Sunday, February 20, 2005

Setback to physical chemistry in Int. Prop. Today?

The district court in the Osram case set back basic concepts in chemistry more than 150 years by using atomic number, rather than atomic weight, to perform stoichiometric calculations.

In the Feb. 2005 issue of Intellectual Property Today, we have an interesting issue as to physical chemistry. In an article entitled "An Approach to Effective Opening Statements in Patent Cases" (p. 10 of the Feb. issue), we have the statement:

"If I place a number of tennis balls in a bag a bag, they have an amorphous organization; ...
If I pour the balls out of the bag and into the bottom of a banker's box, they start to line up in rows and columns. Each ball is surrounded by four other balls."

Well, this is one "chemistry" experiment that lawyers can do. Grab some uniform spheres (eg, tennis balls; marbles; malted milk balls) and place them in a level tray (eg, top of the bankers box).

You will quickly notice that they line up such that they have six nearest neighbors, and that's only in "two" dimensions. If you go to more than one layer, you will see that you have a basic choice in stacking epitaxy, ABABAB...(hexagonal closest packing (hcp)) or ABCABC...(cubic closest packing (fcc, alias ccp)) [there are more stacking choices of lower symmetry]

So, the idea that each tennis ball (or marble or bowling all) is surrounded by four nearest neighbors is simply wrong. As a different point, the idea that tennis balls filling a bag are amorphous (because there is no particular relationship between the location of any one tennis ball and that of another) is also incorrect. Because balls (or atoms) occupy volume, the probability that a second ball is a given distance away from the center of the first ball is not constant. First, the second ball cannot approach the first ball within the radius of the first ball (incompressible ball assumed). Second, there is a high probability (in a filled bag) that the second ball will be found outside of one radius but within two radii of the first ball. As a scientific matter, liquids do give peaks in x-ray diffraction.

***As to the atomic number matter -->

In the Sept. 2001 issue of IPT, John Rogitz commented on Durel v. Osram, 59 USPQ2d 1238 (CAFC 2001), and implicitly was suggesting that 3 to 5 [weight] % hydrogen might be a "minor amount." Because hydrogen has an atomic weight of about 1 gram/mole, a low weight percentage of hydrogen can be a relatively high atomic percentage. Separately, as noted previously in IPT ("The End of the Millennium: Legally Correct but Scientifically Incorrect, or Vice Versa?," pp. 20-21, Jan. 2000), the district court in Durel [52 USPQ2d 1418, 1429 (D. Az.)] had incorrectly used atomic number, rather than atomic weight, to calculate formula weights. The text of the claim element "minor amounts of other elements" is one which introduced ambiguity, the harm of which is seen in the scientifically inaccurate way in which atomic numbers were used in the litigation and in the reported district court decision.

Of basic stacking of balls, one can visit


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