Quantum entanglement patent application rejected because it is inoperative. IN RE: HU

A patent is a set of exclusive rights granted to the inventor of a new, useful and not obvious invention. In the United States an inventor gains a patent by filing a patent application with the United States Patent and Trademark Office. The patent application is reviewed by a patent examiner at the United States Patent and Trademark Office and if the patent application meets all the requirements, the inventor is granted a patent on the invention.

Getting a patent is not a simple task. The invention must meet the requirements for patentability, including novelty, non-obviousness, written description, and enablement. A fundamental requirement is the invention must have utility for a patent to be granted. If an invention lacks utility the invention cannot be patented in the United States.

An invention has a well-established utility if (i) a person of ordinary skill in the art would immediately appreciate why the invention is useful based on the characteristics of the invention (e.g., properties or applications of a product or process), and (ii) the utility is specific, substantial, and credible.

Many patent applications claim inventions that are so revolutionary that they may seem incredible. The Manual for Patent Examine Procedure cautions patent examiners not to reject inventions as incredible without evidence. However, when a patent claims a means for accomplishing an unattainable result, the invention must be considered inoperative as claimed and the claim must be held invalid under either § 101 or § 112. An invention that is “inoperative” is not a “useful” invention under 35 U.S.C. § 101. And if the patent application does not describe how to recreate invention in the specification, the patent can be rejected under 35 U.S.C. § 112 for failing to enable others to practice the invention.

IN RE: HUPING HU, 19-2104 (C.A.F.C. 2021) is an example of a case where a patent application was rejected because it was found to be inoperable.

This case begins with Mr. Hu’s four patent applications for different inventions that involve quantum entanglement. Quantum entanglement is said to occur when fundamental particles such as photons or electrons interact and become linked; whereby when the particles are moved apart and separated by distance, the molecules’ mechanical states (such as their spin, momentum, and polarization) remain coupled, and if the state of one entangled particle is changed, its distant linked particle is instantaneously affected.

The four applications at issue are:

U.S. Patent Application No. 11/944,631, filed Nov. 25, 2007, which relates to quantum entangling two separate samples of liquids and manipulating the pH of one sample by cooling the other sample.

U.S. Patent Application No. 13/449,739, filed April 18, 2012, which relates to a method administering an anesthetic to a patient. A sample of anesthetic would be connected to a device, music would be played through the sample and the patient would be administered the anesthetic through quantum entanglement.

U.S. Patent Application No. 13/492,830, filed June 9, 2012, which relates to a method for administering heart medication to a patient who did not ingest the medicine through microwave activated quantum entanglement.

U.S. Patent Application No. 11/670,996, filed February 4, 2007, which relates to quantum entangling a substance with ordinary tap water. The specification describes shining a laser light through tap water and then a second substance. When a patient drinks the tap water they experience the effects of the second substance.

The patent examiners assigned to the applications rejected them under § 101 as inoperative and § 112 as not enabled. The Patent Trial and Appeal Board affirmed the rejections. Mr. Hu then appealed to the Court of Appeals for the Federal Circuit.

On appeal Mr. Hu’s primary argument was that the USPTO failed to establish a prima facie case of unpatentability. The Federal Circuit noted that Mr. Hu is correct that the burden is on the PTO to establish that the standards of patentability are not met. However, concepts that strain scientific principles are properly held to a heightened standard, typically measured by reproducibility of results. The Federal Circuit affirmed the PTAB’s holding, as to all four patent applications, that there is not scientific support for the claimed methods or apparatus, and that the experimental data and explanations are inadequate to support the novel results and scientific principles asserted in the applications.

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