US Patent Office Issues Final Rejection of Rossi’s E-Cat Patent Application [Update: Rossi Makes Statement on Patent]

Thanks to Barty for reporting about the following:

The United States Patent and Trademark Office has issued a ‘final rejection’ for Andrea Rossi’s application for a patent for his E-Cat.

In September, 2014, patent examiner Sean Burke had issued a ‘non final rejection’, which Rossi had appealed, and sent more information to support his claim, but this new information was apparently not convincing. Rossi had sent to the patent office a copy of the Lugano Report in January 2015, along with this article by Hank Mills, in the hope that it would support his claims, but apparently it was not convincing enough evidence — the examiner considers the E-Cat to be ‘inoperable’

Below is a PDF explaining he final rejection document where examiner Burke explains his reasoning for not granting the patent. All documents pertaining to this application can be accessed by going to http://portal.uspto.gov/pair/PublicPair, and entering the number 12/736,193 in the application number search box (after entering the captcha)

USPTO Final Rejection Rossi Patent

I’m not sure where the US patent application goes from here. The action is listed as being final, but the applicant has the legal right to reply to this decision within three months, and I suppose Rossi’s attorneys might use that right to appeal, but unless new information can be presented, I doubt the examiner will change his decision. For now it seems that Rossi and Industrial Heat will continue their current commercialization strategy without the protection of a US patent.

UPDATE: I received the following statement from Andrea Rossi.

Dear Frank:
About the action of the USPTO related to our patent application 12/736,193:
we have 60 days for our consideration to defend the application. Our action is on course by our patent attorney.
LENR are very difficult to patent, but we will continue to defend the application because we believe it is correct.
In two months we will make all necessary to defend our position in the USPTO.
Warm Regards,
Andrea Rossi

  • catfish

    I hope Andrea Rossi continues his struggle with the patent office about this. It is very clear they were biased from the get go.

  • bkrharold

    The criticism of thermal measurement was justified, but demanding that a new discovery must conform to the current “art” or state of knowledge, and that that the inventor must be able to explain the fundamental mechanism is unreasonable. If all inventions were held to this standard, the world be flat, and the sun would revolve around the earth. The USPTO is a thoroughly corrupt organization, the tool of the 1%

  • Bernie777

    I am not a patent expert but the “tone”
    of Mr. Burke’s rejection seemed to suggest he things the e-cat is a fraud. Could those of you used to reading these
    reports tell me if you agree Mr. Burke is projecting this opinion?

  • GreenWin

    Andy, you apparently failed to read Abd ul-Rahman Lomax clear description of the peer review process for the Special Section.

    Current Science is a multidisciplinary journal established in 1932,
    published by the Current Science Association in collaboration with the
    Indian Academy of Sciences.

    Last year, the editors of the section solicited papers from researchers in the field of LENR. These papers went through two reviews, first by the special section editors and then, if the editors decided to forward the paper, by a normal peer reviewer assigned by Current Science.

    The anonymous reviewer of my paper was familiar with physics and not with cold fusion, and was skeptical at first. Yes, I modified my paper extensively in response to his critique and it is, no doubt, better for it. Apparently, he was convinced, he gave a glowing recommendation for publication.

    There are some very good papers in this collection, and others that are brief reports on activity in various nations or organizations.” (reprinted by Mr Moho, in ECW 17 days ago) http://bit.ly/1MCV8bw

    Your lack of attention to detail is puzzling Andy. Recall refusal to accept Nobel laureate Frank Wilczek’s work on “time crystal” perpetual motion? Details (and willingness to learn) are fundamental to the scientific method.

  • Chris, Italy

    He still doesn’t get it that he can’t patent a secret. Not even now, with Parkhomov’s work he could at least include what information is already public, just enough for the skilled to obtain the effect without Parkhomov’s advice. And now of course he’s gotta rely on Parkhomov not taking advantage.

    • GreenWin

      Chris, try and keep up with the discussion. Rossi/IH are protecting IP through international Trade Secret law. It is more enforceable than patent law. And it’s secret. Just like technology developed by military to keep the peace.

      • Chris, Italy

        Which doesn’t remove the fact that you can’t patent what you protect with international Trade Secret law. Nor does it remove the fact that it’s already somewhat less secret now. Once upon a time, there existed an amazing thing called logic. Seems so rare today.

        • GreenWin

          Chris, IF you read my post below citing the example of Wyeth using both patent and Trade Secret law – you would better understand. The USPTO has provided Industrial Heat and Rossi with an unimpeachable paper trail detailing his invention. This combined with Trade Secret protection and the eventual acceptance of theory – works to IH’s advantage.

          • Chris, Italy

            Sorry Green but, IF you get it straight, you would realize that Premarin and the ecat are two completely different kettles of fish. Also, IF you got it even straighter, you would even see that the article you linked to says exactly what I said (you can’t patent a secret) and even hints at why both forms of IP are involved in the case of Premarin. It even generalizes as follows:

            “Importantly, as with Premarin, trade secret law and patent law can
            coexist. Different forms of intellectual property rights can be used to
            protect valuable information. Patents often protect the broad concept,
            while trade secrets protect the production details.”

            Not only do I, the dumbest nitwit here, fail to see anything likes this in the case of the ecat, but the replication by Parkhomov so soon after the Lugano test spilling a detail or two is actually a demonstration that it ain’t only me that’s too dumb to see the relevance. That same article’s final considerations even includes what my line has been, for quite a time here, as to why trade secret is no use for IH and Rossi. All they are banking on right now is desifn details and high production capacity.

            • GreenWin

              I have not called or named you “the dumbest nitwit,” Chris… you did. I shall repeat the salient fact: The USPTO has provided Industrial Heat and Rossi with an unimpeachable
              paper trail detailing his invention. This combined with Trade Secret
              protection and the eventual acceptance of theory – works to IH’s
              advantage.

              But I understand E-Cat denial is a part of skeptic’s agenda. At any rate no harm meant. Apologies if you took it that way.

              • Chris, Italy

                I dunno I don’t get your point Green. I guess it’s just too complicated for a dumb nitwit.

              • telessar

                Green, I am an attorney working in IP and Chris is basically right on this point. Trade secrets and patents are generally mutually exclusive.

                To give a simplified explanation: the whole idea of a patent is that the Government gives you a limited monopoly over the idea in exchange for publishing how the idea works. You can’t try to hold back the secret of how the thing works and expect to obtain a patent.

                The idea behind a trade secret is basically the opposite – you just keep your invention secret. There is no substantial protection for your idea if it becomes public or someone else discovers it. The burden is on you to keep your idea secret.

                An inventor like Rossi can either explain how his invention works and try to get a patent, OR he can keep it as a trade secret. “An unimpeachable paper trail” doesn’t matter except in the context of litigating patents – it doesn’t actually add any real IP protection for an idea.

  • Anon2012_2014

    As stated by the patent examiner:

    1) Rossi don’t show how to build it to someone skilled in the art (of building science experiments). No one knows what’s on the inside. No one knows how the power supply works. Thus far, no one has replicated. That is sufficient reasons for rejection.

    2) Rossi doesn’t show convincingly to the patent examiner that the device works. As no one has fully reproduced the experiment (Parkhomov’s tube cracks within 24 hours of operation), and as there is no peer review papers (yet), the examiner doesn’t believe it works. He pointed out the usual flaws in the Levi paper. If Rossi had provided the cookbook to (1) above, it would be different, but he didn’t.

    Hence, Rossi’s patent is rejected.

    What happens if Parkhomov or MFMP gets a public validation within 90 days is unclear. They also state that the Rossi patent is obvious from prior patents that use a proton beam to create fusion. I think its different and sufficiently novel, but the patent examiner says otherwise.

  • Andy Kumar

    Patent examiner says, “One of ORDINARY SKILL in the art would have cause to doubt Levi report (and methodology)….” That says it all. No need to look for LENR suppression conspiracies.
    As they say in Missouri,

    “I come from a state that raises corn and cotton and cockleburs and Democrats, and frothy eloquence neither convinces nor satisfies me. I am from Missouri. You HAVE GOT TO SHOW me.” Good common sense attitude for those NOT skilled in the art or science of it.

    http://www.sos.mo.gov/archives/history/slogan.asp

    • GreenWin

      Andy, this must be the very statement issued by the Indian Academies of Science. Apparently they like what they’ve been shown since they just published a Special Section on LENR in their peer-reviewed Current Science journal. There are some 30+ papers in this special section. Maybe Robert Park will read a few and clue in the APS? Naw. 🙂

  • Omega Z

    I just had this thought.
    From a couple sources, rumor has it that the Lugano team is still doing Hot cat reactor work.
    Is it possible they may be doing an independent replication that would supply arguments to IH/Rossi Lawyers for the appeal????

    Just A thought!

  • Omega Z

    The purpose of patents were of honorable intent.
    Imagine you developed something of great benefit to society. Say an E-cat.
    Imagine GE or Exxon takes your idea, manufacture it & make Billion$.
    Imagine you find yourself living in a cardboard box in an alley.

    It was intended to let anyone benefit from their ideas even if they didn’t have the means financially or otherwise to manufacture it themselves. You could license it. The majority of ideas come from the commons. Which is logical as most Ideas come from a need for something to make things easier or just for convenience. The wealthy can afford for to pay for convenience or someone to do the dirty work.

    Even if you have the means to manufacture a product, The Big Corporations can easily squash you. They can buy in bulk & sell product for less then you would pay for the materials. A patent affords you some protection. At the very least it gives you a window of opportunity.

    And if your altruistic, you can even patent it & make it open source. Thus keeping anyone from monopolizing it. The problem is that special interests have gamed the system & the patent system is broken. It needs to be fixed.

    • http://www.lenrnews.eu/lenr-summary-for-policy-makers/ AlainCo

      it worked well at the time of Wright brothers, when innovation was taking decades to be sold.

      new articles explains that patent today are too slow to be useful.
      in fact some say that publishing weak patents, patents in weakly protected zone, in fact slow the competitors, because they don’t innovate.
      Most license paid for a patent are not helping people to innovate, but just allowing them to do what they wanted to do without any help of the patent. patent slow down innovation.

      in fact today there is a too big advantage for the one who innovate himself, or get help of the one who innovate, or to innovate by exploiting others work without much attention nor fear (by paying a “eat all you can”). this is the idea of OpenIP…

      you enter a club, you share your IP for a nice price, you pay a fixed cost to get all the IP as information, and you pay a license at nice cost for the sold product…

      • Omega Z

        Without IP protection, Most innovation will grind to a stop.
        I doubt Rossi would work 12/16 hour days & sell off his assets to develop the E-cat without the possibility of payback. Without IP protection, Most wont invest in the product. If they do, it will be at low levels & greatly delays the spread of the product.

        IP actually spurs Innovation. Samsung can’t copy I-phone so they must find new ways to build their own phone. In order to gain market share, they need something a little better. This leads to faster technological advances. If not for this competitively forced innovation, Apple could sell the same phone for 10/20 years without any improvements. Of course, without IP, there wouldn’t be an I-phone to begin with.

        Elon Musk open sourced some of his battery charging tech, but it was actually a shrewd business tactic with a good sales twist(It wasn’t for free). In lieu of a license fee, it requires everyone to use his standards. I’m sure this has much to do with the Mega-battery plant. Even tho this benefits the consumer in the short term, It may not in the future. And in this situation, Musk’s open sourcing actually interferes with innovation.

        We merely need to find a way for IP patents to work as they should. How to accomplish that without special interests messing it up is the issue. Without it, few people will invest.

        • http://www.lenrnews.eu/lenr-summary-for-policy-makers/ AlainCo

          I agree with that position, but it seems things have changed because it goes faster.

          first of all, people don’t innovate if they are sure they will not benefit from it.
          that is the goal of patent and it worked very well in the 60s.

          now things are different.
          it is impossible to really copy the innovation of someone else without innovating yourself, because otherwise you are late.

          what happen today , and which is describe by some, is that various people innovate in parallel with different approach, with much work, and same merit.

          then someone who did nothing, who provided no hint to any player, came and say, you are infringing my patent. it is true, and they pay.
          when people learn that a patent exist on something, they simply abandon that approach if they can, or pay if they have no choice, and the patent improved nothing.

          people having IP can get money but most of the time it is much less than what they would expect from simply making business and selling product as quickly as possible.

          in fact today patents is mostly a way to slow innovations.

          on the opposite trade secrets, know how, science, experience, human resources, are the real IP capital. It gives advantage for few month or years,an allow only to go on innovating like a permanent race against copy…

          I’ve discussed with the author of two very good patents.
          their patents have been copied (patented differently, with a minor difference ).
          one stated me that he could patent something else from what he worked on…
          the other said me that he did not care, that patent were worthless because what was making his business work was his ability to make custom solution for clients…
          in a way a patent is useful, just to resist patent troll, and focus on your real business, innovate faster than competitors.

          for Rossi he have a great know how and credibility.
          as long as he does not sell at crazy price and propose the best product (he can because he have experience), people will buy as much as he can produce…

          only if he is too slow to go industrial will competitors catch consumers.

          so hist first goal is to be the best, go fast, and staisfy clients.

          if chinese copy him, he still will have too many clients to satisfy himself.

          Chinese may even make the market grow with applications.

  • Omega Z

    There is a method to his madness.
    Read the fine print. It is not free.
    It will actually benefit his business by making everything compatible with his. Increasing the number of re-charge stations for Tesla’s.
    Basically, He wants to be the VHS, Not Beta-max.

    But I would agree the patent system has been corrupted & the changes & proposed changes will make it even worse..

  • Omega Z

    This is all Greek to me.

  • Omega Z

    It should be noted that Jet engine manufacturers, The Military & NASA use this heat measuring technique all the time. In many situations in their line of work, it is the only way to get accurate readings that have to be within a few degrees. This is not a novel technique.

  • Dr. Mike

    I never understood why Rossi had filed a patent application that blatantly failed to disclose the E-cat invention, but now it makes sense. Obviously, the patent would have been rejected this go round for failure to disclose the invention. However, if “failure to disclose” had been the only reason the patent was rejected, the next 60 days could have been used to fully disclose the invention (including a proposed theory of operation), resulting in Rossi finally having his US patent. With the patent now having also been rejected for “inoperability”, Rossi at least still has all of his intellectual property protected as a trade secret.

    It is interesting that the patent examiner was quite critical of the scientific methods and the speculative nature of the theory put forth in the Lugano report. As much as I respect the effort made by the Lugano team, I have to agree with the examiner on the scientific quality of the Lugano report, especially that the “low temperature control run” did not constitute an adequate control for the experiment. A vented reactor ran at the end of the active runs up to the active power level would have clearly shown that much higher temperatures were achieved with hydrogen present in the reactor. Also, the examiner was looking for extraordinary results to back up the “operability” of the invention. One way to achieve this kind of result would have been to run a reactor in the self-sustained mode (SSM), hopefully demonstrating a COP much greater than 10.

    I don’t see how Rossi will be able to come up with the data necessary to convince the examiner that the E-cat really works in the next 60 days unless the data from the 1MW plant is so good that the unit can be used as proof of a working device. Also, within the next 60 days Rossi needs some experimental results to prove a mechanism for a nuclear reaction(s) in the Ni-H system that is consistent with existing physics, but explains the excess heat generated.