Jessica M. Karmasek Mar. 5, 2014, 2:30pm

WASHINGTON (Legal Newsline) -- A federal appeals court has struck down an appeal by two inventors seeking a patent on a system that could help weaken devastating tropical storm systems.

The U.S. Court of Appeals for the Federal Circuit issued its five-page decision In Re Eugene J. Hoffman and David E. Lund Feb. 25.

The Federal Circuit, which handles all U.S. patent appeals, sided with the U.S. Patent and Trademark Office's Patent Trial and Appeal Board.

A patent examiner rejected Hoffman and Lund's claims for lack of enablement, and the board affirmed.

Hoffman, who is based in Florida, and Lund, out of North Carolina, represented themselves in the appeal. Chief Judge Randall Rader and judges Pauline Newman and Timothy Dyk heard the case.

"The 'preliminary calculations' contain figures that are either inaccurate or incoherent, raising the possibility that a person of ordinary skill would need to correct those errors in order to practice the claimed method," the judges wrote.

"The patent itself acknowledges a need for further experimentation to determine the necessary or optimal value of certain variables.

"And perhaps most significantly, the very efficacy of the method itself is subject to considerable doubt in the scientific community."

Hoffman and Lund's patent application, No. 11/504,474, describes a method and system for "diminishing the intensity of tropical cyclones by delivering super coolant from [an] aircraft into the eye wall of the tropical cyclone."

According to the specification, delivering a "sufficient quantity" of super coolant -- such as liquid nitrogen -- into the storm's eye wall "breaks the forming or recently formed eye wall, which will cause the eye wall to implode."

Although the method has never been tested, the specification contains a set of "preliminary calculations" detailing the amount of super coolant and number of airplanes necessary to address an example storm of small size.

The patent examiner rejected the claims for failure to comply with the enablement requirement -- i.e. the specification of a patent must describe "the manner and process of making and using [the invention], in such a full, clear, concise and exact terms as to enable any person skilled in the art to white it pertains... to make and use the same."

The examiner explained that the preliminary calculations contained several errors, and that the specification acknowledged the need for experimentation to determine the amount of super coolant needed and the right time to strike.

The examiner also went on to cite a variety of publications by weather scientists who expressed "serious doubts" about the viability of weather modification plans like Hoffman and Lund's.

The board affirmed, and Hoffman and Lund appealed.

"Hoffman and Lund offer little to meet their burden to show that the specification is indeed enabling," the Federal Circuit concluded.

"Their primary argument is that the specification must be enabling because the government has secretly implemented their method and abated or redirected many hurricanes over the past several years. But they have no evidence to support this theory.

"All they have is a speculative inference of government use drawn from the fact that relatively few named storms have made landfall in the United States in recent years."

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