nonuniform electric field.162 “Dielectrokinesis,” on the other hand, appears to be a term invented by the applicants to describe the decidedly nonscientific theory that a handheld device will respond to a hidden human entity many meters away. 163
In a report sponsored by the National Institute of Justice, Sandia National Laboratories disassembled a DKL LifeGuard Model 3 to determine whether the device was “designed on solid scientific principles.”164 The investigators referred to the portion of the circuit designed to operate on the theory of dielectrokinesis and actually rotate the antenna as the “passive module.”165 The report found that “[t]he passive detection module is an open circuit, and the most critical component of the passive detection module is composed of human hair glued between two small pieces of polystyrene.”166 After an exhaustive analysis, the report enumerated eleven compelling scientific reasons explaining why the device should not work as claimed, including the fact that “[t]here is no accepted physical principle or theory that supports the idea that human hair can tune a dielectric material to respond only to human heart electrical signals.”167 As a final note, the author quoted a recognized expert in dielectrophoresis168 who stated that “if indeed the device’s operation is based on [dielectrophoresis] then [my] own twenty-five years of study of the subject have been for naught.” 169
Had this report been part of the record during the patent application process, the examiner would have likely been able to make a prima facie case of inoperability. According to the report, the device clearly claims to operate in contradiction to accepted scientific principles.170 DKL would have had the option of rebutting the prima facie case by actually demonstrating that the device worked in a
Herbert Pohl coined the term in the 1960s. See HERBERT A. POHL,
DIELECTROPHORESIS: THE BEHAVIOR FIELDS 5 (1978).
See ’088 Patent.
DALE W. MURRAY, SANDIA NAT’L LABS., PHYSICAL EXAMINATION OF THE
DKL LIFEGUARD MODEL 3, at 4 (1998), available http://www.nlectc.org/pdffiles/dklanalysis.pdf (last visited Oct. 6, 2006).
Id. at 22-23.
See supra notes 163-64 and accompanying text for an explanation of the
difference between dielectrophoresis and “dielectrokinesis.”
169. 170 .
I . MURRAY, supra note 165, at 24. d . a t 2 2 - 2 3