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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 5 / 39

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2006:1275

Inoperable Inventions

1279

system.29 The fourth argument blames inoperable patents on individual examiners, thus avoiding implicating the system as a whole.30

1.

PATENTING INOPERABLE INVENTIONS HARMS CONSUMERS

In response to the argument that inoperable inventions are not marketable, counterexamples abound. For example, the founder and CEO of Biomed Comm, Inc., Dr. Barbara Brewitt, has received five U.S. patents relating to homeopathic treatments.31 The patents were the basis for Biomedd Comm’s entry into the thriving market for homeopathic remedies.32 Homeopathy, although popular as a treatment, has proven to be both inefficacious and scientifically implausible.33 In 2004, the Iowa Supreme Court affirmed a default judgment against New Womyn, Inc. under a state consumer fraud statute.34 New Womyn’s president, Dan Kaiser, had been marketing a patented device to enlarge women’s breasts using a suction pump.35 In one particularly egregious case,36 DKL International continues to market patented devices for long-distance detection of human beings to local, state, and federal agencies, despite the fact that scientists at Sandia National

29.

See 37 C.F.R. § 1.56(a) (2006) (“Each individual associated with the

filing and prosecution of a patent application has a duty of candor and good faith in dealing with the [USPTO], which includes a duty to disclose to the [USPTO] all

information known to that individual to be material to patentability . . . .”).

30.

See infra Part III.A for a discussion of the educational background of

patent examiners.

31.

U.S.

Patent

No.

5,626,617

(filed

Dec.

20,

1995);

U.S.

Patent

No.

5,629,286 (filed Sept. 10, 1996); U.S. Patent No. 6,024,734 (filed May 13, 1997); U.S. Patent No. 6,239,105 (filed Feb. 17, 1999); U.S. Patent No. 6,485,480 (filed

Feb. 7, 2000). homeopathy.

See

infra

note

33

and

accompanying

text

for

an

explanation

of

32.

See Press Release, Biomed Comm, Inc., U.S. Patent Allowance Awarded,

1 9 9 7 ( S u m m e r 1 9 9 7 ) , h t t p : / / w w w . b i o m e d c o m m . c o m / s t o r e / m e d i a _ s u m m e r 9 7 . h t m l . See Patrick L. Sheldon, The Truth About Homeopathy: A Discussion of 33.

the Practice and the Dangers that Inhere, 8 QUINNIPIAC HEALTH L.J. 289, 316-17 (2005) for a summary of scientific trials of homeopathic remedies. Homeopathy is scientifically implausible in that it adheres to the Law of Infinitesimals, the theory that solutions become more potent the more they are diluted. Id. at 314-15. Simple application of the laws of chemistry reveals that homeopathic remedies are routinely diluted to the point that they do not contain even a single molecule of the active ingredient. Id. For a defense of homeopathy, see National Center for Homeopathy, What Are the Medicines?, http://www.homeopathic.org/meds.htm (last visited Nov. 1,

2006). 34. 35. 36 .

S e State v. New Womyn, Inc., 679 N.W.2d 593, 594 (Iowa 2004). Id.; U.S. Patent No. 6,042,537 (filed Aug. 13, 1997). e d i s c u s s i o n s u p r a P a r t I . A .

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