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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 35 / 39

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35 / 39

2006:1275

Inoperable Inventions

1309

innovative ideas.279

However, the requirement that patents be evaluated

by one “skilled in the art”280 is subject to the same criticism—a person skilled in the art does not hold back judgment simply because of the possibility that an inventor’s unscientific claims may be vindicated sometime in the future. The patent system need not shy away from passing judgment on patent applications using only accepted scientific principles. When new scientific principles are established, the patent system can easily adjust, as the history of patentable baldness cures makes clear.281

A second possibility is to create a statute specifically forbidding the patenting of devices that operate on the principles of perpetual motion, free energy, dowsing, psychic energy, spiritual energy, or theories of operation of a similar nature. There are two obvious objections to this approach. First, some observers who believe in the physical reality of psychic energy, for example, may find this approach to be too narrow-minded. Second, applicants can often remove or hide the taint of pseudoscience by clever drafting.282 On the other hand, specifically referring to pseudoscientific principles by statute would prevent this narrow class of inoperability rejections from intruding into patent applications from legitimate business enterprises. In addition, such a statute would go a long way towards distancing the USPTO from the impression that it is effectively advocating pseudoscientific beliefs.

B. Outsourcing the Examination of Difficult Patents

Scientific publication generally operates on a system of peer review,283 in which articles are submitted to anonymous referees who

279.

For example, in 1835, Auguste Comte echoed the scientific principles of

the day by famously stating that the composition and temperature of stars unknowable facts. Neil deGrasse Tyson, Over the Rainbow, NAT. HIST., 30, 32-33. Comte said this prior to the discovery of spectroscopy, studying the composition of stars, among other things. Id. at 33.

are inherently Sept. 2001, at a method for

280. 281.

35 U.S.C. § 112 (2000); see also supra notes 199, 202. See, e.g., In re Cortright, 165 F.3d 1353, 1357 (Fed. Cir. 1999). There

was a remarkable boom in the biotechnology industry as a result of Diamond v. Chakrabarty, 447 U.S. 303 (1980). See Robin Feldman, Rethinking Rights in Biospace, 79 S. CAL. L. REV. 1, 2 (2005) (“Chakrabarty helped pave the way for the explosion in the biotechnology industry.”). This lends some credence to the argument that denying patentability limits innovation insofar as lack of investment in biotechnology pre- Chakrabarty was related to the unavailability of patent protection. However, biotechnology is based on sound scientific principles, unlike the patents that are the subject of this Comment. To put it more bluntly, pseudoscientific innovation is an

oxymoron.

  • 282.

    See, e.g., supra Part IV.B.

  • 283.

    See, e.g., Edwin S. Flores Troy, Publish and Perish: Patentability Aspects

of Peer Review Misconduct, 5 TEX. INTELL. PROP. L.J. 47, 50-55 (1996). Even Albert

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