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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 11 / 39

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2006:1275

Inoperable Inventions

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generating infinite amounts of free energy would satisfy every legal requirement of utility if it actually worked.70 In cases like this, the questions of utility are existential rather than teleological.

Though rare, cases where courts have addressed the existential question of whether an invention is within the realm of possibility do exist. For example, in In re Citron, the court said that a claimed cure for cancer appeared “incredible in the light of the knowledge of the art, or factually misleading.”71 In In re Milligan, the court found that a claim that rubbing sauerkraut juice on one’s skin effected a cure for arthritis was “incredible on its face.”72 Baldness cures,73 cold fusion,74 and antiaging methods75 have all been deemed—at one time or another—to be beyond the realm of current technology.

One problem with operability rejections arises from the fact that one must often make a judgment as to the proper application of scientific principles. Questions concerning the application of scientific principles are not legal abstractions that courts are willing to incorporate into case law, but rather evidentiary issues that concern only the trier of facts.76 Judges and juries are not expected to be scientific experts,77 and rightly so. Thus courts, being populated by lawyers rather than scientists, generally avoid making a violation of a well-established scientific principle dispositive in determining the nonutility of a patent.78

The case of Newman v. Quigg illustrates the restraint of courts in directly applying scientific principles as a matter of law.79 The invention in Newman involved a machine, which inventor Joseph Newman claimed to have “an energy output greater than the energy input” apparently caused by “gyroscopic type energy particles.”80 The

70. 71. 72. 73. 74. 75. 76.

See infra Part IV.B-C. 325 F.2d 248, 253 (C.C.P.A. 1963). 41 U.S.P.Q.2d (BNA) 1703, 1703 (Fed. Cir. 1996). In re Ferens, 417 F.2d 1072, 1074 (C.C.P.A. 1969). In re Swartz, 232 F.3d 862, 864 (Fed. Cir. 2000). In re Eltgroth, 419 F.2d 918, 918-20 (C.C.P.A. 1970). Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1573

(Fed. Cir. 1992).

77. 78. 79. 80.

Id. Newman v. Quigg, 877 F.2d 1575, 1578 (Fed. Cir. 1989). See id. Id. at 1577. The Newman case became a cause célèbre among conspiracy

theorists after Newman appeared on the CBS Evening News on January 11, 1984. ROBERT L. PARK, VOODOO SCIENCE: THE ROAD FROM FOOLISHNESS TO FRAUD 5 (2000). His patent rejection eventually attracted the attention of several members of Congress, who held hearings to determine whether or not to force the USPTO to grant Newman a patent. Id. at 102-05. Unfortunately, Newman withered under the questioning of

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