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Friday, 26 June 2009

Blacklight fail yet again

As regular IPKat readers will know, this particular Kat has been intrigued by the progress of the strange and mysterious US company Blacklight Power, and in particular by their continued attempts to get UK patent protection for their alleged inventions. Two of their inventions have previously featured in a hearing at the UK-IPO (commented on by the IPKat here), which resulted in a finding that the applications fell foul of sections 1(1)(c) and 14(3) of the Patents Act 1977. The hearing officer considered that, because the inventions relied on a controversial scientific hypothesis known by the self-contradictory acronym 'GUTQCM' (now apparently called the "Grand Unified Theory of Classical Physics"), it was necessary to determine whether the alleged theory was, on the balance of probabilities, likely to turn out to be true. For various reasons, the hearing officer considered that it was not at all likely.

Blacklight then appealed against the decision, and came before Mr Justice Floyd in the Patents Court to argue their case (on which the IPKat commented here). Floyd J in general agreed with the UK-IPO hearing officer but nevertheless sent the applications back to the IPO so that what he considered to be the correct question could be answered, which was whether there was any reasonable prospect that the theory would be found to be true on a full investigation with the benefit of expert evidence.

The same hearing officer then went on to consider this question, which has now resulted in a second decision coming out of the UK-IPO on these applications, available from the IPO here. Unsurprisingly, the hearing officer has not miraculously found that the theory would stand a reasonable prospect of success of being found to be true, and has again refused the applications. The key statement of the decision (which at times ventures into the outer realms of speculative physics) appears to be this one:

"So how does the question of GUTCQM’s reasonable prospect of being shown to be valid fare in this scheme of things? If an applicant for a patent put forward an invention based on one of the current candidate theories for the fundamental nature of space time, such as string theory, or loop quantum gravity, etc, the question whether the theory had a reasonable prospect of turning out to be valid would raise real issues. It would by no means be guaranteed that the answer in any of those cases would be in the affirmative. Those are well recognised and intensively researched ideas familiar to thousands of physicists. GUTCQM is not even a candidate theory in those terms. It is not a theory that has received any acknowledgement let alone critical assessment by the scientific community at large. Assessing it on the basis of the observations I have made above concerning the two different routes to acceptance of theories, it has neither demonstrated that it provides an underlying principle nor is it a theory that is receiving attention and work by researchers in the scientific community. If I may refer to a consideration of the landscape of rival theories from the Roger Penrose book referred to above; on page 1017 he mentions a survey of scientific articles which lists eight different theoretical bases for research in the field of quantum gravity, the most popular theory in that survey attracting 69 articles in a month and the two least popular just one article each. This was in 1997 but I don’t think the picture would be very different now. GUTCQM is not one of the eight; it does not attract one single article. It simply is not within the consideration of serious scientists in the field. It does not in my view get off the starting blocks for inclusion among the group of such theories which might eventually turn out to be valid."
The IPKat has no doubt that Blacklight Power's applications will not succeed as long as they carry on being dependent on a theory that has such little possibility of being right, or at least being accepted by proper physicists. Perhaps they should try a different tack and try to patent inventions that have some basis in reality?


Anonymous said...

I agree with Gerontius' comment in the November 2008 thread that it seems better to refuse for lack of a sufficient disclosure instead of lack of industrial applicability.

If the invention can be made to work, it would appear to be industrially applicable.

If the invention, on the basis of the disclosure, can not be put into practice, it is insufficiently disclosed. This includes the case that the underlying theory can be shown to be false, but it should normally not be necessary to decide on that. Furthermore, deciding that question does not seem to be the task of a patent office or a patent judge, at least not in this area of physics.

Another comment from that thread:
My view is that if the invention cannot be put into practice, it can never be infringed and therefore the public is not inconvenienced by any granted patent but benefits from the receipt of renewal fees. If, contrary to David's views, the inventor is correct, he is entitled to protect his invention. Either way, a patent should be granted.

If the disclosure does not enable the skilled person to put the invention into practice, a patent may not be granted. This is because the public *would* be harmed if the applicant is in fact able to work the invention, but did not inform the public in his patent application how to do that. And if the applicant is not yet able to carry out his invention, then he simply has not finished his inventive work and filed his application too early.

Anonymous said...

The link in the article is to the April, 2008 decision. Isn't that the one that was overturned? Is there a subsequent decision that has come out after the original appeal?

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