CAFC Rejects Patent on Invention to Overcome the Second Law of Thermodynamics

In re Speas (Fed. Cir. 2008)

In a short non-precedential opinion, the CAFC affirmed the PTO’s rejection of Speas patent application as both non-enabled and lacking utility. The application claims:

“all devices and systems which operate in such a manner as to violate the second law of thermodynamics as it is currently understood.”

The CAFC briefly described operation of an embodiment:

‘According to the specification, the invention raises a ferrofluid out of a reservoir by a magnetic column into a mass. The ferrofluid then escapes a “gradually decreasing magnetic field which holds it up against gravitational force” and is drawn away via tubular element by a capillary force aided by Brownian motion. At the end of the tubular element, drops of this ferrofluid accumulate and drop back into the reservoir below, spinning a wheel along their downward paths. Thus, the movement of the ferrofluid imparts mechanical energy upon the wheel. Speas claims that because this ferrofluid is moved and adds energy to the paddle wheel “without input into the system other than ambient thermal energy,” it is proof that the second law of thermodynamics is not inviolate – an object of the invention.’

Notes:

  • Although this type of case is fun to read, it also provides an interesting lesson — that the patent office has tools to reject inadequate patent applications on their merits without resorting to broad exclusions of particular subject matter. 
  • Speas is the inventor of several issued patents covering more practical applications such as an internal combustion engine and an adjustable bicycle drive mechanism. His home of record is in the town of Haiku on the island of Maui.

61 thoughts on “CAFC Rejects Patent on Invention to Overcome the Second Law of Thermodynamics

  1. SCOTUS unquestionably needs to grant cert to review the CAFC’s improper per se ‘2nd law of thermodynamics’ and re-establish the traditional four factor test balancing test with the 1st law. Having the SCOTUS bar hatchet the reasoning behind heat pump operation to SCOTUS would be priceless, but probably result in the overturning of the law of gravity. Its a like a humming bird, no a ferris wheel, no like a piano roll, your Honor. Software is ephemeral . . . like a blueprint – without form or function like abstract thought.

  2. I have seen many scientifically impossible filings as PCT Search Professional, including perpetual motion, gyroscopic drive, wind power on a moving vehicle, energy from ionic proximity (proven by an example involving several light years of ions stacked next to one another), and thermonuclear fusion. The PTO was very hesistant to accept the scientifically impossible arguments, even when the math was clearly insane, preferring a cited reference that taught the same garbage. For example, you will find dozens of patents for generating electricity with a wind turbine in a vehicle, and using that energy to power said vehicle. Geez, what are we all worrying about oil?

    I wonder if this has to do with the low scientific qualifications of some examiner’s, or the reluctance of the PTO to predict how scientific laws may be revised in the future?

  3. “There, that ought to make the creation science guys even crazier than they already are.”

    Why am I not surprised, Rat?

    E#6k, you’re not the first to raise questions about the applicability of the second law to processes beyond what we little creatures observe:

    From VanWylen & Sonntag’s classic “Fundamentals of Classical Thermodynamics” (copyright, Wiley & Sons, 1978):

    “The final point to be made is that the second law of thermodynamics and the principle of the increase of entropy have philosophical implications. Does the second law of thermodynamics apply to the universe as a whole? Are there processes unknown to us that occur somewhere in the universe, such as “continual creation,” that have a decrease in entropy associated with them, and thus offset the continual increase in entropy that is associated with the natural processes that are known to us? If the second law is valid for the universe (we of course do not know if the universe can be considered as an isolated system) how did it get in the state of low entropy? On the other end of the scale, if all processes known to us have an increase in entropy associated with them, what is the future of the natural world as we know it? Quite obviously it is impossible to give conclusive answers to these questions on the basis of the second law of thermodynamics alone. However, the authors see the second law of thermodynamics as man’s description of the prior and continuing work of a creator, who also holds the answer to the future destiny of man and the universe.”

  4. “OK, the 2nd law doesn’t actually prove that evolution is impossible. But evolution nonetheless violates the ‘basic principle’ underlying the 2nd law.”

    In a weird way maybe the second law favors the existence of life: The second law says in effect that the universe goes down hill. Life creates order locally temporarily but by consuming resources accelerates disorder globally. Anyone who has ever had a two year old will understand what a force for disorder life can be. With life, the universe goes downhill faster. If the universe “wants” to go downhill then it “wants” life. Rather than violating the underlying principle life may be an expression of the underlying principle by creating a pathway to accelerated disorder.

    There, that ought to make the creation science guys even crazier than they already are.

  5. e#6k – the burden is on you to find evidence to reject. If I find nothing and you find nothing, you must allow. Thus, there is a default.

    “if you want to kill the app” – herein lies your problem. You are taking it personally.

  6. “Not a big fan of Discover MM?”

    That’s a different entity, though I’ve always suspected the Discovery Institute (a Seattle-based “think tank” that serves as a front for anti-science fundamentalist Reconstructionist types) has benefitted from the confusion.

  7. “Of course, e#6k, this is from the bunch that brought you the standing-in-line-for-the-bathroom patent. So maybe not everyone you are likely to encounter will take this approach.”

    Unfortunately nearly all of them do. Like I’ve told you guys before, I play only with big fish and smaller big fish. They all play the same ol’ game.

    “Anyone can write this.”

    That’s good to know.

    “You have a fundamental misunderstanding of your role in the process.”

    Um no, I don’t misunderstand, what I’m pointing out is that people are taking advantage of that and rather than being punished for doing so they are rewarded. So far as I can tell this is not how the system is supposed to work.

    “because the default is that the patent should be allowed and the propriety of it decided in litigation.”

    Hahahahahahahahahaha. Hardly. There is no such “default” there is only the statute that says shall be granted a patent … Oh wait, what was the last part again? That’s the important part. It doesn’t default you jack.

    “you only need to be that guy of skill in the art to call BS based on the art laying around.”

    I wish. I’d hardly ever call bs on an app enough to kill it if I based it on art laying around. If you want to kill the app (perma abandon) it’ll take some work. At least in my art. I could call bs on nigh on 80%+ (if not 95) of the claims that have come before me as one of ordinary skill, it takes a rejection to “decide to not allowlol”.

    “If e#6k is questioning the law of entropy as a result of intelligent design or creationism arguments”

    No I’m not.

    Not a big fan of Discover MM? I just happened to see it on the web and thought it was interesting, not that I’d necessarily believe it right straight off. Here’s the page if anyone is interested:

    link to discovermagazine.com

  8. “don’t read any Discovery Institute press releases.”

    If e#6k is questioning the law of entropy as a result of intelligent design or creationism arguments, then he has misunderstood those arguments almost as badly as he misunderstands Section 112. The usual argument from those circles is based on the premise that the law of entropy is true, making the development of life on “antartican glaciers” impossible without divine intervention. Of course, this impossibility only comes about if you ignore the “closed system” limitation on the 2nd law. In any event, the creationists don’t want you to question the 2nd law, but rather to misapply it to disprove evolution.

    I did find a somewhat more sophisticated approach in an article somehow related to the Discovery Institute (which I’d never heard of before – thanks Malcolm): link to discovery.org. Although obfuscated a bit, the basic argument seems to be “OK, the 2nd law doesn’t actually prove that evolution is impossible. But evolution nonetheless violates the ‘basic principle’ underlying the 2nd law.” Whatever that is.

  9. “The invention, have you read the new work on how they believe life originated? Every single simple reproducing chain of RNA? (I think it was) that they created from nothing but soup in antartican glaciers could be said to violate that law as well. I have recently had to question the entropy law”

    Here’s a tip that will help you in the future: don’t read any Discovery Institute press releases.

  10. —Apparently this guy isn’t an attorney. Is there any way to stop him from providing legal advice like this? It seems like the unliscensed practice of law unless he is admitted to the bar right? Or can anyone write this?—

    No, there is no way to stop him from providing such advice. Anyone can write this. I didn’t say “legal advice” because the practice of law is generally defined as the application of law to a specific fact situation. This distinction is why I can tell a cold caller what 102 and 103 require of his patent application without an attorney-client relationship being formed. In other words, general advice will usually not be considered legal advice absent more specific facts. Put another way, just because I am a lawyer and tell a friend “you should divorce your husband” doesn’t make it legal advice.

    Back to what “the applicant regards as his invention,” it is clear that this perception of the invention can change over time. That the perception broadens what is regarded as the invention doesn’t make such claims illegal. That’s what equivalents do too; they broaden the claims.

  11. e#6k – clear case of “confirmation bias”, but you’re not the first to fall victim to it. Examiner deciding not to allow is the correct language, because the burden is on the Examiner to prove rejection.

    However, I still disagree with much of what that guy said because 1) most of his games just waste client money, and 2) attorneys have a duty to advance any proceedings before an administrative body where many of the things in the stuff you quoted are at least borderline submissions for an improper purpose.

    You have a fundamental misunderstanding of your role in the process. The burden is on you to prove obviousness or anticipation, because the default is that the patent should be allowed and the propriety of it decided in litigation. There is no need for you to do as thorough of a job as a competitor would in litigation – you only need to be that guy of skill in the art to call BS based on the art laying around. Likewise, this guy has a misunderstanding of the role of the attorney, and he’s not doing his ‘client’ any favors.

  12. Of course, e#6k, this is from the bunch that brought you the standing-in-line-for-the-bathroom patent. So maybe not everyone you are likely to encounter will take this approach.

  13. “If it holds true in everything we’ve observed…”

    Not so fast – see “Experimental Demonstration of Violations of the Second Law of Thermodynamics for Small Systems and Short Time Scales”, Physical Review Letters 89(5), 050601, 2002.

    Also, link to rsc.anu.edu.au

  14. Availability of the application: This application has not been published. As to Steve’s question, I’m not expert in such things, but I believe the CAFC reviews only the appellant record, which is to say the BPAI decision. I’ve never seen the BPAI make the entire application part of the appellant record.

    Don Champagne, Primary Examiner, USPTO

  15. You know what the funniest thing about the entire article is? He refers to the office making rejections as “the examiner deciding not to allow”. Hmm, if only it were that simple sherlock. Apparently this guy isn’t an attorney. Is there any way to stop him from providing legal advice like this? It seems like the unliscensed practice of law unless he is admitted to the bar right? Or can anyone write this?

  16. Good readers of PO, I would like to quote for you some excerpts from a guide to patent claim writing I’m reading. It is by Phil Emma (from IBM) and is entitled Writing the claims for a patent. It’s available on IEEE for 20 bucks or with your corporate account.

    Taken from the Method claims section page 1.

    “Method claims are usually written to include one or more steps. Claim 1 will be the broadest possibel claim that describes a method for making a ham sandwich. To make it as broad as possible, I will not restrict the content of the sandwich to be ham, nor will I restrict the sandwich to have bread on both sides (because it could be an open-faced sandwich) [note from E6k there is no such thing as an open faced sandwhich, the definition of sandwhich is “1. two or more slices of bread or the like with a layer of meat, fish, cheese, etc., between each pair.” but let’s let him go on believing falsehoods for now], nor will I restrict the sandwich to be made out of bread. This is overreaching on the generality of a ham sandwich. As such, it is a gambit put out to the examiner to test his mettle. If allowed, this will be a very powerful claim, but it might not stand up in court if challenged.

    There we have it folks, straight from the lips of an applicant (possibly also an attorney) why the patent system is experiencing a backlog. It’s because the applicant wants to “test [my] mettle” rather than claiming their invention. This is why we need higher fees.

    Oh here, have some extras, “Initially you should try for the broadest claim possible in an independent claim, and then narrow it down using dependent claims. The examiner might not allow your broadest possible claim (orly?). In this event, you need to “roll up” the dependent claims into their antecedents to narrow down what you are claiming. In the following example, I use a style that is as broad as possible to construct claims for a ham sandwich. These claims are probably too broad, (admitting that’s not what he believes to be his invention) and an alert patent examiner should not accept them. But they will illustrate the basic vocabulary and structure of claims…”

    I am nearly beside myself. So, like I’ve been saying all along, basically all your claims as originally filed are is just tom-foolery, and a check on my being alert. And here I was just beginning to believe that you weren’t just starting an expensive pissing contest.

  17. “Every single simple reproducing chain of RNA? (I think it was) that they created from nothing but soup in antartican glaciers could be said to violate that law as well.”

    Yes, it could be said. But it would be wrong to do so. The Earth (and its surrounding atmosphere) are hardly a closed system, thanks to the Sun.

    “I have recently had to question the entropy law, it holds true in everything we had observed, but I’m not too sure that it can be said to apply to everything in EVERY closed system…”

    If it holds true in everything we’ve observed, what makes you doubt that it applies to EVERY closed system?

  18. The invention, have you read the new work on how they believe life originated? Every single simple reproducing chain of RNA? (I think it was) that they created from nothing but soup in antartican glaciers could be said to violate that law as well. I have recently had to question the entropy law, it holds true in everything we had observed, but I’m not too sure that it can be said to apply to everything in EVERY closed system rather than the macro macro universe itself (where it does appear to be holding true).

  19. Atlas Shrugged-

    I have seen similar arguments before; I recall a story about Feynman actually taking the time to critique one such apparatus claimed to violate the second law. I do not claim to be an expert, I can only offer that attempts to consider a system as large as “the universe” almost inevitably fail to take the entire system into account. I foresee this “invention” going the way of Maxwell’s demon, but I hope someone eventually proves me wrong. As an aside, I find the implications of entropy on time’s arrow much more compelling.

    JCD

  20. JCD-

    “without input into the system other than ambient thermal energy” implies that he will be *cooling* the ambient air. Assuming the machines’s output is an electric current or some other useable energy form, there is a decrease in entropy of the system (system defined as the universe), because entropy(ambient air – cooled ambient air) > entropy(electric current), assuming energy balance. 2d law violation.

  21. The applicant filed a nonpublication request at the time of filing. It will only be published or become available in PAIR if the applicant rescinds the request or files the same disclosure in a PCT or another country.

  22. “It does not appear that this application is available for public inspection yet, at least according to PAIR.”

    How can an application that was sent to the Federal Circuit and part of a public record (published decision) not available by PAIR?

  23. To begin, I am not entirely sure the inventor did not mean to imply he was impugning the first law of thermodynamics, which deals with conservation of energy in a closed system. The second law deals with the entropy of a system and expresses the idea that the entropy of a system not in equilibrium will tend to increase over time.

    Neither law, however, is in danger of being violated by his invention, or at least that is my impression from the excerpt posted above. The phrase “without input into the system other than ambient thermal energy” indicates that he is not dealing with a closed system. Ambient thermal energy is still energy external to his invention, and thus his invention is not a closed system.

    JCD

  24. For clarification, by “quack” I meant someone who earnestly believes that their idea would work. By “shyster” I meant that the person knows it wouldn’t work, but wants a patent anyway in order to attract investment money for their great idea that will solve the world’s energy problems. Both terms are somewhat pejorative, but I didn’t mean them to be insulting–just descriptive of possible explanations for why these guys file this type of application. I have never been disrespectful of any inventor. As an Examiner, I always went out of my way to assist pro se inventors, and in fact I wrote an Office Action that was cited by my Director as a model Office Action for pro se inventors. The truth is, I liked working with pro ses more than patent attorneys. They are generally good people and their inventions are more interesting than typical inventions filed by companies.

  25. For those interested in this kind of thing, Blacklight Power Inc. aka Dr Randell Mills have had two applications thrown out by the UK Patent Office.
    See decisions BL O/076/08 and BL O/114/08, here:
    link to ipo.gov.uk

  26. “Wait, what about the magnetic field that raises the ferrofluid column in the first place? Isn’t that an energy input into the system?”

    No.

  27. Why not just treat the claim on the merits? It’s clearly unpatentable over Simpsons episode 2F19 (“The PTA Disbands) from 1995: Homer: “And this perpetual motion machine [Lisa] made today is a joke! It just keeps going faster and faster. . . . Lisa! Get in here. In this house, we obey the laws of thermodynamics!”

  28. In my comment way above, i.e.,

    Perpetual Motion Machines?
    Sure, I got plenty out in my garage, but I keep ’em a Trade Secret in my mind in my Mind lest I have a “VeritaBull” stampede. They work as long as I keep ’em Texas Oiled enough (¢¿Õ).

    I was of course joking; I don’t have plenty. In fact, I don’t have any.

    But I still explore perpetual motion concepts from time to time, and some ideas derived therefrom have been new and useful.

  29. I enthusiastically agree with AussieAgent.

    I have always made it a practice when I sought help or advice, either legal or technical, business or personal, whatever, to work with others who had better judgment than me or knew more about some area of interest than I did. Typically, I knew at least enough to pose the question or issue that required clarification, and often enough to argue for a particular outcome that I preferred.

    I have never been a quack in the pejorative sense that Defector used that term, nor have I ever been a shyster in any sense. And when the person I sought counsel from provided further depth, so that I came to a deeper understanding, or visa versa, the issue resolved and we were both better off for helping each other, either by one learning from, or by teaching to, the other— teaching/learning is mutually rewarding for one reason or another, personal or professional.

    These human interactions had nothing to do with quackery or shystering. Perhaps Defector is a little cynical or jaded – a good thing s/he “defected” from the PTO (and I can think of others who would do the world well to “defect”).

    But there is another important point (although I’m not saying the Speas case is a good illustration). One common way to MISS finding a breakthrough is to tell or convince an inventor-in-pursuit that “no solution exists.” Many times when I’ve been in pursuit I’ve been told, “Give up; no solution exists.” Part of my success is not readily accepting such advice and persisting in the pursuit nonetheless even more avidly. Lesser inventors, e.g., less dedicated or determined, tend to give up prematurely for one reason or another, and thus a possible solution may be missed, and potential progress impeded for who knows how long. Sometimes, as has happened to me in mathematical pursuits for example, the result of persistent pursuit is a proof that no solution exists, and that too, of course, is progress.

  30. Wait, what about the magnetic field that raises the ferrofluid column in the first place? Isn’t that an energy input into the system?

  31. Note:
    When using Mr. Elman’s link above, delete the close parenthesis at the end after pdf.

  32. Regarding the comment “If I am reading this right, it is saying that for a claim to be valid, the specification much teach every possible way to make a device that is covered by the claim. Does this bother anybody else?” by Also Anon on May 01 2008 at 11:32 AM:

    See the recent article by Marc E. Brown “Is the Enablement Bar Too High for Patents to Meet?” (April 25, 2008: link to mwe.com) discussing this issue as encountered in Sitrick v. Dreamworks, LLC, 516 F.3d 993 (Fed. Cir. 2008) and some other CAFC decisions.

  33. By Defactor: “I could never figure out if these guys were quacks or shysters.”

    I too used to examine in these technologies, but at the Australian Patent Office. In many cases, these guys are people with just enough physics and engineering training to work out why their inventions will work, but their training stopped short of the relativity, quantum or other theories required to establish that the inventions won’t work. So they are not realy quacks, not really shysters, they are just people who strongly believe they have an invention that works, based on the information that they have at hand.

  34. Prior to my “defection” from the PTO, I worked in a residual thermal power-plant art (class 60) and examined many applications claiming to provide free energy. I loved these cases because I could usually respond without performing any search at all — just copy some pages out of my college thermodynamics book, state that the invention is inoperable and therefore lacks utility under §101, and if they’d like to provide a working model, we’d be more than interested in seeing one. I could never figure out if these guys were quacks or shysters.

  35. money …

    “information is matter”? E=mcsquared –

    lets establish a primitive : what IS information? aethestics? bound by what? signal processing? biopharma faux existentialism to “alter” alleged medical “conditions”? can information be functional? you know you have inputs and outputs and some “information” transforms // manipulates // interprets // enables // relates // executes

    is dna information? what about proteins? my favorite – prions?

    please provide your definition -for instance, say that bandwidth is a measure – excepting the marketing terminology -a unit of data (what ever the “data” is) divided by a unit of time …

    now, the hard part … what is matter? and why does “matter” matter? can we run out of matter akin to running out of patentable subject “matter”?

    “ultra-clever”? why? what is information?

    not sure i see the problem here – maybe the pto can rail against this patent and educate the corp as a case study …

  36. “Why was this case in the CAFC?”

    Maybe some ultra-clever attorney is laying the groundwork for a future CAFC holding that “information is matter.”

  37. Well it is not a complete loss for Mr. Speas. Once he builds a working prototype to confirm his theory he is a shoe in for a Noble Prize in physics.

  38. “Why was this case in the CAFC?”

    An applicant can appeal an adverse decision by the Board Of Patent Appeals as a matter of right. Mr. Speas was pro se, so it didn’t cost much. Of course, sometimes you get what you pay for.

  39. Perpetual Motion Machines?

    Sure, I got plenty out in my garage, but I keep ’em a Trade Secret in my mind in my Mind lest I have a “VeritaBull” stampede. They work as long as I keep ’em Texas Oiled enough (¢¿Õ).

  40. The PTO has actually ISSUED “perpetual motion” patents before, by mistake, by examiners not noticing that they violated fundametal laws of science. One example I had pointed out to PTO management [which claimed inability to do anything] was 6,359,347 granted 3/19/02 on “siphoning” water UP-HILL, to then generate [free] electricity from it. It was listed on one of those “see crazy patents” websites as another “perpetual motion” patent.

    But at the time another patent attorney asked this interesting question: If a patent attorney or agent had good reason to believe that the patent application they were filing was claiming something inoperative or othewise violating a fundamental law of science, and never disclosed that issue to the PTO, could that raise a 37 CFR 10.18 or 10.23 disciplinary issue?

  41. Alleged “perpetual motion” machines are one subject for which the PTO retained the right to demand a “working model” [just as the PTO used to historically demand for almost all machines], but I doubt if many modern examiners would ever know that or do that?

  42. TJ,

    I have not attempted to implement the method or apparatus taught by the Applicant (nor have I read the description at all), but I find it hard to believe the Applicant could show enablement.

    Utility should be low in the predictable arts.

  43. So we can all agree that the invention will not work, and we know why, but can anyone spell out the mechansim by which it will fail to achieve its goal?

  44. I agree with TJ. This case is in a class with applications involving perpetual motion machines. Applicant Quixote even went so far as to announce exactly law of nature he was tilting at.

    While I’m not in favor of subject matter patentability exclusions, I don’t think this case is helpful.

  45. Dennis, if you are suggesting that the PTO has sufficient ability to reject to sort out the bad business method patents from the good based on lack of utility and non-enablement, we would need to raise the utility and enablement standards rather significantly. Whatever the merits of the issue of whether the PTO can examine particular categories of applications on an individualized basis rather than imposing a blanket exclusion, pointing to this kooky case does not help your argument very much.

  46. adds energy to the paddle wheel “without input into the system other than ambient thermal energy,” it is proof that the second law of thermodynamics is not inviolate – an object of the invention.

    It sure would be awesome if you could truly *convert* ambient thermal energy into mechanical work. It’s an air conditioner and a generator! Bothersome 2d Thermo Law…

  47. hmm, that is a very good point. I was afraid that the CAFC was talking about all claims, but in light of your comments, they are probably referring to the specific claim in this application. Good catch.

  48. We discussed using this guy’s method in my 9th grade class when we first heard about capillary motion. Free energy amirite?

  49. How does this decision square with the issuance of claims such as those in, e.g., USPN 7,229,648, encompassing “anti-inflammatory” formulations comprising herbal extracts, wherein the herbal extracts are diluted 10^400 fold (in which case there are no extracts present in the formulation)?

    For us reality-based folks, homeopathy is on equal footing with perpetual motion.

  50. It does not appear that this application is available for public inspection yet, at least according to PAIR. I sure would like to take a look, out of curiosity, though.

  51. Also Anon, it’s an interesting question. Is there a difference between the following two forms?
    1. “any and all devices which perform [function 1]”
    2. “a device for performing [function 1]”

    The key language is “commensurate[ly]”. If I claim “any and all devices which are self-propelled”, a disclosure of a bottle rocket is probably not of ‘commensurately broad’ scope.

  52. I’m interested in reading the spec and I can’t find the application. Anybody find it?

  53. I had actually read this opinion when it came out, and there was one line that has somewhat bothered me – “However, to be enabled the claim must be described by a commensurately broad description encompassing how to utilize the invention to create any and all such devices and systems.” If I am reading this right, it is saying that for a claim to be valid, the specification much teach every possible way to make a device that is covered by the claim. Does this bother anybody else?

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