amount of data in support of this position in the process.237 Secondly, cold fusion received a large amount of publicity, resulting in a consensus by the general population that the technology does not work.238 This publicity may have resulted in an institutional skepticism at the USPTO towards cold fusion that made utility rejections of these applications much more likely.
In In re Swartz, the appeals court found that the examiner had satisfied his burden of overcoming the presumption of utility by citing numerous references to the irreproducibility of the cold fusion effect.239 The burden then shifted to Swartz to provide evidence to rebut the case made by the examiner.240 Interestingly, Swartz was able to produce what the courts described as “voluminous record material” in support of his invention.241 This is not surprising given that the cold fusion community has its own journals (for example, Cold Fusion Times), its own colloquia, and in some countries (like Japan) significant external funding.242 What reasons, then, did the appeals court give for choosing between two competing records on the question of utility? In the words of the court:
Mr. Swartz complains that the Board “ignored” evidence that he submitted and disregarded his arguments, and he invites this Court to examine voluminous record material that he urges supports his position on the issue of utility. Such conclusory allegations in an appeal brief are quite insufficient to establish that the Board’s decision on the issue of utility is not supported by substantial evidence . . . .243
Was the court asking Swartz not only to substantiate his own claim, but also to disprove the examiner’s claim? Perhaps the general consensus that cold fusion is an irreproducible effect swayed the court instead.
The court in In re Dash gave a somewhat more thoughtful response to Dash’s attempt to rebut the examiner’s prima facie case of
See GARRY MCCRACKEN & PETER STOTT, FUSION: THE ENERGY OF THE
UNIVERSE 90-91 (2005).
See GARY TAUBES, BAD SCIENCE: THE SHORT LIFE AND WEIRD TIMES OF
COLD FUSION (1993). For a less critical account, see EUGENE F. MALLOVE, FIRE FROM
ICE: SEARCHING FOR THE TRUTH BEHIND THE COLD FUSION FUROR (1991).
239. 240. 241. 242.
232 F.3d at 864. Id. Id. Briefings, Cold Fusion Gets Warm Reception in Japan, ASEE PRISM,
Mar. 2002, available at http://prism-magazine.org/mar02/briefings.cfm.
232 F.3d at 864.