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In a recently issued non-precedential decision, In re Huping Hu, the Federal Circuit affirmed the PTO’s rejection of patent claims based on the incredible nature, and presumed inoperability, of the claimed invention. The would-be inventors, a husband-and-wife team both having have PhDs from the University of Illinois at Champaign-Urbana, claim to have discovered how to harness “quantum entanglement” to achieve “non-local” manipulation of water, and even more fantastically, manipulation of a human subject that has ingested the water. For example, they assert that they can quantum entangle a sample of water, divide the water into two portions, and have a human test subject drink one of the portions. Later, if someone adds a drug to the other portion, they claim that the drug will act upon the test subject, even if the test subject is thousands of miles away. This article provides a brief introduction to the field of quantum entanglement, and the patenting of practical applications of this “spooky” phenomenon. It then turns to a discussion of patent law’s utility requirement, and how it is applied by the PTO during examination of patent applications, particularly with respect to claimed inventions deemed incredible and thus presumptively inoperative. The article then summarizes the prosecution history, and subsequent unsuccessful appeal, of one of the patent applications at issue in In re Hu, followed by some concluding thoughts.

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Biotechnology Law Report





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