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rejection of the application is withdrawn.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