PRLog (Press Release) –
BACKGROUND
Perhaps the greatest hoax in the history of science is sonoluminescence (SL) where temperatures from 5,000 to millions of degrees in collapsing bubbles under ultrasound produce light - when in fact the light is produced as the bubbles collapse near ambient temperature.
However, the PTO over the past half-century issued numerous patents on the claim bubble collapse produces high temperatures. Rates of chemical reactions were claimed enhanced in sonochemistry by temperatures of 5,000 to 20,000 degrees, e.g., Suslick at the University of Illinois. Even more ludicrous were patents issued by the PTO in bubble fusion claiming nuclear reactions could be initiated by temperatures of millions of degrees, e.g., Putterman at UCLA and Taleyarkhan at Oak Ridge.
And so it was petitioner’s applications claiming the SL light was produced at ambient temperature were rejected. For redress of PTO damages, a False Claims Act (FCA) complaint was brought in the District of Columbia court, but later transferred to the Alexandria court for lack of venue.
The FCA allows private citizens to bring suit in the name of the US government. But since the PTO is a US agency, the FCA complaint was an action against itself and was dismissed. Petitioner moved to amend the FCA complaint with a Bivens action that allows suit against US government employees, but the motion was denied because the PTO acted in an official capacity when they denied petitioners patent applications.
The Bivens complaint showed the reasons for rejection given by the PTO were: (a) discriminatory and prejudiced, and (b) permeated with fraud in the form of intentional misquotes, erroneous arguments, and false prior art. But the Fourth Circuit affirmed the Alexandria court decision.
QUESTIONS PRESENTED FOR SUPREME COURT REVIEW
1, Whether the Federal courts should allow Bivens actions alleging fraud within the PTO until Congress enacts legislation to resolve the conflict of interest in the Patent Appeals Board ruling against itself in administrative remedies, and
2. Whether Congress should change pending Patent Quality Improvement legislation to allow the challenge of issued patents of questionable validity irrespective of the date of issue, and
3. Whether the instant case should be remanded to the Alexandria court with instructions to hear the petitioner’s motion for leave to amend the FCA complaint with a Bivens action because the proceedings were commenced before all of the documents in the DC court were transferred to the Alexandria court
SUPREME COURT DECISION
On 2 October 2006, Supreme Court denied certiorari.
SUMMARY
Question 1.
The PTO administrative remedy following the rejection of petitioner’s patent applications was to appeal to the Board of Patent Appeals. But the PTO Director, James E. Rogan, one of the PTO defendants in the FCA complaint, chaired the Board of Patent Appeals. Since the Board of Patent Appeals could only be prejudiced in any appeal that alleges the PTO itself engaged in a cover-up of the fraud of high SL temperatures, petitioner filed an FCA action against the PTO instead of seeking administrative remedies. Until Congress enacts legislation to avoid the conflict of interest within the PTO, the Supreme Court was requested to allow Bivens actions to be heard against the PTO.
Question 2
Legislation pending in Congress allows the public to challenge an issued patent, but only within nine months of the issue date, or at any time if the patent owner consents to the challenge. See American Intellectual Property Law Association (AIPLA) Draft Proposal, Appendix, Chapter 32 – Post Grant Opposition Procedures. Since it is unlikely that SL patent owners would consent to such challenges, the Supreme Court was requested to advise Congress to change pending legislation to strike the restrictive nine month period and allow the public, based on new scientific discoveries, to challenge any patent irrespective of the issue date.
Question 3
The FCA action filed in the District of Columbia court was never properly commenced in the Alexandria court because the Proposed Bivens Complaint that was material for hearing the Motion for Leave to Amend was never transferred from the District of Columbia court to the Alexandria court. On due process grounds, the petitioner requested that the Supreme Court remand to the Alexandria court to hear the Motion for Leave to Amend with the Proposed Bivens Complaint.
CONCLUSIONS
The Supreme Court decision shows the power of the US scientific community to influence the PTO to cover-up scientific boondoggles, as described here for sonochemistry and bubble fusion. The Supreme Court has rarely favored the individual, the instant denial of certiorari favoring the PTO being no exception. Consistent with this prejudice, the caption on the Supreme Court should be changed from “equal justice under law” to “equal justice under law for the rich and powerful.”
