Category Archives: Patents

Analysis of Rossi US Patent 9,115,913 issued 25Aug15 Part 2

This is Part 2 of a multi-part commentary on the above patent, US 9,115,913 issued on an invention by Andrea Rossi. Part 1 may be found here.

Please note that Part 1 has been amended since posted to retract the earlier statement that patents for the same invention cannot issue abroad if the US patent is to remain valid. Rossi has followed a procedure at the USPTO that will allow foreign filings to be made without jeopardizing the validity of the issued US patent.

Claim Principles

A most important principle from Part 1 is that, to examine the scope of the blocking power of a patent, it is inappropriate to talk about the “invention”. That is too vague. The claims must be the focus. The words of a claim are words of limitation. If you are outside the scope of the words of a claim then you do not infringe. The words mean what the inventor apparently intended them to mean, according to the description accompanying the patent grant. The starting assumption is that words have meaning corresponding to their normal usage unless the description indicates otherwise.

The scope of this patent is no broader than the span of Claim 1. If a competitor builds an apparatus or arrangement that does not fit with the wording in Claim 1, taken in its totality, this patent will not be infringed. Practicing a patent exactly as it is claimed for the sole purpose of verifying that it works is not an infringement.

No one can ever patent “generating excess heat by LENR”. This idea has already been “made available to the public”. All that can be patented now are new, unobvious, configurations that work, i.e. deliver LENR heat. The validity issue with respect to the claims of this patent requires that the claims are restricted to describing only things that are new and unobvious.

A patent is infringed if a competitor builds an apparatus or arrangement that fits with the wording of any of its valid claims. If Claim 1 is infringed and valid, then no other claims need be assessed. If Claim 1 is invalid but describes an accused infringer’s activities, then the claims dependent from Claim 1 must be assessed.

Dependent Claims

The dependent Claims 2 – 10 are straightforward. Every dependent claim adopts by reference all of the limitations of the prior claims upon which they depend. This tends to reduce the scope for infringement. If a claim does describe an accused infringer‘s operation, then that claim, taking into account all of the limitations of the prior claims upon which it depends, must also be valid for infringement to occur. Validity assessment is a complex analysis that will only be partially addressed in a subsequent posting.

Before leaving the dependent claims, we may note that they additionally stipulate for the optional presence of, amongst other things:

• nickel powder as a “catalyst” (claim 2)
• nickel powder that has been treated to enhance porosity thereof (claim 3)
• said fuel wafer comprises a multi-layer structure having a layer of said fuel mixture in thermal communication with a layer containing said electrical resistor (claim 4)
• said fuel wafer comprises a central heating insert and a pair of fuel inserts disposed on either side of said heating insert (claim 5)
• said tank comprises a recess for receiving said fuel wafer therein (claim 6)
• said tank further comprises a door for sealing said recess (claim 7)
• said tank comprises a radiation shield (claim 8)
• said reaction in said fuel mixture is at least partially reversible (claim 9)
• said reaction comprises reacting lithium hydride with aluminum to yield hydrogen gas (Claim 10, dependent on claim 9)

Some of these claims are silly. For example Claims 6 and 7 hardly add an idea that could provide a missing inventive feature if the earlier claims were invalid. Other claims might, in circumstances where prior art has been found that knocks-out earlier claims, add something that would create a claim that is novel and nonobvious.

Microporous Nickel

Claim 4 addresses a configuration where the nickel is microporous. This feature is addressed in the disclosure as follows:

“Preferably, the nickel has been treated to increase its porosity, for example by heating the nickel powder to for [sic] times and temperatures selected to superheat any water present in micro-cavities that are inherently in each particle of nickel powder. The resulting steam pressure causes explosions that create larger cavities, as well as additional smaller nickel particles.”

No reference is made to RaneyTM nickel which is a standard for micro-porosity for this metal. RaneyTM nickel provides actual voids: see
Made by leaching-out aluminum from a solid solution of nickel and aluminum, there is always some residual aluminum present within the nickel structure after leaching is terminated. At high temperatures the aluminum will likely melt. For LENR purposes it may be desirable to use silicon-based RaneyTM nickel, if this can be obtained.

The original version of RaneyTM nickel was made by using an alloy of nickel and silicon. Any residual silicon can be expected to melt at a much higher temperature than aluminum. This original patent is exceptional for its conciseness and the broad scope of patent coverage that was granted – see claims at the end of the last above link.

Perhaps the process of “heating the nickel powder to [and] for times and temperatures selected to superheat any water present in micro-cavities that are inherently in each particle of nickel powder… [whereby] the resulting steam pressure causes explosions that create larger cavities” creates more than just microporosity. Surface conditions as hypothesized by Dr Edward Storms may be generated.

Hydrogen Generation

Claims 9 and 10 addresses a configuration wherein lithium hydride is reacted with aluminum to yield hydrogen gas, the reaction specified is said to be at least partially reversible (claim 9). The decomposition stages for Lithium Aluminum Hydride as acknowledged in the patent disclosure and described in Wikipedia are as follows:

“When heated LAH decomposes in a three-step reaction mechanism:

3 LiAlH4 → Li3AlH6 + 2 Al + 3 H2 (R1)
2 Li3AlH6 → 6 LiH + 2 Al + 3 H2 (R2)
2 LiH + 2 Al → 2 LiAl + H2 (R3)

“R1 is usually initiated by the melting of LAH in the temperature range 150–170 °C, immediately followed by decomposition into solid Li3AlH6, although R1 is known to proceed below the melting point of LiAlH4 as well. At about 200 °C, Li3AlH6 decomposes into LiH (R2) and Al which subsequently convert into LiAl above 400 °C (R3). Reaction R1 is effectively irreversible. R3 is reversible with an equilibrium pressure of about 0.25 bar at 500 °C. R1 and R2 can occur at room temperature with suitable catalysts.”

The third reaction R3 is said to be reversible. This is the situation as required by Claims 9 and 10.

We may guess why these features are important. Reactions R1 and R2 will, when the temperature is raised over threshold levels, release hydrogen into the confined interior between the outer steel plates. Note that reaction R1 is said to be effectively irreversible. This will cause the pressure of the hydrogen surrounding the nickel particles to rise. As the temperature rises reaction R3 will add more hydrogen, increasing the hydrogen pressure further. With increased pressure more hydrogen will either enter the lattice structure of the nickel particles or be adsorbed at sites which are active in generating excess heat. Presumably this increased pressure may induce and support an LENR reaction.

The possibility to generate hydrogen in a confined volume at pressures in excess of 1000 Atmospheres through chemistry is referenced in US patent 7,393,440. In this patent, assigned to the Research Council of Canada, aluminum as a cathode is confined a sealed volume with magnesium as an anode sharing a water-based electrolyte. The combination reacts galvanically to decompose the water and release hydrogen at potentially high pressures. This is an alternative hydrogen generation mechanism outside the scope of the Rossi claims.

Returning to the Rossi disclosure, since heat is being extracted through the surrounding water jacket, this may cool the nickel-hydrogen combination below a self-sustaining reaction level. The LENR reaction at lower temperatures may need the continued supply of heat to the nickel core to keep the reaction going. A thermal gradient between the nickel core and the water jacket may be needed to sustain the generation of heat.

Operating under these conditions the reversible character of reaction R3 may also provide a means to prevent thermal runaway. Hypothetically higher heat could release more hydrogen in a rising cycle if enough Lithium Aluminum Hydride were present. Conversely, a decline in the pressure of the reaction may cause the reaction to subside. This may be why the control mechanism is stipulated as an essential feature of Claim 1.

Claim 1 stipulates that Lithium must be present, independently from the Lithium Aluminum Hydride. The Lithium is not necessarily a reactant. It could simply be a reservoir to absorb hydrogen gas, once released, by forming LiH. The hydrogen could be released from the LiH in the “rejuvenation” process.

Please note that on points of the physics of the actual reaction these observations are speculations and should not be taken as being true without further confirmation.

This ends Part 2 of the analysis. There remains to address the validity of this patent and its claims in a further analysis.

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:

Analysis of Rossi US Patent 9,115,913 issued 25Aug15 Part 1

Part 1

Due to the length of analysis involved, this posting is divided into parts. This present part is Part 1. Reference to Part 2 is made here.

On August 25, 2015 a US patent issued to Leonardo Corporation on an invention by Andrea Rossi. This US patent, US 9,115,913, is part of a series of applications filed by Andrea Rossi variously in Italy, before the European and United States Patent Offices, and under the Patent Cooperation Treaty. However, this specific application, unusually, and not like the others, was filed directly before the US Patent Office by Andrea Rossi on March 14, 2012 using a new attorney. It was thereafter assigned to a company originally formed by Andrea Rossi, Leonardo Corporation, both of Miami Beach, Florida. Further assignments may have occurred, but they were not, as of August 25, 2015, available for review over the Internet at the United States Patent Office – US PTO.

The application leading to this August 25th patent was unusual in that it was not laid-open for public examination – “published” – as of 18 months from its earliest filing date, as is typical for virtually all countries around the world. This publication procedure applies even for the United States in respect of the bulk of American applications. Instead, the applicant in this case took advantage of a special provision in US law summarized as follows:

37 C.F.R. 1.213 Nonpublication request.

• (a) If the invention disclosed in an application has not been and will not be the subject of an application filed in another country, or under a multilateral international agreement, that requires publication of applications eighteen months after filing, the application will not be published under 35 U.S.C. 122(b) and § 1.211 provided:
o (1) A request (nonpublication request) is submitted with the application upon filing;
o (2) The request states in a conspicuous manner that the application is not to be published under 35 U.S.C. 122(b);
o (3) The request contains a certification that the invention disclosed in the application has not been and will not be the subject of an application filed in another country, or under a multilateral international agreement, that requires publication at eighteen months after filing; and
o (4) The request is signed in compliance with § 1.33(b).

Such a request was filed on Rossi’s behalf at the time of filing.

The following is a correction to what was published earlier on the prospect for foreign filings corresponding to Rossi’s US patent of August 25th, 2015, No 9,115,913.

There is a possibility, probably a likelihood, that Rossi patent applications have been filed outside the US for inventions disclosed in US patent 9,115,913. This would likely be in the form of an application under the Patent Cooperation Treaty.

Rossi filed a NonPublication request under 35USC122(b)(2) with his application when it was filed on March 14, 2012. But this section goes on to provide:

(ii) An applicant may rescind a request made under clause (i) at any time.

(iii) An applicant who has made a request under clause (i) but who subsequently files, in a foreign country or under a multilateral international agreement specified in clause (i), an application directed to the invention disclosed in the application filed in the Patent and Trademark Office, shall notify the Director of such filing not later than 45 days after the date of the filing of such foreign or international application. A failure of the applicant to provide such notice within the prescribed period shall result in the application being regarded as abandoned.

Rossi filed a letter at the US Patent Office on July 27, 2015 withdrawing the non-publication request.

The consequence is that Rossi may have, and probably has, filed corresponding patent applications in other countries as early as June 12, 2015. This could be done on a bulk basis using the PCT. Filings made earlier that that would invalidate the US patent.

All filings made from June 12, 2015 or later would be subject to the novelty requirements of the national laws of each country applied as of the actual filing date in each country. In Europe any disclosures prior to the local filing date would qualify as prior art. Canada, Australia, South Korea and prospectively a number of other countries will shelter applications for up to one year for “self-originating” disclosures that can be traced to the applicant.

The Lugano Report released in October 6, 2014 contained a speculation that at least part of the “fuel” in the Lugano apparatus consisted of Lithium Aluminum Hydride (page 28). Lithium was also included in the initial fuel mixture. Claim 1 in Rossi’s August 25, 2015 US patent specifies for a fuel that includes both Lithium and Lithium Aluminum Hydride. The claim also stipulates for a control circuit that reheats the fuel using an electrical resistor when the reaction needs “rejuvenation”. Dependent claims add further limitations.

It is an unresolved question whether Applications filed by Rossi in countries not providing a grace period will be able to survive exposure to the prior art. Even where there is a grace period, Rossi applications will be exposed to the disclosures of independent origin arising from others.

A filing, for example under the PCT, will not normally be published until 18 months from its filing dated. Therefore some time will likely pass before the extent of such filings is known.

Quality of the disclosure

Unlike other applications filed on behalf of Rossi, and indeed many patent applications filed around the world, the disclosure in this case is relatively short and to the point. This is a sign of good patent draftsmanship. The patent disclosure contains no discussion of theory. In fact, some readers will find this disappointing; but the reality is that it is not required for an inventor to disclose a theory supporting why an invention works. It is enough for the disclosure to provide sufficient direction to enable a skilled workman in the field to reproduce the useful results promised by the disclosure.

This patent has the signs of having been drafted by a particularly competent patent attorney. The preamble section under the titles Field of Disclosure and Background are about as short as you could ever expect. In fact, under Field of Disclosure the text simply provides: “This disclosure relates to heat transfer systems, and in particular to devices for transferring heat to a fluid.” The Background section that follows contains a mere 7 sentences divided into 2 paragraphs. Compare this with the bulk of US and other national patents that have extensive content in these sections. Elaborate content in these two portions of a patent disclosure is not required. What is key is to describe how to build something that is useful and then to identify the features of what is disclosed which are novel, inventive and over which the applicant wishes to obtain exclusive rights. Too few inventors ever understand these principles.

Before leaving this portion of the disclosure it is important to remark that these statements do not define the invention. They are not binding on the scope of the exclusive rights being granted. They are merely guidelines to get a reader started in reviewing the entire patent document. The “invention” for which the patent has been granted is defined in the one or more patent “claims” that conclude the patent document. The invention in this case is not about a novel arrangement for “transferring heat to a fluid”. The novelty that supports the validity of the patent claims resides elsewhere.

Further, the Summary of the Invention portion of the disclosure is not binding on the scope of monopoly established by the claims. It is the claims that count. However, in this particular case, the drafting attorney has simply used the text of the claims in order to generate the Summary of the Invention. A simple comparison will show that one is derived from the other. This is good patent practice.

The Patent Claims

A patent is all about obtaining exclusive rights. Those rights are defined in the “claims” which appear as numbered sentences usually at the end of the patent document. Each numbered claim is actually the completion of a preamble statement such as: “I claim” or, as in Canada, “The embodiments of the invention in which an exclusive right is claimed are as follows”. Each claim completes the preamble by listing elements which are interrelated in a specific way to define something that is new, something that has never before been “available to the public.” This last phrase can be understood to include any obvious variants on things explicitly previously available to the public.

A patent can have multiple claims restating the exclusive rights over and over again with more specific detail. As a convenient compressed mode, a 2nd claim can refer-back to an earlier claim thereby adopting all of its limitations. A dependent claim, such as Claim 2, may appear to be very short. However, it is longer than Claim 1 from which it depends since it adopts all of the limitations listed in Claim 1.

It is a basic principle that if a competitor does not infringe Claim 1 then they cannot infringe any of the claims dependent on Claim 1. Therefore, for infringement purposes, it may be sufficient to stop the analysis after reading Claim 1. If you do not infringe there is no need to go further.

On the other hand, if Claim 1 is infringed, then the only recourse for a competitor is to demonstrate that Claim 1 is invalid. If this were to be achieved, then the exercise must move to Claim 2, which may be valid, and which may be infringed, or not. Dependent claims that accumulate many limitations from prior claims have a higher probability of being valid, but a lower probability of being infringed. To avoid infringement, all a competitor has to demonstrate is that they do not use every element stipulated within the claim under consideration.

The Rossi Claims

The claims of this particular patent are relatively concise, and are listed as follows:

1. An apparatus for heating fluid, said apparatus comprising a tank, an electrical resistor, and a fuel wafer,

wherein said tank is configured for holding fluid to be heated,

wherein said fuel wafer is configured to be in thermal communication with said fluid,

wherein said fuel wafer includes a fuel mixture that includes reagents and a catalyst,

wherein said electrical resistor is in thermal communication with said fuel mixture and said catalyst,

wherein said resistor is configured to be coupled to a voltage source,

wherein said apparatus further comprises a controller in communication with said voltage source, and a temperature sensor,

wherein said fuel mixture comprises lithium, and lithium aluminum hydride,

wherein said catalyst comprises a group 10 element,

wherein said controller is configured to monitor a temperature from said temperature sensor, and, based at least in part on said temperature, to reinvigorate a reaction in said fuel mixture,

wherein reinvigorating said reaction comprises varying a voltage of said voltage source.

2. The apparatus of claim 1, wherein said catalyst comprises nickel powder.

3. The apparatus of claim 2, wherein said nickel powder has been treated to enhance porosity thereof.

4. The apparatus of claim 1, wherein said fuel wafer comprises a multi-layer structure having a layer of said fuel mixture in thermal communication with a layer containing said electrical resistor.

5. The apparatus of claim 1, wherein said fuel wafer comprises a central heating insert and a pair of fuel inserts disposed on either side of said heating insert.

6. The apparatus of claim 1, wherein said tank comprises a recess for receiving said fuel wafer therein.

7. The apparatus of claim 6, wherein said tank further comprises a door for sealing said recess.

8. The apparatus of claim 1, wherein said tank comprises a radiation shield.

9. The apparatus of claim 1, wherein said reaction in said fuel mixture is at least partially reversible.

10. The apparatus of claim 9, wherein said reaction comprises reacting lithium hydride with aluminum to yield hydrogen gas.

Technically, to be valid, claims must not read-on arrangements that do not work. But analysis on this basis is complex. To be addressed on another occasion.

The challenge for competitors wishing to build a competing device that does not infringe is to ensure that their devices are not described by Claim 1. If Claim 1 describes their arrangement, then they will be an infringer. They can avoid infringement by ensuring that their product omits at least one of the features listed in Claim 1.

In a sense, the challenge for a competitor is to invent an arrangement that works but does not fall within the language of Claim 1. On the other hand, the challenge for a patent applicant and his attorney is to produce a valid statement of exclusive rights in Claim 1 that cannot be avoided by competitors wishing to market a competing product.

Analyzing Claim 1 for infringement we note the necessary requirement: “wherein said fuel mixture comprises lithium, and lithium aluminum hydride”. Is it essential that lithium be present, apart from being a component of lithium aluminum hydroxide? Did Dr Parkhomov include lithium in his mixture? Apparently not: “640 mg Ni + 60 mg LiAlH4”. This suggests that lithium may not be necessary in order to obtain an LENR effect. But if the presence of elemental lithium enhances the generation of excess energy, then this is an invention in its own right, and merits the granting of patent exclusivity.

On the other hand, if it turns out that elemental lithium need not be present in order to achieve the useful, commercially relevant effect, then this claim has an “loophole”. Patent applicants and their attorneys are expected to labor long and hard in order to draft claims that do not have a “loophole”.

Addressing another possible loophole, if the lithium aluminum hydride serves only as a source of hydrogen, is it essential for the aluminum to be present? Other sources of hydrogen could include magnesium hydride – MgH2; calcium hydride – CaH2; sodium borohydride – NaBH4 and lithium borohydride – LiBH4 as examples. Cf “Thoughts on attending ICCF-19 in Padua by David French”.

We may search Claim 1 for further limitations that may be unnecessarily specific or over limiting. For example, heat is provided to the “fuel” by the presence of an “electrical resistor [which] is in thermal communication with said fuel mixture and said catalyst”. While this language is so vague as to be difficult to visualize, the disclosure outlines a structure described as follows:

“multilayer fuel wafer 32 includes a heating section 34 sandwiched between two fuel sections 36, 38. The heating section 34 features a central layer 40 made of an insulating material, such as mica, that supports a resistor 42. FIG. 4 shows an exemplary central layer 40 having holes 44 through which a resistive wire 42 has been wound”,


“The entire set of layers is welded together on all sides to form a sealed unit. The size of the wafer 32 is not important to its function. However, the wafer 32 is easier to handle if it is on the order of 1/3 inch thick and 12 inches on each side.”

This gives some understanding as to the meaning of the words in the claim. The disclosure does not necessarily limit the words in the claim. The Disclosure is only intended to be exemplary. Claim 1 clearly stipulates for the presence of an electrical resistor. This could be in the form of resistance wire wrapped around mica sheeting, or it could be a “resistor” of another form.

The claim language is to be read as broadly as the natural meaning of the words and is not necessarily limited by the examples given in the preceding patent disclosure, unless the disclosure requires this. In this case, “electrical resistor”, while not tied to a specific structure, does limit the character and function of this component.

Furthermore, the presence of an electrical resistor is emphasized by the additional limitations stipulating:

“wherein said resistor is configured to be coupled to a voltage source,

“wherein said apparatus further comprises a controller in communication with said voltage source, and a temperature sensor,

“wherein said controller is configured to monitor a temperature from said temperature sensor, and, based at least in part on said temperature, to reinvigorate a reaction in said fuel mixture,

“wherein reinvigorating said reaction comprises varying a voltage of said voltage source.”

Taking this portion of the claim as defining the novel aspect of invention, the invention may really be all about a mechanism for controlling the generation of heat within the wafer.

If the purpose of having a heated core within the wafer is to start an LENR reaction, this might possibly be achieved by simply providing the wafer with a core plate of conductive metal which is heated externally. (Aluminum or copper may spring to mind, but these have a low melting temperature. Aluminum nitride has a melting point of 2200°C). While this might start an LENR reaction, if the use of a resistive heater facilitates controlling the rate or level of the LENR reaction, then that in itself might be a basis for the granting of patent rights. Otherwise, the stipulation for the necessary presence of a “resistor” may also qualify as a “loophole”.

These observations are not exhaustive. They are offered merely as examples. The challenge for competitors is to invent configurations that do not infringe.

This ends Part 1 of the analysis. Further parts of the analysis to follow subsequently will address inferences that can be made from the dependent claims, considerations on the treatment of the nickel, and speculations as to the types of reactions that may be occurring. Additionally, the prospect that further inventions are present in this disclosure, which have not been claimed, and the consequences, will also be explored.

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:

The Peak Oil Crisis: Cold Fusion Gets a U.S. Patent

This is a repost of and article originally published on the Falls Church News-Press here.

The Peak Oil Crisis: Cold Fusion Gets a U.S. Patent By Tom Whipple

Sometimes our government moves very slowly. In the case of granting a patent to cold fusion technology, which just might replace fossil fuels, it took 26 years. The odyssey that started with a press conference at the University of Utah back in 1989 and has bumped along below the world’s radar screen ever since, seems to be coming to an end. The cold fusion phenomenon had a brief flurry of notoriety until it was “debunked” by many physicists, a couple of universities, and the U.S. Department of Energy panel. The science fell into disrepute, its discovers were disgraced and went into exile.

Fortunately for mankind, there were a handful of experimenters who were able to reproduce the original experiments which produced anomalous heat, thereby keeping the spark of cold fusion alive, but mostly in obscure laboratories out of the purview of the mainstream press. A decade or so ago some Italian physicists made a major breakthrough which led to devices producing commercial, not just test tube, amounts of heat. This effort culminated in a number of semi-public demonstrations of the technology, which were largely ignored or denounced as conventional wisdom held that “cold fusion” was impossible.

Circa two years ago the Italian cold fusion effort, led by entrepreneur Andrea Rossi, was moved to North Carolina, linked up with a venture capital firm, and well-financed developmental work began on building commercially viable cold fusion reactors. Last February the first prototype, a one-megawatt reactor system producing steam 24 hours a day, was installed for a one-year test in an undisclosed factory somewhere in the US. This device has now been successfully operating for over six months. If all goes well for the remainder of the trial period, a report is scheduled to be issued and heat producing devices will go on sale to the public.

At some point the mainstream media will cotton to the fact that we have been led badly astray as to the viability of this technology and there indeed is an alternative to producing large amounts of energy other than by burning fossil fuels, nuclear fission, hydro, solar and wind. Obviously a technology that can produce large amounts of heat continuously at low cost and without harmful emissions or hazardous waste will catch on quickly. If not in the U.S., then I am sure the Chinese will be happy to help advance the technology.

One of the reasons there has been so much skepticism about cold fusion and Rossi’s reactor in recent years was the secrecy surrounding the inner workings of the device. Much of this secrecy was due to the developer’s inability to obtain a valid international patent on his intellectual property. When the U.S. Department of Energy declared the whole technology a hoax 25 years ago and reaffirmed this decision in the face of mounting evidence to the contrary 10 years later, the U.S. Patent Office adopted the position that it would not patent any device claiming to be based on cold fusion or anything close.

In 2008, Rossi filed for a U.S. patent on his technology, only to have it finally rejected seven years later for lack of sufficient proof that he really had developed a technology that worked. Although Rossi was granted an Italian patent in 2011, nobody thought it offered much protection against copiers of a technology that could easily be worth trillions of dollars should it come to replace fossil fuels someday.

This time around Rossi, and his patent attorneys, took a new approach to gaining the first of what will likely be many patents relating to a technology which could easily turn out to be the most important of the century. Rather than claiming that the device was based on controversial nuclear reactions, the new patent is for a simple “Fluid Heater” that raises the temperature of water by subjecting a mixture of nickel, lithium, and lithium-aluminum-hydride powders to heat. The mixture warms to hundreds of degrees centigrade and begins to produce much more heat energy than is initially applied to the powder by the built-in electric heater. There is a no mention anywhere in the patent of “cold fusion,” nor any kind of nuclear reaction. The patent is silent as to what is causing the excess heat, only saying that it occurs, leaving it to the reader to conclude that so much heat is bring produced that there must be some kind of nuclear reaction taking place – known chemical reactions will not suffice.

The patent breaks new ground in our understanding of how Rossi’s reactor works for in order to obtain his patent protection, he had to reveal the inner workings of the reactor and the composition of the fuel that was inside. The revelation in the patent that there are three separate powders, the proportion of the powders, and that the nickel catalyst must be preheated to drive out any moisture and increase the porosity of the nickel should be of great help to anyone attempting to replicate Rossi’s device. Also revealed in the patent was that each fuel load should be able to run for six months before needing to be replaced. Rossi, however, recently stated that that a single fuel load may run for a year and that the reactor currently being tested can run for long periods of time without the need to turn on the heaters that are run with outside power.

In the past year, numerous replicators have attempted to produce excess heat from devices similar to Rossi’s. One the of these replicators, Alexander Parkhomov at the University of Moscow, has been successful in at least a dozen tests. Other replicators have been able to produce excess heat, but were unable to control their reactors which quickly melted down due to the massive amount of heat being generated. With this new information from the patent, we should soon be seeing many successful replications and put to rest assertions that the technology is a fraud.

For those of us who have been following this technology for over a quarter of a century, the granting of a U.S. patent marks a major milestone in the history of science for it offers the opportunity to get mankind beyond the age of carbon and nuclear fission fuels and all that they have wrought – rogue petro state governments, pollution, global warming, and dangerous radioactive wastes. For now, the major question is whether this or similar technologies can come into widespread use fast enough to slow and then halt the many adverse societal, economic and climatological trends with which we are currently beset.

This is a repost of The Peak Oil Crisis: Cold Fusion Gets a U.S. Patent By Tom Whipple originally published on the Falls Church News-Press here.

Patenting Cold Fusion Inventions before the US Patent & Trademark Office – Part 2

The following is Part 2 of a paper prepared By David J French in support of a Poster Presentation at ICCF-18, the 18th International Conference on Cold Fusion held in Columbia, Missouri over July 21 – 27, 2013. Part 1 is available at ColdFusionNow here. Part 2 now follows.

Patenting Cold Fusion Inventions before the US Patent and Trademark Office

. Part 2

Treatment of Cold Fusion Inventions before the USPTO

With the USPTO receiving over one half million applications a year, Examiners do not customarily require applicants to file proof that their alleged invention will work as represented. However, the USPTO has classified Cold Fusion and LENR technology in the same category as “perpetual motion”, anti-gravity, time travel, universal Cancer cures and guaranteed cures for baldness. These are considered to be cases where there is doubt that the alleged invention will work. In these fields Examiners are expected to require applicants to demonstrate that the alleged invention actually works. To impose this requirement the Examiner must establish a basis for a legitimate doubt in a communication to the applicant before requiring the applicant to provide proof of operability. Unfortunately, Examiners faced with Cold Fusion applications have in many instances used excessively negative and inflammatory language regarding the history of Cold Fusion science in attempting to place such a doubt on record.

Persons filing patent applications in this field have to be prepared to face a prove-it-works requirement. They do not have to prove that Cold Fusion works per se; they only have to prove that what they represent in their application is true. The disclosure accompanying their patent application must be sufficient to enable ordinary but knowledgeable workers in the field to reproduce what is promised in the patent application. This is not an area where a patent can be obtained on the basis of a prediction or prophetic insight.

Responding to a Prove-it Challenge

The best procedure to follow in answering such a requirement from a US Examiner is to place the original patent disclosure in the hands of an independent agency that will follow the instructions in that document and report-back, hopefully, that they obtained the results as predicted in the patent filing. Such evidence may not rely on after-developed understandings or procedures but must be based on the original document as filed, together with publicly available knowledge existing as of that date.

Relevant message: Make sure your Disclosure is complete when you make your formal patent filing. Be sure the invention works. Don’t promise too much. You may have to prove it!

Example that failed

James H Cook, a retired 80 year old engineer residing in Simi-Valley, California filed an application on August 19, 2009 before the US Patent Office for an invention entitled: “Energy Generation by Nuclear Acoustic Resonance”
This application became abandoned on March 9, 2013 for failure to respond to the US Patent Office Examiner’s first office action of September 9, 2012. Before addressing the reasons for the abandonment the nature of the invention and the filing will be explored. Here is an extract from the Abstract:

“(This invention) solves the problems of reliably initiating a low energy fusion reaction by loading deuterium into palladium metal via the process of electrolysis and by initiating the fusion reaction via the application of nuclear acoustic resonance. Affixed on each side of an electrolysis cell are piezoelectric transducers driven by corresponding frequency synthesizers. Surrounding the cell is a magnetic field produced by a magnetic field generator. The application of nuclear acoustic resonance, i.e. the combined application of an alternating magnetic field and of high frequency acoustic waves causes the deuterium atoms resident in the closely packed palladium metallic lattice to fuse into helium atoms with the consequent release of energy that is inherent to the fusion process.”

This is an example of a Prophetic invention: it is based on a prediction that something will happen rather than on actual tests. No data was given reporting test results. Instead the disclosure stated that this idea arose when the inventor heard about a reported melt-down in a Fleischman and Pons’s original pre-1989 experiment. He surmised that this was due to:

• “a low-level alternating magnetic field in the vicinity of the experiment caused by a transformer (presumably 60 Hz.) on the opposite side of the wall against which the fume hood containing the experiment was mounted”
• “An unrelated experiment in another part of the room was generating ultrasonic acoustic waves in the Megahertz range. It is believed that two frequencies, differing only slightly from each other, are necessary. (See the article, The Truth About DNA, subheading “A past experiment that was incomplete,” published on the Internet at chanelDNA04.html.)”
• “This application of high frequency acoustic waves causes the hydrogen atoms packed within the crystal lattice of the palladium cathode to undergo spin transitions. Upon reaching the Larmor frequency of the hydrogen atoms and achieving resonance, transitions between spin energy levels are generated. This produces a resonance scan. (See Inventor’s Theory of Operation, infra.) It is believed that for reliable initiation of the low energy fusion reaction, the first and second acoustic wave generators (17, 21) must operate at different frequencies. The specific frequencies required remain to be determined by experimentation.”
Note the frank statement that the “specific frequencies required remain to be determined by experimentation”. This was fatal.

The Examiner’s objections

Here is what the Examiner said about this application:

• “…..this “ColdFusion concept is still no more than just an unproven concept or theory.”
• “The general consensus by those skilled in the art and working at these various laboratories is that the fusion conclusion made by Fleischman and Pons was based on experimental error”
• “The general consensus by those skilled in the art is that there is no reputable evidence to support the claims of excess heat production, or the production of fusion by-products such as neutrons, gamma rays, tritium, or helium.”
• (this is) “a field that the general scientific community considers fraudulent.”
• “Since Fleischman and Pons’ 1989 announcement, there has been a continuing stream of publications demonstrating that virtually none of the ’Cold Fusion’ claims are valid.”

The Examiner summed up by reciting that he had provided a reasonable and sufficient basis for challenging the adequacy of the disclosure, concluding that the specification failed to meet the requirements of the Patent Act in terms of enabling workmen to implement the invention as promised.

The Applicant`s dilemma

The requirements for sufficient disclosure allow that it is OK to impose some modest degree of experimentation on future workmen if such experimentation will inevitably produce the right answer without undue effort on the part of an ordinary workman. However in this case, the existence of the specific frequencies that make the invention work is critical: the admission that such parameters remain to be established placed this invention in the category of an “unfinished work”. As well as imposing a prove-it requirement the Examiner rejected this filing for having an insufficient disclosure.

The applicant was given an opportunity to reply. He then decided to abandon his application. Ironically he might have been right. But his application did not meet the required standards and it could not be amended
An inventor can make an invention based upon a prediction, but

• the prediction has to be true
• the prediction has to be supported by instructions on how the benefits of the invention can be delivered reliably by others, once the patent comes to an end.
• Patents do not, however, issue for proposals which are, essentially, a suggestion that others pursue a specific line of research.

Relevance of Examiner`s condemnation of Fleischmann & Pons

The Examiner`s comments regarding Fleischmann & Pons are not relevant in the sense of requiring a response. The Examiner’s criticisms were only presented to justify his requirement that the applicant prove that the invention as described works and that the description of how to make it work was sufficient.
Filing evidence that the invention really works and that the disclosure is enabling would have resulted in an Allowance (so long as the Claims were worded to avoid the Prior Art). Unfortunately the disclosure was irreparably inadequate: it failed to teach the special acoustic frequencies that would initiate the Cold Fusion effect.


It’s very easy to obtain a US patent for Cold Fusion. Just file an application:

For a useful idea that works,

that includes a description on how to make it happen, and which

specifies a feature that is new (done in one or more “claims”).

Easily said, but challenging to fully understand.

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:

Patenting Cold Fusion Inventions before the US Patent & Trademark Office – Part 1

The following is a paper prepared by David J French in support of a Poster Presentation at ICCF-18, the 18th International Conference on Cold Fusion held in Columbia, Missouri over July 21 – 27, 2013. The paper as reproduced on ColdFusionNow is divided into two parts. Part 2 is available here. Part 1 now follows.

Patenting Cold Fusion Inventions before the US Patent and Trademark Office – USPTO

Part 1

This paper is about the challenge of obtaining a patent before the United States Patent and Trademark Office – USPTO. The USPTO has developed a reputation for refusing applications directed to “Cold Fusion” technology. There is a general belief amongst the Cold Fusion community that some staff members at the USPTO have been hostile to granting patents in this field. In fact, the experience of almost every applicant in this field is that Examiners have a strong prejudice against granting patents for Cold Fusion inventions.

However I had some personal exchanges with the USPTO in the fall of 2012 that ended with a declaration that the USPTO will issue properly drafted patents which are directed to new technology in the field of Cold Fusion/generation-of-unexplained-excess-energy if accompanied by a proper disclosure and a demonstration that the asserted procedures will work as represented. The communication from the USPTO stated:

“As you noted in the email, Cold Fusion or Low Energy Nuclear Reactions (LENR) is the subject of intense study and interest of many. Clearly, further investigation into this area could be useful and will hopefully one day will provide a major source of energy.

“You note that the USPTO can require patent applicants to provide evidence that the invention works and that the disclosure is sufficient to enable others to make and or use the invention. The United States Code requires as much, and defines the requirements for patentability in 35 U.S.C sections 101, 102, 103 and 112. Particularly, the enablement requirement, which refers to the requirement of 35 U.S.C. 112, first paragraph that states the specification, must describe how to make and how to use the invention. The invention that is defined by the claim(s) of the particular application is the invention that one skilled in the art must be enabled to make and or use. (See MPEP 2164) This is the requirement of law in order to obtain a valid patent. These requirements are applied to all inventions whether they are ground breaking technology or incremental improvements.

“We also thank you for your suggestion to have a message that “The USPTO is open for business in the field of Cold Fusion for properly prepared patent filings” before the Cold Fusion revolution arrives. This is already the case. Any non-provisional application, including those in the area of Cold Fusion, is eligible for patenting also long as it meets the requirements of 35 U.S.C. Sections 101, 102, 103 and 112.” [end quote]

The basic requirements for the granting of a patent as referenced are that an application must address:

1. Proper subject matter for patenting,
2. A technology that works in the sense of being useful for humanity in some way,
3. A disclosure that will enable knowledgeable but uninventive workers to reproduce the invention, and
4. A stipulation (in the form of one or more Claims) as to what will be controlled by the exclusive rights to be granted, rights that must apply only to things that are new.

Many patent attorneys add a further requirement namely that the patent must be directed to something which is inventive, or in the terms of the statute, a feature that is “not obvious”. Non-obviousness is judged in view of what has been known previously. I like to include that requirement as really being a sub-characteristic of being “new”.

New US Law from March 16, 2013

As from March 16, 2013 the requirement for being “new” under US patent law is that the thing being patented must not have been “previously available to the public”. This means previously available anywhere in the World, at any time, in any manner whatsoever. The United States has finally joined Europe and the rest of the world in defining patent entitlement in this manner. If you think about these words, you will probably agree that this means that your invention must be “pristine on the planet Earth”! Never having been made available to the public anywhere not only requires that your applied technology be new, but it also must not be obvious in view of what was previously known. That is how inventive character or non-obviousness can be included under this new definition and requirement for patent novelty.

Patent novelty item 4 above, is a big issue. It cannot be addressed in this paper. But the remaining numbered items are relevant to “cold fusion” inventions and will now be addressed.

Subject matter for patenting – Science vs Technology

Patents are about technology rather than scientific discovery. In Europe under the European Patent Convention (EPC Article 52) and under the international Patent Cooperation Treaty – PCT inventions must be “susceptible of industrial application” in order to be patentable. This expression is further defined in EPC Article 57 which provides: “An invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture.” This emphasizes that patents are not about theories. Patents are about technology. The difference between science and technology is that science delivers understanding – from the Latin scienter, “to know”, and technology delivers something that is useful for human beings. Often, technology is the application of science.

In the past, it has been thought in the United States that there must be something tangible or mechanical about an invention. However, the US definition for something which is patentable, called “patentable subject matter” is: “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement”(35USC101). In the last 20 years we have seen an explosion of patents in the world of business activities and relating to human behavior in general. These patents have issued on the premise that inventions in these fields can be characterized as “processes”, now often called “methods”. The argument is still ongoing as to whether this opening-up of patenting to non-tangible arrangements that focus on human behavior, eg “business methods”, fits within the patentability requirements of the US statute. But for purposes of the Cold Fusion community, patenting has to focus on a technical, that is a mechanical or chemical, arrangement or procedure that is useful and reproducible.

The next two issues address why Cold Fusion patents have been encountering serious difficulties at the USPTO.

Utility and Disclosure Requirements

For an invention to be useful, it must “work”. This means that it has to deliver a useful result.

Not only does the invention have to work but the application has to describe how others can build something useful that works. The written document accompanying a patent filing must include a description that will “enable” competent workmen, after the patent expires, to carry out the instructions and obtain the promised useful result. The disclosure must “enable” others to obtain the benefits of the invention. The disclosure must provide a “recipe” that is complete.

If the instructions are inadequate, then a patent application will be refused. If the patent slips through it can still be canceled before a Court on the grounds that it should not have been issued in the first place.

You must write the Specification so that your invention may be practiced by a Person Having Ordinary Skill in the Art (POSITA) without undue experimentation. This individual is assumed to be knowledgeable, but he/she is not inventive. If the invention either intrinsically does not work, or the instructions to create it are inadequate, then a patent application will be refused.

What are the lessons to be learned from these points? One lesson is that it is a false triumph to slip something past the Patent Office. Any oversights of an Examiner can be addressed by a Court. The test of litigation is a very hot furnace. Only the sturdiest steel can take the heat. So you want to obtain your patent on a legitimate basis and do it right at the very beginning. Consequently, if you assert that you have a method for delivering unexplained excess heat based on what you believe to be a “Cold Fusion effect”, you must be absolutely certain that you are achieving this result. Furthermore, you have to provide a description that will reliably allow others to achieve the same result.

Warning: there is a deadline to get the “story” right in the Disclosure. Once a final patent application has been filed, the “story” contained in the disclosure cannot be changed. You can change your claims as long as they are restricted to things already described in the original filing. But you cannot make changes to the text in order to upgrade your description, your “recipe”, for making the invention work.


The history of ColdFusion is shot through with examples of intermittent replication right from the very beginning, starting with Fleischmann & Pons. I am not focusing on the failure of various illustrious institutions to duplicate the Fleischmann and Pons test results. Martin Fleischmann and Stanley Pons had trouble duplicating their experimental demonstrations themselves. James Patterson in the 1990’s until his death in 2008 represented that he produced remarkable results from plastic, glass or ceramic micro-spheres coated with various layers of hydrogen-saturated metal, including both nickel and palladium. That was with his first batch of spheres. But when he subsequently prepared further batches he did not get the results he got before. Patterson obtained patents anyway, several in the US including No US 5,607,563 entitled “System for Electrolysis” issued on March 4, 1997, now expired. Other Patterson patents can be located through the hyperlinks in this reference. But these were never tested in Court. Shaky results have arisen in laboratory results around the world over the last 23 years. They are still happening today. This is part of the part of the mystery of this science. How does this affect patenting?

It is pretty clear that the USPTO should not be issuing patents for things that do not work. A little thought is required as to whether they should issue patents for things that work only some of the time. There are many technologies that might fall into this latter category. When you strike a flint on a bar of iron to create a spark and start a fire, it does not work with every blow. But the invention is profoundly useful. Similarly, in the field of pharmaceuticals medicines may exist that only work some of the time, but are well worth administering when there are no other alternatives and there is a real prospect that they may work in an individual case. Vaccines fall into this category.

On the other hand, I would not consider a heart valve to be useful if it has any substantial incidence of failure once installed in a patient. I am referring to failure due to a design fault such as accumulating scar tissue. Still, patents have issued for mechanical hearts that have kept Patients alive for only a limited period of time. In truth, the utility of an invention covered by a patent is highly dependent upon the representations made in the patent disclosure document as to what the invention will achieve.

This is leads to a big message. The utility requirement under patent law does not require that an invention be better or superior. It does not require that it deliver high-value. Anything that is “useful” to some degree will pass the utility requirement. But if an inventor extols the benefits of their invention, they are creating potentially serious problems for the validity of their patent. If you represent that your invention delivers a certain result claiming exclusive rights in such an outcome, and it does not indeed deliver that result, then such claims might possibly be invalidated for failing to meet the utility standard. At a minimum such defaults will be emphasized before a jury. You set the standard yourself in claiming rights over something that you say you can deliver. The conclusion is: Do not try to claim rights in more than your invention will deliver! In fact, as a general policy it is preferable to avoid making any more representations than the minimum needed to obtain a patent grant.

The utility requirement for an invention is met if you simply state an instance where it can be used to produce a useful result of even modest value. Do that, but go no further.

Example of Success

It is time for an example. Assume you have an experimental setup that produces unexplained excess heat. Rather than representing the technology as a solution to mankind’s energy requirements, it is sufficient to describe your invention as an assembly of hardware which demonstrates how excess heat can be produced from an artful combination of Palladium and deuterium. Just because you have described your invention as a demonstration apparatus does not mean that your patent claims cannot cover the use of the same apparatus to supply heat for your house indefinitely in the winter or heat for your air-conditioning system indefinitely in the summer, so long as the same principles are being used in the scaled-up system. But do not promise house heating and air-conditioning unless you also disclose how to build what is needed to do the job.

Here is an example of a successful patent granted on an invention for which Melvin Miles was a co-inventor:

United States Patent 7,381,368 issued June 3, 2008

Title: Palladium-boron alloys and methods for making and using such alloys

Inventors: Miles; Melvin H. (Ridgecrest, CA), Imam; M. Ashraf (Great Falls, VA)

Assignee: The United States of America as represented by the Secretary of the Navy (Washington, DC)

And here are the key claims:


1. An alloy comprising palladium and boron;

wherein at room temperature the alloy has a two-phase structure, comprising crystallites of a first phase and crystallites of a second phase;

wherein both the first phase and the second phase are solid solutions of palladium and boron;

wherein the crystallites of the first phase and the crystallites of the second phase are free of hydrogen;

wherein the first phase and the second phase have the same crystal structure;

wherein the first phase and the second phase have different lattice parameters;

wherein the alloy is free of palladium-boron intermetallic compounds; and

wherein the alloy is free of hydride compounds.

11. The alloy of claim 1, wherein said alloy is in the form of a membrane.

12. A method of hydrogen purification comprising the steps of: providing the membrane of claim 11, providing a gaseous sample comprising hydrogen on one side of the membrane, providing a vacuum on the other side of the membrane, and allowing the hydrogen to pass through the membrane.

13. The alloy of claim 1, wherein said alloy is in the form of an electrode.

14. A method of generating energy comprising the steps of: providing the electrode of claim 13, connecting the electrode to a cathode, immersing the electrode and the cathode in water containing deuterium, and applying a current to the electrode and the cathode.

Based on the above claims, anybody who has possession of the alloy described by claim 1 and uses it for any industrial purpose will violate the claim. There are multiple uses for this alloy. Claim 12 addresses using the alloy as a hydrogen-pass filter to permit hydrogen to enter a vacuum. Claim 14 addresses a clear example of generating energy by carrying out a Fleischmann & Pons type of procedure.

Note that there is no theory of operation included in the claims. If fact there is no theory of operation included in the patent. Why would you want to include theory that might not be right? And including the theory in the claims creates a terrible problem: to enforce the claim you would have to prove that the process being carried-out by an infringer complies with the theory. These are good crisp claims, directed to what they should be: a description of assembled hardware or processes for manipulating tangible substances. If you have described something that works, you do not have to explain why.

How did this application get through?

In the course of the prosecution of this application the Examiner never challenged the application on the basis that it is addresses a Cold Fusion invention. This may be for several reasons. One reason may be that the Examiner was working in an art where he was not accustomed to receiving Cold Fusion inventions. A further possibility is that the application focused on other uses for the alloy, mentioning the generation of energy as a collateral utility. In the case of a new compound, if it has an acceptable utility, the fact that the inventor believes it might also be the useful for other purposes, e.g. cold fusion, is not a bar to patentability. Once you patent an article or compound for one purpose, an article or compound that is new, then you are entitled to control its circulation in commerce no matter how it is used. A further possible reason for the easy treatment of this application is that it was filed on behalf of the Department of the Navy. And the last possible reason is that the application was generally well drafted, without making any extravagant claims or assertions of extraordinary benefits. This last possibility is to be contrasted with how many other applications directed to Cold Fusion innovations are drafted by attorneys, with the cooperation of or under pressure from the inventors.

This ends Part 1 of a paper prepared in support of a Poster Presentation at ICCF-18, the 18th International Conference on Cold Fusion held in Columbia, Missouri over July 21 – 27, 2013. Part 2 follow as a subsequent posting on here.

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: