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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 23 / 39

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2006:1275

Inoperable Inventions

1297

the dielectrophoretic effect along with two irrelevant equations184 governing the force on a spherical and cylindrical dielectric in a nonuniform electric field.185 Figure 1 of the ‘088 Patent shows a man pointing the device at another man on the other side of a barrier. There is even a table of dielectric constants for a number of materials which appears to have been copied from a physics textbook187 and is utterly unrelated to the list of dielectric materials that make up the substance of the claims.188 The best that can be said of the patent is that it is virtually incomprehensible. A patent examiner confronting this patent application for the first time would have faced the classic conundrum of deciding whether the patent was the result of genius or delusion. 186

There are, however, several clues that point toward the latter interpretation. For one thing, the physical construction of the device is reminiscent of a classic dowsing rod, in that the device is “held in a balanced horizontal state”189 such that it pivots around the handle in response to very small movements of the operator’s hand. Such a device would respond very sensitively to the operator’s conscious or subconscious desires through the “ideomotor” effect.190 Unfortunately, unlike the perpetual motion machine, the dowsing rod does not appear to elicit the same type of institutional skepticism from the USPTO. 191

As far as scientific objections to the device that would amount to a prima facie case for inoperability, it must be recognized that the patent is so complex and incomprehensible that there would be very little point to objecting to the claims in detail. On the other hand, an examiner might have pointed out the absence of any theoretical justification as to why the device would be particularly prone to detecting humans, as opposed to mice or automobiles. Although there is no requirement to disclose a theory of operation as a condition of patentability, pointing out the lack of a credible theory in this case would have helped to

184. 185. 186. 187. 188.

The equations are not referred to again in the rest of the patent. See id. Id. cols.1-2. Id. fig.1. Id. col.3. For example, of the list of fifteen dielectrics in claim 22 of the patent,

only air, water, and barium titanate appear in the table. See id. cols.3, 10.

189. 190.

Id. abstract. See, e.g., Ray Hyman, The Mischief-Making of Ideomotor Action, in

SCIENCE

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ALTERNATIVE

MEDICINE: WHAT

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UNCONVENTIONAL TREATMENTS 95, 99, 113 (Wallace Sampson & Lewis Vaughn eds., 2000). The ideomotor effect is the psychological theory that the operator of a device, such as a Ouija Board or a dowsing rod, will subconsciously direct the device towards an intended goal. Id. at 113. This would also explain the perfect accuracy of the

unblinded test in the Sandia Report. MURRAY, supra note 173, at 7, 9.

191.

See Newman v. Quigg, 877 F.2d 1575, 1577 (Fed. Cir. 1989).

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