Industrial applicability

Subject matter contrary to established physical laws

8.29 Processes or articles alleged to operate in a manner which is clearly contrary to wellestablished physical laws, such as perpetual motion machines, are regarded as not having industrial application. In considering whether an invention operates in a manner which is clearly contrary to well-established physical laws, the Examiner should consider the material present on the balance of probabilities. If there is substantial doubt about an issue of fact which could lead to patentability, the Examiner should consider whether the evidence provided by the applicant gives rise to a reasonable prospect that the applicant’s theory might turn out to be valid if it were to be fully investigated at a trial with the benefit of expert evidence (Blacklight Power Inc. v The Comptroller-General of Patents [2009] RPC 6). In such a case the application should be allowed to proceed.

8.30 It should be noted that the test set out in Blacklight Power should be applied only where there is “substantial doubt” on an issue of fact. In the case of a claim to a perpetual motion machine, there is no substantial doubt, and as pointed out by the judge in this case, there would be no reasonable prospect that matters would turn out differently on a fuller investigation at trial. An alternative or additional objection may be that the specification is not complete enough to allow the invention to be performed under Section 25(4).