Supreme Court denies certiorari to allow Bivens actions for fraud in the US Patent Office

Supreme Court denies certiorari to allow Bivens actions for fraud in the US Patent Office

Title:	Supreme Court denies certiorari to allow Bivens actions for fraud in the US Patent Office
Released by:	Thomas V. Prevenslik
Release Date:	2006-10-05 05:02:11

Summary:	PTO employees are now immune from liability for fraudulently denying patent applications on the grounds they are acting in their official capacity when they denied the applications.
Website:	http://www.oocities.org/thomas_prevenslik

For_Immediate_Release:

BACKGROUND

Perhaps the greatest hoax in the history of science funded by the US taxpayer is sonoluminescence (SL) - that light is produced by temperatures from 5,000 to millions of degrees in collapsing bubbles under ultrasound - when in fact the light is produced as the bubbles collapse near ambient temperature.

However, the PTO over the past half-century issued numerous patents on claims of delusion and fantasy that bubble collapse produces high temperatures. For the past decade, the rates of chemical reactions were claimed enhanced in sonochemistry by temperatures of 5,000 to 20,000 degrees, e.g., Suslick at the University of Illinois. Even more ludicrous were patents issued by the PTO in bubble fusion claiming nuclear reactions could be initiated by temperatures of millions of degrees, e.g., Putterman at UCLA and Taleyarkhan at Oak Ridge.

And so it was that because of the precedent by the PTO issuing patent on the false prior art of high bubble temperatures, petitioner’s patent applications that claimed the SL light was produced at ambient temperature were rejected. For redress of PTO damages, a False Claims Act (FCA) complaint was brought in the District of Columbia court, but later transferred to the Alexandria court for lack of venue.

The FCA allows private citizens to bring suit in the name of the US government. But since the PTO is a US government agency, the FCA complaint was in effect an action by the US government against itself, and therefore was dismissed by the Alexandria court. Petitioner did not object to this dismissal, and instead moved to amend the FCA complaint with a Bivens action that allows private citizens a redress for damages by bringing suit against US government employees. The Bivens complaint alleged the PTO employees fraudulently denied petitioner’s patent applications to cover-up their own culpability in issuing SL patents on false prior art. However, the Alexandria court denied the motion to amend on the grounds the PTO acted in an official capacity when they denied petitioners patent applications.

Petitioner appealed by arguing fraud is NOT in the official capacity of the PTO. The Office Action Summary giving the reasons for rejection was shown to be: (a) discriminatory and prejudiced, and (b) permeated with fraud taking the form of intentional misquotes, erroneous arguments, and false prior art. But the Fourth Circuit affirmed the Alexandria court decision.

QUESTIONS PRESENTED FOR SUPREME COURT REVIEW

1, Whether the Federal courts should allow Bivens actions alleging fraud within the PTO until Congress enacts legislation to resolve the conflict of interest in the Patent Appeals Board ruling against itself in administrative remedies, and

2. Whether Congress should change pending Patent Quality Improvement legislation to allow the challenge of issued patents of questionable validity irrespective of the date of issue, and

3. Whether the instant case should be remanded to the Alexandria court with instructions to hear the petitioner’s motion for leave to amend the FCA complaint with a Bivens action because the proceedings were commenced before all of the documents in the DC court were transferred to the Alexandria court

SUPREME COURT DECISION

On 2 October 2006, Supreme Court Judges Roberts, Stevens, Scalia, Kennedy, Souter, Thomas, Ginsberg, and Breyer denied certiorari to hear the petition. See Thomas Prevenslik, Petitioner v. US Patent and Trademark Office, et al., 2006 Supreme Court Docket 06-6006.

SUMMARY

Question 1.

Congress enacted legislation in 35 USC § 101 et seq. to provide an administrative remedy under patent law to redress damage of rights secured by the US Constitution. But fraud in the enacted legislation was directed to that on the part of patent applicants – not by the PTO itself. Indeed, Federal case law is silent in actions alleging fraud by the PTO in conspiring with applicants to issue patents on false prior art, i.e., the allegation that the PTO fraudulently accepted the false prior art of high SL temperature claims in bubble fusion by awarding Putterman at UCLA with US Patent 5,659,173.

The PTO administrative remedy following the rejection of petitioner’s patent applications was by appeal to the Board of Patent Appeals pursuant to 37 CFR § 1.191(a)(1). But the PTO Director, James E. Rogan, one of the PTO defendants in the FCA complaint, chaired the Board of Patent Appeals. Since the Board of Patent Appeals could only be prejudiced in any appeal that alleges the PTO itself engaged in a conspiracy to cover-up the fraud of high SL temperatures, petitioner filed an FCA action against the PTO instead of seeking administrative remedies

Clearly, Congress did not anticipate fraud by the PTO itself in the patent examination process pursuant to 35 USC §131, and did not in the administrative remedy provide ways to avoid the obvious conflict of interest in the Board of Patent Appeals ruling against itself. Until Congress enacts legislation to avoid these conflicts of interest, the Supreme Court was requested to allow Bivens actions against the PTO in the rejection of patent applications based on false prior art.

Question 2

Perhaps the PTO would not have resorted to fraud to reject petitioner’s patent applications, if US patent law was available to have previously disposed of issued patents of questionable validity.Legislation pending in Congress allows the public to challenge an issued patent, but only within nine months of the issue date, or at any time if the patent owner consents to the challenge. See American Intellectual Property Law Association (AIPLA) Draft Proposal, Appendix, Chapter 32 – Post Grant Opposition Procedures.

Since it is unlikely that SL patent owners would consent to such challenges, especially in the instant case alleging fraudulent claims of high SL temperatures for over a decade, the Supreme Court was requested to advise Congress to change pending legislation to strike the restrictive nine month period and allow the public, based on new scientific discoveries, to challenge any patent irrespective of the issue date.

Question 3

The FCA action filed in the District of Columbia court was never properly commenced in the Alexandria court because the Proposed Bivens Complaint that was material for hearing the Motion for Leave to Amend was never transferred from the District of Columbia court to the Alexandria court. On due process grounds, the petitioner requested that the Supreme Court remand the instant case to the Alexandria court with instructions to hear the Motion for Leave to Amend the FCA complaint with the Proposed Bivens Complaint.

CONCLUSIONS

The Supreme Court decision shows the power of the US scientific community to avoid embarassment of mis-spent taxpayer money by influencing the PTO to cover-up scientific boondoggles,as described herein by the hoax of high temperatures in sonochemistry and bubble fusion. The Supreme Court has rarely favored the individual, the instant denial of certiorari favoring the PTO being no exception. Consistent with this prejudice, the caption on the Supreme Court should be changed from “equal justice under law” to “equal justice under law for the rich and powerful.”

Website: http://www.oocities.org/thomas_prevenslik

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Keywords: Supreme court, FCA, Bivens, PTO, sonoluminescence, fraud