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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 27 / 39

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2006:1275

Inoperable Inventions

1301

worldwide energy production.218 Visitors are informed that, with sufficient investment capital ($11 million, although “$12 million would be a bit easier budget”), a commercially viable power source could be developed from the MEG design.219 Here we see the downside of the liberal patent approval system: the granting of a patent lends legitimacy to attempts to raise capital for investments that are unlikely to result in a commercially useful product. Although Bearden is unlikely to acquire millions of dollars in funding from sophisticated investors, the existence of the MEG patent may assist in the marketing of his books.220

The examiner approved the MEG patent within two years of filing.221 Assuming that the device is inoperable,222 what could the examiner have done to prevent this patent from being approved? First, the examiner could have attempted to show that the permanent magnet could not have been the power source given the details of the device’s construction or the nature of the claims.223 An expert’s report may have been sufficient in this case to satisfy the requirement of documentary evidence of inoperability and to shift the burden to the inventors.224 Second, the examiner could have asked the Director to request a working model for inspection under 35 U.S.C. section 114.225 This course of action is expensive and time consuming, but proved to be effective in preventing Newman from obtaining a patent in a similar situation.226 Because the patent was ultimately issued, the market will have to determine whether the device is operable or not. Unfortunately, the mere granting of a patent for the MEG transfers some level of undeserved legitimacy to the device which may have a negative effect

218.

The

Tom

Bearden

Website,

Links

to

http://www.cheniere.org/links.htm (last visited Nov. 1, 2006).

219.

The

Tom

Bearden

Website,

Related

Information,

MEG

Funding,

http://www.cheniere.org/correspondence/011905.htm (last visited Nov. 1, 2006).

These books include THOMAS E. BEARDEN, ENERGY FROM THE VACUUM: CONCEPTS AND PRINCIPLES (2002) and THOMAS BEARDEN, OBLIVION: AMERICA AT THE 220.

BRINK (2005).

  • 221.

    See ’718 Patent.

  • 222.

    In addition to the arguments against operability given above, any device

that claims to be capable of generating vast amounts of energy at little or no cost should be met with a degree of skepticism for the following reasons: First, any such working device would attract a large amount of investment in an efficient marketplace and would rapidly result in a commercial product. Second, lack of peer-reviewed publication suggests a lack of peer-reviewable results (although many fringe scientific groups are known to publish among themselves in overly credulous journals).

223. 224. 225.

See supra notes 165-70 and accompanying text. See supra Part II.B. 35 U.S.C. § 114 (2000) (“The Director may require the applicant to

furnish a model of convenient size to exhibit advantageously the several parts of his invention.”); see also 37 C.F.R. § 1.91(b) (2006).

226.

See Newman v. Quigg, 877 F.2d 1575, 1580-81 (Fed. Cir. 1989).

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