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                  COMMISSIONER'S DECISION

 

Patentability: The applicant has submitted evidence supporting the results

of the apparatus. In view of the absence of evidence establishing that the

apparatus functions in a manner contrary to the laws of magnetics or modern

physics, there are insufficient grounds for rejecting the application. The

rejection of the application is withdrawn.

 

   This decision concerns the request for review by the Commissioner of

Patents of the final action in the case of Application No 345,767 (Class 326-4).

The application, filed on February 15, 1980, is entitled [translation] PROCEDURE

AND APPARATUS FOR THE MAGNETIC TREATMENT OF LIVING CREATURES. The inventor is

Dr Nogier. The examiner assigned to study the application rejected it on

October 8, 1982.

 

   Mr R Hicks, the patent agent, requested that the date of the hearing

be advanced in order to permit Dr Nogier, of France, who was in Canada on

business, to testify. We have also acceded to Mr Hicks' request that the hear-

ing be in English. Mr Hicks was informed however, that the Commissioner's

decision would be rendered in French, the language in which the patent applica-

tion had been submitted. On June 27, 1983, Dr Nogier explained why he thought

his patent application was acceptable. Moreover, Dr Proulx made an appearance

to testify on behalf of Dr Nogier.

 In his final action, the examiner rejected the application because,

 in his opinion, the invention was based on hypotheses contrary to the

 established laws of physics. In his final action he said, in part:

 

 [TRANSLATION] . . , that it is not really

 necessary to understand the operation of

 a new apparatus to obtain a patent. The

 applicant must, however, convince the Patent

 Office that his invention (sic) can function

 as stated, that is, that his invention is

 based on sound laws of physics and engineer-

 ing...

 

 In this application, the inventor presumes

 that the flux leaving the left end of the

 apparatus (Figure 4) passes through the

 polaroid screen, (9), that it travels along

 . . . the armoured cable (C) to the patient.

 The applicant attributes this abnormal

 behaviour of the magnetic flux to a "modifi-

 fication" of the flux by the screen (9).

 However, such a modification is completely

 unbelievable and unacceptable to a modern

 scientist or expert . . .

 

In setting forth the grounds for believing his invention patentable,

 the applicant replied, in part, as follows:

 

 ...While it is not possible to explain the

 effects achieved in terms of the laws of

 physics, it is quite indisputable that there

 is a difference between a magnetic flux

 which has passed through a screen such as a

 polaroid screen and an ordinary magnetic

 flux. This has been demonstrated in experi-

 ments effected on mice and on organic dyes.

 Appended hereto as exhibit A is a report by

 Dr Henry Guyot, subscribed to before the

 British Vice-Consul at Lyon which shows that if

 three samples of dye, in this case Hydranga

 Blue, are submitted to a light beam of given

 wavelength, the sample which has been sub-

 mitted to the polarized or reticulated flux

 undoubtedly differs from the other two

 samples, one of which has not been treated

 by magnetic flux and the other of which has

 been submitted to a simple magnetic flux.

 

                        ...

 

 Applicant has claimed an apparatus for "polariz-

 ing" magnetic fluxes, which polarized flux has a

 therapeutic effect when used for the treatment

 of living creatures. The apparatus comprises a

 combination of readily available components and

 can hardly be described as contrary to the laws

 of physics. ...

 

                   ...

      The invention is an apparatus for emitting magnetic fluxes; it

 consists of a magnetic flux generator (G) and a nonmagnetic component of

 oriented crystalline structure (9), for example, a polaroid screen. The

 generator consists of a core of soft iron (1) on which a coil (2) is mounted

 to produce a magnetic flux. The flux leaves the left end of the generator

 and passes through the polaroid screen. According to the applicant, the

 flux that emerges from the polaroid screen is modified; this modified flux

 is used to reduce pain in living creatures. Figure 4 shows the arrangement

 of these components.

 

                       (See formula 1)

 

      The Board must therefore decide whether the application represents

 patentable technical progress. Claim (1) reads as follows:

 

[TRANSLATION] Apparatus for obtaining a

continuous pulsating or modified alter-

 nating magnetic flux, suitable for use

 in the treatment of living creatures or

 biological products derived from them,

 and characterized by a combination of:

 

 - a source of magnetic flux;

 

      - and at least one nonmagnetic component

 of oriented crystalline structure inter-

 posed between the source and the creature

 or product to be treated.

 

      During the hearing, Mr Hicks emphasized that the effectiveness of the

 invention was attributable to the polarization or modification of the strength

 of a magnet by means of a polarizing screen placed between the source of the

 magnetic flux and the organism to be treated. He maintained that it was the

 polarized, reticulated or modified magnetic force that produced the new results.

 

Mr Hicks also submitted exhibits A to E, saying they described

experiments conducted with the applicant's apparatus and established its

usefulness. He said that exhibits A, B and C were statements by well known

physicians, setting forth in general terms the satisfactory results they

had obtained using Dr Nogier's apparatus. Exhibits D and E were two letters

addressed to Dr Nogier.

 

   First, let us examine Exhibits A, B and C, which bear the names and

addresses of the physicians, Dr Degraix, Dr Haubursin and Dr Dahour, respectively.

There is nothing on the exhibits identifying them as statements. However, they

do provide brief case profiles of particular patients and describe the location

and type of apparatus used in treating them. The profiles indicate that the

treatments eased the patient's pain. Exhibit A also includes an introductory

page entitled [translation] OBSERVATIONS ON THE POLARTRON. It explains that

the therapeutic application of polarized magnetic energy by means of a

Polartron has always had a satisfactory effect on all kinds of pain. In

Exhibit C there is a brief profile in which the physician says that there was

no appreciable effect on the pain of some patients he treated.

 

   We will next examine Exhibits D and C. Exhibit D is a letter from

Mr Borxeix, Research Director of SIR Internationale. He states that three

rabbits were treated, first using a magnetic field alone and then using the

same field with the addition of polaroids. He reports that the variations

his department recorded in the cortical evoked responses of somesthetic

origin in the awake rabbit were achieved using a system called Polartron

In summary, he says that variations tend to increase in the presence of a

magnetic field combined with polaroids and decrease in the presence of a

magnetic field alone.

 

   Dr Navach, an orthopedic surgeon from California, alludes to

Dr Nogier's patent application in his letter (Exhibit E). He says that

it uses the reticular energy system for treatment. He also says that he

studied the therapeutic effects of an electromagnetic device on rabid coyotes.

The apparatus is equipped with electromagnetic coils, in front of which are

placed sheets of polaroid film. In his opinion, the apparatus had a sedative

effect on the animals lasting a few hours. He adds however that, being

afflicted with rabies, they lived only a few days. He continued his experi-

ments after the animals' deaths by placing a radio receiver inside their

skulls and an electromagnetic device with a reticular field outside their

skulls, in proximity to the radio receiver. He reports that the receiver

picked up a signal. He also reports that a test using a device with electro-

magnetic coils but with no polaroid filter did not pick up any signals.

 

   Dr Nogier said at the hearing that tests done on rabbits indicated

that the use of polarized energy yielded positive results. He added that the

research institute at Lyon had made recordings which had been studied by

experts. He also said that it was possible to prove statistically that there

was a modified flux, even though complete results were not always available.

In summary, he stated that the tests and observations demonstrated that his

apparatus had certain advantages.

 

   Dr Proulx explained that he had observed that, when a polarizing com-

ponent was placed in front of a magnetic field, the field emerging from the com-

ponent was modified to produce what was, in his opinion, a rather concentrated

linear polarization. He added that one of the problems in explaining clearly

the form of energy produced by the applicant's apparatus was the fact that

modern physics did not yet have any means of measuring this force.

 

In his action, the examiner said that such a modified flux could

not really exist. However, he did not submit any documentary reference or

precedent with which he could support his allegations or establish that the

applicant's description of the apparatus and its performance was contrary to

the established laws of magnetics and physics. The inventor, on the other

hand, submitted documents showing that other people, notably Dr Navach and

Mr Borxeix, had used his apparatus and its polarized or modified field and

observed good results. In addition, Dr Proulx testified that he had obtained

good results in his experiments with Dr Nogier's apparatus. In the statement

of biologist Henri Guyot, submitted in response to the final action, Mr Guyot

said that he had received three samples to use in the study of the application

of chromatographic methods, and that Dr Nogier had prepared the samples. The

first sample was treated using Dr Nogier's apparatus, the second was treated

using a magnetic field alone, and the third was not treated at all. Mr Guyot

said that he had determined the optical densities of the three samples on the

same spectrophotometer, at wavelengths of 610 and 615 nanometres. He had

observed that the sample treated using Dr Nogier's apparatus had an optical

density different from the others.

 

   Taking into account the evidence supporting the results of Dr Nogier's

apparatus and in view of the absence of precedents or evidence establishing

that the operation of the apparatus is contrary to the laws of magnetics or

modern physics, we do not think there are grounds for rejecting the applica-

tion. Therefore, we cannot uphold the rejection by the examiner.

 

   During the hearing, the claims were discussed briefly and their

flaws were noted by the Board and the agent. Although the application cannot

be rejected on the grounds set forth in the final action, the claims are

unacceptable in their present form.

 

   We recommend that the rejection of the application be withdrawn

and that the application be sent back to the examiner so that he can request

acceptable claims.

 

(signed)                (signed)                (signed

A McDonough             M G Brown                S D Kot

 

Chairman             Assistant Chairman           Member

Patent Appeal Board

 

   I accept the conclusions and the recommendation of the Patent

Appeal Board and, consequently, I withdraw the final action and send the

application back to the examiner for re-examination.

 

                                                      (signed)

 

                                                    J H A Gari‚py

                                                    Commissioner of Patents

 

                                                  Done at Hull, Quebec

 

                                                   April 30, 1984

 

                                                Agent for the Applicant

 

                                                 Johnson and Hicks

                                                 251 Laurier Avenue

                                                 Ottawa

                                                 K1P 5J6

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