusion reactors, e.g. alleged Cold Fusion reactors [8]

(enter the subclass on the IPC Home page in the left-side box under “Current symbol” to view subclass)

In the case of the IPC there is an actual category for a “low-temperature nuclear fusion reactor”.  The full classification code is: G21B 3/00.  With this code, searches for patents can be carried out in various patent offices around the world.  Here are some results for searches at the European Patent Office – EPO.

 EPO Search 

In the EPO there is a single database that includes both applications and patents.  A document that contains the letter “A” in its reference number relates to an application.  A document that contains the letter “B” in its reference number refers to an issued patent.

Searching in the EPO patent and patent application database using the IPC classification G21B3/00 (on the date of this search, May 15, 2012) as the search term produces 93 results.   Here  is the resulting list of viewable documents identified in the search.

We can carry out this search a second time combining the specific class with additional terms.  Here are the results when searching for the combination of:  “Cold Fusion” in the full text of a document and G21B3/00 as the IPC classification – 12 results found.  Here are the results of that search.

It is pretty clear from these search results that the European Patent Office is at least receiving applications that are directed to Cold Fusion related inventions.  Due to the delays in examination that can amount to 4, 5 and 6 and more years, few of these applications have issued patent.  (An issued patent has a number with B-in-a-bracket following.)  But it is often advantageous for an applicant to have the actual grant of a patent delayed.

IPC searching at the US PTO

Returning to the US patent office, searches can be done amongst pending applications and issued US patents using the IPC classification system.  Here are some of the results on the patent side, done around May 15, 2012:

USPTO Search

Results of Search in US Patent Collection db for:
ICL/G21B3/00: 31 patents.

Results of Search in US Patent Collection db for:
(ICL/G21B3/00 AND fusion): 23 patents.

Results of Search in US Patent Collection db for:
(ICL/G21B3/00 AND “Cold Fusion”): 19 patents.

Results of Search in US Patent Collection db for:
(ICL/G21B3/00 AND “excess heat”): 15 patents.

 Results of Search in US Patent Collection db for:
((ICL/G21B3/00 AND “Cold Fusion”) AND “excess heat”): 12 patents.

 The above searches were done amongst issued US patents using the IPC classification system.  Here are some of the results on the application side:

Results of Search in AppFT Database for:
ICL/G21B3/00 and “Cold Fusion” and “excess heat”:   7 applications.

And here is an actual list of pending applications that meet the above search criteria:

PUBLISHED APP. NO.                                             Title

1.  20120069945 INTERACTIONS OF CHARGED PARTICLES ON SURFACES FOR FUSION AND OTHER APPLICATIONS 

2.  20110142183 Multiring apparatus and method to measure heat released by a sample loaded with hydrogen 

3.  20100303188 Interactions of Charged Particles on Surfaces for Fusion and Other Applications 

4.  20100195780 Apparatus and process for thermal gradient-driven metal catalyzed fusion reactor 

5.  20100008461 Cold Fusion apparatus 

6.  20090122940 LOW TEMPERATURE FUSION 

7.  20080205572 Apparatus and process for generating nuclear heat 

(Hyperlink access to these applications is available here.)

While the titles provide some indication of the content of the documents, the above results do not necessarily mean that these patent applications actually address Cold Fusion.  It only means that this term or phrase was used somewhere in the document, along with “excess heat”. They have, however, been classified by a classification examiner in International Class G21B3/00.

Furthermore, even if a patent issues on any of these applications, this does not mean that a useful process for delivering unexplained excess heat has been described.  Many times examiners choose not to challenge an applicant to prove utility.  It is possible to file a patent application that is totally erroneous, and sometimes it will slip through, surprisingly, more often than not.

Additionally, if a patent application describes a process that could possibly be useful to provide excess heat through Cold Fusion, but only claims a collateral arrangement which is apparently operative, then the patent will issue.  This is because the patent is not directed to controlling the generation of heat through Cold Fusion.  Patents are classified according to what they claim.

 Where is the breakthrough patent?

 Almost certainly many other patent offices around the world have been receiving applications relating to Cold Fusion. Most of these applications will eventually be paralleled at the US Patent Office. These applications may describe a valid process, or not.  Anyone can search and review such documents once they are laid open to the public.  If anyone has filed an absolute winner patent application that describes how to make it happen, we would almost certainly know about it once 18 months have passed from the original filing date.

 Most countries in the world allow private research to be carried out notwithstanding the existence of an issued patent.  Furthermore, applications cannot be used to disrupt even full-out commercialization up to the point when a patent is granted.  Once a patent issues, compensation can be required for pre-grant use, and an injunction may issue.  But with some 150 countries around the world, it is unlikely that any person obtaining a controlling patent in the field of Cold Fusion will be able to shut-down everywhere the exploitation of the knowledge provided in a patent application that describes a working process.  This is just as true concerning Cold Fusion as it is true concerning the alleged 100 mile per gallon carburetor.

 Accordingly, there is good reason to believe that the breakthrough knowledge to solve the Cold Fusion riddle and provide the world with its stream source of energy has not been addressed in a patent filing, unless it is amongst those applications still pending in their 18 month secrecy period..

 

Patenting Cold Fusion technology – Navigating Patent Office Classification – Part 1 –


This posting is being republished with hyperlinks.

The following is a further posting in a series of articles by David French, a patent attorney with 35 years experience, which will review issues of interest touching on the field of Cold Fusion.

Following the April 23, 2012 posting on ColdFusionNow one of the commentators observed as follows:

“The US Patent Office has become a grave yard for “Cold Fusion” applications. I wonder what would happen if the ‘powers that be’ anoint one particular LENR application. ………. Frankly, it is hard to believe all the LENR patents are failing to pass US Patent Office muster due to failure to prove that the device works as promised.”

There seems to be a widely held impression that the US Patent Office is refusing to granting patents relating to Cold Fusion devices. This is both true and not true. Here is the background.

There is actually a class in the US patent office classification system for inventions that relate to Cold Fusion. Here it is:

Class 376 INDUCED NUCLEAR REACTIONS: PROCESSES, SYSTEMS, AND ELEMENTS
Subclass 100 NUCLEAR FUSION

– pending applications in AppFT Database for CCL/”376″/100: 79 applications.– issued patents in US Patent Collection db for CCL/376/100: 65 patents.
(Searches done May 29, 2012)

A review of these applications and patents will show that most do not all relate to Cold Fusion. Here are the results obtained by adding “Cold Fusion” as a search term:
Subclass 100 NUCLEAR FUSION

– applications in AppFT Database for CCL/”376″/100 and “Cold Fusion: 21 applications.
– patents in US Patent Collection db for CCL/376/100 and “Cold Fusion”: 27 patents.

However “Cold Fusion” does not appear in any of the claims of the referenced patents. It does appear in the claims of 2 of the referenced applications:

PUB. APP. NO. Title
1. 20100008461 Cold Fusion apparatus Inventor: Hodgson; John Andrew; (Safety Harbor, FL)
2. 20070140400 Cold Fusion apparatus Inventor: Hodgson; John Andrew; (Safety Harbor, FL)

The first, later application published in 2010, replaces the earlier application which was abandoned. Neither of these applications have been examined to the point of being allowed to issue as a patent.

Of the 27 issued patents containing the word “Cold Fusion” it is apparent even just from the titles that they do not necessarily relate to that field precisely. For example, the reference to:

United States Patent 6,024,935 issued to Randall Mills et al. on February 15, 2000 and entitled
“Lower-energy hydrogen methods and structures” only refers to “Cold Fusion” in the list of prior art documentation.

Leaving Class 376 for the moment to identify other patents, US patent 7,893,414 entitled ” Apparatus and method for absorption of incident gamma radiation and its conversion to outgoing radiation at less penetrating, lower energies and frequencies” issued to Lattice Energy LLC (Chicago, IL) on February 22, 2011 on an invention by Lewis G. Larsen of Chicago, IL and Allan Widom of Brighton, MA This patent is not classified as being directed to Cold Fusion technology. The abstract of this patent reads as follows:

Abstract

Gamma radiation (22) is shielded by producing a region of heavy electrons (4) and receiving incident gamma radiation in such region. The heavy electrons absorb energy from the gamma radiation and re-radiate it as photons (38, 40) at a lower energy and frequency. The heavy electrons may be produced in surface plasmon polaritons. Multiple regions (6) of collectively oscillating protons or deuterons with associated heavy electrons may be provided. Nanoparticles of a target material on a metallic surface capable of supporting surface plasmons may be provided. The region of heavy electrons is associated with that metallic surface. The method induces a breakdown in a Born-Oppenheimer approximation Apparatus and method are described.

This patent was classified in US class 250 , subclass 515.1. US class 250 relates to “Radiant Energy”, and subclass 515.1 is defined as follows:

515.1 Shields:
This subclass is indented under subclass 505.1. Subject matter comprising means to absorb radiant energy not elsewhere provided for.

Subclass 505.1 in turn is defined as follows:

505.1 Radiation Controlling Means:
This subclass is indented under the class definition. Subject matter comprising means to modify, contain or eliminate at least some of the emanations or (or caused by, in the case of secondary emissions) a source of invisible radiation.

Accordingly, while the Widom and Larsen patent is very relevant to the field of Cold Fusion, as its claims are not focused on generating excess energy from a Cold Fusion effect, it has been classified elsewhere than US class and subclass 376/100.

Returning to Class 376/100, this Class is a catchall class for inventions that relate to nuclear fusion generally. Here is the subclass definition:

100 Nuclear Fusion
This subclass is indented under the class definition. Subject matter comprising structures and processes in which two reacting nuclei are combined to yield at least one nucleus having a greater mass than either of the reacting nuclei.
(1) Note. Subject matter of this subclass and of the subclasses indented hereunder may include, for example, reactions and methods including neutron generators wherein the neutron is a product of a fusion reaction, e.g., A D-T reaction.

(2) Note. Patents are included in this and indented subclasses even if there is failure of the system to actually obtain fusion if it is clear that the intent or aim of the patent is to obtain it.

(3) Note. Neutrons from an ionized or plasma system or reaction may be appropriately utilized or moderated to bring about or cause a fission-type nuclear reaction.

(4) Note. Energy or heat of a nuclear fission reaction system may be appropriately utilized to bring about ionization to plasma or fusion reaction levels.

Classifying Cold Fusion inventions in this class and subclass is really an act of despair. That category is very broad. Many dozens of further subclasses address particular cases of a nuclear fusion process. The higher subclass is only used if there is no existing more precise subclass. There is no US specific subclass for a Cold Fusion invention.

This specific subclass 376/100 presupposes that the nuclear reaction taking place is “two reacting nuclei are combined to yield at least one nucleus having a greater mass than either of the reacting nuclei”. Perhaps this event occurs in Cold Fusion, perhaps not. It may be that only neutron absorption occurs after neutrons are created, followed by fission. If that is what a patent application represents as occurring, then US Patent Office Examiners may hesitate to place such an application in Class 376/100. Nevertheless, this is where most Cold Fusion inventions based on increasing the mass of atomic nuclei are likely to be classified until a more specific subclass is created.

This ends Part 1 of this posting on patent classification as it relates to Cold Fusion. Part 1 has addressed the traditional classification system used at the US patent office. There is a separate classification system in effect in Europe. This is the “International Patent Classification” – IPC. Part 2 will address the treatment of Cold Fusion under the IPC.

More news on Brillouin Energy Corp Patent Filing

 

The following is a further posting in a series of articles by David French, a patent attorney with 35 years experience, which will review patents of interest touching on the field of Cold Fusion.

On April 23, 2012 I posted about a patent application publication number 20110122984 originating from Robert Godes and now owned by Brillouin Energy Corp. The Brillouin Energy website made reference to this pending patent application and so we reviewed Claim 1 of that application, observing on the unnecessary restriction to establishing: “current pulses through said core”. That shortcoming may never get corrected. We now have some more news about this patent filing.

On May 14, 2012 the US examiner responsible for this application issued a “Godes US patent office final rejection SN 12911586 14 May 12“. These are the letters sent from the Patent Office to the applicant advising whether the application is in good order to be allowed to advance to grant of a patent. Here is a copy of that Office Action.

This is a classic: “Prove it works” examiner’s rejection. The fact that it is labeled “Final” is not as serious as appears. For a further filing fee, examination can be re-opened and better evidence provided. However, this application has already gone through one cycle on this basis and the additional evidence that the examiner warned would have to be filed was not provided, at least that is the assessment of the examiner. A further attempt is nevertheless still possible.

The rejection is based on the premise:

“3. The declaration under 37 CFR 1.132 filed is insufficient to overcome the rejection of claims 1-3, 5, 6, I, 10, 19 and 21-29 based upon 35 USC 101 and 112 as set forth in the last Office action because: Declaration by applicant himself does not provide the requisite counter-evidence of utility and enablement: extraordinary claims require extraordinary evidence and substantiation. The Declaration does not provide such evidence as is necessary to render credible low energy nuclear reactions, particularly fusion reactions, given the overwhelming body of experimental data and theoretical arguments against fusion under circumstances well below the coulomb penetration barrier.”

And

“Simply stating that the concepts the inventor espouses are correct is not sufficient substantiating evidence. Sufficient substantiating evidence may be based on widely accepted scientific concepts (e.g. quantum nuclear physics, credible experiment), a working model, or supporting opinion in a widely respected and peer-reviewed publication (existing credible publications do not support optimistic applicants assumptions).”

This is the essential basis for the rejection. It is standard with respect to cold fusion applications at the US Patent Office. Section 101 of the US Patent Act stipulates that an invention must be useful. All patent laws around the world include this requirement. Section 112 of the US law further stipulates that a patent application must contain instructions on how to achieve the useful results as promised. Again, this is a standard patent requirement.

Apart from complying with the law, the US PTO probably wants to maintain respect for its patents as representing meaningful and useful information. They do not want to become a publishing house for bogus disclosures, although many patents do include bogus disclosures. There are one half million applications a year filed at the US PTO and only if you are challenged on the basis of the utility requirement are you required to file proof of utility. Apparently, management at the US PTO has singled-out cold fusion patent applications as well as perpetual motion machines for imposing an affirmative requirement that evidence of utility must be filed.

The rejection is also based on failure to describe how to build a working system (section 112). This is really the same objection: it does not work; therefore the description of how to make it work is not complete. At least that is the position of the examiner.

An applicant in this situation has the option of directly filing an appeal to the Board of Appeals and Interferences within the Patent Office. An appeal will probably take several years to resolve within the Patent Office and then another year or two if a further appeal is made to the Courts.

Note, however, that appeals are based on the record before the examiner. The purpose of issuing a “Final” office action is to establish that no further evidence in support of the application can be placed on file at the Patent Office while the “final” status is still in effect. You can buy your way out of this no-further-documentation limitation by paying a further filing fee to enter further material as of right. Without doing so, the appeal is based on the record of the file as before the examiner when the Final rejection issued.

The standard on the appeal is whether or not the applicant can established before the Board of Appeals that the examiner was wrong. Unfortunately, if there are reasons to expect that an invention lacks utility, then the burden is on the applicant to provide proof that the invention works and to thereby satisfy the examiner, or Board of Appeals on appeal, that the description of the invention is sufficient.

These are the standards that apply in respect of an appeal to the Board of Appeals. In respect of an appeal to the Courts, the only issue is whether the Board of Appeals acted outrageously inappropriately or misapplied a principle of law. These are hard standards to meet.

In this case Godes is represented by a well-established law firm, Kilpatrick Townsend & Stockton LLP of San Francisco. The attorney responsible, however, is not likely to be one of the partners. The actual professional handling this file should be able to estimate in advance whether or not the documents available for filing at the US Patent Office would be sufficient to meet the utility and enablement requirement that the examiner already warned he was going to impose on this application. In fact, any patent firm representing an inventor seeking to obtain a patent directed to “cold fusion” should issue a warning from the very beginning that the applicant will be expected to provide rock-solid evidence that the statements made in the application about what can be delivered in terms of benefits are true.

Additionally, the specification has to include all of the steps, just like the recipe in a cookbook, needed to achieve this useful result. If the latter standards are not met in the original filing document, then the application is doomed to collide with the policy manifested so clearly in this rejection.

The attorneys representing Robert Godes and Brillouin Energy have a penalty-free three months from May 14, 2012 to pay the required fee and file additional submissions, or appeal. Further extensions to reply of one, two or three more months may be purchased. If no reply or appeal is filed within six months from May 14, 2012, the application will become abandoned.

However, under US law, it is permissible to start the patenting application process over again by filing a “Continuation” application which will benefit from all of the filing dates of earlier applications so long as the filings overlap in time. This will buy considerably further time before the relevance of this application has been established authoritatively through the patent office system in the United States. If this route is pursued, Brillouin Energy will be able to continue to claim that they have a “patent pending” in respect of their technology. Robert Godes has already used this procedure previously when Profusion Energy, Inc. was the owner of the rights in this invention.

David French is a retired patent attorney and the principal and CEO of Second Counsel Services. Second Counsel provides guidance for companies that wish to improve their management of Intellectual Property. For more information visit: www.SecondCounsel.com.

David French is prepared to address questions included as commentaries to any of his postings or by direct email. In particular, he would like to learn what people need to know in order to better understand patents.

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