WISCONSIN LAW REVIEW
first two objections imply that the examiner was unaware of Aharonov’s discovery that vector potentials can exist independently of electromagnetic fields and have real, measurable effects.261 The third objection implies an ignorance of Josephson junctions, which can respond to vector potentials.262 The fourth objection is puzzling in that most people are aware that receivers (for example, cell phones) can be shielded by surrounding them with conductive metal (for example, steel-framed buildings). Although the Board of Patent Appeals and Interferences appeared to partially rely on the explanations of the appellant, the decision principally relied on the fact that the examiner failed to make a prima facie case for inoperability or lack of enablement.263
When a patent examiner discovers that the claims of a patent application are unclear, and there is no suggestion that the application is poorly written, there are two likely explanations: the patent is nonsensical or its principle of operation is too complex to immediately understand.264 The lesson of the Puthoff patent is that in a world where both types of patents are more and more common, even a competent examiner may fail to distinguish innovation from pseudoscience.
Any solution to the problem of patenting inoperable inventions must take into account the possible economic costs of maintaining the status quo, and then balance those costs with the economic demands placed upon the USPTO by any proposed solution. The principle economic cost of granting patents to inoperable inventions is the increased possibility of consumer fraud due to the fact that a patent is
Landau, supra note 257, at 180.
J.B. KETTERSON & S.N. SONG, SUPERCONDUCTIVITY 61 (1999).
Ex parte Puthoff, 1997 WL 1883784, at *3. An extensive search of the
relevant literature reveals that Puthoff is alone in studying the remarkable effect described in his patent. This suggests, perhaps, that the experts in the field may find it implausible. Unfortunately, a detailed theoretical deconstruction of Puthoff’s experiments is well beyond the scope of this Comment.
Although an expert physicist and engineer, Puthoff is recognized in many
circles because of his penchant for dabbling in unorthodox scientific endeavors. In addition to being a believer in harnessing zero-point energy for space travel, see Harold
55 J. BRITISH INTERPLANETARY SOC’Y 137 (2002), he about controversial, self-proclaimed psychic Uri
also coauthored Geller in the
prestigious journal Nature. Russell Targ & Under Conditions of Sensory Shielding, 251
Harold Puthoff, Information Transmission NATURE 602 (1974). It is possible that the
examiner was aware of Puthoff’s reputation and became more willing application as nonsensical rather than overly complex, but there is no actually happened.
to treat the patent evidence that this