Category: Patents

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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..

 

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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.

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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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New kid on the block? – Brillouin Energy Corp

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.

April 23, 2012 –For some of us who have not been following the ColdFusion scene very carefully, Brillouin Energy Corp may seem like a new upstart. Actually, they have been around for some time. But they have now “come out” with a very complete and informative release that describes their initiatives, and reported “breakthrough” in the ColdFusion universe. Here is a summary description from Pure Energy Systems.  Their slogan is apparently: “Understanding how LENR works will enable us to be first!”

This website is very generous in explaining their theory for generating energy through a lattice assisted nuclear reaction – “LANR”. This theory is based upon electron capture with a twist. Coherent phonon waves within a host lattice created by pulsating electrical current provide energy levels in excess of the 782 KeV threshold needed to produce a neutron out of the combination of an electron and a proton. The accumulating neutrons eventually form 4H – “hydrogen 4” which is an entity I had never heard about. It is an atom that contains one proton and three neutrons. Apparently, once created hydrogen 4 can convert to 4He – “helium 4” with the emission of a beta particle and without releasing penetrating gamma ray radiation. Beta particles, high-speed electrons, are likely to be readily absorbed within a metal lattice and its surrounding containment; accordingly, they are not readily detected. They would certainly not represent a radiation hazard by themselves.

The website contains a generous dose of mathematics. I do not pretend to understand the physics, particularly the analysis of Hamiltonians. I am going to have to study that subject further. But there is a story in the patent applications that have been assigned to Brillouin at the US Patent Office, and in the corresponding applications filed elsewhere in the world.

Apparently, as early as December 29, 2005 the inventor Robert E. Godes initiated a first US Provisional patent application which has served as a priority document for a number of filings. The year later follow-on US non-provisional ran into trouble on the basis that it was directed to “Cold Fusion”. As is usual, the US Examiner issued a rejection which was subject to being withdrawn if the applicant could prove that the invention as described works, i.e. the invention delivers on its promise. Apparently Godes, then operating on behalf of Profusion Energy, Inc. of Alameda, California as the assignee/applicant, encountered continuing resistance. Fortunately, as this application was part of the US patent system, after having been rejected in this first application another filing was made in the form of a US “Continuation” application.

This procedure is virtually unique to US law. A properly-filed US Continuation application enjoys all of the filing dates of the earlier application upon which it is based. The consequence is that there is still a US patent application pending which dates back to 2005 and which, if supported by proof of utility, could have significant impact on the exploitation of LENR systems in America.

Meanwhile, the earlier US priority filing and the subsequent non-provisional application made a year later gave rise to a PCT filing. That PCT filing, in turn, has matured into filings in Europe, Japan and China. This PCT application probably contains “new matter” not included in the original priority filing, but at the same time probably parallels the content of the first and second US non-provisional filings. A comparison of the documents would have to be made to determine this issue properly.

Note that there are a large number of countries for which patents have not been filed for this technology. In all of these countries, the invention as described in the published US and PCT applications on or about September 6, 2007 is available for use without obligation. Publication has made this invention unpatentable in all countries where applications were not already pending.

There are actually two PCT filings that have been made naming Robert E. Godes as an inventor; only one apparently relating to cold fusion; the other apparently relates to solid-state electronics technology which may be collateral to cold fusion issues. This second application should also be checked to determine its relevance.

Note, this search summary of published applications focuses on cases naming Robert E. Godes as an inventor. It is possible that further Brillouin applications are pending in the names of other inventors. Also, one or more further filings by Godes could be pending but unpublished if they are still within the 18 month secrecy window.

Of the applications now in national entry status derived from the PCT filing, the European application is the one of most interest. Examination has been requested for this application but has not commenced.

Using the US claims as probably being exemplary of what this series of patents aspires to control, we can now examine Claim 1 to see what can and cannot be done, if and when a patent issues containing this claim, without seeking permission from Brillouin Energy Corp. Claim 1 reads as follows:

1. An apparatus for energy generation comprising:

a body, referred to as the core, of a material capable of phonon propagation;
a mechanism for introducing reactants into said core;
a source of current pulses for establishing current pulses through said core, said current pulses inducing phonons in said core so that reactants, when introduced into said core, undergo nuclear reactions; and
a closed loop control system, coupled to said mechanism

– for introducing reactants and to said source of current pulses,
– for specifying operating parameters of said mechanism for introducing reactants and of said source of current pulses,
– for sensing one or more operating conditions, and for modifying one or more operating parameters,

thereby controlling the number of nuclear reactions and the depth of the nuclear reactions in said core so as to provide a desired level of energy generation while allowing energy released due to the nuclear reactions to dissipate in a manner that substantially avoids destruction of said core.

One of the first observations that can be made is that this claim stipulates that the coherent sound waves, the phonons, are generated by establishing “current pulses through said core”. Apparently, sound waves created by a piezoelectric effect, magnetostriction and or applied electrostatic fields are not intended to be within the scope of these exclusive rights. This might get changed in the course of examination if the Brillouin patent attorneys reconsider this claim. But they can only enlarge its scope if there is support for the larger ideas in the final, non-provisional filing for this application. That is the way patent procedure works.

Otherwise the above claim is a pretty well-written claim. Notice that it does not rely on any sort of theory. It simply describes a procedure which the application represents will deliver a useful result. That is what patents and patent claims are all about. You do not patent a theory. You patent how to get to a useful result.

Nevertheless, the full disclosure in the patent document is very interesting as a source of guidance for a theory that might work. Even if the theory put forward in the application is not correct, the patent, and its claims, can still be valid if the instructions for producing a useful result are accurate.

This application has already gone through the US Patent Office once when it ran into trouble for failure to satisfy the Examiner that it describes how to achieve the useful result. On this second pass, a different outcome may occur, depending on the nature of the evidence that is filed to support the promises that are being made.

Special learning point: you should not promise much in a patent application. A patent disclosure is not a sales pitch. You should simply say, effectively: “The invention delivers some degree of useful result.”

In conclusion, the Pure Energy Systems article first referenced above contains an excellent outline of the theory that this company is apparently operating on. If they have managed to achieve reliable production of energy at the elevated temperatures that they represent in their website, they are going to have a breakthrough winner that should attract the attention of the world.

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Problems with Patents


This cartoon from Droidmatters is targeted toward Information Technology, but informs in an easy way some issues with the US Patent and Trademark Office:

Problems with Patents Cartoon

From The Spoilsman: How Congress Corrupted Patent Reform by Zach Carter published on Huffington Post back in October.

“Many people are still looking for work or looking for a job that pays more,” Obama said to a scrum of reporters. “There are more steps that we can take right now that would help businesses create jobs here in America.”

The first item on Obama’s list of immediate, job-creating congressional actions was the passage of patent reform legislation.

“Right now, Congress can send me a bill that would make it easier for entrepreneurs to patent a new product or idea, because we can’t give innovators in other countries a big leg up when it comes to opening new businesses and creating new jobs,” he said.

Besides the fact that the US Patent and Trademark Office re-routes cold fusion/LENR related applications, what else is the problem?

Trolls file hundreds of lawsuits a year over “low quality” patents — lobbyist legal jargon for the questionable or downright bizarre patents routinely granted by the understaffed Patent and Trademark Office. In recent years, patents have been approved for products including a wheeled flower pot (patent No. 7,908,942), the crustless peanut butter and jelly sandwich (patent No. 6,004,596), a decorative box that can be placed in a casket (No. 7,908,942) and an accounting scheme that helps people dodge taxes by moving stock options around (No. 6,567,790). Once approved by the patent office, it’s difficult and costly to overturn the patent in courts, which grant significant deference to the office’s decisions.

What does the newly enacted patent reform mean for innovators?

Here’s one view from Paul Morgan from Patently O 2011 Recap: The Practically Important Elements of the America Invents Act of 2011.

Another view comes from Eric Savitz at Forbes US Inventors: Take Heed of the Revised US Patent Law.

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Pending PCT patent application by Randall Mills and Blacklight Power Inc. – Part 1

 

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.

Pending PCT patent application by Randall Mills and Black Power Inc. – Part 1

December 12, 2011 –In response to my last posting I was sent a reference to the following PCT patent application: Electrochemical Hydrogen-Catalyst Power System  with the suggestion that I might comment on it.  That is the subject of this posting.

First, by way of review, a PCT application is a patent application filed under the Patent Cooperation Treaty.  This is a system for processing applications.  It does not produce patents.  The PCT system allows a single application to be filed that will cover some 135 countries.  The filing remains as an application for a period up to 30 months.  After that, national patent filings must be made in individual countries.  But the 30 months buys time.

In this case, the application is directed to an invention by Dr Randall L. Mills of Blacklight Power, Inc. of Cranbury, New Jersey.  Randall Mills and Blacklight Power have been around for a long time, since at least as early as 1991.  Here’s a further commentary on both parties as found in Wikipedia.

This patent application is significant for two reasons that I will address in this post and in a following post.  It demonstrates further aspects of the patenting process, and it explores the prospects that the theories of Randall Mills are relevant to the phenomena of Cold Fusion.

Addressing the patent application, it should be appreciated that Randall Mills has a track record of filing for patents.  At the US patent office he is listed as having filed 40 applications since 2001.  The filings transcend energy issues and address pharmaceuticals and a variety of other inventions.  Clearly this person is a prolific inventor.

The immediate PCT application is interesting for several special reasons.  This is an application that is still within the PCT system.  It has not yet resulted in national filings before individual country patent offices.  At the same time, it is based on original American patent applications.  In fact, unusually, it is based on some 25 US filings listed under the title: “Priority Data:”.  Each of these US applications is “provisional”.  This is indicated by the use of the serial number that begins with “61/” (or “60/” in the past).

A Provisional US patent application entitles an applicant to claim the benefit of the priority accorded to its filing date for what is disclosed in the application.  This is useful in filing not only later applications in the United States but also in making patent applications in countries around the world.  Claiming a priority date gives an applicant an entitlement, a priority, over other inventors that might file for the same thing.  It also gives priority over publications that occur after the filing date which might otherwise bar the grant of the patent.  A priority filing “shelters” subsequent patent applications from the novelty-barring affects of post-priority date publications.

A priority filing date is only good for one year from the date of the earliest filing made.  It must be claimed and proven when national patent applications are filed.  A US Provisional application is useful primarily only to establish a priority date.  The US Provisional application becomes automatically abandoned after one year.  It must be replaced with a final, “Non-Provisional” application.  In this case, the PCT application represents such a Non-Provisional US application.  It also counts as an application in all participating countries around the world. To complete the procedures, individual “national entry” applications have to be made on exiting the PCT by month 30 or 31 from the earliest priority date.

What is unusual about this PCT filing is that it has so many provisional US applications listed on its cover.  Randall Mills and Black Power Inc. have repeatedly filed Provisional applications because, presumably, they are enhancing the story and wish to have credit, a filing date, for each new section that they’re adding to the disclosure.  These multiple filings usually reflect the growth of the applicants’ understanding of the invention in the course of its development. More typically, inventors simply file an initial application which is a Provisional, and then follow-up the Provisional with a final Non-Provisional application at the end of the priority year.  If an inventor has had no further thoughts on his invention during the priority year, then this is the proper course to follow.  Optionally filings can also be commenced directly with a Non-Provisional application.

The fact that so many Provisionals have been filed in this case probably represents both a developing understanding on the part of the inventor and the prospect that the applicant considers the invention to be very important.  Multiple priority filings are appropriate if there is a prospect that others may invent something similar.  Virtually all countries in the world award patents, in the case of competing applications, on the basis of the party having the earliest filing date.

In respect of this specific PCT application the earliest priority filing was made on July 30, 2010.  Preserving the right to claim priority, the PCT application was filed within one year of the 1st priority filing, namely on March 17, 2011.  There would not normally be an advantage in filing a PCT application earlier than the end of the priority year.  Why this PCT filing was made two thirds of the way through the priority year is unexplained.

The deadline to file in the individual countries is set by the earliest priority date.  That deadline is for many countries 30 months and for other countries 31 months after the earliest priority date.  That sets the 30 month national entry deadline, which applies to the United States, for this application as January 30, 2012.  Accordingly, we can expect that this further invention by Randall Mills will appear on a list of US filed patent applications shortly after January 30, 2012.

Under present circumstances, it is taking on the order of 2 to 3 years before the US examiner will take-up a US patent application and commence examination.  That process will begin with an examiner’s search report combined with a commentary by the examiner as to whether the patent disclosure, and particularly the claims, are in order so as to support the grant of a patent.  Applicants normally have at least one, or more typically several, opportunities to engage in exchanges with the examiner and make corrections that will allow the examiner to approve the application for issuance is a patent.  Conveniently, at the US Patent Office it is possible to monitor this applicant-examiner exchange over the Internet, once it occurs.  Following the exchange in this case could prove most interesting.

This concludes the 1st part of this posting.  The 2nd part, which will be posted subsequently, will address the relevance of this application to the ColdFusion story.  Summarizing shortly, this application purports to teach that electricity can be generated based on the phenomena of the formation of a shrunken hydrogen atom named by Randall Mills as a “hydrino”.  Mysteriously, this disclosure makes one short reference to the possibility that the formation of hydrino atoms can contribute to a fusion event.  More discussion to follow. 

To be continued.

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