How to deal with a method that contradicts our present best knowledge of the laws of nature ? That is the problem faced by the Board of appeal in the present decision.
[…] The embodiments of the present claims aim at a solution to the problem of determining the absolute value and the direction of the velocity of an object independently of other reference objects, i.e. as an absolute property.
According to the application the problem is solved by measuring the recoil exerted by an emitter (Sender) on the transmitter itself. The application postulates that the frequency f of an electromagnetic wave emitted by the emitter and, as a consequence, the recoil R exerted by the wave on the emitter, is independent of the absolute velocity v. Thus an absolute measurement of the velocity, independent of the reference system of an observer, is made possible. The emitter which, when at rest, emits at a frequency f0, produces, when fixed to an object moving with the speed v, in the direction of movement, a frequency f1 increased by v/c. The frequency f2 of the emitter when situated in a position of the object opposed to the direction of movement, is reduced by the Doppler shift. Because of the different frequencies of the waves in forward and backward direction the waves exert different recoil forces on the object, which are measurable in terms of pressure differences or shifts and which represent a measure of the absolute velocity of the object. [3.1]
The Examining Division (ED) justified the refusal of the application inter alia with the statement that it concerned a method that could not be successfully carried out because it was in contradiction with physical laws that were not disproved so far. In particular the claimed emission of different frequencies in forward and backward direction of uniformly moving emitters resulting in different recoil in different emission directions was physically impossible. In particular, the Doppler effect to which the applicant referred to explain its invention did not modify the eigenfrequency f0 of a moving emitter. In order for there to be an observable Doppler effect it was necessary to have a relative movement between an emitter and an observer. Moreover the present application was in contradiction to the so far undisproved principle of relativity according to which there is no means of measuring the absolute velocity of an inertial system. [3.2]
The appellant argued against the refusal of its application by explanations concerning the “absolute” and “relative” “principle of relativity”, the nature of vector quantities, electromagnetic waves as orientation means, and, by referring to the “quantum matrix structure of the vacuum”, the orientation and relative and proper orientations of electromagnetic waves, respectively. Moreover it substantiated its appeal by discussing alleged errors in the “hypothesis of relativity” and explanations concerning the nature of mass and the “quantum organic principle of operation of the matrix”. The presentation was completed by filing various appendices and extracts from textbooks and other publications, among which explanations of the Doppler effect, for example, in radar and radio measuring technology.
In particular, the appellant argued that the principle of relativity was a simple hypothesis based merely on the fact that no possibility of determining the absolute orientation had been found so far. The appellant opposed its “reality theory” to Einstein’s hypothesis of relativity. According to the “reality theory” electromagnetic waves allow to determine a universal basic orientation of location, distance and movement of an object. This could be determined via the velocity dependent recoil of electromagnetic waves on the emitter. […] [3.4]
The Board considers the justification given by the ED persuasive and has not much to add. [3.4]
There is no physical observation or theory known to the Board that would support the assumption on which the application is based, i.e. that the frequency of the wave emitted by an emitter moving with constant velocity is dependent on the velocity of the emitter. Quite to the contrary, the subject-matter of the application contradicts physical principles such as those that manifest themselves in spectroscopic studies, in a reproductive manner and without any exception. […] The hypothesis made by the appellant, i.e. the existence of an absolute Doppler effect with respect to a quantum matrix in rest, cannot be reconciled with generally accepted physical knowledge that is supported by observations. The real observable Doppler effect necessarily presupposes a relative movement between an emitter and an observer and can only provide information on their relative movement. [3.4.1]
[…] The requirement of feasibility (Ausführbarkeit) of A 83 EPC 1973 is based on the consideration that the grant of the exclusive right (Monopolrecht) is only justified if the indications disclosed in an application allow the skilled person working in the respective field to practically carry out the subject-matter of the invention by following these indications and possibly by using its general technical knowledge. It is not the goal of the patent system to grant exclusive rights for technical speculations which cannot be realized at the date of the application, for whatever reasons.
Of course, the Board does not categorically exclude the possibility that new scientific discoveries invalidate existing knowledge and theories and can lead to fundamentally new inventions. However, the more a new invention breaks with previously valid technical knowledge, the greater the requirements concerning the amount of technical information and explanation in the application to enable the invention to be carried out by the average skilled person to whom only that conventional knowledge is available.
In the present case the “Doppler recoil method” according to the application for determining the absolute speed claims effects which are, for those skilled in the art, in contradiction with the hitherto known physical effects. The application does not satisfy the required higher standard concerning intelligibility (Nachvollziehbarkeit) of the technical indications, as neither the application itself nor the explanations of the applicant are suitable for proving the existence of a “Doppler recoil effect” which is so far unknown in physics and for which there is no evidence. [3.4.3]
Personally, I would have refused an application such as the present one under A 56 as no technical problem is solved by a method that does not work. However, this is not what the Guidelines suggest. A claim to a perpetual motion machine is to be rejected for insufficient disclosure (A 83) if the claims are merely structural (2010 Draft Guidelines C-II 4.11) and also for lack of industrial application (A 57) if the claims are directed to its function (C-IV 5.1). Concrete examples are found in T 85/82 [2], T 541/96 [8-9], and T 1538/05 [5].
To read the whole decision (in German), click here.
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