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

Jn il1

MITCHELL R. SWARTZ,

Petitioner,

V.

UNITED STATES PATENT AND TRADEMARK OFFICE,

ANDREI JANCU, Under Secretary of Commerce for

Intellectual Property and Director of the United States

Patent and Trademark Office,

Respondents.

APPENDIX

Mitchell Swartz, ScD, MD, EE

37

APPENDIX A JUDGMENT for RELIEF SOUGHT

Issuing Court: US Court of Appeals for the Federal Circuit

Number of Case: 2018-1122

SWARTZ v. USPTO, ANDREI TANCU

Decided: July 17, 2018

Before PROST, Chief Judge, NEWMAN and LINN,

PER CURIAM NOTE: This disposition is nonprecedential.

-

Mitchell R. Swartz brought a complaint in the Eastern

District of Virginia pursuant to 35 U.S.C. § 145, in which he

challenged the decision of the U.S. Patent Trademark

Office rejecting six of Swartz's patent applications-U.S.

Patent Application No. 12/932,058; No. 12/589,258; No.

13/544,381; No. 12/316,643; No. 091748,691; and No.

091750,765-as unpatentable under 35 U.S.C. §§ 101 and

112. Swartz also alleged various forms of misconduct by the

patent office. The district court dismissed his complaint

under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) and Swartz now

appeals. Swartz v. Matal, No. 1:17-cv-482 (E.D.Va. Aug. 22,

2017) (Brinkema, J.) ("District Court Gp."). Because the

District Court did not err, we affirm.

We begin with the '381 application. Section 145 creates a

cause of action to challenge a "decision of the Patent Trial

and Appeal Board." At the time Swartz filed his complaint

in district court, and throughout the pendency of this action

before the district court's decision, the Board had not yet

issued its decision with respect to the '381 application.

Because there was no "decision" of the Board to challenge

with respect to that application, the district court properly

dismissed that portion of Swartz's claim.

The district court also properly dismissed Swartz's claims

with respect to the '058 and '765 applications on the bases

of collateral estoppel. In In re Swartz, 50 F. App'x 422, 42425 (Fed. Cir. 2002) ("Swartz II') (per curiam), this court

affirmed the rejection of Swartz's U.S. Patent Application

No. 08/406,457 for failure of utility and enablement. The atissue '058 application is a continuation of the '457

application, and the representative claims in the two are

"identical," as represented by the Board and uncontested by

Swartz. Similarly, in In re Swartz, 232 F.3d 862, 864 (Fed.

Cir. 2000) ("Swartz I"), this court held that the claims of

Swartz's U.S. Patent Application No. 071760,970 were

unpatentable for failure of utility and enablement. The atissue '765 application is a continuation of the '970

application, and the representative claims in the two are

nearly identical.

The core requirements for collateral estoppel are that: the

issue in question is identical to an issue previously decided,

the issue was actually litigated in the prior proceeding, the

resolution of the issue was necessary to the prior judgment,

and the party challenging the issue must have been given a

full and fair opportunity to litigate the issue in the prior

proceeding. Jet, Inc. v. Sewage Aeration Sys., 223 F.3d

1360, 1366 (Fed. Cir. 2000). Swartz argues that the district

court wrongly applied estoppel here because he submitted

new references not present in the previous appeals to show

utility, and because the applications here no longer include

explicit references to cold fusion.

Neither the new references nor the elimination of explicit

reference to cold fusion avoids the application of collateral

estoppel. Swartz has not shown that these differences

"materially alter the question of invalidity." See Ohio

Willow Wood Co. v. Alps S., LLC, 735 F.3d 1333, 1342 (Fed.

Cir. 2013). Substantially identical claims were previously

found to be invalid as lacking utility and not enabled. That

holding is binding on Swartz. 1

We turn next to the '258, '643, and '691 applications. The

PTO carries the initial burden of challenging the utility of

an invention. In re Brana, 51 F.3d 1560, 1566 (Fed. Cir.

1995). However, the PTO carries that burden if the patent

"suggest[s] an inherently unbelievable undertaking or

involve[s] implausible scientific principles." Id. As we have

held, cold fusion suggests such an inherently unbelievable

undertaking. Swartz I, 232 F.3d at 864. The burden

therefore shifted to Swartz to show sufficient evidence to

convince an ordinarily skilled artisan of the inventions'

utility. Id. at 864. The evidence and arguments Swartz

presents do not satisfy this burden.

Swartz makes two inconsistent arguments: his inventions

are not directed to cold fusion or LENR, and he presented

new evidence to the district court proving the utility of

LENR technology. First, Swartz's assertion that his

inventions are not directed to cold fusion or LENR

technology is baseless. The references Swartz relies on here

are related to LENR technology. Moreover, the parent

applications were expressly directed to cold fusion, as we

previously held. 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"), and other scientific articles.

1 That this case is proceeding under § 145 in the district court, instead

of through a direct appeal from the U.S. Patent and Trademark Office

("PTO") is also inapposite-it is the identity of issues, inter alia, not the

cause of action, that gives rise to collateral estoppel.

The DIA report cited Swartz's research to support the

statement, "In May 2002, researchers at JET Thermal in

Massachusetts reported excess heat and optimal operating

points for LENR manifolds." That same report indicates

fundamental skepticism about the result of the research. It

notes that scientists from various nations "are devoting

significant resources to this work in the hope of finding a

new clean energy source. Scientists worldwide have been

reporting anomalous excess heat production, as well as

evidence of nuclear particles and transmutation." It also

states, "If nuclear reactions in LENR experiments are real

and controllable, DIA assesses that whoever produces the

first commercialized LENR power source could

revolutionize energy production and storage for the future."

The DIA report also states that "much skepticism remains"

about LENR programs. The DTRA reference strikes a

similar note. It explains that LENR reactions "are showing

some remarkable progress

but experiments remain only

...

thinly reproducible," that they "suffer] from a basic lack of

understanding of the governing -physics," and that "it seems

unlikely that deployable/useable devices could be expected

within a five to ten year horizon." These references do little

to overcome the presumption of no utility. At best, they

demonstrate some positive experimental results attained by

Swartz, tempered by much remaining skepticism and

uncertainty about the utility of the discussed technology.

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.

Swartz presents a number of additional arguments, none of

which have merit. Swartz cites In re Oetiker, 977 F.2d 1443

(Fed. Cir. 1992) for the proposition that the Board failed to

make its prima facie case of invalidity. As discussed above,

applications that suggest inherently unbelievable

inventions satisfy the Board's initial burden to show lack of

utility, and we have previously held that Dr. Swartz's

LENR-related inventions here properly fall within that

realm. Swartz argues that the district court failed to apply

the de novo review required under § 145. See Kappos v.

Hyatt, 566 U.S. 431, 444 (2012). The district court explicitly

applied a de novo standard of review, citing Hyatt. District

Court Op. at 7.

Swartz argues that the PTO failed to "docket" and

"sequestered" documents. Swartz does not explain what

documents were not docketed or were hidden, or by whom,

or their potential relevance to the utility and enablement

determinations. Swartz also argues that the PTO

"misdescribed" several of his patent applications as directed

to cold fusion. According to Swartz, the '058 application is

properly directed to "a heat measurement system" and the

'765 application is properly directed to "a measurement of

hydrogen loading into a metal." Regardless of how the

applications are described, however, the nearly identical

41

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, unpatentable. As discussed above, collateral

estoppel properly forecloses revisiting that issue here.

Swartz argues that the PTO has issued patents in the field,

citing Dr. Swartz's applications. Each patent is evaluated

on its own terms, however, and the citation to Dr. Swartz's

applications does not demonstrate their utility.

Swartz next argues that the district court erred in

dismissing his various Constitutional claims for

discrimination, violation of due process, violation of his

right to an impartial tribunal under 28 U.S.C. § 144, and

violation of the patents clause of the Constitution. Swartz

specifically relies on 42 U.S.C. § 1983 and Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971) to support

these violations. Swartz does not explain why the district

court erred in its conclusions that 42 U.S.C. § 1983 only

applies to actions taken under color of law by "any State or

Territory," not the federal government, and that a Bivens

action cannot be brought against a federal employee in his

official capacity. Swartz also has not proffered anything but

a bare assertion of prejudice by the district court. Finally,

Swartz has not shown error in the district court's dismissal

of his challenge under the patent clause of the Constitution.

His entitlement to a patent under that provision is framed

and defined by Title 35 of the U.S. Code, which includes

explicit requirements for utility and enablement. Because

the Board and district court adequately showed that

Swartz's inventions lack utility and enablement, he is not

entitled to patents on those inventions.

We have considered Swartz's other arguments, including

his allegations of intentional torts, fraudulent statements,

and criminal misconduct, and find them lacking in any

merit.

AFFIRMED

Costs

No costs.

42

APPENDIX B ORDER DENYING ENTRY OF

IMPORTANT PRO SE MEMORANDUM

Issuing Court: US Court of Appeals for the Federal Circuit

Number of Case: 2018-1122

-

SWARTZ v. USPTO, ANDREI IANCU

Decided: July 10, 2018

For the Court: Peter R. Marksteiner

PER CURIAM This disposition is nonprecedential.

Plaintiff-Appellant Mitchell R. Swartz, pro Se, moves for an

Enlargement of Time and/or For Leave to Enter

Memorandum on July 9, 2018, asking that "the Hearing

scheduled for July 13, 2018" be rescheduled for August 17,

2018 or August 24, 2018 for a conflict with a medical

appointment, and because of additional factual

developments, including Plaintiff-Appellant's receipt of the

Preparata Medal and Award and the funding in Japan of

research following the issuance of a patent to Nissan

directed to what Appellant alleges is his invention, has

resulted in funding in Japan. Appellant also separately

moves to Correct Errors in Previous Order, seeking to

correct statements made when this court accepted

Appellants reply brief out of time and over the type-volume

limitations for a Reply brief. First, this case has not been

scheduled for oral argument. Appellant's appeal will be

decided without oral argument on consideration of the

briefs. Therefore, Appellant's presence on July 13 is not

necessary for the resolution of the case. Second, as a court

of appeals, our review is generally limited by the record

before the district court. See Fed. R. App. P. 10(a). This

Court generally does not accept new evidence for

consideration in the first instance. Moreover, Appellant has

not shown that this new evidence is material to the issue at

hand.

Finally, this Court accepted Appellant's reply brief despite

its non-conformity with the Rules. None of the requested

43

corrections are material to the outcome of this case.

Appellant's Motion to Correct is moot. In response to

Appellant's request for information regarding the court's

type-volume Rules, we direct Appellant to Fed. R. App. P.

32(a)(7)(B)(ii) and Fed. Cir. R. 32(a), which set out a 7000

word count limit for a reply brief.

Upon consideration thereof, IT Is ORDERED THAT:

The Motion for an Enlargement of Time and/or For

Leave to Enter Memorandum is denied.

The Motion to Correct Errors in Previous Order is

dismissed as moot.

s! Peter R. Marksteiner Clerk of Court

APPENDIX C ORDER DENYING REHEARING

Issuing Court: US Court of Appeals for the Federal Circuit

Number of Case: 2018-1122

SWARTZ v. USPTO, ANDREI IANCU

Decided: August 22, 2018

Before PROST, Chief Judge, NEWMAN and LINN

PER CURIAM This disposition is nonprecedential.

-

ON PETITION FOR PANEL REHEARING

ORDER

Appellant Mitchell R. Swartz filed a petition for panel

rehearing. Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The mandate of the court will issue on August 29, 2018.

August 22, 2018

FOR THE COURT

Is! Peter R. Marksteiner

Clerk of Court

APPENDIX D Order of August 22, 2017

Issuing Court: US District Court for the Eastern District of

Virginia

Number of Case: 1:17-cv-482 (LMB/TCB)

SWARTZ v. USPTO, JOSEPH MATAL

Decided: August 22, 2017

Before Judge Leonie M. Brinkema

-

ORDER

For the reasons stated in the accompanying Memorandum

Opinion, defendant's Motion to Dismiss [Dkt. Nos. 15 and

16] is GRANTED, and it is hereby

ORDERED that the Complaint be and is DISMISSED

WITH PREJUDICE, except for Count 3, which is

DISMISSED WITHOUT PREJUDICE.

To appeal this decision, plaintiff must file a written Notice

of Appeal with the Clerk of this Court within 60 days of the

date of the entry of this Order. A written Notice of Appeal

is a short statement stating a desire to appeal an order and

noting the date of the order plaintiff wants to appeal.

Plaintiff need not explain the grounds for appeal until so

directed by the Court. Failure to file a timely Notice of

Appeal waives plaintiffs rights to appeal this decision.

The Clerk is directed to enter judgment in the defendant's

favor pursuant to Fed. R. Civ. P. 58 and to forward copies of

this Order and the accompanying Memorandum Opinion to

counsel of record and plaintiff, pro Se.

Entered this 22 day of August, 2017.

Alexandria, Virginia

Is! LMB

Leonie. M. Brinkema United States District Judge

45

APPENDIX E Order of September 7, 2017

Issuing Court: US District Court for the Eastern Dist. of VA

Number of Case: 1:17-cv-482 (LMB/TCB)

SWARTZ v. USPTO, JOSEPH MATAL

Decided: September 7, 2017

Before Judge Leonie M. Brinkema

ORDER

Before the Court are two motions from plaintiff, proceeding

pro Se: a Motion for Reconsideration [Dkt. No. 34] and a

Motion for Leave to File a Memorandum in Support of his

Motion for Reconsideration [Dkt. No. 35]. In this action,

plaintiff challenges the denials of six patent applications

and also attempts to bring a variety of other statutory and

constitutional claims against defendant. By a Memorandum

Opinion and Order dated August 22, 2017, the Court

dismissed plaintiffs Complaint with prejudice (except for

Count 3, which was dismissed without prejudice) for a

variety of substantive and procedural reasons, including

failure to state a claim, failure to properly exhaust,

collateral estoppel, lack of a private right of action, and

sovereign immunity. [Dkt. Nos. 31 & 32]. In the motions

now before the Court, plaintiff argues that the Court should

reconsider that decision and should allow him to file a long

brief in support of his motion for reconsideration.

To begin with plaintiffs Motion for Leave to File a

Memorandum in Support, although plaintiff asks for leave

to file a "longer than usual Memorandum," PT. Mot. [Dkt.

No. 35], his attached proposed brief is only 22 pages, id. Ex.

I, which is below the 30-page limit set by the local rules, see

Local R. Civ. P. 7(F)(3). Accordingly, the Court will consider

plaintiffs proposed brief and his motion is moot.

Moving to plaintiffs Motion for Reconsideration, plaintiff

argues principally that (1) he was never given a chance to

respond to defendant's reply brief) see PT. Mem. [Dkt. No.

35-1],-r 2; and (2) the opinion contains various inaccuracies)

see id.,-r 4. Neither of these arguments is persuasive.

Under Fed. R. Civ. P. 60(b), 1 relief from a final judgment is

only available for the following reasons:

-

EM

(1) mistake, inadvertence, surprise, or excusable neglect; (2)

newly discovered evidence that, with reasonable diligence,

could not have been discovered in time to move for a new trial

under Rule 59(b); (3) fraud, misrepresentation, or misconduct

by an opposing party; (4) the judgment is void; (5) the

judgment has been satisfied, released or discharged; it is

based on an earlier judgment that has been reversed or

vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Neither of plaintiff s arguments

demonstrates entitlement to relief under any of the above

categories. First, plaintiff was not entitled to file a sur-reply

because under this court's local rules, parties are entitled to

file only opening, response, and reply briefs; any further

briefs may not be filed "without first obtaining leave of

Court," which is not granted as a matter of right. Local R.

Civ. P. 7(F)(1). Moreover, inability to file a sur-reply is, as

discussed above, not one of the justifications for granting

relief under Rule 60(b).

Second, although plaintiff does not specifically fit his claim

of inaccuracies in the opinion into the Rule 60(b)

framework, the Court construes his argument as claiming

"mistake" under Rule 60(b)(1). Plaintiff identifies many

statements in the Memorandum Opinion, mostly related to

the patentability of his claims, with which he disagrees;

however, he has not persuasively demonstrated that any of

those statements are incorrect, and, indeed, in many places,

plaintiff simply asserts disagreement, without appropriate

citation to the record with the Memorandum Opinion or

merely rehashes the unsuccessful arguments that he made

in his brief opposing the Motion to Dismiss. A Rule 60(b)

motion is an "extraordinary remedy" and is not an

appropriate avenue to simply relitigate an issue already

decided or ask the c-ourt to change its mind. See Mavtield

v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 F.3d

369,378 (4th Cir. 2012). Plaintiffs arguments cannot clear

this hurdle.

47

1 Plaintiff styles his motion as a "Motion to Reconsider

Pursuant to CR 59(a)." Rule 59(a) does not authorize the

filing of a motion to reconsider an order granting a motion

to dismiss-it only governs motions for new trials. See Fed.

R. Civ. P. 59(a). Because the Court must construe plaintiffs

Motion liberally in deference to his pro se status, the Court

has construed his Motion as a proper motion for relief

under Rule 60(b). See id. 60(b).

Because plaintiff has not demonstrated an appropriate

"mistake" in the Court's Memorandum Opinion to entitle

him to relief under Rule 60(b), it is hereby

ORDERED that plaintiffs Motion for Leave to File a

Memorandum in Support [Dkt. No. 35] be and is DENIED

AS MOOT, and it is further

ORDERED that plaintiffs Motion for Reconsideration [Dkt.

No. 34] be and is DENIED.

To appeal this decision, plaintiff must file a written Notice

of Appeal with the Clerk of this Court within 60 days of the

date of the entry of this Order. A written Notice of Appeal

is a short statement stating a desire to appeal an order and

noting the date of the order plaintiff wants to appeal.

Plaintiff need not explain the grounds for appeal until so

directed by the Court. Failure to file a timely Notice of

Appeal waives plaintiffs right to appeal this decision.

The Clerk is directed to forward copies of this Order to

counsel Of record and plaintiff, pro Se.

Entered this 7th day of September, 2017. Alexandria, VA

Is! LMB Leonie. M. Brinkema United States District Judge

2 Plaintiff asks the Court to consider seven additional

exhibits filed for the first time with his Motion for

Reconsideration. See PT. Mem. Exs. 61-65. Although he has

not attempted to demonstrate that any of these exhibits

constitute newly discovered evidence, out of an abundance

of caution, the Court has reviewed the exhibits and is not

persuaded that any of them demonstrates error in either

the analysis or conclusions reached in the Memorandum

Opinion.

riE

APPX. F

-

EXCERPTS OF DECLARATION

OF DR. DAVID .J. NAGEL

Court: US Court of Appeals for the Federal Circuit

Number of Case: 2018-1122

Date June 27, 2018

DECLARATION

OF DR. DAVID .J. NAGEL

I, David J, Nagel,

served as an Officer in the U.S. Navy

with four years of active duty, 26 years of reserve service,

and three tours as a Commanding Officer, and retired in

1990 with the rank of Captain in the U. S. Naval Reserve. I

also served on the civilian staff of the Naval Research

Laboratory as an experimental physicist measuring x-ray

emissions from nuclear weapons and plasmas, and as the

leader of a group of 150 scientists and engineers. In the

former role, .... I am very familiar with the subject of Low

Energy Nuclear Reactions (LENR), having worked in the

field since 1989 and chaired the international conferences

on the subject at its 14th meeting (lCCF-14) in Washington

DC in 2008, and at its 21th meeting (1CCF-21) in Fort

Collins CO in June 2018. I also have a company in this field

(NUCAT Energy LLC), have provided a commercial course

on the subject, and gave a recent teaching lecture to the

USPTO.

...

LENR is not a "fringe area". There have been 21

international conferences, 18 conferences in Europe, 18

conferences in Japan and 24 conferences in Russia on the

topic. Hundreds of scientists in about two dozen countries

are working on or watching LENR. ICCF-21 in Colorado

three weeks ago (iccf2l.com) attracted about 170 people

from over 20 countries.

In my opinion, the field of LENR is real due to many

strong experimental results from scientists in at least ten

countries over the past 29 years. Operability of LENR has

been demonstrated by the production or tritium, helium

and other elements

none of which can be generated by

chemical reactions. Thermal energy far beyond what is

possible from chemistry has been measured many times by

competent, well-equipped and careful scientists. That also

points to the operation of nuclear reactions.

I have observed the technology described by Dr Mitchell

Swartz during his open demonstration of the highimpedance aqueous PdlD20/Pt Phusor in MIT in 2003 at

the 10th international meeting (1CCF-10). Dr. Swartz is one

of the leaders in the field of LENR, having published many

papers on the topic, invented two major approaches to

generating energy by LENR, and developed several

techniques for confidently measuring energy from LENR.

He 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.

--

12. LENR systems operate without dangerous prompt

radiation, do not generate radioactive waste and do not

produce greenhouse gases. Many civilian applications of

heat from LENR are expected. The U.S. military would

benefit greatly from the availability of small LENR

generators for both installations and forward deployments.

Generating heat and electricity in the field without a fossil

fuel logistics tail would be a game changer for the U. S.

Marine Corps and Army. Over 20 companies in nine

countries are now seeking to commercialize LENR.

Respectfully submitted: Is! David J. Nagel

50

APPX. G

-

Excerpts of Declaration of Robert Smith

Court: US District Court District of Massachusetts

Number of Case: 20 16-CV- 12 144-LTS

Date February 7, 2017

-

DECLARATION OF ROBERT SMITH

I, Robert E. Smith Jr. am a citizen of the United States

and a Lt Colonel USAF (retired),

I graduated from

Purdue University (1959), and the Oak Ridge School of

Nuclear Reactor Technology (1961), built the PM-1 Nuclear

Power Plant, Sundance, Wyoming, and flew 234 missions in

Vietnam in the F-4C/D Phantom jet fighter, before

becoming flight test director for the television-guided

Maverick missile, and project pilot and engineer for the

AN/UPD-4 radar.

,

...

I have developed many weapons for the military and flew

many combat missions. I initiated the AMRAAM missile

and the ATM/9M Sidewinder missile programs, and the Air

Defense Initiative in 1986, and served as the Program

Manager for the SP-100 Space Nuclear Power System.

I personally observed two demonstrations of condensed

matter nuclear science (CMNS) technology at MIT at the

International Conference (ICCF-10) in 2003. One was

operated and run by Dr. Mitchell Swartz from JET

Energy/MIT;

The discussion of the demonstrations.

presented by Dr. Swartz was particularly noteworthy from

an engineering sciences point of view. He explained how

operating point manifolds, the inclusion of well-known

controls, electromagnetic forces, and material properties of

the supporting lattices, created the conditions for excess

heat to be produced by the electrolytic CMNS devices.

...

51

He further presented clear evidence that the output of the

devices produced more energy than they consumed in the

input operation of the devices. It made me wonder why the

US Department of Energy was not investing substantially

in this technology.

These condensed matter nuclear reactions have utility

because they are radiation-less and do not have radioactive

waste products. They produce clean products like helium,

an inert gas. No smog, no increased carbon. The reactions

are scalable, such that reactors of small up to very large

can be designed. Therefore the practical applications of this

technology are unlimited.

It is my professional as well as personal opinion that this

field is real in spite of opinion of the Patent Office

(USPTO). The real purpose here is for the USPTO to review

carefully the conditions that are needed for proposed

reactors and the written reviews and comments of the using

organizations, such as DTRA, DARPA, DIA, USDOE, DOD,

and NASA, which have the requirements and funding to

further develop the technology. USPTO reviewers have an

excellent source of relevant information for required

understanding of this new science.

8. Make no mistake that condensed matter nuclear science

has numerous applications as has been determined by a

detailed review of the US Air Force Energy Horizons

requirements document. The number one application is

nuclear propulsion of Aircraft reducing the requirements

for fossil fuels.

Date: February 7, 2017

Is! Robert E. Smith Jr.

52

APPX. H

-

Excerpts of Declaration of Frank Gordon

Court: US District Court District of Massachusetts

Number of Case: 2016-CV-12144-LTS

Date February 5, 2017

-

DECLARATION OF FRANK GORDON

I, Frank E. Gordon

was employed at the U.S. Navy

Research and Development Laboratory currently known as

SPAWAR Systems Center in San Diego from 1971 until my

retirement in July, 2009. I was a member of the Navy's

Senior Executive Service from March, 1987 until I retired..

During that time, I served in a variety of senior

management positions and at the time of my retirement, I

was the head of the Research and Applied Sciences

department, composed of more than 450 scientists and

engineers and an annual budget of more than $300 million.

...

3. Three published U.S. Government reports both document

and add credibility to the existence of this technology,

called LENR (or LANR, or "cold fusion"). A report by the

Defense Intelligence Agency (DIA) dated 13 November 2009

titled "Technology Forecast: Worldwide Research on LowEnergy Nuclear Reactions Increasing and Gaining

Acceptance" documents experimental results from scientists

throughout the world and states that "This body of

research has produced evidence that nuclear

reactions may be occurring under conditions not

previously believed possible." The report includes

multiple uses for this technology and further states that

.LENR power sources could produce the greatest

transformation of the battlefield for U.S. forces since the

transition from horsepower to gasoline power."

53

In addition to the Defense Threat Reduction Agency

(DTRA) Report from the 2006 meeting discussed by Dr.

Swartz in the above-entitled Complaint, there was a

subsequent report from DTRA titled "Investigations of

Nano-Nuclear Reactions in Condensed Matter". The

internal DTRA scientific and technical review process was

completed and cleared for public release on June 7, 2016.

Both the DIA and DTRA review/signoff process could be

considered to be comparable to peer-review for a technical

journal article.

In addition to the DIA and DTRA Reports, the U.S. Navy

has issued reports documenting this technology, including

TECHNICAL REPORT 1862, February 2002 [Thermal

and Nuclear Aspects of the Pd/D20 System, two volumes].

Although additional research is required in order to develop

and reduce it to commercial practice, I believe that LENR

has the potential to be an extremely useful technology for a

wide variety of applications.

February 5, 2017

Is! Dr. Frank Gordon

.

54

APPX. I DIA (Defense Intelligence Agency) Report

Exhibit 11 in the Complaint Excerpts of the DIA (Defense

Intelligence Agency) Defense Analysis Report [DIA-08-09U003, November, 13 2009] which notes "Technology Forecast:

Worldwide Research on Low-Energy Nuclear Reactions

Increasing and Gaining Acceptance".

-

-

It notes efforts by the Chinese, Japanese, French, Israeli

and Indian scientists, the US Navy SPAWAR group, SRI

International, the Plaintiff in Massachusetts, and China

Lake Naval Air Warfare Center in California.

UNCLASSIFIED

Defense Intelligence Agency

Defense Analysis Report

DIA-08.0911-003

13 November 2009

Technology Forecast: Worldwide Research on LowEnergy Nuclear Reactions Increasing and Gaining

Acceptance

Scientists worldwide have been quietly investigating lowenergy nuclear reactions (LENR) for the past 20 years.

Researchers in this controversial field are now claiming

paradigm-shifting results, including generation of large

amounts of excess heat, nuclear activity and transmutation

of elements.1'23 Although no current theory exists to explain

all the reported phenomena, some scientists now believe

quantum-level nuclear reactions may be occurring. DIA

assesses with high confidence that if LENR can produce

nuclear-origin energy at room temperatures, this disruptive

technology could revolutionize energy production and

storage, since nuclear reactions release millions of times

more energy per unit mass than do any known chemical

fuel. 4,5

55

Source Summary Statement

This assessment is based on analysis of a wide body of

intelligence reporting. most of which is open source

information including scientific briefings, peer-reviewed

technical journals, international scientific conference

proceedings, interviews with scientific experts and

technical media.

The information in this report has been

corroborated and reviewed by U.S. technology experts who

are familiar with the data and the international scientists

involved in this work.

...

Although much skepticism remains, LENR programs are

receiving increased support worldwide, including state

sponsorship and funding from major corporations." 8.9.10 DIA

assesses that Japan and Italy are leaders in the field,

although Russia, China, Israel, and India are devoting

significant resources to this work in the hope of finding a

new clean energy source. Scientists worldwide have been

reporting anomalous excess heat production, as well as

evidence of nuclear particles 12,13,14 and transmutation.

15, 16, 17

• Y.Iwamura'8 at Japan's Mitsubishi Heavy Industries first

detected transmutation of elements when permeating

deuterium through palladium metal in 2002.

• Researchers led by Y. Arata at Osaka University in

Japan19 and a team led by V.Violante at ENEA in Italy (the

Italian National Agency for New Technologies, Energy, and

the Environment-the equivalent to the U.S. Department of

Energyj "also made transmutation claims.

• Additional indications of transmutation have been

reported in China, Russia, France, Ukraine, and the United

States.21,22

• Researchers in Japan, Italy, Israel, and the United States

have all reported detecting evidence of nuclear particle

emissions.23.24

.

56

In May 2002, researchers at JET Thermal in

Massachusetts reported excess heat and optimal operating

points for LENR manifolds.39

• Researchers at the China Lake Naval Air Warfare Center

in California first reported anomalous power correlated

with Helium-a production in 1996. 0

Although no one theory currently exists to explain all the

observed LENR phenomena, some scientists now believe

these nuclear reactions may be small-scale deuterium

fusion occurring in a palladium metal lattice. 41.42.43 Some

others still believe the heat evolution can be explained by

non-nuclear means. Another possibility is that LENR may

involve an intricate combination of fusion and fission

triggered by unique chemical and physical configurations

on a nanoscale leveL4445 This body of research has produced

evidence that nuclear reactions may be occurring under

conditions not previously believed possible. Recent results

suggest these anomalous LENR phenomena can be

triggered by various energetic stimuli (electric and

magnetic fields, acoustic waves, infrared, lasers)".47 and

may have a variety of operational modes.

..

57

• APPX. J —Defense Threat Reduction Agency Report

Exhibit 12 in the Complaint Excepts of the DTRA Report,

the High Energy Science and Technology Assessment

[FINAL REPORT, June 29, 2007]. On page 28, the (now

Declassified) conclusion of the DTRA Group, partially in

response to Plaintiffs technology, is that "(t)here is

-

good evidence of excess heat ...

UNCLASSIFIED Defense Intelligence Agency

Defense Analysis Report DIAO8 0911-003 11/13/09

FOR OFFICIAL USE ONLY

Dr. Mitchell Swartz, JET Energy, Inc. presented a brief

summary of the results of excess heat experiments in

electric-field loaded deuterated metals:

He explained his methods for controlling measurement

error and system noise by using dual calorimeter

measurements that allowed precise differential

measurement and integration of power. He was thus able to

compare measurements of several different instruments to

allow judgment of consistency in his reported results.

The diffusion and electrophoresis equations show the

advantages of low conductivity electrolytes and relatively

high voltages for loading D into the electrodes with codeposition of electrode material. Dr; Swartz obtained

energy and power gains over the D charging (loading) input

power and discussed the importance of determining

optimized operating points. Impressively, he showed a

video demonstrating enough power to spin the propeller of

a model airplane.

Low Energy Nuclear Reactions are showing some

remarkable progress with respect to energy (excess heat)

production and transmuted element detection, but

experiments remain only thinly reproducible. LENR also

suffers from a basic lack of understanding of the governing

physics. There is also a compelling need for a theory that

can explain production rates and lead to specific electrode

treatments and electrolyte compositions and predictions of

reaction power, energy and products. The Widom

theoretical construct appears promising, but lacks robust

experimental verification and rigorous peer review.

The polarizing history of LENR is a detriment to expanding

research efforts and it seems unlikely that

deployable/useable devices could be expected within a five

to ten year horizon. Some low-level funding by 6.1 agencies

seems appropriate, both to exploit the possibility of a

breakthrough and to monitor other (international) research

in this field. Nonetheless, DTRA should not go it alone;

rather, it should provide the leadership to build interagency

research consortia with a focus on fostering improved

research facilities and rigorous experimental protocols.

FOR OFFICIAL USE ONLY

9.0 Recommendations

LENR: LENR still suffers from negative publicity

associated with Cold Fusion and is viewed as being

conducted outside the domain of legitimate, mainstream

science. Nonetheless, the persistent and increasingly

repeatable demonstrations of excess heat and

transmutation suggest that there is something here worth

pursuing.