The CAFC held that the considerable doubt about cold fusion by the scientific community was sufficient to establish a prima facie case about lack of utility. The CAFC also held that substantial evidence supported the Board's decision that the patent applicant (Dash) had not met the burden of overcoming the prima facie case.
Of the prima facie case, Dash argued that anecdotal and non-peer reviewed evidence was insufficient to make a prima facie case. The CAFC stated that that the quality of the evidence only went to the weight accorded, not whether they can be relied upon at all (eg, admissibility issue. non-peer reviewed documents are admissible) The CAFC referred to the number and quality of cited references that debunked claims of cold fusion.
Of the rebuttal of the prima facie case, the CAFC also found that substantial evidence also supported the Board's decision that Dash had not rebutted the prima facie case. To review the --substantial evidence-- standard, “substantial evidence” has been defined as “such relevant evidence from the record taken as a whole as might be accepted by a reasonable mind as adequate to support the finding under review.” Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 893 (Fed. Cir. 1984).
***Two brief thoughts
In the H. Pylori matter, at one time, most scientists doubted that things such as H. Pylori could exist in the acidic environment of the stomach, and even if they did exist, most scientists did not consider them relevant to problems of upset stomachs etc. Under the thinking of the Dash case, any patent application at such time to treat H. Pylori would have run into a prima facie case of non-utility, just as Dash did. Whether or not it could have been rebutted (at the time) is an open question. [As a cross-reference, one treatment for H. Pylori involves a combination of antibiotic and Nexium.]
In the district court case in Amgen/TKT (the analog to the British Kirin-Amgen case which BOTH dismissed the doctrine of equivalents AND invalidated Amgen's patent), the district court made harsh criticisms about the lack of detail in the burden-shifting process in rebutting the Festo presumptions of surrender.
In Dash, the CAFC only has to find substantial evidence to support the Board, and this need not be a preponderance. This isn't a problem with Dash per se, but it does illustrate the difficulty of overturning this kind of case on appeal.
Curiously, Bob Park had not picked up on the Dash case when he wrote his Dec. 10, 04 WN; however, he did observe on Dec. 10:
Several cold-fusion proponents took the trouble this week to send WN the announcement of a new book, The Rebirth of Cold Fusion: Real Science, Real Hope, Real Energy by Steven Krivit and Nadine Winocur. It was clearly timed to coincide with release of the DOE report. The book drew praise from Arthur C. Clarke, Brian Josephson, and Martin Fleischmann, among others. It’s not in the bookstores here yet, but Amazon lists it. The authors are editors of New Energy Times, which calls itself "Your best source for cold fusion news and information." Krivit has a bachelor’s degree in business management, Winocur maintains a private psychotherapy practice. They’ve got the right qualifications.<--
The DOE report noted it would accept well-written proposals on cold fusion, but also noted that this has always been true. No change in policy happened in December 2004.
Another week went by at Bob Park's WN without mention of the Dash case. This is not to say, however, that cold fusion wasn't mentioned on Dec. 17, as Park performed a guilt-by-association routine linking Bob Walker with cold fusion:
-->Although several former astronauts are rumored to on the list, the front runner is thought to be Bob Walker, a former Member of Congress who was chair of the House Science Committee. He predicted the space station would produce a Nobel Prize, backed cold fusion, and introduced his Hydrogen Futures Act, which in the initial version violated the First Law of Thermodynamics. He is now the Chairman of Wexler & Walker, a Washington lobbying firm tied to science and space interests.<--
Nevertheless, Park missing a hanging curve ball on cold fusion is somewhat like Lessig or Lemley missing an opportunity to criticize the Patent Office.
Another week went by and Bob Park did not mention the Dash case. He did beat up on Bob Walker again. Of interest, Park has lost track of time, with his Friday header reading:
Friday, December 23, 2004