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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 22 / 39

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1296

WISCONSIN LAW REVIEW

controlled scientific test.171 Although now irrelevant for the patents already issued, such a test did indeed occur. 172

At the request of the Department of Energy, Sandia National Laboratories conducted a double-blind173 study to see whether the DKL LifeGuard was capable of locating an unseen person more often than predicted by random chance.174 Live human test subjects were placed in p l a s t i c c r a t e s , a n d t h e D K L r e p r e s e n t a t i v e w a s a s k e d t o l o c a t e t h e m using the DKL LifeGuard device.175 In the first phase of the test, which

was not double-blind, the DKL representative was shown where the human subjects were hidden and correctly located each subject 100 percent of the time.176 The purpose of this baseline test was to ensure that the test conditions were acceptable to the test subject (and to prevent the inevitable excuses in cases of subsequent failure).177 In subsequent trials, the DKL representative was not aware of the location of the human subjects and performed in a manner very consistent with random chance.178 The authors concluded that the “device performs no better than random chance.” 179

It is instructive to inquire whether a patent examiner could have determined the inoperability of the DKL device based on the information present in the patent application. All of the DKL patents make similar scientific claims,180 thus this section will focus only on the claims of the first patent issued, entitled “Device and Method Using Dielectrokinesis to Locate Entities.181 The application contains several complex drawings of the device,182 a detailed schematic of the electrical system using mostly standard electronic symbols,183 and a description of

    • 171.

      See, e.g., Fregeau v. Mossinghoff, 776 F.2d 1034, 1038-39 (Fed. Cir.

  • 1985)

    .

    • 172.

      DALE W. MURRAY ET AL., SANDIA NATL LABS., DOUBLE-BLIND

EVALUATION

OF

THE

DKL

LIFEGUARD

MODEL

2

(1998),

available

at

http://www.prod.sandia.gov/cgi-bin/techlib/access-control.pl/1998/980977.pdf.

173.

A

double-blind

study

is

one

in

which

neither

the

tester

nor

the

person

being tested knows the conditions of the test while it is being conducted. Id. at 5. This

prevents the person from the tester. Id.

being

tested

from

gaining

information

about

the

test

conditions

174. 175. 176. 177. 178. 179. 180. 181. 182. 183 .

I d . Id. Id. at 6. Id. at 7, 9. Id. at 7. Id. at 7-13. Id. at 13. See patents cited supra note 11. U.S. Patent No. 5,748,088 (filed Nov. 27, 1996). Id. figs.2-4, 6. f i g . 5 .

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