would be both legally and practically incapable of rejecting a patent on inoperability grounds. It is no wonder that the examiner chose to assume that she simply lacked enough skill to understand the invention.
B. The “Motionless Electromagnetic Generator”
In March 2002, a group of inventors received a patent for a device called the Motionless Electromagnetic Generator (MEG).202 The device is an elaboration of the simple electrical transformers so ubiquitous in the modern world.203 The principle innovation is the addition of a permanent magnet and some extra coils of wire.204 In summarizing the invention, the inventors stated that “a first objective of the present invention [is] to provide a magnetic generator [in] which a need for an external power source during operation of the generator is eliminated.”205 The inventors went on to describe how, by feeding some of the output power back into the input, the device could be used to generate power with no external energy source or moving parts.206 The MEG is thus a classic example of a perpetual motion machine—that is, a machine that produces more energy than it consumes but contains no internal or external source of energy to drive its operation.207
Perpetual motion machines violate the first and second laws of thermodynamics, both well-established scientific principles.208 If the utility of a device were based on a claim to generate “free” energy as perpetual motion machines purport to do, then, by simple extension of the accepted laws of physics, the device would be inoperable and would therefore fail the utility test of 35 U.S.C. section 101.209 The dicta in
of the prior art in the field of the invention); Envtl. Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 696 (Fed. Cir. 1983) (holding that six factors were relevant to determining the level of ordinary skill in the art, including “sophistication of the technology” and the “educational level of active workers in the field”). See generally Joseph P. Meara, Just Who Is the Person Having Ordinary Skill in the Art? Patent Law’s Mysterious Personage, 77 WASH. L. REV. 267, 276 (2002). Thus, the “person skilled in the art” is a hypothetical person whose level of skill may not match the skill of the individual examiner. Id.
U.S. Patent No. 6,362,718 (filed Sept. 6, 2000).
Id. figs.1, 2.
Wikipedia, supra note 81.
The first law of thermodynamics states that energy is conserved in a
closed system, while the second law states that the entropy, or amount of disorder, in a closed system always increases with time. WALTER GREINER ET AL., THERMODYNAMICS AND STATISTICAL MECHANICS 33, 41 (Dirk Rischke trans., 1995) (1987).
§ 101 (2000); In re
390 F.2d 985,