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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 7 / 39

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2006:1275

Inoperable Inventions

1281

2.

INCREASED SCRUTINY OF PATENTS WILL NOT STIFLE INNOVATION

The potential problem of stifling innovation by denying patents to revolutionary ideas that might seem incredible at the time involves two separate inquiries. First, is it even possible to define inoperability with objective certainty? That is, is the determination of inoperability objective fact or purely subjective opinion? This Comment presumes that the physical sciences (for example, physics and chemistry) are sufficiently well-established that one can generally make a de facto determination of whether or not an invention will work from a direct application of the laws of nature. Thus, one skilled in the art of physics should immediately recognize that a spaceship propelled by a “gravitomagnetic field” cannot fly45 or that a motor powered only by permanent magnets cannot turn indefinitely.46 In other fields, such as human physiology, determination of inoperability is not as precise.

Objections to the theory of operation are necessarily more complex in the biological sciences than in the physical sciences, where theories are reducible to mathematical laws. Although many scientists strongly suspect rubbing sauerkraut juice on the skin is unlikely to cure arthritis,47 the complexity of human physiology often leaves skeptics with a scintilla of doubt. On the other hand, certain theories—such as therapeutic touch (a poorly named therapy that involves touching only

the patient’s “energy field”),48

homeopathy (a therapy involving

consumption of essentially pure water or alcohol),49 and Reiki (another “energy field” therapy)50—can be tested for efficacy with relative certainty using carefully constructed statistical tests.51 In order to avoid undue complexity in the analysis, this Comment will focus on

45.

U.S.

Patent

No.

6,960,975 (filed Mar.

14,

2005).

See

Philip Ball,

Antigravity Craft Slips Past Patent Officers, 438 NATURE 139, 139 (2005) (noting that the invention is based on discredited research purporting to show that superconductors

can shield the effects of gravity).

46.

U.S. Patent No. 4,151,431 (filed Dec. 6, 1973). This is a classic example

of a perpetual motion machine discussed infra Part IV.B.

    • 47.

      See, e.g., In re Milligan, 41 U.S.P.Q.2d (BNA) 1703, 1703-04 (Fed. Cir.

  • 1996)

    .

    • 48.

      See Official Organization for Therapeutic Touch, The Therapeutic Touch

Process, http://www.therapeutic-touch.org/newsarticle.php?newsID=19 (last visited Nov. 1, 2006); Linda Rosa et al., A Close Look at Therapeutic Touch, 279 JAMA 1005 (1998).

  • 49.

    See supra note 33 and accompanying text.

  • 50.

    See, e.g., The International Center for Reiki Training, What Is Reiki?,

http://www.reiki.org/FAQ/WhatIsReiki.html (last visited Nov. 1, 2006).

51.

See, e.g., Rosa et al., supra note 48, at 1007-09 (recounting a study

conducted by a nine-year-old girl concluding that therapeutic touch practitioners were

unable to sense the presence of a human “energy field” under controlled conditions).

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