Particularly if "Robert Moore Esq." is a patent attorney. (I am USPTO Reg. No. 36,452,
http://des.uspto.gov/OEDCI/details.do?regisNum=36452 )
It is worth pointing out that due to some changes made in the US patent system several years ago, patent applications, which used to be maintained in secrecy during pendency, are now published at 18 months from the earliest effective filing date on which the application is based.
Moore makes a number of citations to a patent application 20060266204. Published application numbers are distinguishable from patent numbers, which are serially assigned, in that that application numbers are preceded by the year of publication.
What this boils down to is that patent application 20060266204 is based upon an application filed on Mar. 8, 2005 (as a provisional application). It was re-filed as a utility application on March 12, 2006, and then published in November 2006.
Now here's the thing that stands out as a deliberately misleading statement. In footnote viii, Moore goes off on a tangent about the long pendency time for patent applications. That is true, it takes a long time to get a patent. However, the footnote's point about the backlog of unexamined applications is COMPLETELY IRRELEVANT to the fact that he is citing a published application originally filed in 2005, as exemplary of technology that is alleged to have been employed in 2001. If you understand the patent system it is very difficult to interpret Moore's jump from a 2006 published application, to a digression on pendency time, as anything other than a deliberate attempt to draw away the attention of a lay reader to the fact that he is citing a document published in 2006. The lay reader would presumably conclude from this juxtaposition that "Oh, it says 2006, but these things take a long time to surface". That is an invalid conclusion. The applications are published on schedule at 18 months whether they have been examined or not.
If Moore is a patent attorney, then he knows EXACTLY why that footnote is misleading. Curiously, this Journal does not, as every other scientific journal does, identify the contact information for authors of its papers. If it is "peer reviewed" then ANY patent attorney reading that footnote would have said, "WTF? Why is he citing a 2005-filed application for a device he suggests was used in 2001?"
There are some other points about that application which would also be apparent to any patent attorney "peer reviewer". The application uses what patent attorneys call "prophetic" language when describing the construction and use of the device. Contrary to popular myth, you don't have to build the device or even a model of the device prior to filing a patent application. You can file the application based on an embodiment of a device which you believe *will* work as designed. The utility requirement of patentability is a low threshold, because granting patents on things that don't work doesn't really do any harm in a practical sense - i.e. nobody is going to be sued for infringing a patent on a non-functional device anyway. So, when you read the patent application, it is crystal clear that language in the application saying thing such as:
"By careful design and compartmentalization, solid fuels and oxidizers (or gas-producing agents) can be separated inside sealed compartments. Essentially instantaneous thermal activation along the length of the device will produce a uniform, high-velocity linear jet. A linear thermite charge's modular unit design will allow adaptation for a desired geometry and will be easily deployed in the field. As used herein, a linear thermite charge includes straight linear and curvilinear charges. Integrated attachment mechanisms for fixing the device to a target material or structure are preferred. These mechanisms will allow for quick attachment at any angle and will ensure that the device is firmly anchored to the material.
"This level of material strength is anticipated to be more than adequate for the anticipated stress levels from the reaction of the energetic materials."Patent attorneys do not choose verb tenses at random, because there is an obligation under 18 USC 1001 for an oath or declaration to accompany the patent filing. Hence, if the device has been made and tested, these types of statements will say "are separatred" instead of "can be separated" or "allows" instead of "will allow". Because if it turns out that one of the embodiments doesn't really work or wasn't made, then you can be called on the carpet for drafting the application as if it had been made or tested prior to filing.
Accordingly, the suggestion by Moore that the device was somehow the subject of secret testing or use some five years earlier than the filing date is contradicted by the language actually used in the patent application.
I don't know how clear I've managed to make that, but if you know a patent attorney, go ahead and show him or her the Moore paper along with these comments, and you should get a definite response.
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