Ex Parte Redmond

Board of Patent Appeals and Interferences

Jul 7, 2006

10293826 (B.P.A.I. Jul. 7, 2006)

The opinion in support of the decision being entered today
was not written for publication in
and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
___________

Ex parte SCOTT D. REDMOND
___________

Appeal No. 2006-0970
Application No. 10/293,826
___________

ON BRIEF
___________

Before CRAWFORD, NAPPI, and FETTING, Administrative Patent Judges.
FETTING, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. §134 from the examiner's non-final
rejection following a request for continued examination of claims 1 through 27, which
are all of the claims pending in this application. At least one of the claims has been
twice rejected, and therefore this application is proper for appeal.

We REVERSE and ADD A NEW GROUND OF REJECTION.

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Application No. 10/293,826
BACKGROUND

The appellant's invention relates to a device for lifting users by use of an electric
force between capacitive plates. An understanding of the invention can be derived from
a reading of exemplary claim 1, which is reproduced below.
1. An apparatus, comprising:
an electric-energy lifting panel including a first capacitive plate and a
second capacitive plate having different geometric dimensions to generate
a net-directional force, the electric-energy lifting panel to levitate a user
secured to the electric-energy lifting panel; and
an ion conditioner to ion enhance air around the first capacitive plate
and the second capacitive plate.

PRIOR & RELATED ART
The prior art references of record relied upon by the examiner in rejecting the appealed
claims are:
Moore et al. (Moore) 3,381,917 May 7, 1968

Brown (Brown 1) 3,627,860 August 23, 1966

Kantrowitz et al. (Kantrowitz ) 3,818,700 June 25, 1974

J.L. Naudin, “The Lifters Experiments”,1 October 11, 2001 (Naudin 1)
J.L. Naudin, “How to Build and Replicate Yourself the Lifter1 Experiment”,2 January
2004 (Naudin 2)

Blaze Lab Research, “Lifters in Vacuum and Why They DO NOT Work”,3 January 2004
(Blaze)

1 http://www.fortunecity.com/greenfield/bp/16/lifters.htm
2 http://www.fortunecity.com/greenfield/bp/16/lftbld.htm
3 http://www.blazelabs.com/l-vacuum.asp
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Application No. 10/293,826
In addition, we refer in our opinion below to the following art, already of record
Hagen 3,120,363 February 4, 1964
Brown (Brown 2) 2,949,550 August 16, 1960
And the following art, that we newly enter into the record
Foote 5,503,350 April 2, 1996
Campbell 6,317,310 November 13, 2001
REJECTIONS
Claims 1-27 stand rejected under 35 U.S.C. § 101 as being unpatentable as
directed to non-operable subject matter lacking utility for such utility as is asserted being
incredible.
Claims 1-27 stand rejected under 35 U.S.C. § 112, first paragraph, as being
unpatentable as failing to enable the use of the claimed subject matter which applicant
regards as the invention.
Claims 1-27 stand rejected under 35 U.S.C. § 103 as being unpatentable as
obvious over Moore in view of Naudin, The Lifters Experiments or Naudin, How to Build
and Replicate Yourself the Lifter1 Experiment or Brown and Kantrowitz
Rather than reiterate the conflicting viewpoints advanced by the examiner and
appellant regarding the above-noted rejection, we make reference to the examiner's
answer (mailed December 17, 2004) and the non-final rejection from which the appeal
is made (mailed June 2, 2004) for the reasoning in support of the rejection, and to
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Application No. 10/293,826
appellant's brief (filed October 5, 2004) and reply brief (filed February 14, 2005) for the
arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by appellant and the examiner. As a consequence of our
review, we make the determinations that follow.
We note that we have observed the video exhibits provided on video tape and
compact disk that the appellant offered as evidence of operability. Those videos show
devices that resemble the lifters shown in the images in both Naudin 1 and 2 that rise
and fall in the air. In neither is there any sort of payload attached, but the interaction
with the person in the video shows that the device has an upward force that is more
than that just required to lift its own weight. However, there is no way to ascertain from
the video demonstrations how much weight the device may support.
Claims 1-27 rejected under 35 U.S.C. § 101 as being unpatentable as directed to
non-operable subject matter lacking utility for such utility as is asserted being
incredible
The examiner makes two arguments that the claimed subject matter has incredible
utility for failing to be operable. The first argument is that Blaze provides evidence that
the claimed device is inoperative. [See Non-Final Rejection p. 2] The second argument
is that the examiner believes the claimed device is inoperative [See Answer at p. 3] The
examiner bases this disbelief on the structural difference between the device shown in
the exhibits and that disclosed in the specification and drawings and that it is hard for
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Application No. 10/293,826
the examiner to believe the device is able to lift all of the equipment shown in the
drawings. [See Answer at p. 4] The examiner indicates the appellant must submit into
evidence a working model that closely resembles the device disclosed in the
specification to overcome this rejection. [See Answer at p. 4]
As to the examiner’s first argument, Blaze teaches that the claimed device will not
work in a vacuum, not that the device will not work at all.
The main mechanism is just a transfer of momentum to the neutral air,
and if we do not have enough neutral air the lifter simply cannot fly [Blaze,
p.3].
As to the examiner’s second argument, belief is simply insufficient to make a prima
facie case of unpatentability. Evidence of inoperability is required. The appellant is
correct that a working model capable of lifting a user is not required. [See Appeal Brief
at p. 5 and Reply Brief at p. 2] Rather, the examiner is required to show evidence that
the device cannot operate because it violates current scientific thought. As the
appellant pointed out,
[t]o violate Section 101 the claimed device must be totally incapable
of achieving a useful result, Brooktree Corp. v. Advanced Micro Devices,
Inc., 977 F.2d 1555, 24 USPQ2d 1401 (Fed. Cir. 1992). [See Brief at p. 5]
The video files provided by the appellant as exhibits of operability demonstrate that
the device does lift. Such a result is specific and substantial, and the video
demonstration shows it is credible. Although the exhibits do not portray a user on the
device, the exhibits provide sufficient evidence to conclude that it is not incredible that a
sufficiently large device with sufficient energy could lift a user, particularly a user with
minimal weight, such as a small animal.
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Application No. 10/293,826
Accordingly we do not sustain the examiner’s rejection of claims 1-27 under 35
U.S.C. § 101 as being unpatentable as directed to non-operable subject matter lacking
utility for such utility as is asserted being incredible.
Claims 1-27 rejected under 35 U.S.C. § 112, first paragraph, as being
unpatentable as failing to enable the use of the claimed subject matter which
applicant regards as the invention
The examiner argues that the claimed subject matter is unpatentable as non-
enabling because it is inoperable [See Answer at p. 4] and the disclosure is not
supported by either a specific asserted utility or a well established utility that one of
ordinary skill in the art would know how to implement. [See Non-Final Rejection p. 3]
As we noted above, there is sufficient evidence of operability that we cannot
conclude the claimed subject matter is inoperable. Further, the appellant points out
specific portions of the specification [e.g. paragraphs 26 to 38, 71 to 73 and 86 to 88]
that teach how to implement the claimed subject matter. [See Brief at p. 6]
Accordingly we do not sustain the rejection of claims 1-27 under 35 U.S.C. § 112,
first paragraph, as being unpatentable as failing to enable the use of the claimed subject
matter which applicant regards as the invention.

Claims 1-27 rejected under 35 U.S.C. § 103 as being unpatentable as obvious over
Moore in view of Naudin 1, The Lifters Experiments or Naudin 2, How to Build and
Replicate Yourself the Lifter1 Experiment, or Brown 1 and Kantrowitz
The examiner argues that the combination of a gaseous propulsion system (Moore)
with capacitive lift plates (Naudin 1 or 2 or Brown) coupled with well known use of an ion
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Application No. 10/293,826
conditioner (Kantrowitz). [See Non-Final Rejection p. 3 and Answer p. 4] The appellant
responds that none of the references disclose use of an electric energy lifting panel to
lift a user and that the examiner has shown no motivation to combine the references so
as to arrive at the claimed subject matter.
We note that the examiner provides no evidence of motivation to combine the
references in a manner that would arrive at the claimed subject matter. The examiner
states
Taken all of these references and combining them it would have been
obvious to one skilled in the art to have made the claimed flying object.
[See Answer at p. 4]
We note in particular that there is nothing in any of these references to suggest
combining the capacitive thrust mechanisms of Naudin 1 and 2 and Brown 1 with the jet
pack of Moore. Thus, the examiner has failed to make a prima facie case for
obviousness because no motivation for having selected and assembled precisely those
aspects of the references picked by the examiner and having assembled those
references together to begin with is shown.
Accordingly, we do not sustain the examiner’s rejection of claims 1-27 as rejected
under 35 U.S.C. § 103 as being unpatentable as obvious over Moore in view of Naudin
1, The Lifters Experiments or Naudin 2, How to Build and Replicate Yourself the Lifter1
Experiment., or Brown 1 and Kantrowitz

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New Grounds of Rejection Under 37 CFR § 41.50(b)
Pursuant to 37 CFR § 41.50(b), we enter the following new grounds of rejection:
Independent claims 1, 7, 20 25 are rejected under 35 U.S.C. § 102(b) as
unpatentable as anticipated by Hagen and claim 27 is rejected under 35 U.S.C.
§ 103 as unpatentable as obvious over Hagen in view of Foote.
As to all of the independent claims, Hagen teaches the use of two capacitive plates
having different geometric dimensions to generate a net directional force [See col. 6
lines 17-44, and Fig. 8]
Hagen teaches the use of an ion conditioner to ion enhance air around one of the
plates
The function of the bias rods 132-135 is to draw ions away from the
antennas rapidly in the general direction of the bias rods [See col. 5
lines 61-63]

Thus ions are enhanced around the bias rods which form part of the plates.
Hagen teaches carrying a user
Therefore, with a structure having sufficient area, an operator and
additional passengers or payload may be carried. [See col. 8 lines 27-
29]
Hagen teaches the use of an inductive transformer to provide energy
The power supply … contained … a high frequency transformer [See
col. 2 lines 54-59]

Hagen teaches the use of air as a gaseous propulsion system
The air flow through flaps 208 on the lower surface inherently produces
forwardly directed thrust [See col. 10 lines 12-14]
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We note that the appellant’s disclosure admits that the technical basis for the lift
provided by the structure described by Hagen is the Biefeld-Brown effect, and that the
device the appellant used in the video demonstrations had every appearance of being
an embodiment of the device described by Hagen [See disclosure p. 15]
Although Hagen, in 1964, characterized the underlying principle as electric
discharge [See col. 1 lines 40-46], other teachings have shown the inherency of the
Biefeld-Brown basis for the operation of Hagen’s device. In particular, as to the
scientific principles behind the thrust inherent from the operation of Hagen’s device,
we note that Brown 2 described the qualitative aspects of the Biefeld-Brown effect upon
devices such as Hagen’s [See col. 1 lines 25-35] and the beneficial effects of enhancing
ions around the plates [See col. 5 lines 59-67] in 1960. Naudin 1 and 2 teach how the
Biefeld-Brown effect accounts for Hagen’s ionized particles interaction with air [compare
to Hagen col. 3 lines 47-65] Campbell describes how Hagen’s de facto capacitor having
two plates of differing geometries further creates thrust that induces movement. [See
col. 1 lines 35-55]
As to claim 27, Foote teaches the use of a tower [See Fig. 1 tower carrying
microwave antenna] to inductively supply a pulsating direct current to the inductive
transformer
The antenna 22 directs and focuses a high-powered microwave beam
onto the aircraft 26, which is converted into DC power by a rectenna
[See col. 7 lines 44-46]
We note that Foote defines a rectenna as a combination of antenna and rectifier
[See col. 1 lines 45-48]
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Foote provides the motivation for applying this form of energy provision to Hagen’s
aircraft as being well known in the art
The concept of powering an aircraft with terrestrially radiated
electromagnetic energy has received a great deal of attention. [See col. 1
lines 20-22]
Accordingly, we reject claims 1, 7, 20, and 25 under 35 U.S.C. § 102(b) as being
unpatentable as anticipated by Hagen, and independent claim 27 under 35 U.S.C.
§ 103 as unpatentable as obvious over Hagen in view of Foote.
CONCLUSION
To summarize,
• The rejection of claims 1-27 under 35 U.S.C. § 101 as being unpatentable as
directed to non-operable subject matter lacking utility for such utility as is
asserted being incredible is not sustained.
• The rejection of claims under 35 U.S.C. § 112, first paragraph, as being
unpatentable as failing to enable the use of the claimed subject matter which
applicant regards as the invention, is not sustained.
• The rejection of claims under 35 U.S.C. § 103 as being unpatentable as obvious
over Moore in view of Naudin 1, The Lifters Experiments or Naudin 2, How to
Build and Replicate Yourself the Lifter1 Experiment, or Brown 1 and Kantrowitz
is not sustained.
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• New grounds of rejection of independent claims 1, 7, 20 and 25 under 35 U.S.C.
§ 102(b) as unpatentable as anticipated by Hagen and claim 27 under 35 U.S.C.
§ 103 as unpatentable as obvious over Hagen in view of Foote are made under
37 CFR § 41.50(b)
This decision contains a new ground of rejection pursuant to 37 CFR § 41.50(b)
(effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004), 1286 Off. Gaz.
Pat. Office 21 (September 7, 2004)). 37 CFR § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial review.”
37 CFR § 41.50 (b) also provides that the appellant, WITHIN TWO MONTHS
FROM THE DATE OF THE DECISION, must exercise one of the following two options
with respect to the new ground of rejection to avoid termination of the appeal as to the
rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new evidence relating to the claims so rejected, or
both, and have the matter reconsidered by the examiner, in which event
the proceeding will be remanded to the examiner . . . .
(2) Request rehearing. Request that the proceeding be reheard under
§ 41.52 by the Board upon the same record . . . .

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No time period for taking any subsequent action in connection with this appeal may
be extended under 37 CFR § 1.136(a).
REVERSED AND NEW GROUND OF REJECTION UNDER 37 CFR § 41.50(b)

MURIEL E. CRAWFORD )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
ROBERT E. NAPPI ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
ANTON W. FETTING )
Administrative Patent Judge )

AWF/lg
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