DMYTRO BOLESTA

[1988] APO 30

In the Matter of the Patents Act 1952 - and - In the Matter of Application No. 39918/85 for a Patent by DMYTRO BOLESTA - and - in the Matter of Examiner's Objections thereto.

 

DECISION OF.A SUPERVISING EXAMINER OF PATENES

Background

Application No. 39918/85 was filed as an International Application an 14 February, 1985, and derives priority from U.S. Application No. 580,607 filed on 16 February, 1984. The examiner issued a first adverse report an 18 April, 1988, and since then has issued one further report: maintaining his original views.

The matter cane to hearing on 12 August 1988 in Melbourne. Mr S.H. Wilson, Patent Attorney, of Griffith Hack & Co., represented the Applicant, who also attended.

The Specification*

*The extracts from the specification appearing in the decision are verbatim quotes.

So far, there have been no amendments proposed to the specification. In the form as lodged, it is entitled "Propulsion Apparatus". The description opens with the statement that-

"This invention relates to the linear propulsion of vehicles in the air or in the water, introducing a novel method and novel propulsion apparatuses by means of which the heat energy of the fluid in which the apparatus is submerged is utilised to perform the propulsion work ."

There follows a lengthy description of the applicant's perception of molecular behaviour in fluids, from which I extract the following material:

"....... the pressure acting upon a body submerged in a fluid is smaller at its top, farther from the centre of gravity, than at its bottom. The two unequal pressures, smaller pressure acting downward from the top and higher pressure acting upward from the bottom, form the force acting upward.Consequently, as stated by the law of Archimedes, a body immersed in a fluid is buoyed up by a force equal to the weight of displaced fluid. This Archimedean force, acting upward, has two distinctive properties: a), its Newtonian reaction is not perceivable or noticeable thus it appears as a reactionless force. But it does not violate the Third Law of Newton which states that any action must have an equal and opposite directed reaction. The Law of Newton can be applied separately to the top and the bottom parts of the body and each part has the Newtonian reaction of molecular nature which is not perceivable or noticeable. The velocity of rebounding molecules from each part can be determined with the aid of the Third Law of Newton. Thus, the reaction - less appearing force formed by the static pressure as a resultant force of the two reactionless appearing forces, like the forces acting on the top and the bottom of the said body, will appear as a reactionless force without violating the Newtonian Law.

Second property, b), of this reactionless appearing Archimedean force is its ability to convert the molecular energy of the fluid in which the body is submerged directly into work. The work performed by this reactionless appearing force by lifting the weight of the body is drawn from the molecular energy, commonly also known as heat energy, of the fluid in which it is submerged."

The applicant abbreviates the term "reactionless appearing force" as "RAF" in the specification and goes on to summarise the operating principle of his propulsion apparatus in these terms:

"In this invention heat is extracted from the surrounding fluid, atmosphere or water, and is converted into useful work in a similar way as being done by nature when the Archimedean force lifts the body. This can be done when the force which performs the work, which will be employed in this invention, is defined and formed as follows: it is formed by the molecules of fluid rebounding from each other or from the solid walls in such a way that the reaction of the said force is not perceivable, noticeable or measurable, similarly as the reaction of the said Archimedean force."

... and specifically, with respect to the broadest form of preferred construction (which has a constructional appearance akin to a ramjet engine)

"When the apparatus moves in the direction shown by the arrow 5, fluid, in which the apparatus is immersed like atmosphere or water, is rammed and enters the diverging duct 1 from where fluid is directed to pass the converging ducts 2 and after being deflected by the deflectors 3 in backward direction fluid is exhausted ..............

Passing the diverging duct 1, rammed fluid, air or water, is subjected to divergence of the duct, and the temperature decreases, due to the increase of absolute velocity of fluid in the duct."

As a general observation I note that all of the preferred embodiments -comprise open ended duct constructions not unlike ramjet engines; however none have fuel injection and ignition systems. The embodiments, as propulsion devices, fall into three categories

(i) an open ended duct device (having, of course, applicant's alleged inventive form); (

ii) as in (i), but having provision for the addition of heat energy between inlet and outlet;

(iii) as in (i) but including a motor driven propeller within the duct, arranged to move fluid therethrough.

Claims 2 and 14, are the broadest of the claims: They read as follows:-

"2. The method of utilising the molecular energy of a fluid, commonly also known as heat energy, to perform work which comprises: ramming a fluid so that it enters the moving system, which rams the fluid, in which the fluid increases its pressure and acquires the velocity in the same direction in which the system moves thus forming in the system a fluid stream the energy of which is provided by the molecular energy of the dame fluid so that the fluid is here correspondingly cooled; facilitating the momentum of the said fluid stream to act on the said fluid stream in propulsion apparatus sidewards and increasing the velocity of the fluid by converting the said increased pressure into velocity so that the flowing fluid changes its momentum, due to the increasing velocity of fluid and the movement of the system, and transmits this change of momentum as a force which acts on the moving system and performs work."

"14. The propulsion of an object characterised in that the propulsion is effected by RAF, being the abbreviation of "reactionless appearing force", as herein defined, which is generated by a propulsion apparatus attached to the propelled object so that the propulsion apparatus rams the fluid in which it is submerged, when the object is in motion, and the said propulsion apparatus comprises: a diverging duct (1, 11, 25) into which the rammed fluid enters through its narrower end; a converging duct (2, 12, 21) arranged so that the fluid, issued from the said diverging duct, deflects sideward and enters its wider end which is located, when relating to the direction of the propulsion, in more forward position than its narrower end from which fluid issues."

Examiners Objections

The examiner's report is largely concerned with objections under Section 40, i.e. that the specification does not fully describe the invention, is generally unclear and contradictory and that the scope -of the claims is indeterminate. As a result, the examiner has reserved full examination including opinion under sub-section 48(3). The report concludes with a summary which points out that the nature of the alleged invention is obscure and contradictory in that whilst the specification acknowledges that a reaction to the "reactionless appearing force" exists no account is taken of the reaction, and that this is clearly contradictory to statements in the description that the "reactionless appearing force" exists in nature.

The summary also points out that the means devised by which the "reactionless appearing force" is allegedly generated appears to differ but little from duct systems found in a variety of types of jet engine.

Decision

In the U.K. the Patents Act 1949 made specific provision for the Comptroller to refuse a patent application if it appears to be frivolous on the ground that it claims as an invention anything obviously contrary to well-established natural laws (cf. section 10, paragraph l(c)): again the U.K.Patents Act 1977 requires that a patent may be granted only for an invention satisfying certain conditions one of which is that it be capable of industrial application (cf. section 1, paragraph l(c)) - a requirement which Terrel (13th ed.) suggests gives the Comptroller equivalent power to that of section 10 of the former Act. The Australian Patents Act 1952 contains no such provision and the validity of an Australian patent for a device of the class under discussion would typically hinge on sufficiency of description and utility.

It is clear from the specification, and the applicant's submissions both in response to the examiner's reports, and at the hearing, that the present invention is one which falls within the category generally designated as "perpetual motion machines".

The basic embodiment described comprises an open ended duct construction including means to vary the cross-section and or taper of portions thereof. There is, as I have earlier remarked, a similarity between applicant's devices and ramjet engines.

In the applicant's perception, his propulsion device, when driven through a fluid above a certain minimal speed, is capable of absorbing energy from that fluid by lowering its temperature, and thus developing a kinetic pressure in the exhaust fluid, capable of providing thrust. A device close in perceived operation to this is a ramjet engine. When driven above a certain minimum speed, the movement of the engine compresses the air at its forward intake which then passes to a combustion chamber into which a combustible fuel is injected and electrically ignited. The gaseous products of combustion exit at a high velocity from the rear outlet or exhaust, thereby providing thrust.Once the fuel is ignited, burning becomes continuous and the ignition means can be switched off.

This engine obtains its energy from the burning of the fuel whereas the device of the applicant is said to extract energy from the fluid through which it passes by means of the manner in which fluid flow through the device is constrained. Such a machine is generally classified as a heat engine: however the manner in which it is said to operate is not in accordance with the Second Law of Thermodynamics. The specification appears to concede this, in the following terms:

"This conversion of heat, extracted from the surrounding fluid like atmosphere or water, into the useful work takes place in nature in spite of the generally prevailing view that the Second Law of Thermodynamics prohibits it."

Whereas the Commissioner nay have regard to sufficiency of description, he may not consider the question of utility. Provided therefore, that those who could normally have to act on the description are capable of constructing the device which the specification describes as the invention, then the specification is sufficient. In this case I have no doubt that the addressee(s) of the specification in suit could construct the propulsion devices described.

Furthermore, I note that two embodiments described could be made to function as normal propulsion devices, in accordance with the accepted natural laws. Thus one embodiment includes a motor driven propeller coaxially arranged within the engine duct so as to move fluid therethrough - the purpose being to drive the engine up to a speed above which the applicant asserts the RAF can be made to drive the engine; a second embodiment allows of the introduction of energy in the form of heat into the fluid between the inlet and exhaust of the engine.

That the devices described might not fulfil the promise of the invention is a matter which could only be dealt with in an action before a Court in which the question of utility was raised.

I come now to consider the description and claims. In general I agree with the comments of the examiner. The viewpoint of the applicant is that he has made a discovery, or recognised an existing principle in nature, i.e. the so-called "RAF". It is well established law that you cannot get a patent far a discovery Qr a principle, but only for a means of carrying it into effect. In this instance, even in those claims which purport to define apparatus, the essential characteristic thereof is expressed in terms of the said discovery or principle, rather that the means of putting it into practice.

In this respect, most if not all of the claims lack fair basis in that they do not define the features which the description represents as essential to achieve the promise of the invention. For instance, whilst the scope of claim 14 (the claim is reproduced above) is unclear, what is clear is that the only features of construction which it defines comprise a duct having converging and diverging portions. The method claims are in an even worse situation and cannot be said to define an invention at all.

The general description in the specification also suffers from defects, which in my view, the examiner has correctly pointed out. I do not find it necessary to detail those defects here.

Conclusion

The specification in its present form suffers from a number of serious defects. Nevertheless, it seems to me that it would be possible to propose amendments which would enable examination of the specification to proceed, and would result in the application being directed to subject matter which if found to be novel, would be patentable. Accordingly, I direct that the applicant proposes such amendments to the specification. The final date for acceptance of this application including all possible extensions under sub-section 54.(lB) is 26 November, 1989; in the time remaining for acceptance the applicant, unless he exercises his right of appeal, will be required to propose amendments to my satisfaction, have the proposed amended specification proceed through examination, and deal with any objections which may arise as a result.

J.L. Roveta

Supervising Examiner of Patents

21 SEP 1988

Patent Attorney for the Applicant: Griffith Hack & Co., Melbourne