Copyright © Harold Aspden, 1998

This is the major part of the substantive technical part of the response to the U.S. Patent Examiner's Office Action of December 16, 1992. It was written essentially to comply with the formality of sustaining a petition to overcome the problem of that Office Action not having been received so that the application had been deemed abandoned. In the event there is some overlap in the statements made here and those included in Appendix III.


1. The Applicant has attempted in the amendment filed 8/24/92 to meet the Examiner's objections by very severely restricting the specification in order to exclude reference to cold fusion.

2. The Applicant was, however, mindful of the right to file a continuation-in-part application, but in the event the Office Action issued on 12/16/92 was not received and this has created a dilemma for the Applicant.

3. In the circumstances, having now been sent a duplicate copy of that Action by a communication from Applicant's Agent dated October 6th 1993, this response endeavours to meet the Examiner's objections in the hope that the application can be revived and so have scope to remedy any disclosure deficiencies by filing a continuation or continuation-in-part application.

4. The following remarks are addressed point by point to the numbered sections of the Examiner's communication dated 12/16/92. In respect of section 1, the above amendment conforms with the Examiner's direction to reinstate all deleted text from the specification. This retains the full commentary on the cold fusion issue and certain theoretical argument from the perspective at the time of the 15th April 1989 priority date and the contents of the U.K. priority specification.

5. The Examiner has objected to Claim 23 on the election of species ground denying the author the chance of bringing the hollow cathode feature into issue. The Examiner has, therefore, in respect of claims 22, 23, 24 and 25 not conceded a favorable response to the Applicant's request (dated 9/16/92) answering the informality objection dated 9/9/92 in which it was said:

'It is hoped that the examination may proceed on the assumption that the four claims now in contention are deemed to be of a common species.'

In amending the claims to exclude this 'hollow cathode' feature the Applicant now trusts that there may still be prospect of recovering ground on this question, as by being given the opportunity of filing a continuation-in-part.

The new claims 26, 27, 28 and 29 are intended to meet the objection raised by the Examiner's new citation, the disclosure in Trzyna et al (3,844,922).

The claims are now are very restricted and merely cover two specific versions of apparatus providing the supplementary cathode current excitation.

Much of the Examiner's rejection concerns the 'cold fusion' issue generally in relation to the rather expansive nature of the art cited. It is this general theme which clouds what could otherwise be a simple formal presentation of this response.

In section 3 of his report the Examiner declares that there is no support in the original disclosure for stating that the a.c. circulates in an all-metal closed path which is within the housing 4 and is exclusively that of a cathode.

The question faced here is whether the Examiner is really challenging the technical feasibility of an electrode structure which provides for separate a.c. circulation in the cathode and d.c. circulation in the anode cathode circuit or whether his concern is one of the specific wording of the disclosure and proper distinction of terms.

It is submitted that the disclosure in the specification does allow a person skilled in the electrochemical art to understand and indeed build what is intended, namely an electrolytic cell having an anode and a cathode immersed in a solution and subjected to the normal d.c. excitation, whilst the cathode, which is part of an all-metal circuit is designed to allow a.c. to flow freely around a loop confined to that circuit. The disclosure in Trzyna (3,844,922) in the abstract illustration shows an electrolytic cell with provision for a.c. excitation of the cathode and both d.c. and a.c. excitation of the anode-cathode circuit. Note the single metal-to-metal point of contact between the metal of the two separate circuits. In that Trzyna disclosure, as in the Applicant's disclosure, with an a.c. potential between the ends of the cathode, there will be some a.c. flow shunted through the electrolyte but electro-chemists know that there is such a large difference in electrical conductivity between metal and an electrolytic solution (of the order of a ratio of 10,000 to 1) that, to all intents and purposes, unless the cathode were to be an extremely thin metal film with small cross-section and very large superficial area, it is technically correct to speak of the two circuits as being quite distinct as current paths, the a.c. path through the cathode and the d.c. path through anode and cathode.

It is submitted that this interpretation would be placed on what the Applicant has disclosed in the specification as filed without it being necessary to explain the above in detail, but if this is the reason for sustaining a rejection then, hopefully, assuming that the petition to revive is granted the Applicant will be given opportunity to clarify this, if necessary, by having the right to file a continuation-in-part application. Evenso, the Applicant has attempted to bring clarity into this issue by suitably limiting the claims, also in order to distinguish the invention from the Trzyna disclosure.

Concerning the relevance of the Trzyna citation, note here that, although the circuit configuration does resemble that proposed in the subject specification, the technical function is entirely different. In electrolytic etching and electroplating the whole physical action concerns the process occurring exclusively in the electrolyte and at the cathode surface. The action necessarily involves low voltages and the nature of electrolysis is such that there is a limit on the current density per unit area of cathode that is feasible and any excess currents per unit area are to be avoided. Certainly, the objective in Trzyna is to provide a small fluctuating voltage potential at the surface of his cathode/workpiece with relatively minor transfer of current in the cathode and, owing to the electrolyte's small specific conductivity, this means that the a.c. current admitted to cathode is quite small and though most of that will circulate around the cathode loop it is small in relationship to the anode current as it is intended to help in equalising electrolytic actions over the cathode surface. Note the ratio 30 amperes d.c. in the anode-cathode circuit and 6 amperes a.c. in the cathode circuit (see column 4 line 65 and column 5 line 1).

In this Applicant's apparatus the a.c. cathode current is far in excess of the d.c. current in the anode-cathode circuit, a ratio of 100 to 1 being mentioned in the specification (line 18, p. 20), because it is the action of this powerful current, whether by electrodynamic pinch, electrodynamic ion-electron enhanced acceleration, heat gradient or by enhancement of ion collisions, that promotes the action for which the apparatus is designed.

Indeed, the Applicant now knows that the heat gradient plus the electric pinch potential resulting from the current are the critical criteria for best mode operation of the invention. Furthermore, the objective is not, as in Trzyna, to affect the transfer of ions between anode and cathode and their adherence or separation from the cathode work surface, but rather to have an effect on a process that occurs inside the cathode once the ions have been adsorbed into that cathode. The heat gradient exists because the heat generated is removed by a flow of fluid over the cathode surface by passage from an entry port, travel over the surface of the heated cathode, and then through an exit port by which the heat is used externally in a recirculating system.

Technically, therefore, what is disclosed can be assembled by a person skilled in the electro-chemical art and it is functionally distinct from the teachings in the Trzyna disclosure.

In these circumstances, and having regard to the amendment suggested it should be justifiable to regard the innovation as patentable over the art cited.

Examiner states that there is no support in the original disclosure for referring to the cathode as having a single point of connection to a metal conductor by which its output current returns to the d.c. source.

This draws attention to a problem of wording to distinguish the 'cathode' from the 'cathode circuit'. Fig. 1 does show an anode, a cathode and connections (a) through a d.c. supply to the anode-cathode circuit and (b) through an a.c. supply feeding the cathode circuit exclusively. The single terminal point connection is shown at the left end of the cathode and, as the Examiner states in his fourth paragraph on page 3 of his Action 'the cathode itself extends beyond the ends of the housing'.

Concerning the 'single turn secondary winding' this is the feature shown in Fig. 3 since cathode 2 is such a single turn. Fig. 3 is part of a general disclosure that can support a solid cathode implentation, nothwithstanding the showing in this figure of the hollow cathode and the concern about the election of species. Also, it should be evident to an electrical specialist reading the specification in the context of Fig. 1 that, since the object is to promote a very high a.c. current flow through a cathode fed by a transformer, and since there is no other load, the connection through the cathode has to be a short-circuit. The logical design is to use what is effectively a current transformer with minimal secondary resistance and that means using a single turn. The multi-turn secondary shown in Fig. 1 is merely a standard illustration of a transformer action. Had a single loop been shown it might still have been seen as a two-turn secondary but the back-up showing in Fig. 3 clearly gives basis for the single turn secondary winding feature and that is located wholly within the housing for the cathode.

Accordingly, it is hoped that the Examiner will accept this explanation in response to his objection, especially in view of the clarifying amendment of the claims.

6. Concerning Examiner's objections (section 5) to the specification and his finding that Applicant's arguments in response to section 2 of the 6/15/92 Office action are unpersuasive, the case becomes one of refusing to accept deletion of reference to 'cold fusion' and reverting to a contest on that issue.

In refusing to accept the amendments that delete all reference to 'cold fusion' it is presumed that the Examiner insists on reinstatement of that text and this is duly implemented by the amendment above.

The Examiner persists in declaring that all issues in that section 2 are still pertinent and germane to the patentability of the Applicant's claims.

The issue confronted is the Examiner's declaration that there is no reputable evidence of record to support any allegations or claims that the invention involves nuclear fusion. With respect, it would seem here that the Examiner is the arbiter as to what is regarded as 'reputable' and takes the position that there is nothing uncertain about this matter and that the claims supporting the cold fusion possibility stand disproved.

Now, what is really in issue is not the attempts to replicate the experiments which have led to this cold fusion fiasco, but the workability of the structure which this Applicant has described in the subject application, though it is reasonable for the Examiner to invite comment on why the adversaries on the cold fusion research could not demonstrate cold fusion. The Examiner has, incidentally, only cited the negative reports.

None of the 'reputable' evidence cited reports on an experiment specifically using Applicant's apparatus.

These preliminary comments are generic to several of the many references cited by the Examiner and so are itemised as follows:
(a) The nature of a calorimeter test where there is no excess heat is, by definition, one by which there is thermal equilibrium. In the event that a successful cell is one where a temperature gradient in the host metal cathode is essential to set up the potentials in the metal that then exist, by virtue of the Nernst Effect, the use of a well-controlled calorimeter would preclude the cell from producing excess heat because the potentials might well be the factor that brings the deuterons into needed proximity to trigger fusion. Such calorimeter tests are inconclusive and do not replicate cells which run on an open basis in which convection and formation of gas bubbles bring about temperature gradients in the cathode. If the test protocol, in seeking to pin down all components in a heat balance, freezes the system into thermal equilibrium so as to sense change of temperature, then, to the extent that cold fusion needs a little activation stimulated by temperature differences in the cathode, that same test protocol stifles the effect it is supposed to measure. This is why the Applicant has provided the cooling feature and why the input of strong currents to the cathode plays its role in upsetting the thermal equilibrium.

What is needed in a proper test protocol is a calorimeter test in which there is a controlled rate of heat flow through the system which goes hand in hand with a temperature gradient and is channelled to pick up excess heat and so deliver the excess as output without imposing the straight-jacket uniform temperature constraint that a calorimeter in equilibrium imposes.

This is why the coolant circulates in the Applicant's Fig. 1 and Fig. 2. The Examiner will hopefully see sense in this argument and appreciate the problem. Those who set out to test the F & P claim did not trust the F & P calorimetric evaluation and so they aimed at precise calorific measurement using a calorimeter that regulated temperature in a uniform way. They assumed that if excess heat is produced then the best thing to do is to enclose all the heat in a container in thermal equilibrium and see if the temperature increased. Even if they cycled the temperature between different values over a protracted period of time they ensured that the operative temperature was uniform in the apparatus at the moment when measurements were made. The result was that they did not replicate the very conditions which mattered, namely that there had to be temperature gradient in the cathode to get any excess heat in the first place.

This point can be underlined by referring to the Miskelly et al paper in Science (November 1989) which the Examiner cited in his earlier action. In the last paragraph on p. 529 there is the argument that the F & P experiment is flawed by their finding that temperature differentials of 2 degrees C occurred in an unstirred cell, especially as there were gas bubbles, and this was seen as a source of error. In fact, it should have been seen as the clue pointing to why the F & P cell really did develop excess heat.

Without a temperature differential in the cathode, the action of the current in developing a magnetic field that acts on the heat flow through that temperature gradient in the body of the cathode will not produce the Nernst EMF within the cathode metal and so there will be no residual charge in the host metal by which the deuterons can be brought together in a fusion relationship.

Therefore, the use of good calorimetric methods or closed cells with no circulating coolant precludes a valid test of the F & P cell. If the excess heat generation is precluded by temperature stabilization any test to search even for neutron or gamma radiation is futile.

Note further that the actual fusion reaction is that by which tritium is generated along with a proton, meaning no neutron and no gamma radiation. See the discussion by Faller et al in the 1989 reference cited by the Examiner (J. Radioanal. Nucl. Chem. Letters). This shows the doubts as to the fusion product. F & P obtained concentration of tritium. Yet, because there is electrolytic concentration of tritium in the residual deuterium oxide as the latter is used up in normal dissociation, this is glossed over as being a reason for discounting the findings of F & P. Firstly, one had to have an experiment that did generate excess heat and only then should one weigh the balance of the tritium product. There is no point in watching the tritium concentration in a cell that is not heat-active and then declaring that any such concentration found by F & P is normal electrolytic concentration.

The problem here to keep in mind is that experimenters do not wish to waste deuterium oxide. They accept its dissociation in operating the cell, but they do not pump it through a cell with the object of extracting heat. They avoid the temperature gradients and they brush aside the tritium factor, whilst pointing at the no-neutron, no-gamma radiation aspects which are not relevant anyway to the tritium producing reaction. Two deuterons fuse to create a proton and a triton having 3 and 1 Mev of 'heat energy', respectively. (b) Therefore, if the test is based on detection of neutrons or gamma radiation it is not relevant owing to the fact that deuterons that come together in a cool environment need not combine by producing a neutron but may simply release the 4 Mev surplus heat energy that comes from conversion to a triton and a proton. That Mev of energy is not carried by fast beta particles but rather by the relatively very heavy triton and proton and the latter are able to transfer heat directly to the phonon system to which they belong when arrested. There is no reason to insist on any gamma radiation such as one associates with excessively hot beta emission.

(c) If there is no effort to supply any current confined to a circuit including the cathode but not the anode and there is no provision for setting up a temperature gradient in the cathode then the disclosure does not bear at all upon the Applicant's invention.

Proceeding now to specific comments and concerning the new references:
Fleming reveals no excess heat: comments (a) and (c) apply.
Broad: This concerns doubt about the 2.2 Mev gamma ray detection but two and half years on Fleischmann is presumably satisfying his backers in their onward development of larger heat generators and a March 1991 newspaper report should not given undue attention.
Henderson: This reveals no neutron or gamma emission and assumes fusion reaction with a helium product: comments (b) and (c) apply.
Note specifically the statement: 'We did not measure products from reaction (2)'. It is reaction (2) that this Applicant sees as the relevant reaction.
Bosch: This was again a search for neutrons and gamma radiation. Equation 2 in Table III is followed by comment 'For those reactions which don't create directly gammas, the generation of fast charged particles would create secondary gammas...' This is a sweeping assertion based on experience with radioactivity and hot fusion. If those workers have no experience of cold fusion in producing excess heat but know from hot fusion work that primary gamma radiation can create secondary gammas, how can they declare what would happen if no primary gammas are produced? Evenso, in their article, concerning temperature measurement there was some modest temperature differential in the cathode region (bottom p. 169) but they observed 'non-equilibrium effects attributed to exothermic loading and said 'clearly better measurements were needed to draw more significant conclusions'. Comments (b) and (c) apply.
Rogers: This is a review paper and not one reporting new experiments but it states in the last paragraph that tritium has been measured as a reaction product, though trying to excuse this as being possibly due to preferential electrolysis.
Albagli: This dismisses the tritium feature by attributing growth in tritium to electrolytic concentration. Comments (a), (b) and (c) all apply.
Nova: Confusion in a Jar: This evidences the debate surrounding the subject but is not evidence that shows that the scientific community deems the 'cold fusion' suggestion as 'bordering on the incredible'. To the contrary, the fact that such a forum of debate was taking place shows that that community is so concerned that the claim could be 'credible' that they seek to drive the question forward to a termination point at a faster rate than the proponents can proceed to secure experimental clarification.
Balke: Here the temperature was varied as a test parameter but all the emphasis is on detecting neutrons. Comments (b) and (c) apply.
Myers: This does focus on the reaction producing tritium, but with strict temperature control, meaning that in searching for the fusion products, the open cell electrolytic conditions by which temperature perturbations in the cathode can occur are not present. Comments (a), (b) and (c) apply.
Wilson: This discusses calorimetry of the F & P cell and points to possible errors but (see p. 2) 'these do not lead to significant errors in their calculation of excess heat and (abstract) 'we cannot prove that no excess heat has been generated in any experiments'. This, again, is a situation where, if there are temperature differences in the test system, these are a source of potential error in heat calculations, but excess heat in any quantity that is worth considering necessarily will involve a temperature differential in the cell. By precluding one, one precludes the other. The runaway escalating heat generation condition that F & P reported is not really considered. It is the real clue to follow. If excess heat generation is proportional to temperature gradient and temperature gradient increases with such heat generation, that is an exponentially escalating action. Once that action is triggered in a cell which lends itself to that temperature gradient condition, the runaway situation develops but will be moderated if the heat escapes in a different direction or the electric current developing the field, assuming Nernst Effects apply, is diverted. Hence, finding fault with F & P data by criticizing sources of temperature difference in a calorimeter test, is to put the whole picture out of focus.
Silvera: This again is irrelevant in that comments (a), (b) and (c) apply. The calorimeter used to measure excess heat does have regard to the changing thermal gradients during the 'slow' increase from 77K to room temperature. However, note the commentary in the middle of the first column on p. 42. 'During the warm-up, the power sensitivity fell by as much as two orders of magnitude due to changing thermal gradients in the cell'. The researchers were only concerned with looking for excess heat at a steady temperature and so they discounted what they were finding during the step changes of the controlling temperature, because their equipment had lost its sensitivity owing, one can assume, to excess heating!
Williams: Comments (b) and (c) apply, but the calorimeter test data reported is very curious. At p. 375, right hand column, middle section, it is said that there was an 'apparent endothermic period at the beginning of the run..this was due in part to .. a temperature gradient analogous effect at the start of electrolysis was reported by Lewis et al, who showed that the apparent heating coefficient of a similar cell varied during the first part of a run. Because of this effect, we excluded the first 10,000 minutes of data from each cell when calculating the statistics.' So, if a researcher is looking for evidence of excess heat after running a cell for an initial priming period and what he finds instead is is an apparent cooling over that initial period, he can discount that finding as irrelevant. It may be relevant that the Nernst Effect in metal can provide cooling or heating and if the temperature gradient settles down to a value where cooling balances a limited fusion heating effect, there would be no heat excess. If it takes a while before fusion heating occurs that gives initial cooling. If the cell used does not force a sustained temperature gradient then there can be heat balance. The citation, therefore, is not convincing evidence of the 'no-excess-heat' proposition and, to the contrary, it merely opens the issue for further study.
Ewing et al: This is solely concerned with neutron tests. Comments (b) and (c) apply. The Examiner includes 'Ewing et al' in his statement 'These references provide further clear evidence that no excess heat is generated in such 'cold fusion' systems' but the Applicant can find no reference to 'heat' in the Ewing paper!
The question then is whether any of the references cited by the Examiner in his earlier report needs further comment. If the references involve calorimeter tests with very stable monitoring of temperature they do not represent the open cell structure used by F & P with its scope for a temperature gradient up the palladium cathode nor do they represent the situation where there are heating effects of an a.c. cathode circulating current. If they base the rejection of cold fusion on non-neutron emission or no-gamma emission then it is submitted that they have no bearing on Applicant's invention or on the F & P experiments.

With these points in mind, the Applicant has reviewed all the art cited earlier. Applicant's earlier response to that cited art was addressed directly to those which involved special cell excitation techniques and he trusts that his earlier response has been adequate in respect of those specific citations.

Concerning the remainder which debate the cold fusion issue, the Applicant had assumed that, by deleting the cold fusion theme from his specification, the need to comment on those citations had been removed.

The above commentary has, it is submitted, shown that, in spite of the art cited, the case in favour of cold fusion is still open, given that the neutron, gamma ray and stabilised calorimeter tests all fail to test the deuterated cathode cell with a cathode specially activated electrically and cooled in ways which can set up a temperature gradient.

Concerning the Examiner's point on page 10 of the 12/16/92 action, that there may have been insufficient response to the issues raised on pages 5 and 6 of the 6/15/92 action, the following comments apply.

Firstly, the Examiner has questioned the Applicant's theoretical arguments and said, that, absent proof to the contrary, existing theory is deemed correct, so discarding Applicant's reasoned basis for understanding a cold fusion process. The Applicant deleted that theoretical subject matter and has been required to reinstate it by the Examiner.

It is pointed out that at line 26 on p. 25 of the specification there is the statement: 'The above description of the invention has been based on certain theoretical statements. These should in no way be seen as essential to the definition of the invention. They are merely the inventor's personal way of rationalizing the basis on which the invention operates.'

Concerning the adequacy of the description as an enabling disclosure, it is submitted that, just as so many researchers could build apparatus in the form of electrolytic cells with the object of testing the F & P cold fusion claims, and presumably by using their inherent skills as physicists or electrochemists, with no tuition from F & P, so an apparatus having the additional provision for the closed cathode circuit described and shown in the specification can be built to implement the Applicant's invention. The very skills possessed by so many researchers who are trusted to build cells deemed to offer valid tests which replicate the F & P cell are those which are appropriate and available, without specific enabling additional instruction, for building and testing what the Applicant's disclosure shows.

The Applicant cannot add new matter to the specification at this stage and so must rely on contending that the specification does suffice. Given that the processes by which palladium electrodes adsorb hydrogen are known in the relevant art, the size and form of the cathode would be determined by known criteria and the current supplied to the cathode by the added closed circuit would be limited to avoid calculable I2R resistive overheating. It is conceded that, for the invention to be operable in promoting heat generating reactions with cathode-adsorbed ions, the 'cold fusion' scenario has itself to have technological foundation. However, if one can presume that is the case then the invention must contribute to enhancing the process. There is such clear physical basis for the current field action and the heat action to combine to create conditions which bring the ions into closer proximity. The well-known electrodynamic pinch effect on electron current in a wire is enough to explain how negative charge can be concentrated at the seat of the positive ions and that must bring them into more active relationship. If, on the other hand, 'cold fusion', as a matter of Patent Office policy, is to be classified as a 'taboo' subject that is on a par with perpetual motion then, absent the experimentation which the Applicant has not, as yet, performed, this invention, which concerns structure based on standard electrical engineering principles, has utility only as test apparatus aimed at verifying that 'cold fusion' is a reality.

It is submitted that it should be judged with favor in that light, just as the schematic form of electrical apparatus to test a new idea for a hot fusion reactor is proper subject matter for a patent, notwithstanding lack of prior knowledge as to how it will perform in that function.

7. In view of the Examiner's rejection on the basis of inoperability (section 8 of the 12/16/92 action) some further comment seems necessary.

The Applicant has an onus to show that what is proposed will work and it is submitted that it is beyond question that the apparatus described can be built and it will most certainly function to enhance the thermal activity of any deuterons that are absorbed into the palladium cathode. Palladium has a notorious ability to absorb protons and deuterons.

The question at issue is whether the particular structure shown, if built and tested, will produce excess heat, but the Examiner insists that the disclosure as filed assumed fusion reactions were involved and it must therefore be shown that any such heat would be attributable to fusion.

Now, there are many reports of success on the cold fusion issue, but is seems that these are immediately branded as from 'non-reputable' sources and so have no weight in this argument. Nevertheless the Applicant makes reference to an abstracted report in FUSION FACTS at pp. 9 and 10 of the September 1993 issue. This refers to work performed by Reiko Notoya of the Catalysis Research Centre, Hokkaido University, Japan under the title 'Cold Fusion by Electrolysis in a Light Water - Potassium Carbonate Solution with a Nickel Electrode'. It is claimed that what was measured was a progressive transmutation of potassium into calcium resulting from fusion of hydrogen and potassium at laboratory temperatures. It is stated that the measured rate at which the calcium concentration in the electrolytes increased due to electrolysis was comparable with the excess heat involved. Now, this is not evidence that the Applicant's invention has merit, but it is evidence that we are destined to see research which will lead to the eventual commercial exploitation of the transmutation of elements by processes in which protons and deuterons are adsorbed into metal activated by electrical current.

It is mentioned because the use of a nickel cathode has particular relevance to an aspect of the subject invention which the Applicant has researched experimentally. Nickel has a very high Nernst coefficient, as is well known, and it is a ferromagnetic material which means that it comprises microscopic domains that are fully saturated magnetically. The Nernst Effect is that by which EMFs are set up transverse to the magnetic field when a temperature gradient exists in the mutually orthogonal direction. If, therefore, heat is generated within that nickel as by applying an electric current or by internal processes or heat is introduced to set up even modest temperature gradients the result is that the nickel behaves microscopically as a thermoelectric power converter. It has minute 100 micron regions of action involving cooling and producing electrical current flow and adjacent regions where a balancing heating occurs. This activity is ongoing in that nickel by standard and proven physical principles.

What, however, can easily be overlooked is the fact that the Nernst Effect is one by which that EMF is set up within the metal and that, as the thermal gradient is not uniform, that EMF varies within the metal, which means that the inside of the metal has pockets of positive and negative charge. Now, if a proton were to be adsorbed into a nickel cathode of porous design complementing that 100 micron domain structure so that heavier ions from an electrolyte penetrate those pores, at a region of negative charge, one can conceive the possibility of charge neutralization leading to a merging of atomic nuclei.

The point made here is that one must not take the physics of nuclear processes as observed in high energy reactors as being the governing criteria where unusual electrical constraints are applied to free ions at the ultramicroscopic level when adsorbed into a host metal. On the contrary, one must heed the reported discoveries, even those giving spurious results, and since this 'cold fusion' field has become one of protracted evaluation, one ought, from a patent viewpoint, to judge on the basis of novelty and not on there being a proven and tested product. This is a situation, as with a new medical composition, where it may take a while before the relevant scientific community is ready to digest the product as having proven benefit. It is important to keep in mind that the grant of a patent is not an endorsement that the invention has commercial value. It is something conferred on the merits of innovation that can advance technological knowledge, even if that advance proves unrewarding in the sense that it does not lead to what eventually proves to be the best mode for taking the technology forward. In this instance, a novel apparatus useful in research aimed at tests in a promising and useful technological field warrants protection, just as a novel reactor aimed at hot fusion might warrant a patent grant even though it may never survive in its 17 year life long enough to protect an actual commercially viable energy producing reactor.

8. The Applicant responds next to a further comment in section 8 of the Examiner's action of 12/16/92. This concerns the assertion that utility of the claimed invention is based upon allegations that border on the incredible or allegations that would not be readily accepted by a substantial portion of the scientific community.

In the perception of a scientific community studying the invention what is claimed would be seen as an apparatus in the form of an electrolytic cell with provision for passing a strong electric current through the cathode without having that current cross the cell from anode to cathode.

No member of that scientific community could, in good faith, possibly deny that this apparatus will work for its intended purpose of influencing the thermal activity of ions that are adsorbed into the cathode.

The intended purpose of such apparatus has utility in that, just as there have been claims accepted by that scientific community, that deuterons in a low pressure gas in a reactor carrying high current discharges can be expected to fuse if the current becomes so concentrated that very high temperatures can be sustained, so the scientific community (excluding those whose personal self-interest in the hot fusion project depends upon excluding competition) must accept the logic of a project that aims to test the low temperature possibilities.

Every hot fusion reactor and all its ancillary equipment that has become subject to granted patent protection in the U.S.A. would not warrant patent protection on the test of utility that requires 'substantiating evidence of operability' if that test referred to the practical utility of the proven hot fusion power-generating reactor. Whatever the case law on this subject, it surely takes account of the technical design feasibility of the apparatus as being related to the immediate intended purpose of value to the applicant and consequent value to the public at large. The intended purpose is that intended by the applicant and stated as an objective in the specification. In the hot fusion reactor situation it may be the provision of reactor structures, magnetic systems, test apparatus etc, all of which are meaningful technological pursuits of immediate commercial value but none of which necessarily means that hot fusion electrical power generation is, or will be, a practical reality.

In the preamble to the Applicant's specification headed 'The Field of Invention', the starting point is a reference to knowledge that a sufficient concentration of deuterons in a palladium cathode can be caused to combine 'in what appears to be a process of nuclear fusion of the deuterons'. It is then said that the invention, adds a secondary electrical action aimed at the enhancement of this process.

Given that it was known that there is reported evidence of excess heat and what appears to be, or was stated to be, a fusion reaction, the Applicant's specification as filed, merely stated the field addressed by the invention as at the time of filing. The utility of the invention has to be judged on whether the apparatus proposed has value in providing that secondary electrical action that is to enhance the heat generation process.

If someone submits a patent specification which begins by asserting that deuteron fusion is a route to a future source of energy that is not 'something bordering on the incredible'. If that person tries to secure a patent on apparatus in which an electric ring discharge is produced to enhance that fusion process that is not 'something bordering on the incredible'. The starting point acceptable to the scientific community is the hydrogen bomb and the nuclear reaction equations that one sees in atomic physics books. Those books include reference to heat generating reactions which occur without producing neutrons, such as two deuterons fusing to create a triton and a proton with release of 4 Mev of energy. This fact appears repeatedly in much of the art cited by the Examiner.

If it is suggested to the scientific community that such a reaction can occur there is no basis for thinking also that it must be a chain reaction which involves neutrons and so be overwhelmingly explosive and involve very high temperatures. The scientific community can accept simple teachings in their textbooks and since those textbooks tell us that two deuterons can fuse to create a triton and a proton, with no neutrons, it seems inappropriate for it to be said, in invoking case law, that the idea of 'cold fusion' can possibly 'border on the incredible'. The Examiner has judged the mood of the scientific community on this question by reference to the writings of scientists who reacted to the announcement of the F & P discovery, who have sought to replicate results which were, in any event, admitted by F & P to be spurious and elusive but nevertheless real. One needs then to weigh the balance of probability as between the persistence of these two highly-reputable scientists, who know their experiments and have seen the relevant evidence, in carrying on with their research in successful and progressive way (albeit surrounded by a commercial screen of confidentiality) against the institutional and media reports which question the cold fusion claims.

At the very least, the wisdom of a court of law judging such an issue, would rule that the case needs time to be proved either way. The issue of whether or not cold fusion occurs at all cannot be decided on the reports cited. Given that the doubt exists and that, apart from such confidential knowledge of a positive nature as may be possessed by workers such as F & P, there will be attempts to develop special test cells and apparatus aimed at a better understanding and making the process reproducible commercially. The Applicant's invention has that aim and, as it has not been tested in any of the cited reports, it is submitted that it is inappropriate to deny the Applicant the right to a patent on the basis that 'the claimed invention borders on the incredible' and 'would not be readily accepted by a substantial portion of the scientific community'.

In applying case law which is expressed in that way, it is submitted that the judge in such a case would have in mind devices and machines that needed demonstration to prove something unusual. The case could hardly apply, for example, to a claim that a drug can extend increase one's lifespan, even though no specific ailment is addressed. That borders on the incredible but it could not be proved in the time normally allocated to patent prosecution. Yet, it is submitted that, even though that is the object of the invention, and its basis might be elusive as by enhancing one's appetite for healthier food, the Patent Office would judge the patentability of the drug on its novelty rather than its proven effectiveness in extending life, leaving it to other administrations and the public generally to judge the invention in the longer term.

In summary, therefore, taking hot fusion as the relevant precedent, and having in mind that the progress of hot fusion has beeen so slow and such an expensive failure that one might expect a majority of the scientific community to vote 'thumbs down' against supporting further government research investment, it is submitted that 'cold fusion' has not yet had its day and that Applicant's invention should be judged for its novelty and potential as a test apparatus for exploring that avenue of energy research.

9. The new claims 26, 27, 28 and 28 are believed to overcome the objections raised against the earlier claims. The suggestion that it is obvious to combine Trzyna with other references so as to render the use of the a.c. cathode circuit obvious as applied to a cold fusion cell is questioned for the following reasons.

Firstly, the emphasis in cold fusion research is on concentrating deuterons in the host cathode, whereas Trzyna is concerned exclusively with etching, that is removal of ions from the surface of a metal cathode. Secondly, Trzyna suggests a.c. activation with the object of preventing an insulating coating from developing on the cathode material and seems mainly concerned with the a.c. that feeds the anode-cathode circuit. The role of the a.c. in the cathode plate 34 is not well explained but is in any event small in relation to the anode-cathode current. A scientist reading Trzyna with a cold fusion cell in mind would assume that the a.c. activation would retard or preclude the loading of deuterons into a metal cathode, whereas in reading the applicant's specification it is implicit that the a.c. has no role until the deuterons have been loaded into the cathode, whereupon it operates to render them thermally active.

It is submitted that, by wording the new claims so as to bring out the distinction by which the cathode a.c. current is greatly in excess of the anode-cathode d.c. current, Trzyna is distinguished and that it is not obvious from the Trzyna disclosure to suggest that its structure could be used with advantage in a cell aimed to exploit cold fusion.

This amendment is being submitted together with a petition in the hope that this application can be revived.

This statement and the accompanying amendment have been prepared by the Applicant.

Harold Aspden
October 15, 1993