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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 12 / 39

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WISCONSIN LAW REVIEW

Board of Patent Appeals and Interferences called the device a “perpetual motion machine” in violation of the laws of thermodynamics.81 The National Bureau of Standards ultimately tested the device and determined that it produced less energy than it took in.82 Although the appeals court refused, for technical reasons,83 to rule on the question of whether a violation of the laws of thermodynamics barred issuance of a patent, the court did state that it “believe[d] that the laws of thermodynamics do not brook contradiction. However, the laws of thermodynamics do not require closing of either the scientific or the judicial mind to the possibility that the phenomena manifested can be explained by theories that do not violate inviolable scientific principles.”84 Thus, violation of the laws of nature merely provides evidence of nonutility, and, in fact, inventors of perpetual motion machines often postulate speculative internal sources of energy to overcome the thermodynamic argument. 85

Another difficulty with inoperability rejections is that, as a matter of substantive law, the bar is set relatively low for establishing that an invention functions according to its claims.86 Perfect operation of the invention as claimed is not a requirement for utility.87 In fact, “a small degree of utility is sufficient . . . the defense of non-utility cannot be sustained without proof of total incapacity.”88 Would a spaceship powered by a “gravitomagnetic field”89 satisfy the utility requirement if it vibrated along the floor rather than soared between the stars? Would

Senator John Glenn of Ohio, thus preventing further congressional attention to his case. Id. at 105-06.

81.

Newman, 877 F.2d at 1577. A perpetual motion machine is a device that

outputs more energy than it receives as input, thus violating the law of conservation of energy. Wikipedia, Perpetual Motion, http://en.wikipedia.org/wiki/Perpetual_motion

(last visited Oct. 5, 2006).

  • 82.

    Newman, 877 F.2d at 1578.

  • 83.

    In its decision, the district court appointed a special master, who

determined that the invention generated more energy than it consumed. Id. at 1577. Although the district court judge ruled the master’s report to be “clearly erroneous in that it apparently contradicts the first law of thermodynamics,” the Federal Circuit found that the failure of the device to pass the National Bureau of Standards tests rendered the question of violating physical laws moot. Id. at 1580.

  • 84.

    Id. at 1580.

  • 85.

    Newman postulated that his machine was somehow converting mass into

energy. Id. at 1577; see also infra Part IV.B (discussing how the inventor of the Motionless Electromagnetic Generator device claims to harness the power of “zero point” energy, a type of free energy gleaned from the vacuum of space).

86.

See, e.g., E.I. du Pont de Nemours & Co. v. Berkley & Co., 620 F.2d

1247, 1260 (8th Cir. 1980).

  • 87.

    Id.

  • 88.

    Id. at 1260 n.17.

  • 89.

    U.S. Patent No. 6,960,975 (filed Mar. 14, 2005).

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