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Wednesday, 22 October 2014

Patentability: a perpetual problem

First law of thermodynamics strikes again. Peter Crowley v United Kingdom Intellectual Property Office (unreported, but noted on the Lawtel subscription-only service) is one of those cases that should never be allowed to happen. It's an extempore Patent Court, England and Wales, decision of Mr Justice Mann on a patent-related topic that is sufficiently simple that even one of the Patent Court's non-technically educated judges can handle it safely.

Kats' Law of Thermodynamics: more energy
is expended in trying to shift the cat from
in front of the fire than is absorbed
by sitting in front of it yourself ...
This was an appeal by Peter Crowley against the decision of IPO hearing officer Mr B. Micklewright (decision O/389/13 of 27 September 2013) to refuse his patent application relating to a machine which, Crowley maintained, produced a surplus of energy to that which was needed in order to operate the machine. In short, Crowley's perpetual motion machine, consisted of a vertical machine with a conveyor belt, draped down both sides, to which there were attached 12 bags, six on each side of the machine. This machine operated in a circular fashion: downward pressure was achieved by filling the six bags on one side with water, which by the operation of gravity moved down, thereby driving the other six bags on the other side of the machine upwards. At the bottom of the belt, the filled bags engaged with a pressure roller, which squeezed the water out of the bags and into a series of ducts, which then carried the water to back to the top of the machine, where it was used to fill empty bags. Valves controlled the emptying and filling of the bags.

The hearing officer rejected this application on the ground that the machine contravened the first law of thermodynamics which states that energy can be neither created nor destroyed. This being so, it was impossible for the machine to rotate continuously. Rather, it would gradually slow down and eventually come to a halt on account of the energy losses inflicted on it by the forces of friction and turbulence. In legal terms, this meant that the invention was not patentable since it was incapable of industrial application under sections 1(1) and 4(1) of the Patents Act 1977.

Crowley, who represented himself, did not deny that the first law of thermodynamics applied but contended that, since gravity was introduced into the system for operating his machine, it would indeed be possible for the machine to produce a surplus of energy over that which was needed for the machine to function.

Mr Justice Mann dismissed the appeal.

* In the first place, neither the hearing officer's analysis nor his conclusion could be faulted, since it was inevitable that there would be some energy losses in the machine through friction and turbulence, as well as in the compression roller and the valves. Energy might also be spent in inflating the bags with water and, if not, in removing water from the bags. This being so, Crowley's design plainly contravened the principles of the conservation of energy.

* Crowley's explanation of the machine's operation showed a misunderstanding as to the system to which the first law of thermodynamics applied: the relevant system had to be the machine combined with the force of gravity and, when the principles of the conservation of energy were applied to that combination, it was clear that the energy losses involved in the functioning of the machine would mean that the machine would not experience the continuous rotation claimed by Crowley.

* In any event, it was plain that the machine would not be able to generate any surplus energy to enable it to be put to any industrial purposes.

* Crowley's appeal was sufficiently deficient so as to be labelled as totally without merit since it was highly unlikely that Crowley would be able to upset principles as established as the first law of thermodynamics.

The IPKat has written about perpetual motion patents in the past: see eg "UK-IPO gets tougher on perpetual motion" (here) and "The continuing incredible adventures of Dr Randell Mills" (here). While it seems a terrible waste of time and effort to apply for patents for inventions that contravene the first law of thermodynamics, it seems to him to be a terrible waste of time and effort to have to go through the procedure of rejecting them.  Says Merpel: why not have a special class of perpetual motion patents, which applicants can happily be granted?  If they don't work, there shouldn't be any problem infringing them, after all.

Second law of thermodynamics here
Third law of thermodynamics here

24 comments:

Anonymous said...

There was a period when the IPO dd grant perpetual motion machines. However if bad patents are granted, they can cause more trouble when someone tries to enforce them or licence them to he gullible.

DrZ said...

Ahh back to the days of Pedric....

Anonymous said...

In response to Merpel's comment on perpetual motion patents not being infringed, the claims might still cover machines that were possible. That risk in itself justifies rejecting these cases.

Jeremy said...

@Anonymous 07:59 I wouldn't have thought that a patent for an invention that cannot by definition work would cause any bigger problem in infringement proceedings than an application for summary judgment on the basis that there is no case to answer. As for licensing to the gullible, this can happen irrespective of whether a patent has been granted, whether the "inventor" seeks to license his invention as a trade secret.

Anonymous said...

@Anonymous of 9.46 writes: "In response to Merpel's comment on perpetual motion patents not being infringed, the claims might still cover machines that were possible. That risk in itself justifies rejecting these cases". I'm not very technically minded myself, so I wonder if you or any other reader can give me an example of a patent for an impossible machine which has claims covering machines that are themselves possible". Thanks!

SG said...

In addition to anon's comments above, I also think the IPO, as a government body, has at least a mild public service remit. The patent thicket is thick enough already without adding more unenforceable patents.

Although in the interests of unburdening the courts, maybe they could be simply granted but marked with a big red 'P', to show that they pertain to perpetual motion devices. If a potential licensee is sceptical of the First Law, they can then go ahead and pay for a licence...

Anonymous said...

@SG: I do like the "big red P" suggestion. The IPO can even charge extra for it!

Anonymous said...

For anon at 10.00:
'A machine for moving a powdered substance from point A to point B comprising a means to move the substance upwards at point A, a means to move it to B, a means to move the substance downwards at point B and to discard it, wherein movement of the substance downwards at point B assists in moving it upwards at point A.'

The comprising language means the claim covers a machine with an electric engine, but as written it represents a perpetual motion machine.

Paul Kemp said...

I somehow doubt the Crowley problem arises sufficiently often to justify the cost of any special provision.
The sad thing is the number of misguided individuals who's dismal understanding of basic physics leads them to make the same mistakes over again.
This is not similar to Pedric. To the best of my recall Pedric's inventions were not perpetual motion. They generally exploited well accepted physical principles in a way which was superficially credible. This left the IPO with the then impossible task of proving they could not be made to work and so were not sufficiently disclosed. Conversely they could not be infringed.

Anonymous said...

Unfortunately, in my experience, many perpetual motion "inventions" look, taste and smell like investor scams. Typically there are three people involved: the inventor, who may or may not be aware of the unfeasability of the invention, an intermediary, who is very definitely either the con man or a shill, and the investor (or mark). I've seen the same configuration already a few times, and I have little doubt that somebody is enriching himself thanks to the gullibility of somebody else.

Anyway, regardless of whether there is a scam, there are in my view serious issues of professional ethics in representing a client for an invention which a patent attorney with a technical or scientific background should recognise as being evidently unworkable. I'm personally very relieved by being able to tell such prospective clients that the patent offices of the world will reject their applications.

TJ said...

@Anonymous 10:00 Any perpetual-motion patent that merely describes an arrangement of mechanical components, and that doesn't contain a phrase such as "...for producing net energy" (or similar), has the potential to cover legitimate future devices (e.g. a gearbox for a conventional combustion engine).

To take an example at random, consider granted US patent 6,694,844. Claim 1 reads:

"Apparatus comprising a support frame, an axially horizontal stationary encircling, connected surface carried by said support, said surface having an interior and an exterior, an offset center, a plurality of spokes extending diametrally through said offset center of said surface through a rotatable hub at the offset center thereof, said spokes being spaced apart axially and circumferentially of the surface and being axially slidable diametrally of the surface through the hub at the surface's offset center; weighted objects on opposite ends of each of the spokes; said weights contacting the interior of said surface whereby the spokes move axially of the surface upon rotation to raise and lower the weights on the ends of extended portions of the spokes as the weights rotate on the interior of the surface, further including a plurality of arms, each comprised of two sections and attached to the hub at one end and to a spoke at the other end for rotation in a plane coincident with the hub's plane of rotation, said two sections being moveably connected at a point between the attachment to the hub and the attachment to the spoke, for movement along the plane of movement of the spoke, which allows the arm to extend and retract as the spoke slides through the hub."

There is nothing in the claim that inherently limits such arrangement to the realm of non-industrially useful devices.

Anonymous said...

Don't know how common perpetual motion machine patent applications are, but Professor Wadlow wrote a great article about them, "Patents for perpetual motion machines", in the Journal of Intellectual Property Law & Practice back in 2007 or thereabouts.

Anonymous said...

The USPTO's MPEP states categorically that perpetual motion machines will not be entertained. Therefore, they have to be camouflaged. One of the better efforts (in the sense that it got granted) is US7109671.

With reference to Arthur Pedrick, he was gamekeeper-turned-poacher - an ex-Examiner who filed absurd inventions for the fun of it. Being an ex-Examiner, he knew how to exploit the system, and eventually the Comptroller instructed the Examiners simply to allow them, thus depriving Arthur of his fun (I don't think Arthur ever paid the grant fees).

However, everyone should own a copy of GB 1426698, undoubtedly Arthur's high watermark and a miracle of unity of invention.

Anonymous said...

I'm @Anonymous at 10:00am, back again and more confused than ever now. I was told that a patent claim is invalid if it covers things that aren't disclosed in the description of the invention. If the description only describes a perpetual motion machine, can the patent really cover a non-perpetual motion machines that the patent doesn't describe?

Can anyone help again, please?

Michael Factor said...

Merpel,

An issued patent has a presumption of validity, which implies UTILITY, novelty and inventiveness.

Perpetual motion machines are supposed to lack utility. Not allowing them to issue is in the public interest as a patent might encourage people to invest in such things.

James Wagner said...

I love the fact that GB 1426698 has gone on to be been cited as prior art in the field of selective pet door opening: US 8839556

"As explained in patent document GB 1426698 (Pedrick), a problem with a simple cat flap is that other unwanted animals can also enter the house, and that earlier patent document proposed a chromatically-selective locking system for a cat flap. Of course, that earlier system is ineffective against unwanted animals having the same color fur as the “authorized” pet."

Ron said...

The IPC has at least four terms for alleged perpetual motion machines (perpetua mobila), but to retrieve the terms in the IPC you must search using the latin singular wording, as the entries are for "Alleged perpetuum mobile". [ To track them down I had to search for "alleged" first.] The terms are F03B 17/04; F03G 7/10; H03K 53/00; and H02N 11/00.

Incidentally I tried looking for the IPC under the IPO's new web site. It's awful.

xxxxxxxx said...

Merpel suggests a special class of perpetual motion patents.

I think that is toi a large extent what is proposed in this consultation:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/341899/discussion-patent-applications.pdf
at paragraphs 11-14.

Alas, Ron is right. All government websites that have moved to the Gov.uk format have ended up losing a lot of the useful content

Anonymous said...

The simple fact is that a patent is only to be granted when requirements of the Act are met.

The facts of the case are that the requirements of the Act were not met. Therefore, no discussion is required and the IPkat could merely have referred to another loony patnet application wasting taxpayers' money. Although, to be fair, many non-looney applicants do so too.

Anonymous said...

It's all fun and games until you look at Mr Crowley's correspondence with the UKIPO.

Dealing with this type of applicant is not an easy task and I think the UKIPO Examiners involved should be commended for the excellent job they do.

Anonymous said...

Anonymous @ 08:41,

Thank you - as I was unaware that non-US systems use general taxpayer monies for patent application processing.

Here in the states, all activities are funded by the applicants, so if the applicants want to waste their money, the taxpayers are completely unaffected.

Anonymous said...

@Anonymous at 10:00am

I don't know who told you that "a patent claim is invalid if it covers things that aren't disclosed in the description of the invention", but they couldn't be more wrong.

In fact, the entire purpose of a patent claim is to cover things that aren't disclosed in the description of the invention. If this were not so, there would be no need to have any claims, as the description alone would suffice to define the desired monopoly.

Anonymous said...

To Anon at 13:36; that is one interpretation of my comment, but there is another interpretation not leading to the presumption that taxpayers fund the process.

Patent offices activities (UK, EPO etc) are funded solely by patentees, but one patentee may make a lot more use of the system than others, but pay the same amount. Whilst these other users may well be taxpayers, it is not their tax funding the system.

I don't know enough about the court systems of EU countries so I can't comment on whether Judges salaries, chauffeur driven cars, court clerks, new buildings, leather seating and expensive coffee machines, are funded completely by the fees paid by litigants.

Anonymous said...

So...

Your comment about wasting taxpayer monies is, well, errant, then?

Why don't you just say so?

Not sure what the courts have to do with this - non-granted applications do not see the courts and your premise was regarding applications that fail to obtain grant.

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