LENR Patents, Dr. Schwarz and the USPTO.

  • Speaking of Swartz; over on Vortex Jed posted a 360 Law article about him losing his legal fight with the USPTO. He represented himself (Pro Se), which in such a complicated case is a risk. Swartz has long complained about his issues with the patent office. Mentioned it at ICCF 21 also, which is why I posted here.


    The article is behind a paywall, but someone provided it anyway:


    http://www.cafc.uscourts.gov/s…122.Opinion.7-17-2018.pdf

  • I don't think there is much chance of gaining "certiori" with the US Supreme Court in this case, since it does not involve conflicting lower appellate opinions, nor strong constitutional issues.... but who knows. Since Mitch has gone pro se so far, he might as well push all the way. One issue he might pursue is the Daubert v. Merrell Dow decision (not a patent decision, but one involving scientific expert opinion), which requires the judge to make decisions based on actual expertise, as I understand it. Interestingly there is now at least one justice of the Supremes with some patent law experience..... which could go a long way to making the Swartz case judiciable at that level. Long ago, the US Supreme Court was not supreme in patent litigation, but that changed in the late 70s, if I recall correctly, when they ruled themselves over the former highest US jurisdiction for patents, trademarks (and "law of the sea", btw).


    Daubert v. Merrell Dow has apparently been taken further, if we are in this case to trust our infamous online encyclopedia, here is a further development (recommending to Dr. Swartz, a brief reading there before an attempt at higher appeal):


    "The principle in Daubert was expanded in Kumho Tire Co. v. Carmichael, where the evidence in question was from a technician and not a scientist. The technician was going to testify that the only possible cause of a tire blowout must have been a manufacturing defect, as he could not determine any other possible cause. The Court of Appeal had admitted the evidence on the assumption that Daubert did not apply to technical evidence, only scientific evidence. The Supreme Court reversed, saying that the standard in Daubert could apply to merely technical evidence, but that in this case, the evidence of the proposed expert did not meet the standard."


    The point being that the previous 1923 "Frye Rule" is much akin to the arguments the PTO is making re Swartz, that is "general acceptance" and so forth.... essentially overturned or at least refined in the case of Daubert v. Merrell Dow. Now actual expertise specific to the issue at hand must (or may?) be used by the court in evaluating a case. In fact Daubert has not so far had great impact distinguishing opinions from the much older Frye Rule.... but I suspect it could here.

  • Longview,


    In David French's podcast on CFN: David French on the Cold Fusion Now! podcast (#008)

    he claimed the USPTO had indicated to him 4 years ago, that they would grant an LENR patent if the inventor proves it works. From what I read of Swartz's argument, he said many things, but provided no proof other than his own results, and general LENR lore to support his technology.


    I can understand the rejection, as the LENR community has heard the same argument from from him for 20 years now, with nothing to show.

  • I can understand the rejection, as the LENR community has heard the same argument from from him for 20 years now, with nothing to show.

    As far as I know, Swartz has not been verified or replicated. (By "verify" I mean using his own devices; replication would be from scratch.) I asked him about this several times, but he never responded. I have heard from two groups that were involved in attempts to verify that failed. I have not heard from anyone else who tried, or anyone who succeeded.


    I do not believe any claim that has not been verified. I have doubts until the claim is replicated. So, based on what I know, I do not believe Swartz's claims. I don't disbelieve them either; I don't know.


    Of course there may be some positive tests I did not hear about. Swartz is secretive. Still, if there were such tests it would be in his interest to inform the Patent Office and the public, and I would probably hear about it. In other words, either he has "nothing to show" or he has chosen to show nothing.

  • Just after this Swartz's offer, I asked him to send me one of his experimental modules with his nanor devices for verification and experimentation.

    I told him that I had the support of Jean-Paul Biberian.

    Swartz never answered me...


    Transmutation,


    Swartz has made a nice career, and a name for himself by saying he has something. He is a big fish, in the small LENR pond. If he lets others try a replication now, he puts that at risk. He looks to be taking the safe route by keeping it to himself. Like others before him, he will probably take it with him. Maybe they will have some use for it up there.


    I wonder what Hagelstein thinks? I noticed he has started doing his own experiments. Maybe he was tired of waiting for Mitchell to come through also.



  • I am curious if anyone took him up on that offer (?)

    I heard from two groups who wish to remain anonymous. They did take him up. One did not see anything and the other did not get as far as doing the test, for technical reasons. I am sorry to be so vague, but that's all I can say.


    Of course there may be other groups that succeeded, but I have not heard from any. As I said, I asked Swartz repeatedly for the names of groups, but he did not respond. I recall many years ago he hinted that someone verified the effect, but he refused to say who, when, where or anything else.

  • Swartz has made a nice career, and a name for himself by saying he has something. He is a big fish, in the small LENR pond.

    Yes, he won the Preparata Prize at ICCF21.

    Dr Swartz just send me an email in which he says that his group will consider my request (to receive a nanor for verification and experimentation).

    To be continued...

    That's good. I hope he follows through, and I hope you will be free to report the results.

  • Having watched Dr. Swartz' presentations at the cold fusion MIT extracurricular classes, my impression has been that his nanor and phusor devices likely do work in a predictable manner. Their small size would perhaps uniquely, and more safely, be able to fit into smaller experimental formats.


    So, I too had once attempted by email to Mitchell Swartz to explain my own experimental need for such a "lab rat" module, as it was apparently being offered by him or his firm. But, at least initially, no response. Mitchell and I do go back a bit further as we both have some history as cancer researchers (mine very basic research and his more clinical research) and we have a common professional organization membership or two. I happened on Mitchell at the Boulder ICCF..... it was a fortuitous opportunity to discuss the situation face to face. After a fairly detailed biographical discussion, and a perhaps bit of review of my project he graciously said "I will help you".


    My motives at this age, probably not far from Dr. Swartz' own age, are not to get help for me, even though I may need it =O .....but hopefully to help push the whole LENR / LANR / CANR / CF theory / experiment effort forward.

  • Longview,


    If someone is confident beyond doubt they have something, they have two options going forward. Give it to others so it can be replicated, refined and quickly disseminated to save the planet. Or go the commercial route, make a ton of money and in the process save the planet. It appears Swartz has done neither, opting instead to do nothing with it. That IMO, makes no sense unless he has doubts about his own claims.


    Pretty simple to me; if he helps you as he says, sends Transmutation, or anyone in the field, a prototype to test, then that is a good sign. If he does not, then I will cross him off my list. Keep us informed please.

  • Or go the commercial route, make a ton of money and in the process save the planet. It appears Swartz has done neither, opting instead to do nothing with it.

    This is unfair to Swarz. He tried to patent the device. That would be the "commercial rout." As I have explained in this forum before, a patent is probably the only way to protect cold fusion IP. A trade secret will be broken immediately.


    Given that the Patent Office denied his patent, I do not see how he can go the commercial route. For the same reason, I can see why he would be reluctant to hand out devices. If one of them works, and a large industrial corporation believes that result and gets hold of the device, his trade secrets will evaporate in a few weeks.


    Having said all that, let me go back to what I said before. He will never convince the Patent Office unless the device is verified and then replicated by reputable outside research organizations. Some place such as MIT, Georgia Tech, or the Aerospace Corporation must issue a detailed, formal report describing extensive tests of the Swartz device, saying that it works. It would be best if all three issued such reports. Swartz has to give these reports to the Patent Office. As far as I know, no outside organization has done this. If one of them has done it, Swartz did not give the report to the Patent Office. That is my understanding from the judge's opinion.


    It might be difficult to arrange tests at places like Georgia Tech or the Aerospace Corporation in a way that would protect the IP and allow a patent later on. Difficult, but I think it could be done with a carefully written research contract. I think that is the only way to cut the Gordian knot.

  • Jed,


    This has been going on 20 years. He should have done way back then, what you advise him to do now. Having an independent verification is not a threat to his IP. It would not have cost him anything. Probably his MIT colleagues would have been happy to do it for free. So why did he not get it done long ago?


    In comparison, those like Celani, McKubre, Storms, BEC, Srinivasan, Violante, Biberian, MFMP, Beiting, Letts, Craven, and others subject their technology to independent review. Many times, only to find they were on the wrong track, but they used that lesson to do better next time. My hat is off to them. That is what science is about afterall...two steps forward, one back. So IMO, it seems a disservice to them, that one of their colleagues does not hold himself to the same standards, yet gets equal billing...don't you think?

    To be honest, I have always looked to Swartz as one of the most promising, and solid leaders in the field. After listening to his ICCF21 podcast from CFN's though, I was disappointed that he sounded no closer to going commercial, or getting a replication, than years ago during his MIT lectures. Then yesterday, seeing he is fighting the USPTO "Pro Se", and that there was little substance, and even less proof provided in his defense, makes it hard for me to think of him the same way anymore.

  • Super... but has he? And how long ago did he offer that?


    @ S-O-T: Please re-read my post, I admit my writing is not as easy as it could be. That offer was, as I wrote, "at Boulder ICCF " (the subject of this thread!), that is between June 3 and 8 this year, and more precisely about June 5, 2018. I am not presently prepared to take advantage of Mitchell's offer. And my original offer by email was to conduct my experiments in a context which he defined. The specific questions I had in mind did not include validating his device--- although that might have incidentally been evident as a by product of the primary motive: refinement of technique and testing of theories.


    If one's motive is to steal his innovations, I'm sure that sort of risk might be apparent to him. When one has put as much effort and thought and innovative synthesis into something, as he appears to have, one might get concerned about intellectual property theft.


    @Shane: It is an unfortunate state of IP affairs today, individual or "small entities" are unfortunately the last gasp of the patent system envisioned and realized by Jefferson in the US, back in (was it?) 1803, setting in motion a period when inventors and their patents drove much of, at least the consumer side, of what has now evolved into an ongoing "tech revolution". Now thousands of active patents are operative in a single technology.... much of "high tech" is often no longer as easily begun, or even approached in a garage, and now highly bureaucratic corporations often drive "innovations" that are merely marketing ploys. They must cross-license thousands of patents just to produce a popular product.


    The essential motivator of the "patent" that is the temporary monopoly granted in exchange for full functional disclosure, which once surely motivated the individual innovator, is a now a very difficult path, made essentially impossible for the merely comfortable innovator human individual. Often the best one can hope for today is that one's patent becomes at least a "publication" for other advancement purposes in some bureaucracy (academe, government, industry). Further such "publication" can at least establish priority for prizes and notoriety, and even the ability to blather far beyond one's presumed expertise....

  • @Shane: It is an unfortunate state of IP affairs today, individual or "small entities" are unfortunately the last gasp of the patent system envisioned and realized by Jefferson in the US, back in (was it?) 1803, setting in motion a period when inventors and their patents drove much of, at least the consumer side, of what has now evolved into an ongoing "tech revolution". Now thousands of active patents are operative in a single technology.... much of "high tech" is often no longer as easily begun, or even approached in a garage, and now highly bureaucratic corporations often drive "innovations" that are merely marketing ploys. They must cross-license thousands of patents just to produce a popular product.

    The essential motivator of the "patent" that is the temporary monopoly granted in exchange for full functional disclosure, which once surely motivated the individual innovator, is a now a very difficult path, made essentially impossible for the merely comfortable innovator human individual. Often the best one can hope for today is that one's patent becomes at least a "publication" for other advancement purposes in some bureaucracy (academe, government, industry). Further such "publication" can at least establish priority for prizes and notoriety, and even the ability to blather far beyond one's presumed expertise....


    Longview,


    Really, if you have something that you are certain works, and will save the planet, are you going to let that get in your way? I think this IP defense has been overplayed by too many in the field.


    It seems simple to me; get LENR system replicated by 2-3 groups. The more the better as Jed says. With those reports, seek, and partner up with deep pockets. Preferably a company experienced in energy systems. Or even go to IH. They have assembled the best talent in the field, are experienced in IP issues, with the skills to make the IP even more valuable and bring to market.


    Next, hire David French, and show him it works. As he has said: The USPTO told him 4 years ago they would grant a patent if it can be proven to work. He *WILL* get the patent protection to move forward. That done, now go and make billions.

  • This has been going on 20 years. He should have done way back then, what you advise him to do now.

    Actually, I and other advised him to do this 20 years ago, and many times since. For all I know, he did have someone verify the claims. As I said, two parties contacted me said they tried but failed. Perhaps others succeeded? As I said, years ago Swartz hinted this has been done. If it has been done, the problem is that he is keeping these results secret, instead of telling the court about them.


    (I cannot imagine why he would keep them secret.)


    Having an independent verification is not a threat to his IP. It would not have cost him anything. Probably his MIT colleagues would have been happy to do it for free. So why did he not get it done long ago?

    I do not think the cost is an issue. I was only speculating that if he has not done this, perhaps he is worried about trade secrets. Other inventors told me they refused to have their devices verified because it puts trade secrets at risk. They took their secrets to the grave, instead. But I don't know about Swartz. You would have to ask him:


    Did he have this device verified? If not, why not? If he did, why is he keeping the results secret from the court?


    In comparison, those like Celani, McKubre, Storms, BEC, Srinivasan, Violante, Biberian, MFMP, Beiting, Letts, Craven, and others subject their technology to independent review.

    Yes. But they have also put less emphasis on patents. Swartz's main strategy has been to get a patent. As a commercial strategy, this seems like a good plan to me. Unfortunately he has run up against the Patent Office rules and the court judgement. He cannot hope to succeed as things stand. So, he will have to do what the court demanded, and present independent verification. As I said, arranging for that at place like Georgia Tech. or the Aerospace Corporation might be risky. You would have to have a lawyer look carefully at the research contract. But I think it could be done.


    I mention these two, Georgia Tech., and the Aerospace Corp., because I have spoken with people at those places. They say verification could be arranged and IP could be protected. I don't know enough about the laws or IP to judge, but that's what they say. They were not talking about Swartz.

  • An Abraham Lincoln quote: "He who represents himself, has a fool for a client". Even with Abe representing him though, my guess is that Swartz still would have lost:


    "As we have held, cold fusion suggests such an inherently
    unbelievable undertaking. Swartz I, 232 F.3d at 864.
    The burden therefore shifted to Swartz to show sufficient
    evidence to convince an ordinarily skilled artisan of the
    inventions’ utility. Id. at 864. The evidence and arguments
    Swartz presents do not satisfy this burden.
    Swartz makes two inconsistent arguments: his inventions
    are not directed to cold fusion or LENR, and he
    presented new evidence to the district court proving the
    utility of LENR technology.
    First, Swartz’s assertion that his inventions are not
    directed to cold fusion or LENR technology is baseless.
    The references Swartz relies on here are related to LENR
    technology. Moreover, the parent applications were
    expressly directed to cold fusion, as we previously held. Second, the new evidence submitted by Swartz does
    not cure the lack of enablement or utility. The new evidence
    comprised reports by the Defense Intelligence
    Agency (“DIA”), Defense Threat Reduction Agency
    (“DTRA”), and other scientific articles."