Appeal No. 1999-0928
Application No. 08/334,952
USPQ2d at 1704 (“In his written description and throughout
prosecution of his application, Mr. Swartz continually
represented his invention as relating to cold fusion.”).
The only evidence the examiner presents is that appellants
disclose that “excess heat” is sometimes generated by their
method but appellants offer no explanation for this observation
(Answer, page 14; Brief, page 11; specification, pages 23 and
25). However, the claims are limited to the production of “heat”
(see claim 1 above) and the observation of “excess heat” in some
examples is not sufficient and convincing evidence that “cold
fusion” is involved in the claimed method. See Hilts, where it
is disclosed that the amount of heat produced depends on the
amount of electrical power put into the process, and “excess”
heat is only an excess over what the appellants assume they
should get. Thus incorrect assumptions by appellants could
result in the production of “excess heat.” See also Kreysa,
where the “excess heat” production of Pons and Fleischmann is
attributed to the catalytic recombination of hydrogen and oxygen
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