Appeal No. 2006-0970
Application No. 10/293,826
the examiner to believe the device is able to lift all of the equipment shown in the
drawings. [See Answer at p. 4] The examiner indicates the appellant must submit into
evidence a working model that closely resembles the device disclosed in the
specification to overcome this rejection. [See Answer at p. 4]
As to the examiner’s first argument, Blaze teaches that the claimed device will not
work in a vacuum, not that the device will not work at all.
The main mechanism is just a transfer of momentum to the neutral air,
and if we do not have enough neutral air the lifter simply cannot fly [Blaze,
p.3].
As to the examiner’s second argument, belief is simply insufficient to make a prima
facie case of unpatentability. Evidence of inoperability is required. The appellant is
correct that a working model capable of lifting a user is not required. [See Appeal Brief
at p. 5 and Reply Brief at p. 2] Rather, the examiner is required to show evidence that
the device cannot operate because it violates current scientific thought. As the
appellant pointed out,
[t]o violate Section 101 the claimed device must be totally incapable
of achieving a useful result, Brooktree Corp. v. Advanced Micro Devices,
Inc., 977 F.2d 1555, 24 USPQ2d 1401 (Fed. Cir. 1992). [See Brief at p. 5]
The video files provided by the appellant as exhibits of operability demonstrate that
the device does lift. Such a result is specific and substantial, and the video
demonstration shows it is credible. Although the exhibits do not portray a user on the
device, the exhibits provide sufficient evidence to conclude that it is not incredible that a
sufficiently large device with sufficient energy could lift a user, particularly a user with
minimal weight, such as a small animal.
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