Petition for Writ of Certiorari — Mitchell R. Swartz, Petitioner v. United States Patent and Trademark Office, et al.

Supreme Court briefNov 15, 2018

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No.

I1MWI

MITCHELL R. SWARTZ,

Petitioner,

UNITED STATES PATENT AND TRADEMARK OFFICE,

ANDREI TANCU, Under Secretary of Commerce for

Intellectual Property and Director of the United States

Patent and Trademark Office,

Respondents,

On Petition for Writ of Certiorari to the

• United States Court of Appeals

for the Federal Circuit No. 18-1122

PETITION FOR WRIT OF CERTIORARI

Mitchell Swartz, ScD, MD, EE

P.O. Box 81135

Wellesley Hills, MA 02481-0001

(781) 237-3625

January 14, 2019

(a) Questions for review Rule 14.1(a)

Has The Court Erred by not being consistent with

Decisions of this court Regarding The Requirement of 35

U.S.C. §145 Claims (Count 1) to Address the New

Evidence?

Has The Court Erred by Ignoring New Evidence of

Probative Declarants Supporting Plaintiffs 35 U.S.C. §145

Claim (Count 1)?

Has The Court Erred by Ignoring -after misdescribingNEW Evidence Supporting Plaintiffs 35 U.S.C. §145 Claim

(Count 1)?

Has The Court Erred by Ignoring past attempted

Exculpatory Behavior by the Defendants including

Systematic Sequestration of Evidence Including DIA and

DTRA Reports?

Has the Court Erred by Ignoring that under U.S.C. §146,

Pat. Appl. 12/932,058 and 09/1750,765 Were Purposely

Misdescribed by Respondents While Evidence was

Systematically not Logged?

Has The Court Erred by Failing to Act Sui Sponsis

Consistent with Law and Justice (including Claims 5-7 912, and 14)?

How is the denial with Prejudice in this case anything

other than planned perpetual evisceration of allegedly

Constitutionally-protected rights?

(b) List of parties

The pro se Petitioner ["Applicant"] is Mitchell Swartz, ScD,

MD, a U.S. citizen and inventor.

The Respondents are the Office of Patent and Trademarks

[hereinafter "Office", "Defendant", "PATO", "PTO" or

"USPTO"] and Andrei lancu (initially Michelle Lee, then

Joseph Matal); the Director(s) of the USPTO, designated

specifically under 35 U.S.C. §145 and 35 U.S.C. §154.

The District Court Judge was Leonie M. Brinkema.

The Panel in the US CAFC were Judge Prost, Newman and

Linn.

Respondent's attorneys of record were Attorney Thomas W.

Krause, Deputy Solicitor [Mail Stop P.O. Box 1450

Alexandria, Virginia 22313-1450]; Attorney Kimere Jane

Kimball [U.S. Attorney's Office, Eastern District of

Virginia, 2100 Jamieson Avenue Alexandria, Virginia

22314].

Petitioner's probative Declarants include:

Prof. David J, Nagel [expert on x-ray emissions from

nuclear weapons and plasmas], Lt. Colonel Robert E. Smith

Jr. USAF (retired) [expert on the impact of technology on

U.S. security], and Dr. Frank E. Gordon [expert on the

impact of technology on U.S. security]; Appendices F,G,H.

111

(ci) Table of contents

(a) Questions for review Rule 14.1(a)

(b) List of parties

(d) Citations of opinions and orders

(e) Jurisdiction statutory provisions and time factors

(f) Constitutional provisions, statutes, and regulations

(g) A concise statement of the case

Gravamen

(h) Arguments

35 U.S.C. § 145 Claim is Supported by New Evidence

Declarations Prove §145 Enablement

DIA Report Proves §145 Enablement

DTRA Report Proves §145 Enablement

Open Demos at MIT Prove §145 Enablement

Scientific Articles Prove §145 Enablement

Defendant's Attempted Exculpatory Actions

Decision Ignores Systematic Misdescriptions

Decision Uses Fruit of the Poisonous Tree

NEW Evidence Has Been Ignored

Old Evidence Remains Substantively Ignored

Decision Uses Fruit from the Poisonous Tree

Decision Usurps Rights into the Future Forever

Decision States No Utility Despite Declarations

Decision Falsely States 'An Absence of Response'

Decision Mistaken About '381

Decision Ignores Obligations Owed

Decision is Mistaken about Claims 5-7 9-12, and 14

(i) Law overlooked or misapprehended

(j) Conclusion

Appendices

Appx. A Opinion and Judgment

Appx. B -Order Denying Entry of pro se Memorandum

Appx. C Denial of Rehearing

Appx. D Order 1:17-cv-482 August 22, 2017

Appx. E Order 1:17-cv-482 Sept. 7, 2017

Appx. F Declaration of Dr. David Nagel

Appx. G Declarations of Robert Smith

iii

Appx. H Declaration of Dr. Frank Gordon

Appx. I DIA Report (excerpts)

Appx. J DTRA Report (excerpts)

57-58

(c2) Table of cited authorities

Article I

Article III

Bivens v. Six Unk. Named Agents, 403 U.S. 388 (1971)

Braaten v. Deere, 1997 ND 202, ¶9, 569 N.W.2d 563

Cheney v. US, DC (03-475) 542 US 367 (2004) 334 F.3d

1096).

29,33

Defense Analysis Report DIA-08-09U-003, Nov. 13 2009

Diamond v. Chakrabarty; 447 U.S. 303, 309.

2,30

Duncan v. Louisiana

10,11,28,30

Ex parte M. Swartz; App 2009-1853, App. 10/646,143

Gonzalez v. United States, 284 F.3d 281,288 (1st Cir.

2002)

Hickman v. Taylor (1947) 329 U.S. 495, 507

In re Brana, 51 F.3d at 1566, 34 USPQ2d at 1441

8,13,16

In re Hogan, 559 F.2d 595, 60S, 194 USPQ 527, 537

(1977).

13,17

In re Oetiker, 977 F.2d at 1445, 24 USPQ2d at 1444.

In re Swartz, 232 F.3d 862, 864 (2000)

23,24,26

Kappos v. Hyatt,

2,10

Lewis v. Bours, 119 Wn.2d 667, 670, 1992.

9,14,27,30

Mayberry v. Penna.

10,11,28,30

McNeil v. U.S., 508 U.S. 106, 113 (1993)

N. Dakota Sup.Ct Opinions, Nastrom v. Nastrom, 1998

S. Rep. No. 1979, 82d Cong., 2d Sess., 5 (1952)

2,30

H. R. Rep. No. 1923, 82d Cong., 2d Sess., 6 (1952)

2,30

.IN THE

J~uyre=Caurt of ttitette

On Petition For A Writ of Certiorari to the

United States Court of Appeals

For The Federal CircuitNo. 18-1122

PETITION FOR WRIT OF CERTIORARI

pro se Petitioner respectfully prays that a writ of

certiorari issue to review the judgment of the US

court of appeals which appears at Appendix A in the

present petition.

(d) Citations of opinions and orders

The relevant Agencies have been the court of appeals

[United States Court Of Appeals For The Federal Circuit

("CAFC"), the civil court in Virginia, and the Patent Trial

and Appeal Board [PTAB].

This Petition seeks relief from the Opinion and Judgment

["Decision"] in Swartz vs USPTO and lancu in the CAFC

[No. 18-1122; Decided: July 17, 2018]. It is an Appeal from

the US District Court for the Eastern District of Virginia,

Alexandria Division [No. 1:17-cv-00482 -LMB-'TCB].

The Decision [Judgment] of the court of appeals [CAFC]

appears at the end of this Petition, in Appx. A; and was

published before the pro se Petitioner even received a copy.

The Orders appealed from are in Appx. B and C. The

Orders of the lower court are in Appx. D and E. The

Figures are from the CAFC pleadings. Selected excerpts of

other pertinent papers in the pleadings follow in the

Appendix and are cited herein. Those references to the

CAFC Appendix Accompanying the Opening Brief of the

pro se Appellant are labelled similar to "Appx53". The

previous Petitions for Writ to this court discussed are 001191 and 03-1565.

(e) Jurisdiction statutory provisions and time factors

This Petition involves a direct grants of authority made

under Art. I, §8, ci. 8 of the United States Constitution and

Article III, Article VI, the 5th and 14th Amendments, and

35 USC §145 and §146. The systematic violations of either

Art. I, §8, ci. 8 or the directives of Congress are sufficient to

satisfy the "arising under" jurisdictional authorization of

Article III. For the above reasons, the United States

Supreme Court should consider to exercise its supervisory

power [Marbury V. Madison, 1 Cranch 137, 177 (1803)].

The date on which the court of appeals decided Petitioner's

cases was June 17, 2018. A timely petition for rehearing

was submitted and was thereafter denied by the court of

appeals on August 22, 2018.

(f) Constitutional provisions and statutes

Art. I, §8, ci. 8 reads:

"Congress shall have Power (t)o promote the

Progress of Science and useful Arts, by

securing for limited Times to Authors and

Inventors the exclusive Right to their

respective Writings and Discoveries".

The Patent Act of 1793, authored by Thomas Jefferson,

defined statutory subject matter as "any new and useful

art, machine, manufacture, or composition of matter"

Act of Feb. 21, 1793, 1, 1 Stat. 319.

Said Act embodied Jefferson's philosophy that "ingenuity

should receive a liberal encouragement." [447 U.S.

303, 309].

Thereafter, Congress has spoken to "encourage

progress" [Diamond v. Chakrabarty], encourage ingenuity

[447 U.S. 303, 3091, and has defined patentable statutory

subject matter to include "anything under the sun that

is made by man." [So Rep. No. 1979, 82d Cong., 2d Sess.,

5 (1952); H. R. Rep. No. 1923, 82d Cong., 2d Sess., 6 (1952)]

including inventions involving energy production, efficiency

and monitoring.

Congress has also directed that the Office shall respect Art.

I, §8, ci. 8 [Patent Act of 1952, 35 u.s.c 1031:

"Patentability shall not be negatived by the

manner in which the invention was made."

This court previously clarified the scope of 35 U.S.C. §145

proceedings in its April 18, 2012, unanimous decision in

Kappos v. Hyatt, and held that Evidence not submitted to

the Patent and Trademark Office during prosecution is

admissible in a civil action brought against the Director of

the PTO under 35 U.S.C. §145 subject only to the

limitations imposed by the Federal Rules of Evidence and

the FRCP.

(g) A concise statement of the case

1.The Petitioner is a US citizen, resident of Massachusetts,

a physician, electrical engineer, inventor, and a former

honorary Deputy Sheriff in Middlesex County, MA. As a

successful inventor, he has been issued other Letters

Patents [US 4,407,282, 4,402,318, 4,346,172, 4,305,390,

4,243,751, 4,181,128, and 4,139,348; UK 1,564,520 Canada

1,085,723, France 76-3576]. Ironically, he also assisted the

teaching of patent law at MIT under the late Patent

Attorney Robert H. Rines.

Petitioner ["Applicant"] filed more than ten patent

applications to the U.S. Patent and Trademark Office

involving clean energy production which is safe, producing

no carbon emissions, toxicity, or radioactivity. These

inventions make, monitor, and measure, the generated heat

quietly and efficiently, and generate electricity [shown

schematically in Figure 1, and discussed in the Patent

Appendix (CAFC Appx53)]. Heat means ordinary thermal

energy used to heat homes and purify water in industrial

labs and hospitals, worldwide. The heat is made locally in a

water tank, or using the dry variant on a circuit board, for

use on a satellite, submarine, or distributed homes and

neighborhoods with no need for a central controlled

distribution. Some of the Plaintiffs patent applications

were made "SPECIAL" by the Board of Patent Appeal

because of their importance decades ago.

Patentability is supposed to be determined on the totality

of the record, by a preponderance of the Evidence with due

consideration to persuasiveness of argument. In these

cases, Petitioner (then Applicant) took the time and effort

to strongly rebut the Defendant's mistaken,

unsubstantiated opinion. He responded in full supplying

sterling and precise Evidence, including scientific

publications, and sworn Declarations which went into

considerable detail. There is documented proof that the

Petitioner (then Applicant) undertook the full burden of

coming forward with his evidence, as required [In re

Oetiker, 977 F.2d at 1445, 24 USPQ2d at 1444]. In each

and every case, the evidence was ignored.

4. As shown in the photographs with, and explicitly

discussed in, the Complaint, each time Evidence was

received by the USPTO before FINAL, for more than a

dozen specific cases, it was systematically and deliberately

ignored or misdescribed. Instead of an appropriate

response, the Defendants substituted non-docketing, latedocketing, mislabeling, sequestration or ignoring of

Evidence, falsely claiming fees were not paid, and the like.

In each case the evidence was ignored, lost, and in some

cases, later misdescribed, as discussed in detail in the

Complaint, the supporting pleadings, and in the Scientific

Publication, DIA/DTRA, and Denial of Field Appendices

[CAFC Appx71, Appx62, Appx79].

Fuel from hydrogen

Measurement of

Loading [1258]

f Heat \ \

))

110.0

Motors

Electricity [1143]

Improved Materials

[Dry, for portable cell

phones ['381]

<D Activation ['765] ['691]

Alternate Reactions

> from Heat for

Detection and Mitigation

['6431

Improved Support

and Control

['058]

Figure 1

Schematic overview of several inventions,

described herein, that make heat efficiently; and have also

been used to generate electricity and drive small motors.

In Figure 1, the roles of each patent application is shown by

its position in the figure; one measures loading (entry of

fuel), another two control the reaction, while others detect

the output, or convert the output heat to electricity.

Appeal to the Patent Trial and Appeal Board [PTAB]

previously directed the Petitioner (then Applicant) to report

the failure to log materials and other corruption to the

Commissioner through a Petition to the Commissioner.

"(S)uch a matter of discretion is reviewable by

petition not by an appeal to this Board (see

Manual of Patent Examining Procedure

(MPEP) § 1002 and 1201), and therefore is not

within our jurisdiction.". [Ex parte MITCHELL

R. SWARTZ in Appeal 2009-001853, Application

10/646,143, DECISION ON REQUEST FOR

REHEARING, Feb. 22, 2011].

Details are in the Compliance Appendix (CAFC-Appx89).

The Petitioner, then Applicant, thereafter, did obey the

PTAB, including following said Decision of Appeal 2009001853, Application 10/646,143, in the DECISION ON

REQUEST FOR REHEARING made Feb. 22, 2011. The

Plaintiff repeatedly filed the appropriate Petitions to the

Commissioner and thereafter sent more than seventeen

Petitions to the Commissioner of Patents (Defendant) as

the USPTO PTAB directed, just during the period of 2015

to 2016 alone [Confer CAFC-Cornpliance Appendix].

Plaintiff did exactly what the PTAB required. These

were all ignored by PATO and then the court.

Petitioner watched, as discussed in the Complaint, as one

of his inventions, which allegedly "does not work" for him,

was at a later time issued to a Japanese automobile

company. Notice the later date [Nissan Motor Co., Ltd., US

8247122 B2, on Jul 8, 2004] even though Plaintiff was first

to submit, and unlike Nissan, Plaintiff actually submitted

data, clear claims, and a far more definite application on

said relevant subject matter.

Petitioner watched, as discussed in the Complaint, as he

was subjected to special BIAS. Other Applicants have been

issued patents in this very field from other Group Arts

evaluating patent applications [as discussed in the Deci. of

Lawrence Forsley, and confirmed in Exhibit 59].

On April 19, 2017, Petitioner filed a civil action against

the Director in the Eastern District of Virginia, in

accordance with 35 U.S.C. §145 [Swartz vs Matal -No. 1:17cv-4821 with an explicit demand for a jury Trial. Petitioner

asked the court in the Eastern District of Virginia to

examine the record in a sui generis statutory review regime

that is distinct from review under other provisions of law

because although the Federal Circuit's review in a §141

appeal is expressly limited to the record before the Board,

however Section §145 includes no such express limitation.

This would also enable the entry of material which the

Defendant previously, sub rosa, did not log. This would

thus also correct the previous corruption, and

discrimination, and usurpation of Constitutional and civil

rights by PATO over almost 3 decades.

The Complaint and pleadings were specific, substantive

and with sufficient facts, and precise specific allegations.

The Petitioner clearly described his claims including

Constitutional violations. Several types of new Evidence

were submitted. NEW evidence included Declarations

[Appx F, Appx G, and Appx H] sworn under pains of

perjury, and old evidence (***** some of which was

previously sequestered by the Respondents including DIA

and DTRA Reports and Scientific Publication confer Appx

I and Appx J).

(*****) As a result of the pleadings, the present Exhibits also include

the Affidavits and Amicus Curiae briefs from '937 and '258, previously

before this court. Some of the Declarants have since passed away,

including the late Drs. Mallove, Dr. Fox, Dr. Bass, Dr. Talbot Chubb

and they deserve a voice in this official venue to this very important

discussion of Evidence, proving the Defendant is wrong in its 3 decade

rejection of patents in a field despite evidence (like treatment of

baldness and lasers were shrugged off).

The Respondent has not refuted even one fact in said

above-entitled Complaint, which therefore should have

been taken as true.

The Decision has wrongly accepted the Defendants'

counsels' factually false statements as accurate and

truthful while overlooking both the Complaint and facts in

the record, as discussed in the pro se Plaintiffs pleadings.

Gravamen

Claim 1 under 35 USC145 is supported, on operability

and utility, by solid NEW Evidence overcoming the Office's

continual, proven wrongful, unfounded opinions built upon

factually false statements and mischaracterizations.

Several types of Evidence were submitted. As required,

some of the submitted evidence is NEW, and was also

supported by older evidence including proof that previously

submitted evidence was not logged and ignored (****).

For simplicity, a few examples include supporting

credible US agencies [Defense Intelligence Agency (DIA),

the Defense Threat Reduction Agency (DTRA)] and

Declarations sworn under felony of individuals with

probative value, and scientific peer-reviewed publications

published in the American Nuclear Society's Fusion

Technology, Current Science, and the Journal of Condensed

Matter Nuclear Science (JCMNS).

(****) The NEW evidence reveals that previously submitted

Evidence to the PTO has systematically not been logged (confer

Complaint for several photographed examples) nor ever

substantively addressed, presumably because said evidence

positively discusses the Petitioner's (then Applicant's)

technologies, and the PTO cannot rebut them. In fact, said

Evidence indelibly shows that Plaintiffs facts were correct at the

time of the filing and are correct now, whereas the Defendant's

unsupported, non-factually-relevant opinion is not accurate

and has been made only by ignoring the Evidence.

Said several types of NEW evidence have probative content

which is a tsunami in overcoming the Defendant's

unsupported, invalid opinion [consistent with 35 USC145].

Therefore, the pro se Petitioner demonstrated significant

Evidence and justifiable reasons for not dismissing this

case.

(h) Arguments

The major gravamen is that the Supreme Court held

that the district court hearing a §145 action must make a

de novo finding "when the new evidence is presented

on a disputed question of fact". That did NOT happen

in this case despite several types of solid NEW evidence

which were presented on the disputed question of fact

(****)

Claim 1 under 35 USC 145 is supported by the proven

operability and wide utility of the invention as corrborated

by solid new Evidence which overcomes the Office's proven

wrongful, unfounded opinions. Attention is directed to the

fact that any one of the DIA and DTRA Reports, the open

demonstrations of the Plaintiffs inventions at MIT, his new

peer-reviewed articles, and the new probative Declarations,

--in a fair court or with a jury-- would be quite MORE than

sufficient [In re Brana, 51 F.3d at 1566, 34 USPQ2d at

1441] to meet the

"burden shift to provide rebuttal evidence

sufficient to convince such a person of the

invention's asserted utility".

...

(****)

Instead, on 8/22/2017, the court dismissed the action

without even a single in-person Hearing, without permitting the

Plaintiff to respond to the Defendant's Reply [Pleading 29]

containing factually false statements which was received by

mail, by no coincidence, on the very same day.

17. Despite the NEW Evidence, the flawed Decision ignores

and does not substantively address the actual submitted

NEW Evidence. In its stead, the Decision mislabels old

evidence as "NEW Evidence" and simply ignores the New

Evidence (which is the basis of the Complaint in the first

place).

As importantly, it cannot be determined which if any of

these submitted averments and Declarants regarding

utility and operability (meeting the two prongs of the legal

"enablement") were formally considered by the Court.

18.Except in a 'banana republic', an honorable court is

legally obligated to assume that the Complaint's assertions

are true [Lewis v. Bours, 119 Wn.2d 667, 670, 1992]. That

has not happened here. Instead, the Decision has ignored

the Complaint, the record, and the NEW submitted

Evidence (*****)

The Decision is inconsistent with the record, and has

ONLY been made by ignoring the Arguments [and the

growing conferences, the Declarations, and researchers,

and the open demonstrations, and the courses, and the

development of Petitioner's papers and products].

With impropriety, the Decision was rubberstamped

containing obvious false statements on federal documents

in violation of 18 U.S.C.1001. This is done in lieu of

responding fully and completely and truthfully to

submitted Evidence and Affidavits and arguments which

show the PATO opinion is dead-bolt wrong.

This ignoring of evidence seems to be pathologic here. The

etiology is that the Evidence MUST be ignored to maintain the

factually false claims of putative "lack of operability" or "enablement"

under 35 U.S.C. §112, ¶1 and "lack of utility" under 35 U.S.C. §101.

They have only been made by ignoring the growing papers and

conferences, and the large number of researchers, and the open

demonstrations, and the courses teaching the technology, and the

developing products, and the timely-submitted unrebutted

Declarations.

Similarly, attention of the court is directed to the fruit

of the poisonous tree used by the Defendants. It has been

rubberstamped by the court, along with factually false

statements, under color of federal law [Osborn V. Bank of

United States, (9 Wheat) 738 (1824)] and in defiance of

Congress.

This Court should have had substantial interest in pretrial discovery to facilitate the search for truth and promote

justice (Hickman v. Taylor (1947) 329 U.S. 495, 507) in this

matter. But it did not. Simply put, a court investigation is

either one of two things; it is either a search for the Truth

or —as with the Decision- a farce, and obstruction of justice

which in this case has created a rotten apple located below

the "poisonous tree".

As a result of the above, the Decision conflicts with

previous law and rulings, it conflicts with the relevant

decision of the US Supreme Court, and has far departed

from the accepted and usual course of judicial proceedings.

Most importantly, the Decision ignores Kappos v. Hyatt,

which absolutely held that —apparently only for some

Americans- the district court hearing a §145 action must

make a de novo finding "when the new evidence is

presented on a disputed question of fact". That reasonable

response to submission of new evidence (also PROVING

VIOLATIONS OF ALLEGED CONSTITUTIONAL

PROTECTIONS OVER THREE DECADES) did not occur

here. There are no coincidences here.

Despite 35 USC §145, new Evidence was ignored,

including submitted Declarations, heralding systematic

federal violations of due process and denial of the right to

an impartial tribunal [28 U.S. Code Section 144, Mayberry

v. Penna.; Duncan v. Louisiana]. Thus, if allowed to

remain, the Decision has created an indelible arbitrary twotier "standard of review" for patentability based upon

systematic failure to enter and address timelysubmitted Evidence, and subsequent factually false

statements.

The Decision ignores that the Defendants have made

several attempts at exculpatory behavior. In just one

application, first, the Defendants said the received

Evidence and responses were allegedly "not received", then

allegedly "not legible", then finally declared "lost".

The Decision has decimated the Petitioner's

Constitutional rights and is essentially encouraging him

and other inventors to submit their inventions to other

countries first because they have already been more

receptive for years.

Claims 2 and 8 are obvious Constitutional (and other)

violations. These claims should be of interest to the court

because of the Defendant's history of factually false

statements, and other wrongful attempted-exculpatory

actions. If not fixed, this will continue to impact negatively

on the patentability of other inventions which have great

importance for the energy production needs and security of

the United States of America.

35 U.S.C. § 145 Claim is Supported by New Evidence

35 U.S.C. § 145 requires the court to address the new

Evidence. It never happened. Instead, the NEW evidence

was ignored and mislabeled. Instead, here, the Decision

"rubberstamps" factually false statements rather than its

full duty of "making a de novo finding when the new

evidence is presented on a disputed question of fact". As one

example of proof, the Decision falsely states:

"Second, the new evidence submitted by Swartz does

not cure the lack of enablement or utility. The new

evidence comprised reports by the Defense Intelligence

Agency ("DIA",), Defense Threat Reduction Agency

("DTRA'9, and other scientific articles.

First, this is untrue because these reports [Appx I and J]

are NOT the "new evidence". Said reports are OLD

EVIDENCE which were not logged as shown in many

figures of the court-ignored Complaint. The types of

evidence are listed clearly in the complaint but ignored for

reasons which remain unclear.

29. Second, this is untrue because the several types of

probative evidence include Declarations [Appx F, G, and H],

working components, publications, discoveries [cf.

Complaint; averments 90-93, pages 45-47], information

about the open demonstrations at MIT lasting months and

student courses that resulted [Figure 2], and even the

award of the 2018 Preparata Medal from the International

Society of Condensed Matter Nuclear Physics to the

Petitioner [Figure 3 -as an International award for the

inventions which the Defendants purport "do not exist"].

Theoretical LANR Explanations

7 scientific peer-reviewed PHUSOR®-type Systems

papers

with excess power gains

Quasi-i-Dimensional \

of 500% 2003

Model of Isotope

\ 16 peer-reviewed papers

Loading 1989

Phuson theory 1994

Solid State Working

LANR Systems

9 peer-reviewed papers ,

CMORE Spectroscopy

3 scientific peer-reviewed.

papers 2017

LANR Experiments with Other Laboratories

9 scientific peer-reviewed papers

LANR Education Courses

3 peer-reviewed papers 2012

FUTURE PROVES PAST

FIGURE 2

Courses, Affiliated Work, Discoveries,

Scientific Papers, and new Products have resulted from

these Inventions proving utility many times over. There is

much utility despite the attack by the Defendant.

Mitchell Swartz

GuLIANO PRPARATA

MEDAL

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siow,e infecagnmon CohM ContgXAMS

TKJ$ In hyfru*i boded

hi hi. ,hidy of

m.tobL

ly th

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Figure 3 The 2018 Preparata award and medal given to

the Applicant on June 7, 2018 for three inventions now

before the court which the Defendants falsely, repeatedly,

and only by avoiding exculpatory evidence, purport "do not

exist".

Third, this is untrue because said NEW evidence not

addressed in the Decision clearly satisfies the two prongs

of enablement (a legal verdict) because it demonstrates

operability and utility [In re Hogan, 559 F.2d 595, 60S, 194

USPQ 527, 537 (CCPA 1977)].

Specifically, ignored in the Decision is that the DTRA

report describes the Petitioner's work over many pages

showing BOTH operability and utility.

Also ignored, not even mentioned, are two open

demonstrations of these inventions at MIT.

Said NEW evidence, certainly taken together, is MORE

than sufficient [In re Brana, 51 F.3d at 1566, 34

USPQ2d at 1441].

Declarations Prove §145 Enablement

32.

Importantly, the Decision is wrongly void of

substantive discussion of the Declarations even though the

submitted Declarations addressed with specificity,

substantially and extensively, all matters and all issues [[

re Gazave; In re Chilowsky; In re JOLLES] and were

discussed repeatedly in the Complaint.

33.The court is legally obligated to assume that all

Declarants assertions are true [Lewis v. Bours, 119 Wn.2d

667, 670, 1992]. That has not happened. Instead, they

have just been IGNORED heralding impropriety.

In this case, the court has erred by failing to consider the

submitted Declarations from the skilled-in-the-art who

counter the rejection under 35 U.S.C.101. Why? Because

only a single affiant is required to prove utility, which is a

"fact" issue. As one example, Dr. Nagel stated that he

"observed the technology described by Dr.

Mitchell Swartz during his open demonstration

of the high-impedance aqueous PdlD20/Pt

Phusor(®-type component) in MIT in 2003 at

the 10th international meeting (1CCF-10).

was recently awarded the Preparata Medal by

the International Society for Condensed Matter

Nuclear Science for his many and important

contributions to the field of LENR."

...

III

DIA Report Proves §145 Enablement

34. The DIA (Defense Intelligence Agency) Report [Appx I]

is a Defense Analysis Report [DIA-08-09U-003, November,

13 2009] which explicitly opposes the Defendant's outdated

opinion. It explicitly mentions Petitioner's technology along

with that of the Navy SPAWAR group, SRI International,

and the China Lake Naval Air Warfare Center in

California.

DTRA Report Proves §145 Enablement

The DTRA Report [Defense Threat Reduction Agency

High Energy Science and Technology Assessment [FINAL

REPORT, June 29, 2007, [Appx J] explicitly opposes the

Defendant's outdated opinion, including on Page 28 where

after many pages on the Petitioner's technology it states in

the (now Declassified) conclusion:

"There is good evidence of excess heat

and transmutation"

This DTRA report was issued after Petitioner presented

his technology at a classified meeting. The next day, after

said meeting, DTRA began taking proposals and contracts

in this field

which the Defendant falsely says does not

exist. The US Navy was one of the first to have its proposal

accepted. Petitioner's PHUSOR®-type component was

pictured on the front page.

Attention is directed to the fact that the Decision falsely

purports:

"Although these reports may help plaintiff plausibly

allege the scientific possibility of future LENR

technology, they do not help him plausibly allege the

current operability necessary to show patentability."

This is not true for many reasons. It ignores both Reports.

The Decision cannot honestly minimize the real importance

of the DIA and DTRA reports (confer DIAIDTRA Appendix

(Appx62)) or even one of the following facts.

First, this is not true because IT IS A FACT that almost

half of the DTRA Report (2009) presents actual working

outputs of heat and electricity from the Petitioner's

technology.

Second, this is not true because IT IS A FACT that these

Reports positively discuss the Plaintiffs technologies.

Reconcile that with the fact that because the Defendant

cannot rebut them, it tricks the court to misdescribe them.

Open Demos at MIT Prove §145 Enablement

The gold standard in the scientific community has been,

and is, an open demonstration followed by a peer-reviewed

publication. The Petitioner did exactly that, and it was

ignored even though the two open demonstrations by the

Petitioner were highly relevant and conducted in the

Department of Electrical Engineering at the Massachusetts

Institute of Technology [MIT, Cambridge, MA], a reputable

institution. These demonstrations at MIT attracted many

scientists interested in the invention, proving utility.

Even videos are online. Thereafter, both demonstrations

each had "write-ups" and after peer-review were published.

The publications were submitted to the Defendant over and

over as demonstrated in the Complaint, and each time the

content was ignored and not addressed (inconsistent with

the Rules, and normal expectations).

Furthermore, working successful components based on

these inventions have enabled many working CF/LANR

systems, and secondary generated scientific papers, and

even courses, as shown in Figure 2 (****).

As the Declaration of Lawrence Forsley states:

"In my opinion there is utility to inventions in

this field.

Dr. Swartz' NANOR® and

PHUSOR® type devices exhibit positive

thermal gain and by scaling up would be

militarily and commercially useful."

...

(****) The Defendants purport the "mainstream"/"majority"

of people

say CFILANR 'does not exist'. Reconcile their lack of an honest poll with

the repeated hot fusion failures over seven decades, losing billions of

dollars, now with only radioactivity and neutrons looking forward to the

future. Compare that to the success, albeit with considerable difficulty,

by several methods, of clean nonradioactive CF/LANR. This is conflict

of interest empowered and continued under color of Law.

Plaintiff's two open demonstrations, and his submitted

peer-reviewed articles and Declarations, saliently prove

that the inventions operate as indicated and are capable of

providing a useful output, and thus are MORE than

sufficient [In re Brana, 51 F.3d at 1566, 34 USPQ2d at

1441] to meet the "burden shift

to provide rebuttal

evidence sufficient to convince such a person of the

invention's asserted utility".

...

Scientific Articles Prove §145 Enablement

The scientific publications in Current Science and

Fusion Technology (of the American Nuclear Society), the

Journal of Condensed Matter Nuclear Physics, and other

publications, are all peer-reviewed by the foremost

authorities in the field and accepted internationally are

wrongly ignored. In an unbiased venue, such peer-reviewed

publications (like the timely submitted Declarations)

establish facts and NEW Evidence which prove Plaintiff

was correct on the filing date of the application, and has

met the bar of enablement [In re Hogan, 559 F.2d 595, GOS,

194 USPQ 527, 537 (CCPA 1977)]. These scientific

publications are sufficient to show the salient operability

and definiteness of this invention. The PTO has no basis

for impugning them and so just ignores it all, as does the

disingenuous Decision with the appearance of impropriety.

Defendant's Attempted Exculpatory Actions

To avoid the actual facts which prove Respondent's

opinion wrong, they have misdescribed many things, have

removed timely-submitted evidence, have brazenly issued

factually false statements, have attempted wrongful

exculpatory actions, have systematically ignored Laws, and

now comfortably rely on the fruit of their own poisonous

tree.

Decision Ignores Systematic Misdescriptions

The Decision is wrongful because it rubberstamps the

Respondents pleadings and mischaracterizations of the

actual patent applications, calling them all the same, and

calling all of them as "cold fusion". This is nothing but a

euphemism to deny Constitutional rights to Petitioner

with a usual 'hand-wave' demeaning, and ridiculing, a

major part of his life's work on clean energy production.

Plaintiffs invention's in this field have NOT been

"examined", because there has been essentially one, and

only one, response from the USPTO. They repeatedly have

said: "It is another disclosure exactly like Fleischmann

and Pons (F+P) i.e. cold fusion." And therefore does not

exist. And therefore has no utility.

The Defendants use the terms "cold fusion" to avoid

responding to arguments, data, evidence (old and NEW).

Yet, as shown in Figure 4, there is almost no overlap. How

could ALL of the patent applications be the same as F+P?

The different applications are NOT all the same, and not

one of them is F+P. Any fifth grader can recognize that

each of the inventions cannot all be the same, cannot all be

'F+P' as the Defendant purports.

Therefore, the flawed Decision has no foundation except a

web of factually false statements- which it has

rubberstamped.

This Decision is wrongful because it is an uncontested

fact that ONLY the claimed invention should be the focus of

the Office review. Enablement must be judged on this

invention's original specification and claims. In this case

that did not happen. Rather, in each case the invention

has been misdescribed. Specific examples are in the CAFCWrong Description Appendix.

This wrongful because these inventions are what is written

in the original specifications and not what the Defendant

imagines in its proven mischaracterizations. These patent

applications are not about what Fleischmann's and Pons'

reported disaster in 1989 known as "cold fusion" ["F+P"].

Rather, these are very different inventions and different

claims. Only two materials overlap. What is described in

THESE applications was never filed by F+P, and was never

described by them. THESE inventions include an improved

calorimeter, an improvement to optimize output of a heat

producing system, new improved diagnostic techniques, a

new method to measure loading (which the USPTO gave to

another applicant who filed later), a new way to propel cars

and heat homes, and new methods to benefit the United

States by making quieter heating (which helps submarines

remain stealthy), by making energy production cheaper, by

making water cleaner through boiling more cheaply, and

possibly even by mitigating some nuclear materials.

Three examples of the egregious misdescriptions are below:

i. Application number '258 was originally called '937. It

involves a vibrator to measure loading [the amount of

hydrogen in a metal electrode]. The Office misdescribed it

and wrote fraudulent case law about it ["In re Swartz"]; and

now the poisonous tree keeps bearing 'fruit' for their

agenda(e) to destroy American security and clean energy

production. Confirming this are the Exhibits are the

Affidavits and Amicus Curiae Briefs from '937 and '258,

previously before the federal appellate court. Also

confirming this, in Exhibit 64, the Appeal Brief of '258 the

misdescription of the invention and failure to consider

Evidence submitted are discussed, including on pages 51-53

& 212, and 42-44, respectively. Some of the Declarants

have since passed away (Dr. Mallove, Dr. Fox, Dr. Bass, Dr.

Talbot Chubb) and their erudite voices finally deserve

voice.

- CD

Double Bubble Map to Compare and Contrast Petitioner's Inventions with "F+P"

Inventions of Petition

Courses and

Videos Online

)

(EIecical

Resistivity)

Lithium

Inventions of"F+P"

Common Qualities (L \ 7

(Ele1

JI7

ith ium1 Resistis

High

Voltage

Drive

CDm

Peer-reviewed

Publications

Successful

Research and

Useful

Components

Low

Voltage

by USPTO

Drive

"F+P`1

Process

lainti~fef"s

(Inventions

Use of

Palladium

Perceived

as Failure

and

Heavy Water

Reproducible

Two

uccessful

Open

(

Dem,onstratic

— CD

Called

"cold fusion

at MIT

Demonstration)

7 Not

( Reproducible

There is very little overlap of common qualities between inventions of the

above-entitled Petition versus the process described by Drs. Fleischman and Pons ('P+P").

ii. Application '058 was originally '457, and is a calorimeter

used to measure generated heat. It should matter that '058

is a heat measurement system which is applicable to

obstetrics, space travel, and laboratory use. It has not. The

Defendant misdescribed it, and also wrote fraudulent case

law about it. To explain this further are Exhibits 27

through 30. In Exhibit 63, the Appeal Brief of '058 shows

the misdescription of the invention and failure to consider

Evidence submitted are discussed, including on pages 108,

and 86,104, 117 & 212 respectively. Defendants'

misbehavior is discussed, including on pages 225, 237, 240,

and 244.

iii Application Serial No. No. 09 1750,765 was similarly

misdescribed by Office. To explain this further are Exhibits

31 through 51 which describe the actual case. It should

matter that '765 is a measurement of hydrogen loading into

a metal which is applicable to metallurgy, medicine, and

automobiles' energy production. It has not.

45. This Decision is wrongful because although discussed in

the Complaint, including on page 13 and Exhibits 27

through 62 {confer the Wrong Description Appendix for

more details}, these systematic mischaracterizations are

ignored by the court with a growing cloud of impropriety.

46.This Decision is wrongful because this is not

substantively addressed, but instead used maliciously and

cruelly to deny allegedly Constitutionally-protected rights.

Decision Uses Fruit of the Poisonous Tree

47.The Decision is factually, ethically, and Constitutionally

wrong about the relevance of collateral estoppel. For

example, relying on its poisonous tree, the Decision

disingenuously states:

"Neither the new references nor the elimination of

explicit reference to cold fusion avoids the application

of collateral estoppel."

Regardless of how the

applications are described, however, the nearly

identical claims presented in the '058 and '765

applications have already been determined in Swartz

I and Swartz II to be within the realm of the

inherently unbelievable and, therefore, unpatentab le"

Unbelievable to who? The lobbyists? Hot fusioneers?

It is believable to those who read the articles and use the

components and went to the open demonstrations. Again,

attention is directed to the fact that the Defendants rely on

the fruit of THEIR fabricated 'poisonous tree' and ignore

the open demonstrations by Petitioner (and others).

NEW Evidence Has Been Ignored

48. Most egregiously, this is wrongful because USC 145

enables the entry of new evidence; making this a

completely different case de novo. There are new materials

and evidence --including additional new evidence that

submitted information was removed in the decisions of '970

and '765, so said continuations are not the same. Said new

material was not available at the time of the previous

applications (these are continuations) and the added newer

material includes new declarations, new evidence of open

demonstrations, new scientific results, and new peerreviewed scientific publications. None of this was in any

previous action.

Thus, this Decision is wrongful because there are different

issues in the docket for the two cases for any of several

reasons. And USC 145 enables the entry of new evidence,

such as here, making this a completely different case, and

one that the US Supreme court said IS appropriate for this

court.

Old Evidence That Remains Substantively Ignored

Another proof the Decision is wrongful is that the

previous case was not fairly litigated. None of this was in

any previous action. Therefore, the Petitioner never had an

opportunity in earlier litigation for a full and fair

opportunity to litigate because the materials were not

docketed, and because the materials were never responded

to, and because the inventions were misdescribed.

This is further discussed in Exhibit 63, including on pages

158 and 161. Also, it is discussed in the Complaint,

including on page 97. Simply put, the previous odious

irregularities wrought by the Defendants were only

discovered AFTER the Appellate court, and is discussed in

the Complaint, including on page 100 where a docket

showing belatedly inserted '1/2' numbers, but substantively

ignored by the court. It is also discussed in more detail

when it was first serendipitously observed [Plaintiffs

Exhibit 65 Petition for Panel Rehearing [00-1107]]. Even

more salient confirmation is in the previous Petitions for

Writ 00-1191 and 03-1565. No wonder a jury is not allowed

to see the evidence and why lawyers are never sworn under

pains and penalties of perjury as are the Petitioner and

Petitioner's Declarants.

NOTA BENE

The original inventions were

deliberately misdescribed by the Defendant not even using

the words in the original specifications to create their fruitbearing poisonous tree. As one example, look at Appellant's

Reply Brief in 00-1107 (June 15, 2000) on pages 16 and 17.

It is also confirmed in Tables 1 and 2 in the previous case

before this court.

This could not possibly be a repeat of a previous FAIR

court trial because previously there has been sequestration

of Evidence.

Therefore, this has the appearance of

impropriety, and is presented solidly in the Complaint,

corroborated by Exhibits.

Decision Uses Fruit from the Poisonous Tree

The court disingenuously states: "Both the USPTO and

the Federal Circuit have long believed that LENR

technology is presently inoperable. See, e.g., In re

Swartz, 232 F. 3d at 864..."

This factually false statement is fruit of the poisoned tree

which is why this case was brought to the court in the first

place. Attention is directed to the 'poisonous tree' [In re

Swartz] which was created by the court when it

"rubberstamped" the Defendants' factually false statements

in Case 00-1107.

The Petitioner has substantially shown fraud by the

USPTO in Exhibit 63, the Appeal Brief of '058, which shows

the misdescription of the invention and failure to consider

Evidence submitted are discussed, including on pages 108,

and 86,104, 117 & 212 respectively, and on pages 225, 237,

240, and 244. In Exhibit 64, the Appeal Brief of '258, the

misdescription of the invention and failure to consider

Evidence submitted are discussed, including on pages 51-53

& 212, and 42-44 respectively. It is discussed in the

Complaint, including on page 100. It is also discussed in

even more detail in Petitioner 's Exhibit 65 Petition for

Panel Rehearing [00-1107]]. It is extremely troubling that

the Decision ignores this entire matter.

The fraudulent behavior of the USPTO with respect to In re

Swartz is further discussed in Exhibit 63, including on

pages 158 and 161. It is discussed in the Complaint,

including on page 97.

The wrongfulness is discussed in both the Complaint

and Declarations. Businesses, science papers and

engineering devices are more important to Americans than

the USPTO "belief'. The field is quite real [cf. Affidavits of

Forsley, Nagel, Mallove, Fox, Bass, Swartz, Biberian, or

Hageistein]. This is discussed further in the CAFC-Denied

Field Appendix (Appx79).

Decision Usurps Rights into the Future Forever

The court states:

"..

the Federal Circuit expressly decided the if 101 and 112

issues as the basis for affirming the USPTO's

decision; and (4) plaintiff, as a party in the earlier

litigation, had a full and fair opportunity to litigate

those issues. As such, plaintiff is collaterally estopped

from relitigating the patentability of the '058 and.

'765 patent applications and Count 1 will be

dismissed with respect to those two applications."

This is utterly unfair. The Plaintiff was never granted the

opportunity in earlier litigation for a full and fair hearing,

nor the opportunity to fairly litigate. The timely-submitted

materials were not docketed but were sequestered andlor

ignored, and the inventions were misdescribed. This is

corrupt leeched with impropriety.

Corroborating this, the PTAB never even discussed

Appellant's inventions but was fixated on "cold fusion".

Exhibits 63 and 64 did demonstrate this. Specifically, this

is corroborated in Exhibit 63, in the Appeal Brief of '058

shows the misdescription of the invention and failure to

consider Evidence submitted, as discussed, including on

pages 108, and 86,104, 117 & 212 respectively. Defendants'

misbehavior is discussed, including on pages 225, 237, 240,

and 244. Furthermore, in Exhibit 64, the Appeal Brief of

'258 the misdescription of the invention and failure to

consider Evidence submitted are discussed, including on

pages 51-53 & 212, and 42-44, respectively.

Furthermore, it only effects two of the patent

applications. It is inhumane for the court to make this case

Dismissed with Prejudice on this matter, since those other

applications are not even relevant here. [emboldened and

underlined for emphasis]

Decision States No Utility Despite Declarations

The court states, denying justice with a handwave:

"Because plaintiff has failed to plausibly allege that

his patent applications describe operable inventions,

he has failed to plausibly allege his entitlement to a

patent and his §145 claims must be dismissed with

respect to the remaining-258, '643, and '691applications. "

This is demonstrably not true for so many reasons. First,

the invention in '258 was later granted to a foreign

automobile company, as discussed in the Complaint.

Second, the Defendants have misdescribed the invention(s).

As one example, the Declaration of Lawrence Forsley

states:

"I have read the above-entitled Complaint and

am surprised that In re Swartz, used by the

USPTO to stifle cold fusion, is actually about a

vibrating sensor whose frequency is used to

measure loading, and not about cold fusion,

but relevant to it as to other things such as

metallurgy."

Third, ignored by the Decision unfairly, Petitioner has

shown that some of this technology works for heating

systems of any source, and for chemical reactions, and 3D

printers.

In fact, the biased Decision ignores that THESE inventions

generate electricity [shown schematically in Figure 1 in the

CAFC-Patent Appendix (Appx53)]. This inaccuracy in the

Decision absolutely confirms that the peer-reviewed New

Evidence papers submitted were ignored. How has the

Constitution and Law been followed? It has not.

Decision Falsely States 'An Absence of Response'

The Decision falsely states:

'With respect to the remaining declarations and

articles, the district court correctly concluded,

"nowhere, for example, does [Swartz] explain how an

invention described in any of the relevant patent

applications was used in the course of any of the

referenced demonstrations or experiments." District

Court Op. at II."

This statement is absurdly untrue

proving that the

Decision has just 'rubberstamped' factually false

statements. Petitioner DID explain, alleging over and over

that the inventions in the patent applications WERE

involved in those experiments AND in those open

demonstrations at MIT.

Attention is directed to the fact that this was discussed in

the Complaint [averments 90-93, pages 45-47]. The basis of

the Decision is disproven again by the record.

Decision Ignores Obligations Owed

The Office was, and the court is, Obligated by law to

assume that all Declarants assertions are true [Lewis v.

Bours, 119 Wn.2d 667, 670, 1992]. Neither has, but instead

they use unnamed sources, unsworn individuals, and

proven-wrong opinion.

Decision Mistaken About '381

The Decision is factually incorrect about the patent

applications, both in number and by description. First, for

example, Application '381 did have a final Decision issued

by the Board, and the correct papers were filed at the

appropriate time for '381 (and '342).

Thus, this is another case demonstrating that the

Defendant repeatedly willfully uses attempts at

exculpatory behavior and factually false statements to

deceive the court. In this case of '381, the Defendant first

falsely purported that there was no Appeal Brief, then

falsely purported the fee was not paid, and now falsely

purports there was not a Decision when there was one in

the case of '381 [and the court, USPTO, and higher

authority, were notified of such].

Decision is Mistaken about Claims 5-7 9-12, and 14

These Claims sound in proven tort. Thus the flawed

Decision has denied the Plaintiff his right to an impartial

tribunal and to receive a patent in this country despite

explicit statements otherwise in the Constitution [28 U.S.

Code Section 144, Mayberry v. Penna.; Duncan v.

Louisiana]. In Bivens, the Court created a damage remedy

under the Fourth Amendment. The Plaintiff did totally

exhaust ALL available administrative remedies [28 U.S.C.

§ 2675(a); McNeil v. U.S.,, 508 U.S. 106, 113 (1993)].

Petitions were sent over and over pursuant to the Orders

of the Board. Further Notifications were made consistent

with Gonzalez v. United States, 284 F.3d 281,288 (1st Cir.

2002) proving compliance with the statutory requirement of

administrative exhaustion as "a jurisdictional prerequisite

to suit that cannot be waived"). Therefore, the Plaintiff's

Action is Supported by Bivens. [Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971)] which is outside the purview of the Federal Tort

Claims Act [confer 28 U.S.C. S 2679(b)(2)(A)].

As importantly, Petitioner did describe clear-cut

violations of his purportedly Constitutional-protected

rights.

In this case, the Plaintiff, and supporting Evidence,

demonstrate that the Defendant's conduct was wrongful

(inconsistent with a duty resting on the defendant). This

court has sole final jurisdiction and a legal right and a legal

duty to stop Defendants and their lawyers [Cheney v.

United States, Dist. Court DC (03-475) 542 US 367 (2004)

334 F.3d 1096)].

LAW OVERLOOKED OR MISAPPREHENDED

65. The Decision ignores that the pro se Plaintiff

demonstrated significant new Evidence and justifiable

reasons for a sui generis statutory review pursuant to §145.

The Supreme Court held that the district court

hearing a §145 action must make a de novo finding

"when the new evidence is presented on a disputed

question of fact". That did not occur here. Instead, the

old Evidence (DIA and DTRA Reports which were shown to

not be docketed nor addressed, over and over) has been

inaccurately called "New Evidence", as the actual New

Evidence was ignored(****).

66 Defendant's behavior is an attempt to circumvent

the US Constitution and the will of the US Congress,

and to deny the energy needs and security of the

United States of America [emboldened for emphasis].

(****)

There are no coincidences here. The Petitioner has not

only toiled for 29 years to perfect his invention but gone above

and beyond to present strong evidence that showed utility along

with significant improvements to the original filings of F and P

who abandoned their work. The Decision of the lower court

ignored the bulk of Petitioner's evidence and rubberstamped the

Defense attorneys factually false statements and ignored

exculpatory evidence, to run roughshod over, and to coverup,

their failure to log timely submitted Evidence.

The court has ignored Article I, Section 8. Petitioner is

allegedly (but in fact for 29 years has not been) entitled to

the citizen's right "to secure for a limited time the

exclusive right to his or her writings and

discoveries" [Constitutional Convention in August of

1787, adopted in September of 1787]. In doing so, it also

ignores Congress which stated that patentable statutory

subject matter spans "anything under the sun that is

made by man" [S. Rep. No. 1979, 82d Cong., 2d Sess., 5

(1952); H. R. Rep. No. 1923, 82d Cong., 2d Sess., 6 (1952);

DIAMOND v. CHARRABARTY; 447 U.S. 303, 309].

The Decision ignores Marino v. Hyatt Corporation, 793

F.2d 427, 430 (1st Cir. 1986), Morrill v. Tong, 390 Mass.

1207 129 (1983), Chelebda v. H.E. Fortuna & Brothers Inc.

609 F.2d 1022 (1st Cir. 1979) by dismissing the New

Evidence Declarations and other NEW Evidence despite

being Obligated by law to address them and to assume that

the unrebutted Declarations are true [Lewis v. Bours, 119

Wn.2d 667, 670, 1992].

The Decision decimates the United States Constitution

[Clause 8 of Section 8, Article I] by continuing attempted

discrimination/elimination of an entire field involving

energy and United States security.

The Decision denies 14th Amendment rights that

Petitioner is entitled to an impartial tribunal [28 U.S. Code

Section 144, Mayberry v. Penna., 91 S.8.; Bloom v. Illinois,

88 Ct. 499 S.Ct. 1477; Duncan v. Louisiana, 88 S.Ct.1444]

and equal protection of the laws.

The Decision denies Article I, Section 2 rights that

Petitioner is entitled to the privileges and immunities of

citizens in the other states. Thus, this is arbitrary and

encourages selective discrimination and civil rights

violations under color of law [U. S. v. Price, 86 S. Ct. 1152,

1157], thereby rejecting the reasoning of the Supreme

Court's decision in United States v. Nixon (1974) that all

are "equal under the law".

The Decision rubberstamping factually false statements

disproven by the record is a patent violation of 18

U.S.C.1001. Thus, its authorship is a violation of the

Patriot Act, Title 10, Title 35, and United States v.

Reynolds, 345 U.S. 1 (1953) requiring correction or full

court measures to expose, engage, and bring to justice those

in government who have engaged in corruption.

(j) Conclusion

The pro se Petitioner demonstrated significant NEW

Evidence and new justifiable reasons for a sui generis

statutory review regime pursuant to §145 requiring a de

novo finding consistent with the actual "new evidence

presented" [Appendicies F, G, H].

The judgment of the United States court of appeals is not

consistent with, and does not harmonize with, clear

Constitutional and Congressional directives, or the

unanimous decision of this court, or the Executive Orders of

President Trump, or §145 requiring a de novo finding

consistent with the actual "new evidence presented".

Nothing in the United States Constitution, or any law

or directive from Congress authorizes the destruction,

spoliation, sequestration, or destruction of Evidence

involving that the DIA, DARPA, NASA, or DTRA

[Appendicies I,J].

The Decision has considerable misunderstandings

without substantive relevant foundation. The court has

either 'rubber-stamped' the Defendant's counsels' factually

false statements while overlooking facts discussed explicitly

in the pro se Plaintiff's pleadings and Complaint —or- the

court has misperceived evidence.

This case may initially appear to be de minimis because

it involves atoms of hydrogen, but is of great and

compelling importance when measured by either the

particular constitutional mandate of Art. I, §8, cl. 8 or the

number of people dependent upon energy efficiency, cost

and clean water. If the wrongful judgment stands, the

Petitioner and other Americans will suffer immediate,

continuous and irreparable injury, civil rights will be lost,

inventions will be shifted overseas [Figure 5], and

egregiously America's military in the future may lose the

ability to advance vital technology requisite to protect

stealth submarines and moving Marines, as worldwide

people will lose the means to obtain cheaper and more

efficient clear-water and clean-energy production.

In fact, this court should consider the impact on due

process and the appearance of justice. The court should ask:

Who is hurt if this Petition is ignored? The Petitioner will

suffer immediate, permenant and irreparable injury. If that

is not enough, America's military and business will lose a

new avenue efficient energy. Who is hurt if this Petition is

granted? No one. Instead, the attempts to deny justice,

using unethical, egregious, and unreasonable practices, and

to deny civil rights, including Constitutionally protected

rights, will decrease [Braaten v. Deere & Co., Inc., 1997 ND

202, ¶9, 569 N.W.2d 563; North Dakota Supreme Court

Opinions, Nastrom v. Nastrom, 1998 ND 142, 581 N.W.2d

919 Filed July 16, 1998].

It is unfair the Petitioner was not allowed to respond to

the Reply by the Defendant and counsel. Instead, as

planned, the speedy Judgment has denied Plaintiff his

right to respond to factually false statements and confront

his accuser. This court should protect Petitioner because

the wrongful judgment denies justice, and denies civil and

Constitutionally previously-protected rights under color of

Law.

In fact, the lack of single in-person hearing, the lack of

the requested trial, the lack of having the other side's

lawyers swear under pains and penalties of perjury as have

the Petitioner and his score of Declarants, in the blazing

light and tsunami of Evidence, ignored old and ignored

NEW, heralds saliently that the Defendants have not acted

following Congress lead as authorized by Art. I, §8, cl. 8.

Given that Congress has spoken it is "the province and duty

of the judicial department to say what the law is."

[Marbury v. Madison, 1 Cranch 137, 177 (1803)]. This

Court has final supervisory jurisdiction over the subject

matter and should correct this situation by directing the

Defendants to abide by their own Rules and standards of

review.

For the court to continue to ignore said wrongful actions

by the Defendants is injustice AND threatens US security

and Petitioner's alleged right to patent protection for a

limited amount of time. This court has jurisdiction and a

legal right and a legal duty to stop lies by the Defendant

and their lawyers [Cheney v. United States, Dist. Court DC

(03-475) 542 US 367 (2004) 334 F.3d 1096)].

Granting a Writ will harmonize a wrongful Judgment and

Opinion with clear Constitutional and Congressional

directives, and with the previous unanimous decision of

this court, and with the Executive Orders of President

Trump, and with §145 requiring a de novo finding

consistent with the actual "new evidence presented".

Granting a Writ will permit normal due process, normal

discovery, a normalization of discrimination, and might

even enable the court to better understand why Evidence

submitted to a taxpayer-supported US government agencywas systematically neither logged nor addressed.

Petitioner apologizes for any errors as a pro se non-lawyer

[U.S. Rep volume 404, pages 520-521 (72)].

Multi-Flow Map Showing Cause and. Effect

—

Defendant's Mischaracterizations

In Re Swartz

Fruit of the Poisonous Tree

CI)

e--

—

Defendant's Failure to Log and/or

Address Rebutting Evidence

Blockage of US Patents

on clean energy

-t- CIF

CI)

Defendant's Factually

False Statements

on Federal Documents

Defendant's Attempts

at Exculpatory Behavior

—

Defendant's Failure

to supply Exculpatory Information

USPTO and Counsel

Under Color of Law

Shift of US inventions to

China, Russia, and Japan

Economic Benefits for Those

Who Obstructed Justice and

Usurped Constitutional and

Congressional Authority

The Impact of the USPTO's systematic mischaracterizations, failure to address timely-submitted Evidence,

failure to supply exculpatory information held by the USPTO, and use of factually false statements.

e* CD

for the above reasons, Petitioner

respectfully requests that this Petition for Writ of

Certiorari be granted. By such action the honorable court

would encourage innovation, the elimination of

discrimination, and better understanding of why Evidence

is ignored; including probative products from US

government agencies.

WHEREFORE,

Respectfully submitted,

Mitchell Swartz, ScD, MD, EE 40

pro Se, Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.