How can this be patentable (Publication number: US 2009/0188322 A1)? Based on its design it would have to defy laws of physics in order for it to accurately do what it says it will do.
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Are you referring to "Sound Measuring Device" inventor: Scott Taillet ? I have not looked through this so far but patent applications to not need to contain an embodiment that works well or is production ready. Perpetual motion applications get an "incredible utility"; most things are plausible enough. If this a question about the U.S. patent laws and system it is on-topic.– George White ♦Mar 26, 2013 at 3:08
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2 Answers
I'm not sure what your specific question is. Please point out what you think is the problem in the claim section, that would be helpful.
Why? To quote the late Judge Giles S. Rich, because "the name of the game is the claim." The claims provide notice to the public as to the technology which is “fenced off” or protected from infringement. Apart from the claims, the specification, including the drawings, serve to satisfy various legal requirements. See 35 USC § 112 and MPEP 608.
If you go to the USPTO's Public PAIR and enter the application number, it will show you the prosecution history. It appears that USPTO has entered a final rejection of the application in November 2012. You should read the final rejection Office Action, in case you are curious.
This sounds like the issue addressed by the Federal Circuit in Newman v. Quigg, 877 F.2d 1575 (Fed. Cir. 1989).
That case originated from the PTO based on Section 101 and 112 rejections asserting that the invention violated one of the laws of thermodynamics. The PTO stated that the claimed device was a "perpetual motion machine", and that perpetual motion is impossible for it violates either the first or second law of thermodynamics.
The case proceeded from the PTO to federal district court, where the question was referred to a special master. Initial testing appeared to confirm that the invention created more energy than put into it, in violation of the first law of thermodynamics. Testing was then referred to the National Bureau of Standards which found that the system did not in fact create more energy than it consumed. The inventor appealed these findings to the Court of Appeals for the Federal Circuit.
Judge Newman, writing for the Court, held "[w]hile it is not a requirement of patentability that an inventor correctly set forth, or even know, how or why the invention works, neither is the patent applicant relieved of the requirement of teaching how to achieve the claimed result, even if the theory of operation is not correctly explained or even understood." (citations omitted).
This case has been interpreted to leave open the possibility of inventions working on unexplained principles. However, the law may not be so permissive as it once was, and this case may also be interpreted to demonstrate the uphill battle an inventor would have to prove that such an invention is both operable and adequately described. There is at least one aspect of this that may have been changed (intentionally or not) by recent amendments.
