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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 20 / 39

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WISCONSIN LAW REVIEW

parties.156 Moreover, a party with purely altruistic motives, such as a consumer protection group, may be prohibited from bringing such a suit for lack of standing. 157

IV. CASE STUDIES

In this Part, several patent applications will be examined in detail in order to point out flaws in the patenting system and explain why such patents were issued in the first place. The patents are described in order of increasing comprehensibility within the framework of accepted scientific principles. Part IV.A examines a virtually unintelligible patent issued for what amounts to a dowsing rod. Part IV.B examines a slightly more sophisticated patent granted to a free energy device (that is, a perpetual motion machine). Part IV.C discusses the cold fusion patent cases arising from a very sophisticated group of cold fusion scientists. Finally, Part IV.D examines a patent based on solid scientific principles whose claims were mistakenly assumed to be incredible by the examiner.

A. The DKL LifeGuard Patents

According to its maker’s claims, the DKL LifeGuard, mentioned previously, is a device resembling a handgun158 that allows the operator to home in on living human beings.159 The LifeGuard is based on a series of patents160 espousing a modified theory of dielectrophoresis called “dielectrokinesis.”161 First of all, it should be noted that dielectrophoresis is an accepted scientific phenomenon whereby dielectric materials (for example, certain biological materials or plastics) are subjected to a small force when placed in a large,

156.

Due to

dollars. Matthew 267, 270 (2004).

B.

the complexities involved, patent litigation Lowrie, Critical Issues in Managing Patent

can cost millions of Litigation, 44 IDEA

157. Standing to have a patent declared invalid requires “a reasonable apprehension on the part of the declaratory judgment plaintiff that it will face an infringement suit.” Medimmune, Inc. v. Genentech, Inc., 427 F.3d 958, 964 (Fed. Cir.

  • 2005)

    , cert. granted 74 U.S.L.W. 3471 (Feb. 21, 2006) (No. 05-608).

    • 158.

      See U.S. Patent No. 5,748,088 fig.1 (filed Nov. 27, 1996).

    • 159.

      Id. col.4.

    • 160.

      See patents cited supra note 11.

    • 161.

      ’088 Patent. The word “dielectrokinesis,” which appears only in the title

of the patent, may be a portmanteau of the phrase “an electrokinetic effect due to dielectrophoresis.” Id. cols.1-2.

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