This morning, the Federal Circuit issued a nonprecedential opinion in a patent case affirming the Patent Trial and Appeal Board’s decision to reject four patent applications as failing to meet the operability requirement. Here are the first and last paragraphs of the opinion.
In re Hu (Nonprecedential)
Huping Hu and Maoxin Wu (collectively, “Hu” or “applicants”) appeal four decisions of the U.S. Patent Trial and Appeal Board (“PTAB” or “Board”), affirming the final rejections of claims based on subject matter described as “quantum entanglement.” Hu defines quantum entanglement as the entanglement of “quantum spins of photons, electrons and nuclei.” U.S. Patent Application No. 11/944,631 (“the ’631 application”), ¶ 3.
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We affirm the Board’s holding, as to all four patent applications, that there is not scientific support for the claimed methods or apparatus, and that the experimental data and explanations are inadequate to support the novel results and scientific principles asserted by Hu. “When a claim requires a means for accomplishing an unattainable result, the claimed invention must be considered inoperative as claimed and the claim must be held invalid under either § 101 or § 112 of 35 U.S.C.” Raytheon Co. v. Roper Corp., 724 F.2d 951, 956 (Fed. Cir. 1983); see also In re Milligan, 101 F.3d 715 (Fed. Cir. 1996) (“[A]s we conclude as a matter of law that those of reasonable skill in the art would not find Milligan’s contentions of utility credible, we must affirm [on the ground] of the lack of utility . . . .”).