Jed Rothwell wrote: > See: > > http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2107_01.htm > > > *II. WHOLLY INOPERATIVE INVENTIONS; "INCREDIBLE" UTILITY* > > ... , a "cold fusion" process for > producing energy (/In re Swartz/, 232 F.3d 862, 56 USPQ2d 1703, (Fed. > Cir. 2000)),
But also see note at end: > These > examples are fact specific and should _not_ be applied as a /per se/ > rule. Thus, in view of the rare nature of such cases, Office personnel > should not label an asserted utility "incredible," "speculative" or > otherwise unless it is clear that a rejection based on "lack of utility" > is proper. In other words, it's Swartz's application which got the label. Cold fusion in general has not been relegated to that status, if I read this correctly. I don't see any other way to interpret '... should not be applied as a per se rule ...'. As they say earlier, "However cast, the underlying finding by the court in these cases was that, *based on the factual record of the case*, it was clear that the invention could not and did not work as the inventor claimed it did.". So, what this says is that, in the Court's opinion, Swartz's device doesn't do what he claims it does. I haven't read his papers so I can't comment on whether they are being unreasonable here.
