Patenting Perpetual Motion

You cannot build a ‘perpetual motion machine’.  The fundamental principle underlying practical perpetual motion (were it to exist) is the production of endless motion without any external source of energy, and despite the practical realities of resistance (e.g. friction) and other sources of energy loss.  In other words, perpetual motion cannot be achieved unless a device is able to produce more energy than it consumes.

Any arrangement purporting to achieve such a result – whether mechanical, electrical, chemical, thermal or otherwise – violates one or both of the first and second laws of thermodynamics.  Physicists, engineers and mathematicians have a very large number of practical and theoretical reasons to be enormously confident that breaking these laws is an impossibility.

If you do not accept the truth of the statements in the above paragraphs, then this may not be the article you are looking for.  You can go about your business – move along!

The issue I want to examine here is not whether you can build a perpetual motion machine (to reiterate – no), but whether you can get a patent for one.  You might think that it should not be possible to secure patent rights over something that violates fundamental laws of physics, and therefore cannot possibly work.  However, such patents have been issued in the past.  During the last two decades the Australian Patent Office has actually granted at least two patents where the nature of the ‘invention’ was advertised in the title – Australian patent no. 671694, ‘Perpetual motion turbine and compressor set’ and no. 687320, ‘Perpetual motion devices (energy producing devices)’.

More generally, applications directed to alleged perpetual motion machines are sufficiently common that the International Patent Classification (IPC) even includes subclasses F03G 7/10 and F03G 17/04 specifically assigned to ‘perpetua mobilia’.  A total of 16 standard patents have been granted in Australia since 1990 for inventions classified in these subclasses.  A number of applications in these subclasses are currently pending.

In short, therefore, it has certainly been possible, in the past at least, to obtain a patent for an alleged perpetual motion machine.  In the following, I shall explain why this was so, and why it may no longer be the case since the passage of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012.

Why Perpetual Motion Patents Have Been Granted

Subsection 18(1) of the Australian Patents Act 1990 requires that an invention, in order to be patentable, is a ‘manner of manufacture’ (i.e. suitable subject matter), is new, involves an inventive step, and is useful.

Of these fundamental requirements for patentability, the problem with most perpetual motion machines is that they are not useful.  Since they defy the laws of nature, often in some convoluted and unspecified way, they generally cannot be found in the prior art, so novelty is not generally an issue.  Furthermore, suspending disbelief for the moment, on the assumption that a perpetual motion machine actually worked, it would clearly be inventive – miraculously so!

But perpetual motion machines do not work.  They fail to achieve what the patent specification promises – typically an endless supply of free and environmentally friendly energy.  If you followed the instructions in the description and built the claimed device, all you would have is some contraption that you could use as a paperweight or a doorstop.  This fails the legal test for utility.

However, prior to the commencement of the Raising the Bar reforms on 15 April 2013, Australian patent examiners were not permitted to raise lack of utility as a ground of objection.  There was, therefore, usually no basis to reject an application claiming a perpetual motion machine.  This did not, however, prevent some examiners from trying!

In an examination report issued on Australian patent application no. 2007280106, the examiner objected that:

The specification does not fully describe the invention because the invention described in the current specification appears to infringe the recognized laws of physics, inter alia the first main law of thermodynamics and, in addition, the explanations in the drawings and in the description relating to the supposed effect of the internal forces of the system cannot be understood and contradict the recognized laws of physics.

Through their patent attorney, the applicant responded that alleged infringement of ‘the recognised laws of physics’ is not a proper basis for an objection that the specification does not describe the invention fully (as was then a requirement under s 40(2)(a) of the Patents Act).  Given that what was claimed was also what was described (whether or not it would actually work), the applicant had met the disclosure requirement.

The applicant also took issue with the examiner’s concerns that the description could not be understood, offering to ‘assist the examiner in any particular point on which the examiner finds difficulty’ or, alternatively, requesting that ‘the application be passed to a different examiner with better familiarity with the subject matter’ (and, perhaps, a tin-foil hat).  Touché!

The result?  Application accepted.

Has the Bar Been Raised on Perpetual Motion?

The Raising the Bar reforms made two changes that may spell the end for patents on perpetual motion machines in Australia:

1. section 45 was amended such that the Commissioner (or, in practice, an examiner to whom the task is delegated) must now report on whether the claimed invention not only satisfies the criteria of manner of manufacture, novelty and inventive step, but also utility; and
2. section 7A was added, providing a statutory definition of ‘useful’ which supplements the established legal meaning by providing that ‘an invention is taken not to be useful unless a specific, substantial and credible use for the invention (so far as claimed) is disclosed in the complete specification’.

Although I am not aware of any case in which the new provisions have been applied in this way, it seems to me that an examiner will be perfectly entitled to object to a claimed perpetual motion machine on the basis that no ‘credible use’ is disclosed in the specification.

Additionally, applicants are no longer entitled to any ‘benefit of the doubt’ regarding the application of a ground for refusal of a patent.  The examiner is required to make a decision on the ‘balance of probabilities’, i.e. whether, in view of all of the available evidence, it is more likely than not that the patent would be invalid.

I therefore anticipate that new patents claiming physics-defying inventions will become rare, if not extinct!

But What If Someone Really Discovers Free Energy?

In the unlikely event that minds of the calibre of Albert Einstein and Stephen Hawking have this whole ‘laws of thermodynamics’ thing wrong, and some new understanding of nature makes perpetual motion and free energy a reality, then certainly somebody who makes such a breakthrough should be entitled to a patent.

This does not mean, however, that we need to tolerate the Register of Patents becoming adulterated with useless and unworkable inventions (at least, no more so than it already is).  As sceptic Marcello Truzzi put it (channelling Pierre-Simon Laplace and David Hume), ‘an extraordinary claim requires extraordinary proof’.

I would hope that the Australian Patent Office will take a leaf from the playbook of the US Patent ad Trademarks Office, where claims of the discovery of free energy or perpetual motion require the production of a working prototype before they will be allowed: see section 608.03 of the USPTO Manual of Patent Examining Procedure (‘With the exception of cases involving perpetual motion, a model is not ordinarily required by the Office to demonstrate the operability of a device.’)

Conclusion – Does Any of This Really Matter?

So, alleged perpetual motion machines certainly used to be patentable in Australia, and now they probably are not.

The final question to consider is this: who cares, anyway?

After all, it is very difficult to infringe a patent for an invention that does not actually work!  To my knowledge, no infringement litigation has ever been based on such a patent.  And, although lack of utility has long been a ground for revocation of a patent in court proceedings, as well as being a ground of opposition to the grant of a patent for over a decade, I am unaware of any patent or application directed to perpetual motion, or other violations of the laws of nature, being challenged on this basis.

The bottom line is that there is simply no practical, commercial reason to be concerned about patents for impossible inventions.

However, I think that this does matter.  It is of no benefit to anyone, or to society at large, for us to have a patent examination system that is unable to filter out clearly worthless and invalid claims.  How are people supposed to trust such a process?  The patent system faces enough real challenges in demonstrating its ongoing value to society without the distraction of perpetual motion, and other ludicrous claims.

Tags: Australia, Patent law, Raising the Bar, Utility/usefulness