Eligibility (aka Statutory Subject Matter): Utility
Quantum entanglement apps lack utility (posted 08/01/21)
Applications at issue:
Mach 17, 2021: The Federal Circuit, in In re Huping Hu, consolidated four appeals relating to four patent applications all related to quantum entanglement. The court affirmed the PTAB's rejection of all four applications as inoperative and therefore lacking utility under 35 U.S.C. § 101 and for lacking an enabling written description under 35 U.S.C. § 112.
Stated the court (citations omitted):
Hu argues that the examiners and the Board erred in examination procedure, for the burden of establishing unpatentability is on the PTO, and requires evidence based on prior art, knowledge, and analytic reasoning. Hu states that this burden is not met by skepticism and ignorance. Hu points to the absence of prior art, the absence of contrary knowledge, and the absence of contrary evidence.
Hu is correct that the burden is on the PTO to establish that the standards of patentability are not met. [. . .] The Board did not err in requiring Hu to establish the operability of his asserted discoveries, in view of the conflict with ordinary experience as well as with established scientific principles. [. . .] The PTO, as the nation’s guardian of technologic invention, must be receptive to unusual concepts, for the core of invention is unobviousness. However, concepts that strain scientific principles are properly held to a heightened standard, typically measured by reproducibility of results.
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