The following is the 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.
August 27, 2011 –In the previous posting in this series we identified the two PCT patent applications filed by Francesco Piantelli. In this posting, we will review a US patent filing by Lewis Larsen and Alan Widom for the Generation of Ultra Low Momentum Neutrons. (For links in this posting to work it may be necessary to switch from the e-mail version to the Cold Fusion Now web site – here.)
Rejection of a “Cold Fusion” US patent application
– Widom & Larsen 2005-06 filing –
Today we’re going to examine an example of a rejection of a US patent application directed to a Cold Fusion application based on an examiner’s allegation that the application did not teach how to deliver the benefits of the invention.
On April 28, 2006 Lewis Larsen and Alan (also spelled Allan) Widom effectively filed a US patent application by making a Patent Cooperation Treaty filing entitled: “Apparatus and Method for Generation of Ultra Low Momentum Neutrons”. Access to this application on the USPTO database can be obtained here.
Actually, access to any US patent application can be obtained by starting at the USPTO homepage at www.USPTO.gov. To save readers from having to navigate through several pages containing far too many words, the best direct link to start searching is at: http://appft.uspto.gov/
On this page are links to almost everything you need in order to access pending US applications since 2001 and issued US patents dating back to 1976. Today we’re going to examine the pending application which was abandoned on April 9, 2010 by the applicants for failure to reply to an examiner’s request that the applicants file evidence confirming that the invention as alleged in the patent disclosure actually produces the result as promised.
Here’s the procedure you should follow.
On the page http://appft.uspto.gov/ , on the right-hand side are links to access pending applications. Click on “Quick Search”. This will bring you to a page that offers you two terms to search as well as the ability to select from a large number of fields for each term. The default field is: “All Fields”.
The best way to locate a patent is to provide the name of an inventor, correctly spelled, whom you know is involved in the patent. In this case, enter as term 1 “Lewis” and as term 2 “Larsen”. Be sure to spell it as Larsen and not Larson. If you try the search now without adjusting the fields, you will get on the order of 1485 hits. This is far too many to review. Go back to the screen with the two terms and set the field in each case to “Inventor Name”.
Now, when you search you will obtain four or five hits three of which relate to “Lewis Larsen”. The one we are interested in has the title: “Apparatus and Method for Generation of Ultra Low Momentum Neutrons”. This has a publication number 20080232532 above the letters: “A1”. (The code “A1” is an internationally agreed code for the first publication of an application. Often it appears after a publication number but it is not part of the publication number.) We are going to use the publication number for the next step.
Before proceeding, you may wish to take this occasion to read the specification set out in respect of this published application. The text where you are presently located is written in HTML making it suitable for copying. The link above, “Images”, will allow you to see a TIF image of the printed published pages plus the drawings, if you have a TIF reader within your computer. If you don’t have a TIF reader, you can obtain one by using the “Help” link in red along the right-hand side of the orange bar at the top of the blank Images screen. Or you can carry the publication number to a fresh browser and visit www.patent2PDF.com. At that site by entering the publication number you can access and download a free PDF copy of the patent which will then allow you to view the drawings.
We will discuss on a future occasion the layout and content of a patent disclosure or specification.
Now you can step back several screens to the basic search screen, or you can open another browser link to arrive at the same screen. You may find this latter option preferable. On the basic search screen, in the center column, click on “Public Pair”. There you will have to enter two words that are hard to read. This is to prove that you’re not a computer search engine. If you have difficulty reading the two words, click on the two arrows chasing each other in a circle and an alternate pair of words will be presented.
Here’s another way to access this page. Go to: http://portal.uspto.gov and then click on “Public PAIR”.
Once you get past this gate you will be presented with a screen that reads “Search for Application”. The default field for the application you’re going to search is its serial number. You have to change this selection by choosing the Publication Number button. Reset the selected category to the publication number and paste-in the number that you copied from the earlier patent specification screen. If you have dropped the number, here it is: 20080232532.
Now you will be presented with an index to documents in the US patent office records respecting this specific filing. The last entry at the top shows the date when this application became abandoned for failure to respond to the examiner. The next entry below gives a status date for that event: April 8, 2010.
Above the title block “Bibliographic Data” are a series of links and the fourth one in reads “Image File Wrapper”. Click on that link. It will bring you to PDF images of all of the correspondence between the applicant and the examiner.
This is useful information. It contains all of the correspondence between the inventor and the patent examiner. You are able to watch the arguments, citations and amendments included in the back and forth exchanges between the inventor and the patent examiner over the time that the patent application is pending.
The second entry dated October 5, 2009 is entitled: “Non-Final Rejection”. This document has 16 pages. On the right-hand side you can enter a checkoff in the square box under the column headed “PDF”. Now you have a choice. You can click on “Non-Final Rejection” to read the examiner’s office action page by page. Or you can go up to the link “PDF” and click on it in order to either open or save the examiner’s entire 16 page letter. I recommend the latter as it will be easier to read this document once it’s been saved to your computer. Or you can open it to read it on the screen and save it later. Be sure to keep track as to where you are saving it.
The first four pages of the examiner’s “office action” document are standard. The fourth page, titled “page 3” at the top right-hand corner, is where it starts to get interesting. Starting halfway down on this page the examiner explains the principles of 35 USC 112. This is the section in the US Patent Act that requires that a patent filing must disclose how to build something that works. Then on the next three pages ending on the sheet with “page 6” at the top, the examiner gets to the critical issue:
“Based on the above eight (8) (in re Wands) factors, it is concluded that the specification fails to enable the claimed invention.
“Because the of the (sic) lack of credibility of the existence of neutrons produced through the method as disclosed or claimed, the method is deemed inoperative.”
While this is a rejection, the applicant was given an opportunity to file evidence demonstrating to the examiner that this conclusion was wrong. This could be done in the form of affidavits or declarations of persons who have observed experiments where the promised results of the patent disclosure have been achieved. No such evidence was filed. Instead, the applicants allowed the application to go abandoned.
This is not an indication that the applicants agreed with the examiner. The applicants may very well have had in their possession evidence of an arrangement that did produce low energy neutrons in a crystal lattice as represented in the disclosure. However, the applicants would have been quoted considerable amounts of money in terms of attorneys fees to support further submissions, and they would have been told that their evidence had better be pretty thorough. Furthermore, this rejection may have encouraged the applicants to reread their disclosure to see if they had made representations which were not in fact justified, which could be deleted, and whether they had mentioned everything necessary in order to make the invention work. This is often where a patent disclosure falls down. When the original specification was finally filed, it was supposed to contain all necessary instructions. If it didn’t, then this particular application was doomed to failure in all events.
Is there a lesson to be learned from this scenario? The reasoning of the US Patent Office presented in this examiner’s office action argues that, in this particular case, the results promised by the specification cannot be assumed to be valid without evidence being filed that would demonstrate the promises of the application to be true. In an area where considerable doubt exists as to the consistent reproducibility of an effect, such as in the field of “cold fusion”, it’s not unreasonable for an examiner to ask for such evidence.
If appropriate evidence had been filed, and if the application otherwise passed the tests for patentability, e.g. novelty, inventive step in terms of not claiming an obvious configuration, clarity of claim language and adequacy of disclosure, then a patent would have issued. After all, that’s all it takes in order to obtain a patent.
Persons wishing to make comments on this posting are invited to visit the Cold Fusion Now website where this article is posted.