Ex parte Hu

• Decision Date: 17 May 2019
• Docket Number: Appeal 2018-003398,Application 13/449,739
• Parties: Ex parte HUPING HU Technology Center 3700
• Court: Patent Trial and Appeal Board

Ex parte HUPING HU Technology Center 3700

Appeal 2018-003398

Application 13/449, 739

United States Patent and Trademark Office, Patent Trial and Appeal Board

May 17, 2019

FILING DATE: 04/18/2012

Before: CHARLES N. GREENHUT, JEFFREY A. STEPHENS, and ALYSSA A. FINAMORE, Administrative Patent Judges.

DECISION ON APPEAL ^[1]

GREENHUT, ADMINISTRATIVE PATENT JUDGE.

STATEMENT OF THE CASE

Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims 1-3, 6-8, 12, and 13. We have jurisdiction under 35 U.S.C. § 6(b). Appellant criticizes the Examiner for not proposing amendments to the claims or new claims because Appellant is pro se. See App. Br. 24; Reply Br. 9. Because it is a matter of examination practice that does not sufficiently relate to a specific rejection of the claims before us, we lack jurisdiction over the issues of pro se treatment. In re Hengehold, 440 F.2d 1395 (CCPA 1971); 37 C.F.R. § 1.181; see App. Br. 24; Reply. Br 9.

We affirm.

CLAIMED SUBJECT MATTER

The claims are directed to an apparatus for producing quantum entanglement and non-local effects of substances. Spec. para. 2. Claim 1, reproduced below, is illustrative of the claimed subject matter:

Claim 1: An apparatus for producing a plurality of quantum entanglements between a first plurality of quantum entities in a chemical substance and a second plurality of quantum entities in a human or animal, a non-local chemical effect of said human or animal on said chemical substance through said plurality of quantum entanglements and/or a non-local biological effect of said chemical substance on said human or animal through said plurality of quantum entanglements which comprises

a quantum-entanglement generating source which emits a plurality of quantum-entangling photons or magnetic pulses when said source operates

a first container for holding said chemical substance disposed next to said source; and

said chemical substance in said container

such that when said first container is filled with said chemical substance is disposed next to said human or animal and said source operates, said photons or magnetic pulses interact with said first plurality of quantum entities in said chemical substance and said second plurality of quantum entities in said human or animal generating said plurality of quantum entanglements, said non-local chemical effect through said plurality of quantum entanglements which comprises an effect of said human or animal on a chemical property or process of said chemical substance and/or said biological non-local effect through said plurality of quantum entanglements which comprises an effect of said chemical substance on a biological property or process of said human or animal.

REJECTIONS

Claims 1-3, 6-8, 12, and 13 are rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement.

Claims 1-3, 6-8, 12, and 13 are rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the enablement requirement.

Claims 1-3, 6-8, 12, and 13 are rejected under 35 U.S.C. § 112, second paragraph, as being indefinite.

Claims 1-3, 6-8, 12, and 13 are rejected because the claimed invention is directed to a judicial exception to 35 U.S.C. § 101.

Claims 1, 6, and 12 are rejected under 35 U.S.C. § 102(b) as being anticipated by Kiontke (US 6, 425, 851 B1 iss. July 30, 2002).

OPINION

At issue in this case are the apparatus claims associated with the method discussed in appeal number 2018-003120 (application 11/670, 996). Enablement under § 112, first paragraph

The issues now before us regarding the enablement rejection under 35 U.S.C. § 112, first paragraph, are substantially the same as in 2018-003120. The claims subject to the enablement rejection are argued as a group (App. Br. 11-22), with claim 1 being representative under 37 C.F.R. § 41.37(1)(iv).^[2] Paragraphs 9 and 11 of Appellant's Specification summarize the invention as follows:

[Para 9] For example, using the apparatus and method developed in this invention I have discovered that applying magnetic pulses to a biological system such as the human brain when a substance such as a general anesthetic was placed in between caused the brain to feel the effect of said anesthetic for several hours after the treatment as if the test subject had actually inhaled the same.

[Para 11] Further, I have verified as detailed below that said biological effect was the consequence of quantum entanglement between quantum entities inside the biological system such as the human brain and those of the substance under study induced by the photons of the magnetic pulses, laser light, microwave or flashlight.

The Examiner provided a detailed analysis, citing various evidentiary sources, including, but not limited to, those submitted by Appellant, in considering the Wands factors (see In re Wands, 858 F.2d 731; MPEP § 2164.01) as they relate to enablement. See Final Act. 2-6. We agree with the Examiner's analysis, which raised reasonable doubts as to the Specification's compliance with the enablement requirement. Appellant's arguments (App. Br. 11-21) merely make allegations contrary to those made by the Examiner without any meaningful analysis citing specific examples apprising us as to precisely how the Specification is enabling for the subject matter claimed. Appellant cites, inter alia, paragraphs 43 and 45 of the Specification (App. Br. 18), which, along with Figure 1A, are reproduced below to summarize an embodiment of Appellant's invention:

(Image Omitted)

[Para 43] In one particular embodiment, the containerl30 is a small glassware of the dimensions about I"x3"x4" with a useful internal volume of about 20ml, and the source 110 is made up of a magnetic coil 111 and an audio system 112 connected to the said magnetic coil. The said small glassware has a cap which is removable so that the container can be filled or emptied. The said magnetic coil is made up of a 75-feet and 26-gauge magnetic wire coated with enamel for insulation and wound on an open-ended plastic tube of the dimensions 3" in length and 1.5" in diameter. The said audio system is a typical consumer electronic product or a combination of several consumer electronic products readily available from a consumer electronics store.

[Para 45] To use the apparatus having this particular embodiment, one disposes the said apparatus 100 adjacent to a responsive target 500 such as a person's brain, and plays music on the audio system 112 with a desired output power and for a desired length of time whereby the photons generated by the magnetic coil 111 first quantum-entangle with quantum entities inside the substance 120, then travel to the biological system 500 and subsequently entangle with the quantum entities inside the biological system 500 producing non-local effect of the substance 120 on the biological system 500 through quantum entanglement.

We have no doubt that if Appellant's invention is able to use quantum entanglement to administer a general anesthetic to the human brain by directing music toward that brain through a container of that anesthetic it would be groundbreaking and revolutionary. See App. Br. 24. However, due to the absence of any known scientific principles explaining how Appellant's invention could possibly operate in this manner, the absence of any cogent explanation in Appellant's Specification regarding the general principals or mechanisms causing this to occur, ^[3] and the absence of any verifiable test data reasonably attributable to the purported result, the Examiner reasonably characterized Appellant's Specification as failing to satisfy the enablement requirement. Despite extensive arguments and voluminous submissions of articles on the subject, we are not apprised of any error in the Examiner's determinations. We find no explanation as to why ordinary and conventional audio produces any meaningful quantum entanglements and, even if it did, why they would have any meaningful effects on the pharmacological interaction between an anesthetic agent and the brain. There is no explanation offered as to why spin or any other quantum property of entangled particles would bring about a pharmacological effect in a subject, particularly one mimicking the known and expected effects a substance causes via its known and typical biochemical pathways. We are also not apprised of any data logically evincing such a pharmacological interaction has actually occurred. We agree with the Examiner that heart rate changes (App. Br. 28-29), even if present, do not amount to such evidence because heart rate changes do not necessarily demonstrate a specific pharmacological interaction. Ans. 4. The various articles cited by Appellant are either generic in nature and discuss only the possibility of quantum entanglements occurring without explaining any reason they would cause the interactions alleged in the present application, from sources regarded as having no scientific value, ^[4] or both. In light of all this uncertainty, we agree with the Examiner that undue experimentation would be required to practice the invention as claimed. Accordingly, we sustain the Examiner's enablement rejection.

Written Description under § 112, first paragraph

The claims subject to the written-description rejection are argued as a group (App. Br. 6-11) for which claim 1 is representative under 37 C.F.R. §41.37(c)(1)(iv).

The purpose of the "written description" requirement is broader than to merely explain how to "make and use"; the applicant must also convey with reasonable clarity to those skilled in the art that, as of the filing date sought, he or she was in possession of the invention. The invention is, for purposes of the "written description" inquiry, whatever is now claimed.

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