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The Patent Law of Perpetual Motion

Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
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Posted: Oct 11, 2011 @ 7:58 pm
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Over the weekend I wrote an article titled Turning Your Idea into an Invention.  In the article I talked about the fact that you do not need to have a prototype, but rather you need to be able to describe your invention with enough detail so that others will be able to understand what you have invented.  This is true except in the scenario of a perpetual motion machine, which I acknowledged in the article.  I didn’t want to go off on what would have been a lengthy tangent, but I knew as I was typing that paragraph I would circle back and fill in the blanks regarding the law as it pertains to perpetual motion machines.

The laws of physics and nature tell us that it is impossible for a machine to produce more energy than it consumes, which creates a very real impediment to obtaining a patent. Such a machine is characterized as a perpetual motion machine and when claimed as such it is ordinarily and routinely rejected by the United States Patent and Trademark Office. The rejection provided by the Patent Office for a claim that recites a device capable of producing more energy than it consumes is a utility rejection, which is based on the belief that an invention cannot have utility if it does not work.

But why do we need law pertaining to things that science says are impossible?  Why do we need law pertaining to a perpetual motion machine?  Those are two very different questions.

First, it needs to be noted that so-called impossibility rejections have been issued in the past relative to inventions previously thought to be impossible and later proved to be possible. For example, utility rejections were once common with respect to hair re-growth methods and treatments. When a patent examiner issues a rejection, including a utility rejection, the burden shifts to the applicant to demonstrate entitlement to the claim. In the utility scenario an examiner would reject a claim and then it would be up to the applicant to produce sufficient proof that the invention does actually work. Eventually there was sufficient proof that hair re-growth methods, treatments and compounds did actually cause at least some hair to re-grow.  Upon the presentation of this evidence the utility rejection is withdrawn and the patent examiner considers the invention on its merits, moving forward to determine if the invention is novel and non-obvious.  Ordinarily in the situation where the initial rejection was due to impossibility one would anticipate smooth sailing through novelty and non-obviousness.

In the case of a perpetual motion machine the production of a working prototype is the only way the Patent Office would ever issue a claim for a device claimed as being able to produce more energy than it consumes. More specifically, you will need to produce the working prototype before the Patent Office is going to engage in any examination.  The prototype will be tested thoroughly and if the output is more than the input then a perpetual motion machine has been achieved and the applicant may move forward through the patenting process.

The best case to discuss whenever the issue of perpetual motion machines comes up is Newman v. Quigg, 877 F.2d 1575 (1989). In that case Mr. Newman claimed a device that increases the availability of usable electrical energy. The patent examiner rejected the claims and the Board of Patent Appeals and Interferences upheld that rejection. Ultimately a number of appeals were taken to courts outside the Patent Office. In one proceeding at the district court level a special master was appointed to investigate.

The special master reported that the results shown for the Newman device appeared to conflict with the laws of thermodynamics, and expressed skepticism concerning Newman’s theory of operation of the invention. The master stated that “[t]here is no evidence corroborating Newman’s scientific theory.” The master also found that the evidence before the Patent Office was overwhelming and that Newman had built and tested a prototype of his invention where the output energy exceeds the external input energy. The special master went on to conclude that there was no contradictory factual evidence to rebut Newman’s claim despite the fact that the operation of the invention violated well-established scientific principles.

Ultimately, the district court did not adopt the special master’s findings because the report was “clearly erroneous in that it apparently contradicts the first law of thermodynamics.” In other words, the district court judge was not about to issue a decision saying that the first aw of thermodynamics is incorrect.  As a result, the district court referred the device for testing by the National Bureau of Standards (“NBS”), which all things being considered was a really good idea.  After all, if one is going to say that the first law of thermodynamics is incorrect it might be a good idea to actually test the device and see if the claims and paper proof really add up to a real-life illustration of the faulty nature of the first law of thermodynamics.

The NBS testing did not confirm the special master’s findings, and in fact found that the device did not produce more energy than it consumes, although it was found to be extremely efficient — 87% efficient.  Newman protested because the NBS tested the device grounded, which he claimed could not be done according to the invention. He further protested that the load added to test for the amount of energy skewed the results. The matter was appealed to the United States Court of Appeals for the Federal Circuit.

The Federal Circuit, having an open mind to the possibility of a perpetual motion machine, said:

This court, like the master and the district court, believes that the laws of thermodynamics do not brook contradiction. However, the laws of thermodynamics do not require closing of either the scientific or the judicial mind to the possibility that the phenomena manifested can be explained by theories that do not violate inviolable scientific principles. The master so recognized, even as he expressed strong skepticism about Mr. Newman’s scientific theory of harnessing gyroscopic or electromagnetic energy. But when the court-ordered test did not verify the results claimed by Mr. Newman, the matter of the scientific explanation of the claimed results became moot.

Taking notice of the unusual nature of Mr. Newman’s asserted technological results and proffered explanation, we discern no error in the district court’s decision to decline to adopt the recommended conclusion of the special master, and instead to order further examination by the PTO, followed by the order that a test of performance of the Newman device be conducted by the NBS.

Essentially, the Federal Circuit found no error in what the district court did. The primary, if not exclusive reason, was because Newman had been provided the testing protocols to be employed by NBS, which included that the machine would be grounded and a load added to test the output electricity, and he did not object prior to the testing. Objecting after the fact to the NBS testing was deemed insufficient and untimely.

What does this all mean? It means that it will be exceptionally difficult to obtain a claim on an invention that purports to produce more energy than it consumes, unless of course you actually have a working prototype that will when tested produce more energy than it consumes. Judge Pauline Newman (no relation to the inventor) was the Federal Circuit Judge who wrote the opinion in Newman v. Quigg and as I read what she wrote I get the sense that she chose her words carefully because she would not want to go down in history as one who wrote that perpetual motion machines are impossible, only years, decades or centuries later to be proven wrong.

The reality is that science fact and science fiction are dictated based on currently accepted understandings, whether they be true or not. As impossible as something sounds, what we understand as science fact is always bounded by our understanding of our surroundings.  As our knowledge expands what was formerly science fact frequently becomes science wrong, sometimes badly wrong.  Does that mean that someday perpetual motion will be a reality?  Who knows.  I am not holding my breath or taking any bets, but there are a lot of highly intelligent people constantly trying to unlock the mysteries of the universe and with so many new discoveries it seems science continues to encroach upon the impossible.  Just think about cloaking devices and a transporter a la Star Trek, which are already to some extent realities.  See here, here, here for cloaking and this, this and NASA acknowledging “small numbers of atoms and photons have been teleported” for transporter technology futurism.

But all of this begs the question about why do we really need to have law dealing specifically with perpetual motion machines?  The truth is that every generation has inventors that believe they have solved the mystery of perpetual motion and the Patent Office and the Courts have gotten rather tired of dealing with those cases, hence the requirement for a working prototype first.

To some it will be shocking that there are people who actually believe they have invented a device that produces more energy than it consumes.  I can say with great authority that there are far more inventors working on creating a perpetual motion machine than anyone probably would believe.  In some cases there is even a working prototype, so there is obviously some kind of machine, but does it provide more energy than it consumes, which is the Patent Office definition of a perpetual motion machine.   Frequently inventors discount the initial energy input into the system, thereby skewing their output readings and erroneously having them believe they have created a perpetual motion machine.  But there are many working in what seems a hopeless field, at least if you buy into the first law of thermodynamics.

The pursuit of the impossible, or impossible at least based on our current understandings of the laws of physics and nature, is a particularly strong draw for many.  It is what causes young science fiction fans to grow up into scientists that challenge conventional thinking and chase the cool gadgets the sci-fi visionaries dreamed.  That drive and dedication can lead to places where no one could have imagined, and frequently does.  Just look at all the things NASA learned when they worked to put a man on the moon.  That was believed to be impossible.  Would we have made so many discoveries without reaching for the seemingly impossible?  Perhaps not.

The key for those who dream of perpetual motion or unlimited free energy (as it is sometimes stated) is understanding that it will be a substantial uphill battle to obtain a patent on a perpetual motion machine, and even if you do have a working prototype you will likely need many hundreds of thousands of dollars to fight the legal battles you will face.  Of course most will tell you it is impossible and you should stop wasting your time, and maybe they are right.  But I’m a dreamer myself and not about to tell anyone to stop pursuing their own dream.

What I do want to say, however, is that you need to keep your eyes open along the journey.  Don’t become blinded by disproving the first law of thermodynamics.  What I know for sure is that if you set out to prove the impossible possible you may well stumble across a variety of interesting improvements that are worth protecting.  A stumbled upon invention is still an invention, but that is a story for a different day.  For now suffice it to say that as you reach for the stars don’t lose sight of that which you are creating that is less than what you want but still a great invention.

Happy inventing!

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About the Author

is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

 


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19 comments
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  1. Gene,

    Is this in response to the guy who said (in an earlier post of yours) that he invented an energy producing device that converts low grade ambient temperature into electricity?

  2. Funny, I saw Mr. Newman give a demo of his machine in the late 80’s, he was traveling around the country giving public demonstrations of his machine and passing out petitions for people to sign to get the USPTO to issue his patent. His demo was clearly a sham, as there were no meters or anything to inspect, only some blinking lights and a large rattling machine. Some people bought into it though (some people will believe what they want to hear, and “no more gas” certainly sounds good!)

    But I have always wondered, if Newman’s patent application was not described as an “energy machine” and made no incorrect claims but instead was described and claimed as a device to convert direct current into an output with high frequency pulses (or whatever it really did), would the USPTO have had to issue the patent because it “worked” as described?

  3. What’s the point of getting a patent if no one is going to want to infringe on it?

  4. How come the patent office lets claims involving “magnetic monopoles” through? (US 7083870 for instance).

  5. patent leather-

    The answer to your question is YES. Those inventors who believe they have invented a perpetual motion machine but allow them to be claimed and described without using the words “perpetual motion” can obtain a patent, assuming of course the invention is novel and nonobvious.

    -Gene

  6. step back-

    No, this article wasn’t in response to that comment. Believe it or not, over the years I have had several inventors present with perpetual motion machines in various forms.

    -Gene

  7. Gene-
    I stumbled across literally dozens of *over unity* devices on U-Tube a while back, and was astounded to see how many commenters were actually buying their obvious hoaxes. A sucker born every minute I guess. Many of the hoaxsters were apparently adamant about their devices being genuine, which makes me wonder why I saw none of them that were Patent Pending…. I like to keep an open mind, but I know enough Science and gizmology to see through their arguably deceptive presentations.

    Stan~

  8. Stan-

    One of the difficult things to get a hold of is that the presentations are not really deceptive typically. There are many folks that believe they have invented a perpetual motion machine. I know one attorney who tells the story that he was contacted by someone and he explained the scientific reality but agreed to look at what he had. He explained to the inventor — “I see your problem, you are discounting the energy you put in to start the machine.” The inventor then said something like — so you’re telling me you wouldn’t put in whatever energy is necessary to start the machine if you could have free energy for the rest of your life? Of course, more energy to start than the machine will ever produce doesn’t exactly equate to “free energy.”

    Some are no doubt hucksters, but some are blinded by belief. You can help those who follow a path to accomplish the impossible if they are happy protecting what they actually achieve.

    Cheers.

    -Gene

  9. I understand that most of them probably believe they have succeeded, Gene, and far be it from me to rain on any inventors’ parades. I know how much effort and energy it takes to go the extra 9 miles to get to something better than what has gone before. Only they can know their motives, but I kept getting the feeling that they just wanted to be sensational U-Tube stars or something (Broadcast Yourself) That being said, there were several videos where wires were visible running to the device from off camera, which made me wonder about the honesty of their presentations.

    The basic underlying thermodynamic principle that theorizes against perpetual motion of course is the existence of entropy, which avers that literally everything goes to a more dis-ordered state over time. Heat escapes. Bearings wear out. Wires carrying electricity heat up and give off energy. Now if they could just invent a Time machine, they might really Have something! Excellent point about science fiction, like Jules Verne *inventing* submarines back in the mid 1800’s or so?, and Arthur C. Clarke suggesting geosynchronous satellites for global communications back in the early 50’s, which then arguably led to Global Positioning Systems later that has had a huge impact on our daily lives. It must be really fun to be a patent attorney, and I wish I had become one myself back when I was just getting started.

    Best regards,
    Stan~

  10. Some time ago (when the office was in DC) there was a “joke” that they threw these prototypes down in the basement over the years. And when they moved the office to VA, they went to the basement to clear it out and there were several of the prototypes still working. . . . .

  11. Good one Barry!

    It reminds me of a Sci-Fi short story that I read in Omni magazine decades ago, entitled “The Singing Diamond’, but I can’t recall the author’s name right now. It had to do with an asteroid mining company that found a nearly pure Nickel asteroid that wanted to tow to Earth => =>Ka-Ching!!

    The problem though, was that there was a micro-black-hole that was *orbiting* the asteroid by passing through it like near vacuum, straight through the middle of the asteroid, which made it Very dangerous to be standing anywhere on it’s surface. Their solution to the problem was very interesting, wherein they melted and extracted the Nickel a little at a time, replacing it with Carbon, and then fusing the remaining Carbon into a huge Diamond to contain the black hole in a safe place. When the hole passed through the Diamond every few minutes or so though, it made a sort of ringing or singing sound mechanically through the Diamond.

    They figured it would keep singing for about another 5,000 years or so. Eventually the hole would completely comsume the Diamond a very little bit at a time, to finally come to a rest some day I would imagine.

    Stan~

  12. Oh, I dunno Gene.

    Seems to me folks like you, Renee, and Kappos would easily qualify as perpetual motion machines . . .

    . . . but a suppose since you’ve all been such for more than a year, it’s too late to get a patent on any of you.

    Drats!

  13. Converting low grade ambient heat to electricity.

    Of course, the higher echelon know already about my device, after all Mr Obama (the president of the united states of America) is in on it, and has said that we will come off oil, create millions of green energy jobs, and start the electric car revolution shortly.

    The device works by pulsing an excitation current through two peltier/seebeck thermo electric cells placed back to back with both hot sides together in the centre to concentrate ambient heat. Then using energy harvesting switch mode voltage regulators to re-rectify absorbed ambient heat, now producing a temperature difference from the core to the periphery into electricity.
    New equations are being derived as carnot cycle efficiency has been exceeded.
    lion@palmbeach.freeserve.co.uk

  14. My back of the envelope calculations indicate the device will go into spontaneous cold fusion mode within 18.035 seconds of turn on, at which point our dependency on foreign oils will forever be eliminated and the promised land of The Singularity will be at our doorsteps.

    Let us all raise our dilithium crystal glasses and toast to that with a round of fresh Kool Aid.

    Free at last, free at last, from having to cow tow to the laws of thermodynamics.

  15. Step back-

    Actually cold fusion has been getting much closer pretty quickly, as in perhaps 10 or 20 years from now perhaps, with the advent of new inventions regarding superconducting *wire*, that is being considered for new Super power grids to handle renewable energy being generated in relatively remote locations. The reduction in power loss over great distances might be able to reduce losses by nearly 30% if I recall it correctly, Various forms of the *wire* might make fusion possible much earlier than previously expected, as reducing resistance within the fusion reactors could be critical to being able to *light the candle* so to speak.

    Last I heard, the amount of easily available heavy water (Deuterium) present in the oceans could power all of the planet’s needs for at least 200 years, and probably about 5 times that if we can get a bit creative. That seems to be close enough to perpetual motion to me for the foreseeable future, given that it is reasonably safe. The beauty of Fusion is that is so hard to maintain, that if anything goes even slightly wrong, the candle will just expire with a whimper instead of a very large *anomalous event* shall we say. The China Syndrome is very real, where an out of control *Fission* reaction could go thermally ballistic, and literally start melting a hole into the Earth until it runs out of the fuel contained in the reactor, with presumably Jammed control rods that get stuck or otherwise fail to operate.

    There was a fair amount of conjecture before they lit the first Fission bomb, that it might *light* elements in the ambient Earth around it, and cause a runaway reaction that would have been impossible to do anything about. No Joke! They didn’t know, but they lit the candle anyways at Los Alamos, and all breathed a sigh of relief when nothing happened like that.

    The best part about Fusion reactors is that the by-products amount to Very small amounts of slightly radioactive Helium, with a half life of about 3 days or so if I recall it correctly.

    Stan~

  16. BTW Step-
    I have been researching a new flavor of Kool-aid, that I have been considering calling Quantum Quinine, which would incidentally probably prevent Malarial infections as a sort of fringe benefit. Never let it be said that the West coast kool-aid research branch would ever let aspiring inventors down in their time of dire need!

    Metaphysically yours,
    Stan~

  17. the way to do it (first law of thermodynamics) is to have a perfectly balanced ferris wheel with two very long parrellel bore holes into to the ground and tangential to the peripheral of the wheel. Fill one bore hole with dense material like uranium and the other bore hole with low density expanding foam. The micro difference in gravity on each side with make the ferris wheel spin forever!

    crack open the champaine for every one (but better lace it with haloperidol)

  18. [...] An assertion by the patentee regarding utility will be credible unless: (1) the logic underlying the assertion is seriously flawed; or (2) the facts upon which the assertion is based are inconsistent with the logic underlying the assertion. Credibility as used in this context refers to the reliability of the statement based on the logic and facts that are offered by the applicant to support the assertion of utility. One situation where an assertion of utility would not be considered credible is where a person of ordinary skill would consider the assertion to be incredible in view of contemporary knowledge and where the applicant has not provided any information to counter that which the contemporary knowledge suggests. Again, a perpetual motion machine is a good example.  See The Patent Law of Perpetual Motion. [...]

  19. Nice post. Of course, there’s room in the patent laws for a new device that is 87% efficient – you just have to reframe its usefulness!