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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 4 / 39

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1278

WISCONSIN LAW REVIEW

these patents involve a narrow class of inventions that are so devoid of utility as to be completely incapable of operating as claimed—so-called inoperable inventions.19 Some examples might help illustrate the scope of this criticism: a method of controlling appliances with the mind alone,20 a magnetic ring that helps circulate the blood,21 a device for imparting something like the Chinese spiritual energy called “Ki” into water,22 an antigravity spaceship,23 and a perpetual motion motor that runs on the power of permanent magnets.24 Later, this Comment will analyze several patents within this class in detail to point out flaws in the patenting system and to explain why the United States Patent and Trademark Office (USPTO) issued such patents in the first place.25

B. Response to Arguments Against Reform

There are four primary arguments against reforming the patent system to prevent the patenting of inoperable inventions. First, if inoperable inventions are useless by definition, no market—and therefore no harm to consumers—can arise from such patents.26 Second, might some inoperable inventions actually prove to be not only functional, but exceptionally visionary?27 Denying patents to every incredible invention may stifle innovation in these rare cases. Third, if a patentee submits an application for an inoperable invention knowing that it will not be tested, then the problem is simply one of fraud or inequitable conduct,28 rather than a systematic flaw in the patent

19.

Although the legal and colloquial definitions of “inoperable” are similar,

the legal definition implies a heightened standard of proof in demonstrating that the

invention completely fails to operate as claimed. See infra Part II.B.

  • 20.

    U.S. Patent No. 5,830,064 (filed July 19, 1996).

  • 21.

    U.S. Patent No. 5,989,178 (filed Apr. 2, 1997).

  • 22.

    U.S. Patent No. 5,247,179 (filed Oct. 17, 1991).

  • 23.

    U.S. Patent No. 6,960,975 (filed Mar. 14, 2005).

  • 24.

    U.S. Patent No. 4,151,431 (filed Dec. 6, 1973).

  • 25.

    See discussions infra Part IV.

  • 26.

    See, e.g., ROBERT PATRICK MERGES & JOHN FITZGERALD DUFFY, PATENT

LAW AND POLICY: CASES AND MATERIALS 216 (3d ed. 2002) (posing this argument and positing the possibility of fraud as a possible counterargument).

the

27. much

Although beyond the scope of this Comment, this argument presupposes criticized theory that scientific advances occur through revolutionary

innovations toward which the conservative scientific establishment is usually hostile.

See

THOMAS

S. KUHN, THE STRUCTURE OF

SCIENTIFIC REVOLUTIONS 159-72 (1962).

28.

Inequitable conduct is a broader form of common-law fraud committed

against the USPTO. See J.P. Stevens & Co. v. Lex Tex Ltd., (Fed. Cir. 1984) (“[Inequitable conduct includes] failure information, or submission of false material information, with an

747 F.2d 1553, 1559 to disclose material intent to mislead.”).

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