Posts Tagged ‘ Patent ’

Review of Cold Fusion Patents – Widom and Larsen

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 http://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.

David French interview on Ca$h flow: Unlikely a single company will control cold fusion

David J. French, a Canadian patent attorney with 35 years experience, now focusing on patent issues related to cold fusion, spoke with James Martinez on his Ca$h Flowshow Tuesday, September 6.

To listen, download the .mp3 from the Cold Fusion Radio page.

These are excerpts from the hour-long interview:

JM First and foremost, what is the procedure when applying for an patent?

DF “I strongly recommend that people do really in-depth research before filing for a patent. You have to do it individually in each country. You have to file a description of how to build something that works, but then you have to define what it is about what you’re doing that’s new.

A large number of people spend large amounts of money filing for patents only to find out that what they say they want to control, what they want to patent – it isn’t new, and the patent office is supposed to do their own searches and
in many cases, the examiner knows the field very well and will give you the bad news, sorry it isn’t new.

But even if your patent issues, it can be cancelled by a judge in a court if the person you’re suing says ‘Hey this has been done before. So your invention has to have a feature that’s new.”

JM Would you say that’s the first mistake people make, presuming that their invention is unique, and then finding out its not?

DF “You know I have a three-part test for a successful patent. The first two parts don’t relate to patents.

The first part is you’ve got to have an invention people want to use. Presumably in the field of cold fusion that will be met.

Then you’re going to want to have something that other people aren’t already supplying, something that’s equal.

The third one is that your patent has to be like a gate that goes all the way across the road. If you have a situation where your gate goes only halfway across the road, then other people are going to sell things that are just as good.

So it takes these three components: a good invention, a good market situation, and a good patent opportunity before you have a valuable patent.”

JM I feel intuitively that there’s a big block in terms of getting patents for cold fusion, and based on interviews with people in the field, they don’t understand entirely the process, and also, the technology is so disruptive, there’s entities within the patent office and within government who don’t want this to even happen at all. Would you agree with that?

DF “I don’t really have an opinion on this conspiracy aspect. There might be some truth to it, but I’m not going to say I believe it. I do have confidence that the Patent Office will issue a patent for something which is directed to cold fusion if the correct procedures are followed.

Let me explain. The examiner reads your disclosure. Normally they assume that everything you say in it is true. Your disclosure has to describe how to build it. Then you have to say what it is you think is new.

In the case of cold fusion, they treat it similarly to perpetual motion. Somebody says I have something that is perpetual motion, they say prove it, file affidavits saying that it works. Tell us that other people confirm that they followed your instruction, and it works. That’s the way they handle cold fusion.

They read your text and if they say this sounds like maybe it might not work – it’s not just cold fusion that ‘s vulnerable in this respect, anything which they consider to be potentially unbelievable or hard to understand, they can always ask for evidence that it works, and so far, in many cases, they have asked for that kind of evidence, and people have not filed the evidence.

In other cases, patents have issued not necessarily for cold fusion itself, Windom and Larsen have gotten a patent on shielding against gamma rays. Well, that’s part of their theory of how cold fusion works. They got a patent on shielding against gamma rays. The examiner took them at their word that they were achieving a useful result.

So I don’t know that I subscribe to the conspiracy theory, I just know that the patent office wants you to give the story on how to build it so that it will work as a condition to getting a patent.”

JM Who happens to own the US Patent Office?

DF “The US Patent Office is part of the Department of [Commerce], the US federal government, and the Constitution says that if Congress authorizes it, then certificates can be issued to individuals and the public that give them exclusive rights. There’s no real ownership of the Patent Office, it’s really an agency of the federal government.”

JM Are other patent offices in other countries similar in nature in terms of how they proceed to give somebody a patent?

DF “All around the world, patent offices are agencies of the government and the idea is, if you’ve invented something that’s useful and new, and you file a description that works, and you identify correctly what it is that’s new, you get a monopoly, for almost every country now, for 20 years from when you file.

They don’t follow it afterwards, they don’t evaluate whether its a good idea. Just because you get a patent doesn’t mean it’s a good idea. They just test it for have you told the story on how to make it and you have stipulated what’s new.”

JM As a patent attorney yourself, I’m sure you’ve seen alot of stuff that was a complete waste of time, or they didn’t know what they were doing when they acquired the patent, and they probably spent alot of time and effort and it got nowhere. Is that very common?

DF “I’m embarrassed to say that I’ve gotten patents where I’ve known that this wasn’t going to go anywhere, and I think a large number of patent attorneys operate on that basis. A patent’s not going to go somewhere if the public isn’t going to care. Let’s say you’ve got a new way of closing a garden gate, and it makes your wife happy. You want to get a patent on it. But the world may not care.

Or you may invent a better way of cutting the lawn with a lawn mower with three wheels instead of four, but there’s lawnmowers out there that do the job, so there’s something that it may be an OK idea, but there’s other things that are just as good.

So in those cases getting a patent really is a waste of money. You can actually get a valid patent for something that has no commercial worth.”

JM What are the costs to get a patent?

DF “There’s two parts, there’s preparing the story which has to be filed, and there’s paying the processing fees in individual countries. On the average, your processing fees over the world might be on the order of $5000 a country. Some might be less, some might be more, particularly if there’s translations into Japanese or Korean.

But the preparing of the story itself, I used to quote 4, 5, 6, 7 thousand dollars, I now really rough it, I say ten-twenty thousand dollars, sometimes less, sometimes more.

If the subject is complicated, you’ve got to expect your patent attorney will spend alot of time working on it because part of his job is to understand what’s going on. He may have to spend a long time working with you, and that runs up the bill.”

JM In other words, if you can’t convince you’re own patent attorney of what you’re doing and how it works and functions, then you’re wasting your time and and your money.

DF “Yes, but I have to to tell you that many patent agents, when they have somebody that brings them something, they may try and understand it, but if it isn’t working, rather than spend another $25 or $100 working on it, they simply say to the client, you know I don’t know whether this works or not, but I’m gonna write it up so it looks like a patent. You tell me that it’s good, and I’ll file it.

And so the inventor gets his patent application on file, and then it turns out that the examiner either says look this doesn’t work, or, it goes through the patent office and it’s never tested because nobody ever wants to buy it anyway.

So patent attorneys will file patent applications when they don’t fully understand what’s going on.”

JM I see. Now, the terminology “patent pending”, what exactly does that mean?

DF “You know, patent pending is sort of like publicity. Sure, as soon as you file at the patent office and pay your fee, for a small company under 500 employees, the fee is $500 in the US, so as soon as you’ve paid that fee, you’ve got a patent application that’s pending. You don’t have any rights, but you’re telling people there might be a train on the train-track that’s coming, so be prepared to move in case the train arrives. The train arrives when the patent is granted.

But the examiner may make you jump through hoops. He may say ‘No, I won’t give you what you’re asking for, you have to change it.’ He won’t give you very much coaching, but your attorney will say ‘you know the examiner ‘s right, he found this , he found that, our invention has shrunk, we have to ask for something smaller’ and very often patents shrink considerably while their pending, and when they issue, well people look at them and say OK, I won’t do it that way, I’ll find another way to do it.”

JM Suppose a scientist comes to you with a patent for cold fusion and says OK, I want my patent, and I’m going to give you full disclosure on how it works, but I don’t want anybody else to know about it. Are trade secrets protected under a patent, or do you have to give full disclosure on what the trade secret is.

DF “A trade secret is totally incompatible with a patent. The purpose of a patent is to encourage you to tell the whole story so that people can build the invention after the patent expires. You cannot have both a trade secret and a patent.

If you’re going the patent route, you have to tell the full story. If you go the trade secret route, if someone else thinks of it on their own, they’re entitled to use it, so the trade secret route is very risky.”

JM For instance Coca-Cola, they have a trade secret formula, but if they had patented it, that means people could look it up, and they’ll have to pay to use the formula, but they could see what the formula is.

DF “That’s right, and alot of that is marketing sizzle. When they say they have a secret formula, there’s alot of cola beverages out there that many people say I don’t care if its Coca-Cola, just give me a cola. So their secret may be a pinch more of pepper or something like that they just throw in there at the last minute. But some people believe the advertising and say that they prefer Coca-Cola.”

JM The key is if you have an invention, and it fits the parameters of demand from the public, and you’ve got full disclosure, it’s way smarter just to get the patent rather than do any trade secrets because you’re going to lose if you have trade secrets.

DF “If you’re going to put it on the market and people can see what the secret is from what you’re selling, there’s no reason to keep it a trade secret, because the secret will evaporate.

The background rule is that everyone is entitled to copy unless there’s a patent, or a registered design, or a trademark, or a copyright. So the background rule is that there’s freedom to copy. If you are going to put it on the market, anyone can copy you unless you get appropriate protection.”

JM Have you dealt with scientists one-on-one in the cold fusion field?

DF “I have spoken with some of the important people in this field about the work that they’re doing on cold fusion. I won’t list some of the names because they are confidential. But I am not an expert in the technology of cold fusion, so I can’t provide you with any sort of authoritative opinion as to what is going to work.

Rossi has his hydrogen and nickel configuration, and his published patent application says that he has a secret catalyst that’s included, so we don’t know what that is, but I can’t evaluate whether his story and his patent application is valid.”

JM Like for instance, what happens when an attorney doesn’t have the scientific knowledge to understand the process, because you can’t know everything about everything, yet they come to you to acquire a patent. Your job is to evaluate the applications, the demand from the public, make sure the paperwork is done correctly, perhaps reproduce the effect before you. So they essentially have to pass your gate to get a patent.

DF “I’m a different attorney than I was during my 35-year career. During my 35-year career, like most attorneys, it’s the responsibility of the inventor to decide whether there’s a market for his product and its the responsibility of the inventor to realize that there’s other people that are already making something that he has to compete against.

A normal attorney whose acting as an attorney, all they represent to the client is ‘I will try and get you a patent that is valid and is as big and as broad as the prior art permits.’ So I’m going to get you a valid patent.

But the the normal attorney doesn’t coach you or tell you whether you patent is meaningful. Now what does meaningful mean. ‘Meaningful’ means that it is an exclusive right that prevents anybody else from getting close to you.

The Bell patent on the telephone back in 1876 was a meaningful patent because it really controlled the market for 17 years. Now that doesn’t happen very often. And I’m not sure that its going to happen in the case of cold fusion. I don’t know that there will be a controlling patent that will issue for cold fusion.”

JM Why is that?

DF “Well there’s so many people with so many ideas that have expressed themselves in the last twenty years, it may be that out there somebody has already spilled the secret and not fully understood it. A patent can’t issue for anything that’s been disclosed in the literature. A patent can always issue for something new.

Let’s say that Arata or somebody in Japan has proposed doing this and the micro-, nano-size scale of the nickel is an important issue. Well you can’t patent what’s already been disclosed publicly, but, you can find an improvement, or a way to make it more effective, and there’s many, many opportunities for the technology, to make the process work better.

The same thing happened with the Bell telephone. The first phone prepared by Alexander Graham Bell, it wasn’t very good, it didn’t work well. But as they accumulated more and more inventions, they eventually had a winning product, and then they had a stack of four or five, six patents that covered all these improvements, so individually these improvements can make a difference.

I don’t know if whether there’s going to be a master patent on cold fusion. My intuition is – that’s not likely to happen.”

JM Hmm. That in itself is a very interesting statement you just said and I hope people listen to that very carefully.

DF “Can I make another observation about a master patent? All governments around the world have a March-in Right to use inventions. They may have to pay the inventor. But the government of the United States has the right to use a patent, certainly for defense purposes, and if they want to, they can pass legislation saying that they can use it for other purposes.

One of the problems of anybody who were to get a master patent in this field is that the government in the background would say ‘You’d better be reasonable or we’re going to use our March-in Rights.’

And there’s 135 countries around the world. A person whose patenting is not going to patent everywhere. So there will be countries where they neglect to patent, and then they’ll be four or five, six people in Taiwan who’ll be building cold fusion heaters for cabins, and so the technology will available in free markets in other countries. It’s unlikely that a single company will control cold fusion around the world.”

JM Well, we’re certainly at a historic point with what Dr. Andrea Rossi has done. I understand that in Florida he’s going to be unveiling the first showing of this technology on a mass level. It’s very interesting to see what’s going to unfold.

Tell us a little about the workshops you do. It’s important for people if they have an invention, you give these workshops to educate people, put a little bit of realism in the process, to make sure that what they have is suitable before they spend alot of money and go through the patent process.

DF “Many companies get a patent by taking a write-up of the invention and they throw it over the wall to a patent attorney, and he throws back a patent application and tells them to sign it and they have to write a check and pay for it. They don’t even know what they’re getting. The attorney is trying to get them the most valid that they’re entitled too.

But what they’re entitled to may not have any commercial market validity, there may be a loophole, it may be like a gate on a road that goes halfway across the road. So my first premise is that a company should at least have a minimum understanding of when a patent is meaningful. Someone in the organization has to get intellectual property smart to understand what’s being done and blow the whistle when there’s money being wasted.

The second thing is, if you get involved in the patenting process, you will make better inventions, because the invention will change over time, and being involved in the patenting process will help you make better inventions.

The third thing is that you should have the capacity to do commercial intelligence on the Internet using the patent system. Vast resources of valuable information are available.

Those are three key messages. I give morning, afternoon workshops, ideally two mornings back-to-back for people to have the afternoon to think about it. And then if they are interested, I will train an individual in their organization to be an intellectual property coordinator, and that’s my business.”

JM That sounds to me like one of the smartest things people could do if they so they don’t waste alot of money. It’s good to know that someone out there such as yourself is doing a good job educating people.

DF “Thank you. Did you want me to comment on the resources that are available through the patent system as they relate to Rossi?”

JM Absolutely, yes.

DF “If you went to the US Patent Office on the Internet http://www.uspto.gov, on the homepage, you have to go through about four or five links, you will come to a search page, and the one that I recommended is the structured Boolean search page which you can put in two terms.

You put in term one Andrea, and term two Rossi, and on the right you can choose a field, and it makes it work efficiently if you click off Name of the inventor in both cases, and there you’ll have, amongst two or three or four applications, one of them will be the application by Andrea Rossi before the United States Patent Office. You can actually read that whole application and decide for yourself whether the story is complete or not.

And there is a way which, in my article on Cold Fusion Now I demonstrated how you can use, I won’t explain it now, but you can get it from my article, how you can see the exchange between the examiner and the applicant, and the last time I checked, the examiner had not started commenting on Rossi’s application.

There’s also an application pending in the PCT system for Piantelli. Piantelli worked with Dr. Focardi back in 1995 when the first cold fusion experiments were done with hydrogen and nickel, and I think his name is Francesco Piantelli, and if you go to http://www.pct.org – I think its .org, [http://www.wipo.int/pct/en/] check that out on google if you don’t get it – you get the Patent Cooperation Treaty website search screen, and if you insert the same way I just described the name of the inventor in the box where the inventor is supposed to be located, you’ll see Piantelli’s pending international application which shortly will be posted at the US Patent Office and you can judge for yourself whether he’s told a story that works.”

JM I know as soon as people hear this, they are going to pull that up on the web and start checking that out for themselves, so thanks for letting us know that. My other question is, of all the patents that you have dealt with, is there one in particular that has been by far the most practical and profitable for the individual that invented it?

DF “Well, I know a case where the inventors actually turned down a larger offer hoping to get paid royalties, and it turns out that they made over a million dollars but they would’ve made more if they’d taken the first offer. It was for a needle guard.

It was a teeny little device that’s on a needle. When a needle’s been used, and there’s a drop of blood on it, if a nurse scratches herself, she can get infected with HIV or other diseases, but this little thing when you slide it to the tip, it locks into place over the tip automatically, and nobody can get scratched. There was over a million dollars paid out on that.”

JM That sounds like a practical device for all over the world. I want to ask you about some other advanced technologies that we are on the brink of. People want to go green and they want to change the way we deal with energy overall. What are some of the other technologies, like for instance zero point energies and the invention of John Searl, have you dealt with those technologies as well?

DF “I haven’t dealt with them and I will tell you that without having any depth of knowledge that I am very skeptical. I believe in the basic laws of physics, and energy doesn’t come from nowhere. In fact, why the Patent Office is concerned about cold fusion, nobody knows where the excess heat is coming from, and that’s why they’re asking for evidence that it really works.

First of all, we’re living in a world where all over the world, if people knew that they could generate energy easily, somebody would do it. So I’m very skeptical that somebody has found the breakthrough and the story that they patented it, and it got bought up, it’s not true. All patents are published when they’re issued, so if there’s somebody out there whose had a breakthrough, it would be available at the Patent Office.

I’m very skeptical about inventions that people represent as the perfect solution for mankind, I ask them why isn’t it being used?

I do however believe that cold fusion is -”

JM -Is there a particular scientist or inventor who has the most patents?

DF “Well, Edison I think had over a thousand patents himself, and he had remarkably good patents. Studying the telephone as a little project that I’m doing here, the telephone really didn’t start to work, even though it was invented by Alexander Graham Bell, until Edison invented the carbon microphone. They had to pick up the speech and turn it into electricity, and it was Edison and another man called Berliner, they competed to see who was entitled to the patent, they invented a compressed carbon with a little membrane over it and when you talked, the carbon got compressed and it caused an increase and a decrease in the flow of electricity. It was that technical advance that made the telephone practical.

Some small things can mean alot. You’ve got to have a difference that makes a difference, but then if you want a valuable patent, it has to be that that’s the only way to do it, and the carbon microphone was in use up until 1980. It was replaced by piezo- electric crystals, but that carbon microphone lasted for a hundred years. In terms of cost and what it delivered, that was the only way to do it. Oh, there were other ways to do it, but they were more costly.”

JM We’ve heard that ‘there’s nothing new under the sun’. When an inventor comes to you, oftentimes they’re abruptly faced with a wall like, look pal, you’re not the first, somebody else had thought of this. That must happen all the time.

DF “You know, I like your expression, I think its from the Old Testament. In one aspect there’s nothing new, depending how you look at it. There are writing instruments, that’s not new. But how to prepare a writing instrument so it doesn’t dry out is got to be valuable for people that are going to be irritated by pens that dry out prematurely.

The problem is if you have a good idea and you do a search, good ideas are thought of by other people. Often the search will come back already been discussed, already been disclosed.

But, if you have a silly idea or a poor idea, and you do a search, it’s not going to come up in the search. So you file with the patent office, and the examiner says sure, we’ll give you a patent. We’re only marking you for being new, we’re not marking you for being good.”

JM It sounds like a remarkably complicated process for the inventor. If an inventor comes along to improve a device that already has a patent, are there alot of people that improve existing technologies, kind of wrapping themselves on top of it?

DF “You know, when Edison invented the improved microphone, he didn’t have the right to use it in a telephone system, he could use it in an auditorium, but not in a telephone system because Bell’s patent was still valid. If you invent an improvement and get a patent on it, it doesn’t mean you can violate someone else’s patent.

But the person who has the over-patent, the master patent, may look at what you’re doing, and say oh my god, I really need this because it will make my system work well. So then they negotiate with each other, and in this case, Bell paid Edison alot of money to use the microphone in his telephone system.

So when you get a patent on a bicycle and somebody invents a bicycle bell, the bicycle bell can’t go on the bicycle without permission from the patent owner, but the patent owner who owns the bicycle patent can’t put a bell on his bicycle without permission.”

JM Oh my gosh.

When’s the last time that you saw something come across your desk that was totally new and profitable for the inventor?

DF “There was a company outside of Montreal and this was quite long ago in my career, but it turned out to be important, they were called SNC Technologies and they made bullets. They were the old Canadian arsenals that had been taken over by a corporation SNC.

They decided they would make bullets that didn’t fire steel or lead, they would just fire plastic with paint, and the bullets when they went down the barrel of regular guns, just didn’t have any oomph, so they made the cartridge so that the cartridge popped, and got a little bit longer, and made the guns work. They became successful around the world.

All over the world people started buying these non-lethal bullets for use in training, and they had patents in thirteen countries, and they were just a couple years ago bought out by General Dynamics. As one of the big successes of the SNC conglomerate in Canada, this little division became world-known in that field because they had this invention of a light-weight paint-marking bullet that could be put in a regular rifle and used in training, because that was the purpose.

The inventor told me the core idea, he said David, over 99.9% of all bullets used by the police and military are used in training, they don’t have to go 5 or 6 kilometers. If they just go a couple a hundred meters or a couple of hundred yards, that’s good enough. And of course if you’re training you don’t want bullets that go 5 kilometers, you want bullets that go 500 meters. It made alot of money.”

JM Here’s the main issue that I wanted to address with you in the first place. Have you found yourself in a position where an investor’s come to you prior to investing, and you are involved in the financial negotiations so that the investor understands specifically what the patent is?

DF “All investors are likely to commission a law firm to do what is called a due diligence evaluation, but when a traditional due diligence evaluation is done, what the law firm verifies is that the patent applications were filed, the right fees were paid, the inventor’s signed the transfer documents transferring the documents over to another company that’s going to be invested in, and they do all of this technical evaluation and then they say, we didn’t find any flaws.

But the normal patent firm does not not tell you this is an invention that works, because it’s not within their capacity- they’re not engineers, and they’re not going to tell you this is an invention that will knock out competitors in the marketplace, because they’re not experts in the marketplace. So a due diligence evaluation is not a certification that a patent is going to deliver value.”

JM From an investors standpoint, it all comes down to the patent –

DF “-The patent doesn’t make the money; what makes the money is that you’re producing a product that people want to buy, and that your doing it at a price people are willing to pay, you have a successful product.

If you have a successful product, the patent will allow you to charge a higher price and make more money. So the patent doesn’t create the success, the patent enhances the profit if there is a success.

But any investor whose looking at a situation should ask, do we have a winning product here. And of course, if somebody were to produce what Andrea Rossi alleges he has, then of course we can see that it’s a winning product.

At that point it would be very important to sit down and say what other ways are there to do this? You should sit down and decide what are your competitors going to do if I do get a patent?

You should start thinking of all the ideas that they might turn to, and patent them as well. And that’s the way to build up a fortification which will protect you from competition.”

JM From an investor standpoint, they just want to get their initial investment money back, and make a profit as well. Let me ask you, have you been privileged to see Andrea Rossi’s technology?

DF “I only have been involved with the Rossi situation in terms of what’s publicly available. I don’t have any background or insider knowledge about what Rossi is doing.”

JM Would you want to see it?

DF “Oh well, I’m waiting, I’m the kind of person whose patient. I mean, I don’t fret. And I’m not even engaging in the exchanges and all the speculation going on. I’ll just wait and see what happens. I’m prepared to wait.

If I wanted to invest money in this, the most important thing to do, is form a team of three or four people, who go out and gather in all of the information that exists out there, the people that are doing things – Hagelstein and Mitchell Swartz and other people, I went to their colloquium recently – all over the world, there are people doing this, but if you were to draw all this information all together, you might be the person who sees the key feature that is going to be valuable, that is going to make cold fusion work, it may not be the basic [?] to create cold fusion, but it may be the way to exploit it.

And so you’ve got to gather in this information and discuss it among yourselves: is there something here that hasn’t been conceived of?

JM All of us on the verge of this big change coming, I respect your conservative opinion as an attorney.

DF “If cold fusion becomes a success, there will be a hundred years people will study why our society was so blind to the opportunity for twenty years. It will be a scandal.”

JM Do you recall where you were when you first heard about cold fusion?

DF “Well I was somewhere in Canada, and I certainly remember a friend of mine who phoned me up and he was very excited on the phone, and of course it was on the cover of Time magazine. I don’t remember the location where is was, but I do remember that phone call.”

JM Did you believe it?

DF “I’m one of these people that I would like to see it happen first before I say I believe it. I must say, I’m a scientist, I can suspend my judgement, my conclusion, until the evidence is in.”

JM Did Pons and Fleischmann file anything?

DF “Yes, I think so, and in fact, I haven’t gone back and looked at their original filings. In those days, they were not published on the Internet. So if you wanted to see their filings, if their patent was turned down, then it wouldn’t have been published. They changed the law in the 1990s.

First of all, there’s two stages, one was that your application became laid open to the public, I think that occurred around 1996. So even if you don’t get a patent, after 18 months anyone can read your story.

And the second thing is that in 2001 the US Patent Office put all the patent applications online over the Internet. So what happened with Pons and Fleischmann is not available directly over the Internet and I don’t know if their applications were published. But the story will come out one day.

And by the way, their applications may have flaws in them; they may not have understood what they were doing.”

JM Thank you very much for taking the time to discuss this important issue.

DF “It’s been a pleasure.”

You can read more about cold fusion-related patents from David J. French from his Cold Fusion Now Patents archive.

Related Links

United States Patent and Trademark Office http://www.uspto.gov/

Patent Cooperation Treaty http://www.wipo.int/pct/en/

Second Counsel www.SecondCounsel.com.

Profiting from the Coming Revolution Through Patents

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.

September 12, 2011 –On September 2, 2011 I was interviewed by James Martinez who provides audio podcasts on the Internet, particularly through the Internet radio website: Cash Flow!.  That radio interview event has now been posted here.  It was inspired by my previous postings on issues relating to cold fusion patents.

In the course of the conversation James remarked that he knew of investors who were looking for opportunities to invest in Cold Fusion. Where should they begin? This was a very legitimate question. James advised that these investors were at a loss because there seemed to be so much confusion in the field.

My first reaction during the interview was to observe that, in terms of patents, there may never be a “master patent” in the Cold Fusion field. A Master Patent is one that covers every way of accomplishing a result. Such a patent can only issue for a configuration that is new in the sense that it is the first to achieve the general result. It’s quite possible that in the last 20 years there have already been one or more descriptions of a working Cold Fusion system. If so, because of such a public disclosure, no one can ever patent the general concept of exploiting Cold Fusion at large.

But what can still be patented is a specific configuration for generating excess energy through Cold Fusion that works better than other systems. There are going to be numerous opportunities for identifying technical improvements that will reduce costs and make the basic invention more valuable.

In the course of the interview I gave the example of Alexander Graham Bell. Bell definitely invented a mechanism and system that could function as a telephone. Essentially, his idea was to use a voice pickup which operated on the basis of magnetic induction. This is the mechanism by which, when a wire is moved in a magnetic field, this forces a current flow within the wire. Conversely, when current flow creates a magnetic field, this field can create motion, as by moving an iron plate and thereby generating sound. Bell’s concept was to use the human voice to generate current at a source and then transfer the current to a receiver which also operated on the basis of magnetic induction. Bell’s original concept could be duplicated today by simply joining two loudspeakers, one a transmitting loudspeaker that serves as a microphone, and another that acts as a receiving loudspeaker. Talking into one loudspeaker will cause a change in the magnetic field within the transmitting loudspeaker which would generate a current which will carry down the wire and provide a reverse effect at the receiving end. This is what Bell invented.

However, with the technology of 1876, this invention would not have supported a practical telephone network. The reason is that the human voice does not provide very much energy for sending a signal down a wire. It was not until after six months from obtaining his US patent that Bell was able to send a very weak signal a distance of 18 miles, from the Cambridge to Salem Massachusetts. It took another in event to make the telephone system truly practical.

A year after Bell obtained his patent Thomas Edison filed to obtain a patent on a “carbon” microphone.    Another person, Emile Berliner also invented the same structure.    In both cases, powdered carbon was compacted and relaxed by pressure arising from a membrane into which people would speak. This would vary the resistance of the carbon and, with a large voltage applied across the entire circuit, send a substantial current down the wire that varied in accordance with the sound spoken into the microphone.  The carbon microphone “modulated” the current flow in step with the spoken words of the person speaking into the microphone.  This allowed the transmission of telephone signals to a more distant receiver. The carbon microphone made the telephone practical. Carbon microphones were in use in the standard telephone handset up until around 1980 when piezo-electric microphones came into more general use.

The same path for making progressive innovations is likely to apply in respect of Cold Fusion. Initially Cold Fusion may only generate energy as a trickle. The temperature may not be very high. The source of energy might be depleted quickly and have to be regenerated. Under these circumstances, there will always be creative individuals who will see opportunities to improve the delivery of Cold Fusion energy. In this future world there will be a race to make improvements to help make the basic idea work better.

As a consequence of my interview with James Martinez, I also came to a realization that surprised me. I suggested that any investor who wants to take advantage of the potential of this the future opportunity would be well advised to assemble now a team of individuals to study the situation. The first thing to do is to survey the literature. I suggest initially a team of four individuals.

As I envisage it, the team would include one very experienced physicist. This would be a person who understands and can distinguish good physics from bad physics. This person would provide guidance to the team to differentiate between hot leads and the dead ends.

The second person on the team would be a journalist. This journalist would initially be responsible to guide the search for and examination of the literature that exists worldwide on the subject of Cold Fusion. The object of the team will be to garner-in all of the wisdom that has accumulated to date on this subject. The challenge will be to separate the kernels of truth from the mountain of chaff that already exists. A journalist will have the skill and enthusiasm to labor through all of the literature in search of the truth and guide other members of the team in this exercise.

As a further individual on this team, I would suggest a graduate student, possibly somebody working towards their PhD. This person would assist the journalist and work under the tutelage of the physicist in analyzing concepts. Indeed, it may be appropriate that there be two such individuals on the team. These individuals will provide youth and energy, creativity and imagination, to the group. They will also support other members of the team in doing the work. It will be an invigorating experience for them, quite possibly the experience of a lifetime.

The last individual on the team could, on reflection, be a patent attorney. I confess that I am a patent attorney myself, so perhaps I am prejudiced in making this suggestion. But a patent attorney would bring rigor to the analysis of the group, establishing standards for accurately and concisely recording ideas and thoughts. A good patent attorney is able to judge whether the technology being presented is valid or not. A good patent attorney will always ask the question: “What other ways are there to obtain this result?” Having a patent attorney on the team will complement the skills of the other individuals. And he will be able sniff-out patenting opportunities when they arise.

I envisage such a team as being egalitarian. That is there would be, amongst team members, no leader. They would meet and decide amongst themselves how each individual is to spend their time. In case of disagreements that cannot be resolved, there should be someone outside the team who can arbitrate issues. But so long as the team is able to guide its own efforts, there would be no leader. The object would be for everyone to learn the skills of the other members, and working together, get the job done.

And what would that job be? One job would be to understand who out there is already in the lead and is getting it right. From the direction that this apparent winner is heading, their job would be to look for consequences, secondary and tertiary consequences that would flow from eventual success. Then investments could be made that are directed to such secondary and tertiary consequences. For example, it may be that Cold Fusion will be ideally suited as the energy source for a Stirling engine. In such event, investors may wish to support existing Stirling engine fabricators.

Another role for this team would be to become inventors themselves. Having become knowledgeable in the field, they could identify bottlenecks, and brainstorm as to how to best overcome the bottlenecks. Breakthroughs would not be certain. But if they were to occur, they, like the carbon microphone, may prove to be of immense value.

Those were my thoughts after the interview ended. However I also had a further thought. Perhaps teams like these have already been formed. Indeed, they may have been formed in distant countries where governments are more foresighted and recognize that, when a technology of stupendous importance is at stake, it’s highly desirable to make an investment in understanding what’s going on, just in case.

Review of NASA/Zawodny US patent application published October 20,2011

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.

November 21, 2011 –The National Aeronautics and Space Administration – NASA has taken the initiative to file a patent application at the US Patent Office relating to Cold Fusion.  This application was filed in Washington on March 24, 2011 claiming priority from an earlier U.S. Provisional Patent Application filed March 25, 2010.  Publication of this application occurred in pursuance of the standard rule that applications are laid open for public examination as of 18 months from their earliest priority/filing date.  This rule does not always apply.  The Patent Office can, if an invention relates to defense or matters of national interest, withhold applications from publication in the normal course.

Viewing the patent application

The US publication number is 20110255645 and the application can be viewed at the following link (here).  A TIFF reader is required to view the images.  TIFF software can be downloaded from the US PTO Images webpage.  Alternately, the publication number can be transferred to  www.patent2PDF.com  where a PDF image with the drawings can be downloaded.

The sole named inventor on this application is Joseph (Joe) M Zawodny.  Googling this name leads to this link, (here).

and this link, a review of a book on Amazon.com (here)

and this link, on PeakYou (here).

I will let the readers chase-down other biographic information on this inventor.

The title of the patent application is: “Method for Producing Heavy Electrons” and the Abstract reads as follows:

“A method for producing heavy electrons is based on a material system that includes an electrically-conductive material is selected. The material system has a resonant frequency associated therewith for a given operational environment. A structure is formed that includes a non-electrically-conductive material and the material system. The structure incorporates the electrically-conductive material at least at a surface thereof. The geometry of the structure supports propagation of surface plasmon polaritons at a selected frequency that is approximately equal to the resonant frequency of the material system. As a result, heavy electrons are produced at the electrically-conductive material as the surface plasmon polaritons propagate along the structure. “

More significant is claim 1 which is the 1st of 3 independent claims (the others being claims 12 and 19).  Claim 1 is analyzed in detail further below.

One Key Requirement for validity

For this claim to be valid, it must not describe or “read-on” anything that was available in a printed publication anywhere in the world prior to March 25, 2009.  Further, it must not describe any public use or offer for sale occurring in the United States prior to that date.

In this respect, this application explicitly acknowledges in paragraph [0006] that the theory of Widom and Larsen that “heavy electrons” have been linked to LENR activity.  This is described in the application as follows:

“Briefly, this theory put forth by Widom and Larsen states that the initiation of LENR activity is due to the coupling of “surface plasmon polaritons” (SPPs) to a proton or deuteron resonance in the lattice of a metal hydride. The theory goes on to describe the production of heavy electrons that undergo electron capture by a proton. This activity produces a neutron that is subsequently captured by a nearby atom transmuting it into a new element and releasing positive net energy in the process.”

Readers should appreciate that statements made in patent applications and issued patents are not necessarily true.

The patent application acknowledges the article by A. Widom et al. “Ultra Low Momentum Neutron Catalyzed Nuclear Reactions on Metallic Hydride Surface,”  European Physical Journal C-Particles and Fields, 46, pp. 107-112, 2006, and U.S. Pat. No. 7,893,414 issued to Larsen et al, published September 15, 2007, as being prior art which cannot be covered by a claim in the present application.  The application goes on to premise that, as of the priority date, heavy electron production has only occurred in small random regions or patches of sample materials/devices, limiting the capacity of this phenomenon to support a device in an efficient energy generation application.

This inventor himself premises the legitimacy of LENR as a potential source of energy generation.  The fact that NASA has supported this application by paying for the patent filing provides further modest endorsement of this premise, at least as a prospective possibility.  But this filing does not commit the US government to acknowledge that LENR is a significant phenomenon of great potential importance.  This initiative may merely be the whim of a NASA supervisor.

Classification of invention

This application has been assigned to US patent class 376/108.  A link to this class including further links to other applications and patents in the same class and subclass may be found (here).

Highlighting and clicking on the description of the sub-class on this page will lead to a class definition.  That class definition includes systems which aspire to achieve nuclear fusion in the most general sense of yielding, after a reaction, a nucleus of greater mass, whether successful or not.  It includes cases where neutrons are used to cause a fission reaction.

Classification in this subclass does not necessarily define what is really happening.  It is really just a 1st guess and it is further subject to the possibility/likelihood that the subclasses in this classification system are not fully up to date with latest developments.

From the link to US patent class 376/108 further hyperlinks to pending patent applications and issued US patents in the same subclass may be effected by activating the links “A” and “P“.

Claim 1

A better understanding of claim 1 can be achieved by parsing it as follows:

1. A method of producing heavy electrons, comprising the steps of:

selecting a material system that includes an electrically-conductive material, said material system having a resonant frequency associated therewith for a given operational environment; and

forming a structure having a surface, said structure comprising a non-electrically-conductive material and said material system, said structure incorporating said electrically-conductive material at least at said surface of said structure,

wherein a geometry of said structure supports propagation of surface plasmon polaritons at a selected frequency that is approximately equal to said resonant frequency of said material system, and producing heavy electrons at said electrically-conductive material as said surface plasmon polaritons propagate along said structure.

This claim is very broad and may have to be narrowed to achieve the approval of the US examiner.  The applicant must not only establish that the claim qualifies as covering only to novel, nonobvious, methods in view of what was before March 25, 2009, but also the examiner must be satisfied that the disclosure is free of uncertainties and contains sufficient information to enable the replication of the invention once the patent expires.  This application may be vulnerable on both counts.

This could turn out to be a remarkably broad claim if it is upheld.  Readers may be able to supply examples of prior art that fall within its scope.  Regarding uncertainty, the meaning of this claim will depend upon understanding what is meant by the word “propagation”, as in the phrase “supports propagation”.  This could mean increasing in quantity, or advancing in space.  Contrast: a propagation of new species (after a massive extinction) versus propagating in space (radio waves). The 2nd use of propagation at the end of the claim is in the latter sense.  In the circumstances, we may look to the general “story” of the disclosure to clarify the meaning of words used in a claim. We must also examine the disclosure to determine if it is “enabling”.

Disclosure of the invention

The Summary of the Invention portion of the disclosure is clearly written by a patent attorney.  The rich use of “may” rather than “is” is a clear indication of this conclusion.  Attorneys never wish to commit themselves if they can avoid it.  The 1st paragraph in this section also contains some strange passages:

“The structure may include a solid matrix material with the electrically-conductive material mixed therein. The structure may exist in a state selected from the group consisting of a gas, a liquid, and a plasma. The electrically-conductive material may be mixed in the structure.”

To suggest that the structure can exist in the state of being a gas, liquid or a plasma seems to stretch the word “structure” too far.  But patents are to be read with a mind willing to understand.

Detailed description

The Detailed Description of the Invention portion of the disclosure is more often associated with the words of the inventor. In this section we nevertheless find text which is entirely predictive with no examples.  This portion of the disclosure is supposed to enable others to build and operate the invention.  In this case, the instructions are tied-to or expressed in terms of achieving the object of the exercise.  This is generally not considered to be sufficient to meet disclosure and enablement requirements.  Sample paragraphs that are somewhat indefinite are as follows:

“[0021] ….In general, device 10 includes a selected material system 12 that is incorporated onto/into a tuned structure 14 that supports propagation of SPPs and resulting heavy electron production that is sustained by device 10 across and/or through the entirety thereof.

[0022]….device 10 is made in such a way that it will establish a resonance in a SPP (e.g., via its inherent thermal energy for a given working environment, or via the application of energy to initiate SPP resonance) at a small region or portion of device 10.

[0023]….Regardless of the application, material system 12 will have a resonant frequency associated therewith for the working or operating environment of the application. Determination of this resonant frequency can be achieved by experimentation as would be understood in the art.  For example, the resonant frequency for metal hydride systems can be measured using neutron scattering. The resonant frequency for molecules (e.g., molecular films such as polycyclic aromatic hydrocarbons or PAHs, hydrogenated/deuterated molecular structures such as graphane and its nanotube variants) can be determined for specific vibrational or rotational modes using spectroscopy. [Comment: earlier, it was suggested that resonance was to be formed in particles.  Why is resonance within molecules relevant?  Is there a distinction between the resonant response of a material system and the resonant response of “heavy electrons?]

[0025] With material system 12 being so-selected and its resonant frequency for a working environment being determined/known, tuned structure 14 incorporating material system 12 is formed. In accordance with the present invention, this is achieved by making the geometry of structure 14/material system 12 such that the SPP resonance thereof is established (i.e., either by inherent thermal energy of device 10 or application of energy thereto that initiates SPP resonance) at a frequency (i.e., the SPP resonant frequency) that is approximately equal to the above-described resonant frequency of material system 12.

Apparently, this text assumes that the geometry of structure 14/material system 12 can be chosen so that the displacement of surface plasmon polaritons – SPPs (also described as “heavy electrons”, but not otherwise defined) along the surfaces of the particles of structure can be pumped in their translational motion by applying energy intermittently from an external source, necessarily in synchronization with the presumed reversing travel of SPPs within the particles.  Since the disclosure premises that an external source can be: “a form of energy selected from the group consisting of electric energy, thermal energy, photonic energy, energy associated with an ion beam, and energy associated with a flow of gas” para [0007], there is a presumption that each of these energy sources can be modulated appropriately and will couple with the heavy electrons increasing their energy content or, presumably, their effective mass.

The objective of “propagating” the existence of “heavy electrons” is said to have utility because of their prospective role in:

“coupling…… to a proton or deuteron resonance in the lattice of a metal hydride (and) … undergo electron capture by a proton. This activity produces a neutron that is subsequently captured by a nearby atom transmuting it into a new element and releasing positive net energy in the process” (para [0006]).

Accordingly, this patent does not represent that it is establishing a process for producing energy based on an LENR or Cold Fusion process that arises from the formation and absorption of neutrons.  Rather, it accepts such process as a given and presumes to provide a method for enhancing the efficiency of neutron production.

Overall, the specification is speculative and suspect for lacking any data on actual procedures that have been carried out to successfully produce the results promised.

Results promised

And the disclosure runs the dangerous risk of making excessive promises:

“The present invention allows an entire device surface or volume to produce heavy electrons as opposed such production in small random regions of materials/devices. Thus, devices/systems constructed in accordance with the present invention will have performance that is predictable and maximize heavy electron production that results in, for example, maximum energy production for a given device/system or predictable efficiency and effectiveness of a gamma ray shield.” [0007]

It’s better not to make promises as to the degree of performance that can be achieved from the invention since, if such promises do not deliver, this is a grounds for questioning the validity of a patent.

Conclusion

In conclusion, this application seems to be as much the creation of a patent attorney who has received the advice that the resonant excitation of “heavy electrons” will improve their “propagation”.  It will be interesting to see how the examiner reacts when this filing is reviewed in 2 or 3 years.

Postscript: Apparently, no corresponding application was filed either under the Patent Cooperation Treaty or before the Canadian Patent Office.  This indicates that the relative importance thought to be associated with the patent filing by those paying the bill is modest.

Persons wishing to make comments on this posting are invited to visit the Cold Fusion Now website where this article is posted.

Patenting Cold Fusion Technology: Navigating Patent Office Classification

This was copied from here.

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.
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..