Huping Hu - [2014] APO 17

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Huping Hu [2014] APO 17

Patent:2007220893

Title:Method and apparatus for producing quantum entanglement and non-local effects of substances

Patentee: Huping Hu

Delegate: Dr N.R. Madsen

Decision Date: 27 March 2014

Hearing Date: 31 January 2014, in Canberra

Catchwords: PATENTS – examiner’s objection – re-examination – quantum entanglement – utility – manner of manufacture – full description – invention offends against understanding of quantum physics – no patentable subject matter disclosed – patent revoked.

Representation: Patentee: Self-represented

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Patent:2007220893

Title:Method and apparatus for producing quantum entanglement and non-local effects of substances

Patentee: Huping Hu

Date of Decision: 27 March 2014

DECISION

The invention lacks utility, is not for a manner of manufacture and is not fully described.

Patent 2007220893 is revoked pursuant to subsection 101(1) of the Act.

REASONS FOR DECISION

This matter concerns examiner’s objections in respect of the re-examination of patent 2007220893, and whether I should exercise the Commissioner’s power to revoke the patent under subsection 101(1) of the Patents Act 1990.

Background

Patent application 2007220893 was filed as a PCT application (PCT/US2007/062365) on 17 February 2007 and claims priority from US patent application 60/767009, filed on 27 February 2006. Following entry to the national phase a request for examination was made on 16 June 2009, and the application was subject to two adverse examination reports containing objections that subject matter was not clear, not novel and not inventive. After amendment, the application was accepted on 25 May 2012 and subsequently granted on 20 September 2012.

A letter indicating intent of the Commissioner to re-examine the patent was sent to the patentee on 21 May 2013 followed by a re-examination report dated 18 June 2013. This report contained objections that the claimed invention lacked utility and was not for a manner of manufacture, and that the specification did not fully describe the invention. The patentee responded to the re-examination report with a statement under section 99 of the Patents Act disputing the objections of the report. The examiner was not satisfied that the objections had been overcome and issued a second re-examination report again containing objections under utility, manner of manufacture and full description. In that report the examiner indicated that the matter would be set for hearing. At the hearing, the patentee was self-represented and appeared via telephone. During the hearing the patentee expressed that he wished to clarify his position by providing further written submissions. I subsequently provided seven days to the patentee to file further written submissions.

What is Quantum Entanglement?

The claimed invention relates to a unique aspect of quantum mechanics called quantum entanglement. Quantum mechanics is a branch of physics which involves an understanding that the motion of atomic-scale particles/objects is best viewed as wave-like as opposed to the classical Newtonian view of massive particles. The energy state of a quantum particle is governed by mathematical equations (wave functions) which predict the existence of discrete states of physical observables such as position, momentum, spin and polarization. A particle/object governed by quantum mechanics may exist in a superposition of these discrete states. For example, a quantum mechanical particle may exist simultaneously in both horizontal and vertical polarisations. If a measurement is made regarding the polarisation of such a superposition state, the measurement will find either horizontal or vertical polarisation. It is this ability for a quantum mechanical particle/object to exist in a superposition state which makes quantum entanglement possible.
Quantum entanglement is a physical phenomenon that occurs when quantum systems are generated or interact in a manner such that the quantum state of individual members (particles or objects) of the system must subsequently be described relative to other members. One of the simplest ways to understand quantum entanglement is via the well-known Einstein, Podolsky, Rosen (EPR) experiment proposed in 1935. The EPR experiment proposed a source which simultaneously emits two photons in opposite directions. Each photon may have a quantum mechanical property X which may be in a state A or B, but due to the way in which the photons were generated it is not possible for both photons to be in the same state A or B. The quantum mechanical wave function defining the quantum system of these two photons predicts that each photon simultaneously occupies both states A and B. This system is entangled because a measurement of the property X of one photon being in a state of A must automatically (and instantaneously) remove the possibility that the other photon is also in a state A. This instantaneous, or often termed “non-local” action, characterizes the peculiar nature of quantum entanglement.

The patent specification

The subject matter of the patent is generally directed to methods of producing quantum entanglement and non-local effects of substances using targets such as chemical substances (liquids, gels, powders, solids, gases or mixtures of these) and biological systems (the specification exemplifies the human brain as a target).

At page 2/1 of 60 [sic] of the specification it is noted that the subject invention originated from the inventor’s research which has theorized that nuclear and electronic spins inside the brain play important roles in certain aspects of brain function such as perception. The inventor aimed to test this theory by attempting to entangle the spins within the brain with spins of a substance such as a general anaesthetic (page 3 of the specification), and observing the resulting brain effects. The specification contains experimental results which are said to verify that biological effects experienced in test subjects where the result of quantum entanglement, induced by entangling photons, between quantum entities inside the brain and quantum entities of substances such as anaesthetics and medications.
The specification ends with 21 method claims, four of which being independent, and one being an omnibus claim. As an example, claim 1 is herein provided:

A method of producing a quantum entanglement between a first target and a second target, a first non-local effect of said second target on said first target through said quantum entanglement and/or a second non-local effect of said first target on said second target through said quantum entanglement which comprises the steps of:
selecting said first target which comprises a first chemical substance, water based medium, human or animal;
selecting said second target which comprises a second chemical substance, water based medium, human or animal;
providing a photon or magnetic pulse generating source which emits a plurality of photons or magnetic pulses as quantum entanglement generating members when said source operates;
disposing said first target between said source and said second target or said second target between said source and said first target; and

driving said source to emit said photons or magnetic pulses which interact with said first target and said second target;

whereby said quantum entanglement, said first non-local effect through said quantum entanglement and/or said second non-local effect through said quantum entanglement are generated, said non-local effects being physical or chemical, or biological in a human or animal.

It is clear from the specification that the claimed entanglement is said to occur between elements of “everyday” macroscopic targets having no uniquely prepared or isolated quantum state. It is also clear that the specification suggests that entanglement is generated by exposure of targets to a source of photons such as a laser, magnetic coil, microwave radiation or even a flashlight [Para 73-77]. None of these photon sources are characterised in a particular manner as having photons of a uniquely prepared or isolated quantum state. In this context, claim 1 can be understood as a method of producing entanglement wherein a first target is selected wherein this target may be a bottle containing an anaesthetic, and a second target is selected wherein this target may be a human brain. By situating the first target between a source of photons and the second target, and illuminating both targets with a photon source, quantum entanglement is said to occur between the first and second targets. More specifically claim 1 includes within its scope that quantum entanglement is generated and observed between for example, an anaesthetic and a human brain.

10. The three remaining independent claims involve similar methods of entangling macroscopic systems such as chemical substances, water based media, humans or animals using photon sources. The dependent claims and omnibus claim narrow the scope of the independent claims by further characterising the targets, sources and steps used to generate the claimed quantum entanglement.

Grounds for re-examination

11. Prior to 15 April 2013, the only grounds available for consideration during re-examination were novelty and inventive/innovative step. As a consequence of substantive amendments to the Patents Act brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012, expanded grounds are available for consideration during re-examination for re-examination reports issued on or after 15 April 2013. This applies regardless of whether the report is an initial report or a subsequent adverse report, and also regardless of the particular objections raised during examination. Section 98 of the Patents Act states that when re-examining a complete specification, the Commissioner must ascertain and report on:

(a) whether the specification does not comply with subsection 40(2) or (3); and
(b) whether, to the best of his or her knowledge, the invention, so far as claimed, does not satisfy the criteria mentioned in paragraph 18(1)(a), (b) or (c); and
(c) whether the invention is not a patentable invention under subsection 18(2).

12. While the substantive amendments of the Patents Act brought about by Raising the Bar broaden the scope for re-examination, they also introduce new legislative requirements under various grounds of objection. However, because the request for examination in relation to the patent application was filed on 6 June 2009, the relevant law to apply to this patent is that as it stood before Raising the Bar. The amendments to the grounds of objection only apply to applications/patents with an examination request dated after 15 April 2013.

13. The patentee briefly submitted that the examiner has raised new objections in the re-examination report that were not present in examination without giving reason as to why the patent was chosen for re-examination. Needless to say, the examiner considered that an objection against the granted claims was warranted and duly instigated the re-examination process. Beyond this, the circumstances giving rise to the re-examination report are not relevant to this decision.

The Examiner’s objections

14. The examiner’s two reports under Section 98 contain objections that the claims lack utility and are not for a manner of manufacture, and that the specification does not fully describe the invention.

15. Regarding the objection to a lack of utility the examiner’s argument is directed towards an assertion that “any quantum entanglement created in the macroscopic systems covered by the claims will be quickly destroyed by decoherence, meaning that any non-local effect that could be achieved cannot last beyond the coherence lifetime”. In other words the examiner suggests that no effects of quantum entanglement are observable in the claimed systems. Similar reasons are applied to suggest that the claims are not for a manner of manufacture. In regard to the reported failure of the specification to fully describe the invention the examiner notes that “it is not apparent how the methods described in the patent lead to any form of entanglement”. More specifically, the examiner points to a failure of the specification to point to particular quantum systems involved in the claimed quantum-entangled states.

16. The objections raised by the examiner can be distilled to an assertion that the claimed invention does not work, in that the examiner is not satisfied that entanglement is present and observable in the systems described in the specification.

Utility

17. Jagot J in the recent Federal Court decision of Apotex Pty Ltd v AstraZeneca AB (No 4) [2013] FCA 1632; 100 IPR 285 (at [352]) provided the following summary of this ground of invalidity:

“Section 18(1)(c) requires that an invention be “useful”. This will be the case if the claimed invention does what it is intended by the patentee to do, in the sense of meeting the object or promise in the specification, and the end result obtained is itself useful [Ranbaxy Australia Pty Ltd v Warner-Lambert Co LLC [2008] FCAFC 82; (2008) 77 IPR 449; [2008] FCFCA 82 (at [141])]”.

18. In order to consider the claimed invention useful, I must be satisfied that the invention achieves the claimed result of non-local effects via quantum entanglement. Thus, for the claims to be considered useful it is clear that I must be satisfied that quantum entanglement can be observed between macroscopic substances/objects having no uniquely prepared or isolated state, wherein this entanglement is generated using photons sources also having no particularly prepared or isolated state. In other words, I may ask myself the question: Does the invention work?

Scientific understanding of quantum entanglement in macroscopic systems

19. As discussed above, superposition is a basic principle of quantum mechanics which underpins the peculiar phenomenon of quantum entanglement. A quantum system in superposition is described by mathematical equations which predict an initial state being a simultaneous existence of possible states. Our classical reality appears to defy the principle of superposition in that in the everyday world we perceive absolute outcomes instead of coherent superpositions of outcomes. In explaining what we observe in the everyday world, the scientific community widely accepts the position that there generally exists a boundary in the transition from the atomic to macroscopic scale, at which quantum mechanical effects begin to be no longer observable. It is generally accepted by the scientific community that the phenomenon of decoherence drives this transition from quantum to classical reality.[1]^,[2]

[1] Zurek. W. H., Decoherence and the Transition from Quantum to Classical – Revisited, Los Alamos Science Number 27 (2002)

[2] Griffiths. D. J., Introduction to Quantum Mechanics, Second Edition, Pearson Education, Inc, New Jersey (2005), p. 431

20. Decoherence can be understood colloquially as a “washing out” of quantum properties as systems become larger and more complex. This understanding derives from a basic premise that macroscopic systems fail to remain in precisely defined quantum states because they are not isolated from their environments. In other words a macroscopic system in the everyday world interacts with many other particles and systems which cause a natural loss of coherent quantum information.

21. In his paper Decoherence and the Transition from Quantum to Classic – Revisited, the author (Zurek) discusses how the understanding of quantum decoherence behaviour has developed since the early 1990s. The information in the article supports the idea that the macroscopic nature of an object is certainly crucial in facilitating the transition from quantum to classical regimes.[3] The author acknowledges that there does not exist a “crisp criterion” to distinguish between quantum and classical regimes and that an identification of “classical” with “macroscopic” has often been tentatively accepted.[4] I am satisfied that this understanding remains valid today.

[3] Zurek. op. cit., p.14
[4] Zurek. op. cit., p. 4

22. In recent times, much theoretical and experimental work has been conducted which highlights the dangers in rigidly associating classical physics with the macroscopic world.[5] In particular, work has been conducted which verifies the occurrence of quantum entanglement in unique macroscopic systems. For example, researchers at the University of Oxford recently demonstrated entanglement of vibrational states of two spatially separated millimetre sized diamonds at room temperature.[6] Without going into the complex detail of the experiment, the entangled state is specially created by pumping vibrational states of the two diamonds with photons that are themselves in a superposition of states.[7] It is thus clear that the boundary between quantum mechanical systems and classical systems is not simply defined and that entanglement can occur in systems on the macroscopic scale.

[5] See Vedral. V., Living in a Quantum World, Scientific American (2011)
[6] Lee. K. C., Entangling Macroscopic Diamonds at Room Temperature, Science Vol 334 (2011),
[7] As decoherence is understood as a phenomenon which strongly manifests in large and complex systems it appears that for macroscopic entanglement to be observable it is necessary to find a way to preserve quantum information by removing factors that cause decoherence. In practice one method to achieve this appears to involve creating systems wherein leakage of quantum information is somehow reduced or counteracted.[8]   Alternatively it may be also possible to overcome the barrier of decoherence in ambient and macroscopic conditions by creating systems using special techniques to induce and measure quantum interactions on extremely short time scales before decoherence can take effect.[9] The latter practice appears particularly relevant to the above experiments which produce quantum-entangled macroscopic diamonds.
[8] Vedral, op. cit., p. 41
[9] Lee, op. cit., p. 253
24. Thus, I am satisfied that the theory or quantum physics includes the understanding that decoherence remains a barrier to the observation of quantum effects on the macroscopic scale that may be overcome only in very specially prepared or isolated systems.
Patentee’s submissions
25. The patentee has presented a range of submissions supporting his conclusions that quantum entanglement ([Para 8]):
·    means genuine interconnectedness and inseparableness of once interacting quantum entities and can be directly sensed and utilised by entangled quantum entities,
·    can persist in biological systems, chemical or other systems at room and higher temperatures despite of quantum decoherence, and
·    can influence chemical and biochemical reactions, other physical processes and micro- and macroscopic properties of all forms of matter.
26. The submissions of the patentee are largely directed towards demonstrating that quantum entanglement has been generated and observed within and between macroscopic systems such as chemicals and biological systems. It is clear from the specification and the submissions of the patentee that the experiments described in the specification in which entanglement is claimed to have been observed include no uniquely prepared or isolated systems. It is also clear that the photon source used in the experiments is also not prepared in a particular quantum state.
27. I have grouped the patentee’s supporting submissions into three aspects as follows:
·    Experiments described in the specification
·    Publications of the patentee’s and similar experiments and theories
·    Publications demonstrating the state of the art
28. I will address each of these aspects of the supporting submissions separately.

Experiments described in the specification
29. The patentee makes some submissions in regard to the nature of decoherence and entanglement and their manifestation in macroscopic systems:
“(1) the cause of decoherence is quantum entanglement and decoherence of a quantum state, that is, quantum entanglement of a quantum state with environment (e.g., macroscopic media) does not prohibits said quantum state to participate and/or produce a nonlocal effect and; (2) whether quantum entanglement and/or nonlocal effect through said quantum entanglement can be produced in macroscopic systems should be mainly a matter of experimentation not theoretical speculation. Indeed, the principle of quantum mechanics does not prohibit quantum entanglement of two or more macroscopic systems or subsystems/compositions within these systems nor the non-local effects produced through said quantum entanglement.” (as written)
30. Regarding the first point made by the patentee I do not see benefit in attempting to apply such a broad statement to the context of the claims. As I understand the science, quantum theory does not prohibit the manifestation of quantum effects in large and complex systems. What the science suggests is that key to the observation of those effects in large and complex systems is the nature of the systems involved. Each system will possess characteristic time scales for the “washing out” of quantum effects. In this sense I am satisfied that the submission of the patentee does not bring into question the scientific consensus that decoherence remains a barrier that must be overcome before quantum effects are observable in macroscopic systems.
31. In regard to the patentee’s second point, I agree that quantum mechanics does not prohibit entanglement between and within macroscopic systems and that the presence of entanglement must be proved via appropriate experiments. It is to the experiments described in the specification that I now turn.
32. The patentee submits that experiments conducted and subsequently described in the specification demonstrate observable macroscopic entanglement between, for example, elements of a human brain and various chemicals such as morphine, nicotine and caffeine. The first experiment discussed in the specification is represented by figure 1A and described in [Para 73]. It is noted that this experiment essentially corresponds to the method of independent claim 1. In this first experiment a photon source constituting a magnetic coil is driven by the output of an audio system which is playing music. The coil is located about an inch above the right side of a test subject’s forehead. A first target substance which may be morphine for example, is placed in a glassware container between the coil and the test subject’s forehead (in the context of claim 1 the brain of the test subject may be considered a second target). Photons generated by the photon source are said to interact with the first and second targets and cause the targets to become entangled. Four test subjects were used and these included the patentee and three other test subjects. As discussed in [Para 74] of the specification, indicators used to measure the effects of this method were first-person experiences of sensations such as numbness, drowsiness, and euphoria.
33. The results are discussed at [Para 86] and listed in Table 1. In general the data provided in Table 1 indicates that test subjects confirm that they felt brain effects using target substances such as anaesthetics and medications but did not feel effects from control experiments using water as the target substance. The specification elaborates on the data provided by discussing that all general anaesthetics studied produced clear and completely reproducible effects of varying degrees and durations as if the test subject had inhaled the substance.
34. A range of other experiments were carried out each with modifications to the photon source, exposure arrangement and target substances. The specification discusses similar results for these experiments. Based on these results the specification arrives at the conclusion that ([Para 94]):
“…the biological and/or chemical effects such as brain effects experienced by the test subjects were the consequences of quantum entanglement experienced between quantum entities inside the biological and/or chemical systems such as the brains and those of the applied chemical substance induced by entangling photons of the magnetic pulses or applied lights.”
35. In explaining the mechanism for entanglement the specification adds at [Para 96]:
“While the applicant does not wish to be bound by any particular quantum entities suggested herein, it is believed that nuclear spins and/or electron spins respectively inside the substance and biological and/or chemical system such as the brain are the quantum entities responsible for mediating the non-local effect…”
36. Given the nature of the experiments I believe it is quite clear that the conclusion reached by the specification is in direct conflict with what is the broadly accepted understanding of quantum physics in regard to the manifestation of quantum effects on the macroscopic scale. Further, the specification attempts to identify quantum entities said to be involved in entanglement but this seems to amount to mere speculation as no specific quantum systems are identified. The nature of the experiments described in the specification provides clear indication that no quantum systems are being specially prepared or isolated in the present arrangement. Also there is no suggestion that the source of photons used to generate the claimed entanglement is specially prepared. The scientific consensus suggests that the observation of entanglement using such everyday objects is not possible. This is because special arrangements of quantum systems and/or use of specialised laboratory techniques are considered necessary before the barrier of decoherence may be overcome.
37. The submissions of the patentee point to a theory that entanglement occurs “despite” decoherence, however I consider this to be speculation without sufficient evidentiary basis. I am not satisfied that experiments can be given such weight that would make it necessary to reconsider the theory of quantum mechanics and the role decoherence plays in driving systems towards classical behaviour. I first point to the nature of the experiments in that they were both qualitative and subjective ([Para 99]). Without objective measurements which are independently and reliably verified I do no believe it possible to overcome the fact that the conclusions of the specification clearly offend against general scientific understanding.
38. While I do not consider it necessary for me to attempt to explain the particular results described in the specification, I note that there is no attempt made in the specification or the submissions of the patentee to describe the experimental results as anything other than a consequence of quantum entanglement. For example, could other biological or environmental effects have been present or was the effect a placebo? Also, there is no empirical evidence to justify that a truly “non-local” effect has occurred. As discussed earlier, a non-local effect is one in which the determination of a quantum state of an element of an entangled system instantaneously determines the quantum state of another element of an entangled system. Demonstration of non-local effects appears to necessarily require empirical measurements to show manifestation of physical properties at time scales impossible according to classical physics. No such data has been provided.
39. Therefore, I am not satisfied that the experiments described in the specification demonstrate that the claimed invention produces any form of observable quantum entanglement because the invention offends against the understanding of quantum physics.
Publications of the patentee’s and similar experiments and theories
40. The patentee has provided a collection of documents constituting scientific and patent publications related to the claimed invention which are intended to assist in demonstrating that the claimed quantum entanglement has been observed. These include:
·    Two foreign granted patents of the patentee (Exhibits 4 and 7)
·    Three articles co-authored by the patentee and published in the journal NeuroQuantology (Exhibits 2, 5, 8)
·    Two articles co-authored by the patentee and published in the journal Progress in Physics (Exhibits 3 and 6)
41. The patentee has also provided a document authored by a separate research group and published in the journal NeuroQuantology (Exhibit 14). This document discusses experiments which are suggested to demonstrate entanglement between entities of brains of people separated by distance.
42. Regarding publications relating to the present invention authored/co-authored by the patentee, the patentee makes the following submissions:
“Although it may be the case that "[the] grant of a patent in a foreign jurisdiction does not automatically lead to any presumption of validity of any grounds under Australian law'', the granting of foreign patents on the same and related invention in UK and China should be given due consideration and due weight by the examiner during re-examination. Further, examiner's general assertion that "Exhibits 2, 3, 5, 6 and 8 relate to the patentee's own literature published in periodicals and amounts to no more than an attempt to overcome the examiner's objections using works which suffer from similar defects as the present specification" is contradicted by the work themselves and the facts of publication in peer-reviewed scientific journals.”
43. I first note that I cannot give weight to the granting of similar patents in foreign jurisdictions. As is understood by the patentee, the validity of this patent is to be assessed under Australian law. As discussed above, it remains that the invention described in the specification offends against general scientific understanding. I do not consider it relevant to consider the law that applies in the United Kingdom and Chinese jurisdictions nor whether those jurisdictions consider that the invention works. I also note that these documents appear to suffer from very similar scientific deficiencies as those discussed in regard to the experiments of the specification.
44. I now turn to exhibits 2, 3, 5, 6, 8 and 14. The patentee submits that since these documents are peer reviewed they are supporting evidence that the claimed invention works. As a first point I note that these articles appear to suffer from very similar scientific deficiencies as those discussed in regard to the experiments of the specification and thus I do not believe it possible to overcome the fact that the claimed invention offends against general scientific understanding.   These articles appear in either of the journals NeuroQuantology or Progress in Physics and I acknowledge that these documents are peer reviewed.
45. Peer review is an appropriate tool for evaluation of scientific discoveries and the self-regulation of publication. Notwithstanding this, I cannot consider mere peer review and publication of the patentee’s and similar experiments and theories in journals NeuroQuantology and Progress in Physics as demonstrating working of the claimed invention. Similarly, I cannot be satisfied that publication in these journals requires the broader scientific community to reconsider its current understanding of quantum physics.
46. Thus, I am not satisfied that the documents discussed above demonstrate that the invention produces any form of observable quantum entanglement.
Publications demonstrating the of state of the art
47. The patentee cited the article “Living in a Quantum World” by Vlatko Vedral (Exhibit 1) as demonstrating the observation of quantum entanglement in macroscopic systems. In his submissions, the patentee has selected an excerpt of this document which states:[10]
“… Although quantum effects may be harder to see in the macroworld, the reason has nothing to do with size per se but with the way that quantum systems interact with one another. Until the past decade, experimentalists had not confirmed that quantum behavior persists on a macroscopic scale. Today, however, they routinely do. These effects are more pervasive than anyone ever suspected. They may operate in the cells of our body.
Even those of us who make a career of studying these effects have yet to assimilate what they are telling us about the workings of nature. Quantum behavior eludes visualization and common sense. It forces us to rethink how we look at the universe and accept a new and unfamiliar picture of our world”.
[10] Vedral, op. cit., p. 40
48. I note as submitted by the patentee that the article discusses recent work demonstrating macroscopic entanglement and also discusses that the understanding of physicists is being challenged by this work in that quantum mechanics and entanglement can apply to things of all sizes. The patentee also submits that the author is one of the most prominent experts on quantum entanglement writing for the journal Scientific American. I accept the credibility of the author and do not question the importance of publication in the journal Scientific American. Further I accept the fact that quantum entanglement may manifest in macroscopic systems.
49. It is clear that the discussion referred to by the patentee in this article generally proposes that quantum effects such as entanglement may manifest in a range of macroscopic systems previously thought not possible. This appears to relate to the general premise that it is not the size of a system per se that make quantum effects difficult to see in the everyday world, but the way in which quantum systems interact with each other which predominantly controls the transition from quantum to classical regimes. This premise is entirely consistent with the general scientific understanding described earlier in this decision and as such I do not consider it possible to extend the general propositions of the article to include entanglement as described in the specification.
50. Further information is provided in the article to support the general scientific understanding that uniquely prepared or isolated systems are required before the barrier to decoherence can be overcome. For example, the article discusses reasons why, in the everyday world, we only tend to see classical outcomes:[11]
“In the modern point of view, the world looks classical because the complex interactions that an object has with its surroundings conspire to conceal quantum effects from our view. Information about a cat’s state of health, for example, rapidly leaks into its environment in the form of photons and an exchange of heat … The leakage of information is the essence of a process known as decoherence ... Larger things tend to be more susceptible to decoherence than smaller ones which justifies why physicists can usually get away with regarding quantum mechanics as a theory of the microworld. But in many cases, the information leakage can be slowed or stopped, and then the quantum world reveals itself to us in all its glory.”
[11] Vedral, op. cit., p. 40-41
51. The article also discusses situations in which entanglement may be observed in a macroscopic systems:[12]
“Larger batches [of particles] are harder to isolate from their surroundings… In accordance with the language of decoherence, too much information leaks out to the environment, causing the system to behave classically. The difficulty of preserving entanglement is a major challenge for those of use seeking to exploit these novel effects for practice use…”
[12] Vedral, op. cit., p. 41
52. In addition to the article “Living in a Quantum World “, the patentee cites a range of peer reviewed publications (Exhibits 9-13 and 15-18). These publications contain experimental and theoretical work which demonstrate entanglement within or between macroscopic systems, or the observation of quantum effects where problems of decoherence may have been overcome. For example, Exhibit 9 discusses the experiments already cited in this decision whereby researchers demonstrated entanglement of vibrational states of diamonds at room temperature created by pumping the two diamonds with photons that are themself in a superposition of states. I will not discuss each of the remaining exhibits in detail but will provide a summary.
53. Exhibits 10 and 11 are articles which discuss examples of unique biological systems which appear to demonstrate entanglement. Exhibit 10 discusses evidence for quantum entanglement within complex arrangements of molecules responsible for photosynthesis. Exhibit 11 is a review article discussing the general manifestation of quantum physics and entanglement within biological systems. This article presents a range of unique biological systems (including that of Exhibit 10) and possible mechanisms for the “survival” of quantum properties within biological environments. The exhibits do not discuss any mechanisms for quantum entanglement to exist between a biological system and a further macroscopic “non-biological” system.
54. Exhibits 12, 13, 15, 16 and 18 all discuss highly specialised experimental and theoretical arrangements in which long decoherence times may be observed. I see no suggestion in any of these documents that such decoherence times may be observed in macroscopic “everyday” systems. Exhibit 17 discusses another highly specialised experimental arrangement in which quantum entangled photons were used to demonstrate long range quantum teleportation. I also see no basis in this document for suggesting that entanglement may be observed in macroscopic “everyday” systems.
55. I am satisfied that all of these documents support the understanding that specially prepared or isolated systems are required to overcome the decoherence barrier. This is because it appears that each of the systems described in the exhibits are unique in that they involve special arrangements or structures that enable the loss of quantum information to be prevented. The systems described in the exhibits are either arranged using complex and advanced scientific techniques or a result of natural isolation of a quantum system because of unique molecular structure. No such arrangements are present in the described invention. It does not appear possible to use the demonstration of entanglement and long decoherence times in such unique systems to support the experiments and results described in the specification. In other words, the documents do not satisfy me that entanglement may be observed between systems of an everyday nature such as a bottle of anaesthetic and a human brain.
56. Thus I am not satisfied that the documents discussed above demonstrate that the invention produces any form of observable quantum entanglement.
Summary
57. In accordance with the discussion above, I am not satisfied that the submissions of the patentee demonstrate that invention described in the specification produces any form of observable quantum entanglement because the invention offends against the understanding of quantum physics. I conclude that the claimed invention does not work and is thereby, not useful. I consider that no allowable amendment could be made to the specification to address this ground of objection.
Manner of Manufacture
58. Methods and processes are generally patentable. National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252; (1961) RPC 134 is the leading authority for the patentability of methods and processes:
"The point is that a process, to fall within the limits of patentability which the context of the Statute of Monopolies has supplied, must be one that offers some advantage which is material, in the sense that the process belongs to a useful art as distinct from a fine art ... - that its value to the country is in the field of economic endeavour."
59. This was expressed in CCOM v Jeijing 28 IPR 481 as:
“The NRDC Case ... requires a mode or manner of achieving an end result which is an artificially created state of affairs of utility in the field of economic endeavour."
60. A method which fails to produce a “material advantage” or “end result which is an artificially created state of affairs” will not be a manner of manufacture. The effect of the claimed invention is in the generation of non-local effects via quantum entanglement in everyday macroscopic objects. As discussed above in regard to the ground of utility, I am not satisfied that the claimed method produces any form of observable entanglement. It must then follow that the method does not produce any requisite “technical” effect which would render it a manner of manufacture.
61. Leaving aside the question of whether the invention works I believe the claims still fail the requirement of possessing a manner of manufacture. I note that manner of manufacture in this context was not raised during re-examination or discussed as part of the hearing. All of the claims merely produce a “non-local effect via quantum entanglement” and thus do not have a particular technical application. In this regard the claims are not directed to an artificially created state of affairs of utility in the field of economic endeavour.
62. Therefore I conclude that the claims are not for a manner of manufacture. I consider that no allowable amendment could be made to the specification to address this ground of objection.
Section 40(2): Full Description
63. The requirement for a full description of the invention was said in Kimberly-Clark Australia Pty Limited v Arico Trading International Pty Limited [2001] HCA 8; 207 CLR 1 at [25] to be satisfied if the disclosure contained in the specification is sufficient to "enable the addressee of the specification to produce something within each claim without new inventions or additions or prolonged study of matters presenting initial difficulty".
64. The question as to whether the specification is fully descriptive in this case is closely linked to an assessment of utility and manner of manufacture of the claimed invention. For example, if the invention is considered to not work because it is not considered possible according to mainstream scientific understanding, then it will not be possible for the addressee of the specification to produce something within each claim using the disclosure provided in the specification. For reasons discussed in regard to the ground of utility I am not satisfied that the invention works to produce any form of observable entanglement primarily because the invention offends against generally accepted physics.
65. Therefore, I conclude that the specification does not fully describe the claimed invention. I consider that no allowable amendment could be made to the specification to address this ground of objection.
Conclusion
66. The patent describes methods of producing quantum entanglement and non-local effects of substances using targets such as chemical substances and biological systems. It is clear from the specification that the claimed entanglement is said to occur between elements of “everyday” macroscopic targets having no uniquely prepared or isolated quantum state. In regard to the manifestation of quantum entanglement on macroscopic scales I am satisfied that the theory of quantum physics dictates that decoherence remains a barrier to the observation of quantum effects on the macroscopic scale that may be overcome in very specially prepared or isolated systems. The patentee’s submissions do not weigh against the general understanding of quantum physics.
67. I consider it clear that the claims do not contain patentable subject matter. All of the claims lack utility and are not for a manner of manufacture. Furthermore, the specification does not fully describe the invention. The grounds of objection to the specification cannot be rectified by an allowable amendment and consequently I will revoke the patent.
68. For the benefit of the patentee who is unrepresented, I will further point out that this is a final determination and that re-examination of the application has ended. However, pursuant to section 101 of the Act the applicant may appeal my decision to the Federal Court of Australia. Such an appeal is governed by the rules and procedure of the Court and must be filed within 21 days of the date of this decision, subject to any further time the Court may allow.
Dr N. R. Madsen
Delegate of the Commissioner of Patents