A watershed for 'fusion-energy' patents at the USPTO?
Posted: Mon Dec 12, 2011 8:07 pm
This won't likely interest many, who [understandably] despair of both patent systems and un-demonstrated ideas, but I think this will be a matter of interest to some.
I tend to monitor the comings (and goings!) of fusion related patent applications, via the USPTO web portal. It is interesting and educational to see how people think about (or mis-think about!) nuclear fusion, and particularly some of the tid-bits of interesting information that the examiners feed back to applicants (some examiner's responses are really very good helpful summaries on work in the field).
However, a patent was issued, on appeal, last month that I think may change the USPTO approach to such patents from hereon, making it possible [once again!?] to get patents for 'non-enabled' and unproven fusion energy ideas.
I recognise that many here look with contempt on the patent system and say 'isn't that always the way!!', and cite the usual urban myths that the wheel was patented, and such!
But, in truth, this view is unfair because in the last 10 years or so the USPTO *has* been trying to crack down on this sort of thing, and I have not seen what I would regard as a 'fully fledged' new exclusively fusion-power idea get granted in all the time I have been looking (in the last 3 years).
The usual approach is that the examiner typically says something like; 'This is not enabled. You have no evidence that your device can generate fusion power and it will require undue experimentation to do so. REJECTED!'.
To demonstrate this, recent rejections in the last few years have included just about all of the 'well-known' cases, from Dr Bussard (Polywell), University of Ca (Rostoker et al, FRC), General Fusion, Taleyarkan (bubble fusion), 'Cross-fire fusion' (no such experiment ever done - its notoriety seems to have been a success of its own media!), and a plethora of even Government lab applications have received this rough treatment!
By no means least of all our own Steven Sesselmann's application has fallen foul of the 'undue experimentation required' argument to show that it is not enabled! This specific argument has been used in the rejection of all these applications.
But one such application, from around the time when the USPTO started readily rejecting 'fusion-power' as a matter of course, has been appealed all the way, and has just been granted!
Patent 8,059,779; “3He fusion device with direct electrical conversion”, was issued Nov 15th 2011. It had [IMHO rightly] been receiving rejection after rejection from the examiners since the inventor originally filed in 2001. In June 2011, the Board of Patent Appeals finally overturned all the examiners' rejections, with a line that I believe may open a floodgate of appeals for past and current rejected applications, and may now, therefore, give all the aforementioned applicants a chance to argue, or appeal, for a patent, without any evidence of enablement:
> “...we note from record that plasma energy devices are well known in the art and such devices are well known for scientific research purposes. Therefore there is no logical basis for the rejections...”
(I have attached the Board of Patent Appeals document so you can see the specifics for yourself.)
It is not inevitable that this ruling will be applied to every application and appeal from now on, but I'm fairly sure this now 'unlocks' several patents currently being appealed or in a state of non-final rejection. Specifically, I think the effect of this decision will likely be to unlock the current Bussard patent application, 20110170647 (currently on appeal), and particularly the General Fusion patent applications, 20100163130 (currently at a non-final rejection), and also 20110026657 and 20110026658.
Interestingly, Taleyarkhan's 'bubble fusion' patent application, 20100254500, is also now back under 'continued examination' (after 3 affidavits from 3rd parties have provided reviews of the application, following a 'final-rejection' earlier in the year). I suspect this might also end up being granted too.
I expect those who already think dismally of what patents the USPTO grants will feel vindicated by this. But I think this is a poor day for the USPTO that their hands are being tied over deciding how to limit inoperable fusion-energy patents and which they have to allow. However, seeing as they had already granted 50 years worth of inoperative fusion-energy patents before 2000 then I think it was somewhat inevitable that someone was going to win this sort of appeal one day.
(Why inventors wish to patent inoperative ideas I am not entirely sure. The examiners have been doing these people a favour by stopping them wasting their money on issue and renewal fees, but I guess it is a source of much needed income for the USPTO these days!!)
I tend to monitor the comings (and goings!) of fusion related patent applications, via the USPTO web portal. It is interesting and educational to see how people think about (or mis-think about!) nuclear fusion, and particularly some of the tid-bits of interesting information that the examiners feed back to applicants (some examiner's responses are really very good helpful summaries on work in the field).
However, a patent was issued, on appeal, last month that I think may change the USPTO approach to such patents from hereon, making it possible [once again!?] to get patents for 'non-enabled' and unproven fusion energy ideas.
I recognise that many here look with contempt on the patent system and say 'isn't that always the way!!', and cite the usual urban myths that the wheel was patented, and such!
But, in truth, this view is unfair because in the last 10 years or so the USPTO *has* been trying to crack down on this sort of thing, and I have not seen what I would regard as a 'fully fledged' new exclusively fusion-power idea get granted in all the time I have been looking (in the last 3 years).
The usual approach is that the examiner typically says something like; 'This is not enabled. You have no evidence that your device can generate fusion power and it will require undue experimentation to do so. REJECTED!'.
To demonstrate this, recent rejections in the last few years have included just about all of the 'well-known' cases, from Dr Bussard (Polywell), University of Ca (Rostoker et al, FRC), General Fusion, Taleyarkan (bubble fusion), 'Cross-fire fusion' (no such experiment ever done - its notoriety seems to have been a success of its own media!), and a plethora of even Government lab applications have received this rough treatment!
By no means least of all our own Steven Sesselmann's application has fallen foul of the 'undue experimentation required' argument to show that it is not enabled! This specific argument has been used in the rejection of all these applications.
But one such application, from around the time when the USPTO started readily rejecting 'fusion-power' as a matter of course, has been appealed all the way, and has just been granted!
Patent 8,059,779; “3He fusion device with direct electrical conversion”, was issued Nov 15th 2011. It had [IMHO rightly] been receiving rejection after rejection from the examiners since the inventor originally filed in 2001. In June 2011, the Board of Patent Appeals finally overturned all the examiners' rejections, with a line that I believe may open a floodgate of appeals for past and current rejected applications, and may now, therefore, give all the aforementioned applicants a chance to argue, or appeal, for a patent, without any evidence of enablement:
> “...we note from record that plasma energy devices are well known in the art and such devices are well known for scientific research purposes. Therefore there is no logical basis for the rejections...”
(I have attached the Board of Patent Appeals document so you can see the specifics for yourself.)
It is not inevitable that this ruling will be applied to every application and appeal from now on, but I'm fairly sure this now 'unlocks' several patents currently being appealed or in a state of non-final rejection. Specifically, I think the effect of this decision will likely be to unlock the current Bussard patent application, 20110170647 (currently on appeal), and particularly the General Fusion patent applications, 20100163130 (currently at a non-final rejection), and also 20110026657 and 20110026658.
Interestingly, Taleyarkhan's 'bubble fusion' patent application, 20100254500, is also now back under 'continued examination' (after 3 affidavits from 3rd parties have provided reviews of the application, following a 'final-rejection' earlier in the year). I suspect this might also end up being granted too.
I expect those who already think dismally of what patents the USPTO grants will feel vindicated by this. But I think this is a poor day for the USPTO that their hands are being tied over deciding how to limit inoperable fusion-energy patents and which they have to allow. However, seeing as they had already granted 50 years worth of inoperative fusion-energy patents before 2000 then I think it was somewhat inevitable that someone was going to win this sort of appeal one day.
(Why inventors wish to patent inoperative ideas I am not entirely sure. The examiners have been doing these people a favour by stopping them wasting their money on issue and renewal fees, but I guess it is a source of much needed income for the USPTO these days!!)