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A watershed for 'fusion-energy' patents at the USPTO?

Posted: Tue Dec 13, 2011 1:07 am
by Chris Bradley
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!!)

Re: A watershed for 'fusion-energy' patents at the USPTO?

Posted: Tue Dec 13, 2011 1:55 am
by Hector
I know that the view I'm about to present will not be the popular one, but I see no harm in granting patents on unproven technology. Why? Because if the patented concept cannot be reduced to practice within the life span of the patent the claims will be unenforceable and of no intrinsic value.

However if the concept of the patent is eventually reduced to practice despite skepticism, than it offers the inventor legal protection from which they can profit from their work.

I understand that most would argue that all patentible ideas must be based on proven scientific principals but the entire purpose of a patent is to allow an inventor to profit from their invention and share information freely with society. So even patents that seem lubricious should be granted a patent because if they can't be brought to practice they will cause no harm.

It was never the purpose of patents and patent office to be a form of scientific peer review. I totally disagree with that practice. Many of the greatest advancements in science would have never been granted a patent under those conditions.

I know I'm in the minority on this, but I usually am on most things.

Just sharing my opinion.

Re: A watershed for 'fusion-energy' patents at the USPTO?

Posted: Wed Dec 14, 2011 3:27 am
by Steven Sesselmann

Just on your last paragraph, inventors like everyone else, are driven by greed and fear. Fear of not being the first to patent a perceived brilliant idea, and greed (what if it works...).

When the technology is cutting edge and heavily contested, such as fusion, there appears to be an urgency about it. This is of course largely the perception of the inventor, for chances are that nobody would hit on the same idea for years....

It is quite common for examiners to reject initial applications, however if you have the funds to fight it, you can often get the rejection overturned.

When the Australian examiner rejected my STAR patent application, it was apparent from his letter, that he had not really understood how the invention was supposed to work, and he based much of his rejection on the US precedent. However after explaining to him on the phone where he had made the omission, he invited me to make some minor amendments to the claims and resubmit the application. As I am well into my new patent I never bothered to resubmit STAR for approval, but I believe at least that it would have passed in Australia.

Considering the lead time between a potentially useful fusion invention and the commercialization of the same, I can't see anyone seriously expecting to make money on it, it's a matter of honor, to be credited with something that actually worked.


Re: A watershed for 'fusion-energy' patents at the USPTO?

Posted: Wed Dec 14, 2011 9:56 am
by Chris Bradley
Steven Sesselmann wrote:
> Just on your last paragraph, inventors like everyone else, are driven by greed and fear. Fear of not being the first to patent a perceived brilliant idea, and greed (what if it works...).

Steven, I'm a little surprised you express these negative connotations, given your own efforts. Are you sure? I don't feel at all motivated by such things, but rather by a need to make an idea 'investable' - if IP is not seen to be protected then certain opportunities to progress the idea are lost. I don't associate this with 'greed' or 'fear', just good ol' 'keeping-YOUR-options-open'. (Emphasis on 'your', because if it isn't *your* idea then you are likely to be sidelined whilst others might then get funding to do the research on your idea that you were hoping to do for yourself!)

In regards Hector's, and your secondary, point; I can understand why someone would want to make a *provisional application* for something they are working on, but why push it through to an appeal after 10 years of still not turning it into a physical reality?

The point I was meaning, in the paragraph you referred to, was that you get at least 3 years from provisional filing to the point where a patent gets issued. (In practice, in the UK and US at least, this is actually more like 4 or 5 years at present!) If you've not been able to come up with some demonstration of your idea after 3 years, then is another 17 years going to make any difference? Look at the example I've given, this guy filed his original patent in 2001. So, have we yet heard of this 3He direct energy fusion machine? If he's not got it working in 10 years, what good is there having a patent for it?

So I'm all for *applying* for patents, then you get the breathing space to know you will get 'protection' if you make it work. But I don't see much reason to grant them if the inventor has then not lifted a finger to put effort into proving it works, because it then encourages people to apply for patents to stop others from doing things or to try and milk the work others are doing.

Re: A watershed for 'fusion-energy' patents at the USPTO?

Posted: Wed Dec 14, 2011 9:59 am
by Chris Bradley
Steven Sesselmann wrote:
> It is quite common for examiners to reject initial applications, however if you have the funds to fight it, you can often get the rejection overturned.
No funds are required to appeal against an examiner's rejection. Just a good, persuasive, argument.

Re: A watershed for 'fusion-energy' patents at the USPTO?

Posted: Wed Dec 14, 2011 11:18 am
by Steven Sesselmann
[Chris Bradley wrote]
I'm a little surprised you express these negative connotations, given your own efforts. Are you sure?
[end quote]

Chris, I guess I was only half serious, and probably just a little bit negative....

There are no doubt other motivators that make an inventor, and none as powerful as the intrinsic motivation, and self satisfaction that one gets from solving a problem, you know the kind of abstract pleasure one gets from solving a mathematical problem...hard to describe to someone who does not know mathematics.

When going the next step and applying for a patent, the inventor must consider the cost benefits, which sometimes are hard to justify.


Re: A watershed for 'fusion-energy' patents at the USPTO?

Posted: Thu Dec 15, 2011 6:01 am
by Steven Sesselmann

In regards to the US approval of patents, the determined patent classification might also be an issue. I see your patent was classified 315/501, while my patent was classified 376/102.

Magnetic field acceleration means: This subclass is indented under subclass 500. Subject matter including means for initially accelerating the electrons or other charged particles by a time-varying magnetic flux and additional means for providing a cyclically varying electric field.

Inertial confinement (e.g., nuclear explosive): This subclass is indented under subclass 100. Subject matter wherein the reacting nuclei are contained in a fuel body and the disassembly of the body is prevented or retarded for a predetermined time by mass forces within the body, said nuclei being caused to react by the application of external or internal sources of energy.

(1) Note. The above mass forces includes but is not restricted to the mass of outer layer.
(2) Note. Nuclear explosives are included in this and indented subclasses.

Guess what..., my STAR patent was rejected on no less than a 73 page report !

FWIW, the examiner was an expert in field, and perfectly described how my invention would behave, short of admitting that it would be capable of fusion, which it indeed was. Anyone interested in seeing the examiners report can send me an email.


Re: A watershed for 'fusion-energy' patents at the USPTO?

Posted: Thu Dec 15, 2011 11:31 am
by Chris Bradley

376 is the category for inventions that claim 'INDUCED NUCLEAR REACTIONS'. There are other inventions which may be used to achieve nuclear reactions but that do not claim nuclear reactions, which I'd expect to be most likely found under {313, 314 or 315} [Electric lamp and discharge devices] or 250 [Radiant Energy].

I do not claim nuclear reactions nor energy in my patent, so it would not appear in 376. As per discussion above, this meant that USPTO had no reason to reject it for their 'fusion-energy-is-automatically-not-enabled' argument. (I spent a good while researching examiners notes and reasons for the rejections of others patent applications before making my own, and I could already see that claiming a nuclear reaction would have been destined for this treatment!)

(I'll post on my patent later, but I have made some recent amendments and I don't think there is a benefit in discussing a 'non-final' version.)

I believe that there are some schools of thought that think electronic searching now makes many of the reasons for classifying inventions irrelevant. All that is needed now is to punch in key words and you get to search all patents in every classification. However, it still finds favour for technical patents because word searching effectiveness can be compromised - particularly by new jargon in a given field, searching in foreign languages, and the excessive use of 'lawyerish' that the examiners hate! Also, it enables particular patent applications to be routed to specialist examiners for those subject areas.

USPTO runs its own scheme, but there are international codes too. Yours has been put under "G21B 1/03; Thermonuclear Fusion Reactions (with inertial plasma confinement)", mine under "H05H; plasma technique"

FWIW: Frank S's patent went under the USPTO 250 code. For reasons I suspect known only to the USPTO, they initially set its international classification under "G01K 1/07; MEASURING TEMPERATURE (Protective devices, e.g. casings)" !?! (It was later altered to G21B "Thermonuclear", after issue.)

There is one other forum member whom I am aware of that has filed a fusion-related patent, but as he has chosen not to discuss it here I will presume he wishes to stay below the 'radar'.