Patent Office To Reinstate Fired Cold-Fusion-Believing Examiner
Science and Government Report: The Independent Bulletin of Science Policy

Volume XXXV, Number 15/October 01, 2005

    Cold fusion must have at least nine lives, or so it must seem to the vast majority of physicists who consider it pseudoscience. Last year, two events brought cold fusion back into the spotlight, if only briefly. The Department of Energy (DOE) completed a secret review of the progress that has occurred in the field since the sensational 1988 announcement of room temperature fusion in a jar, finding nothing to merit a change to its hands-off treatment. Also last year, Eugene Mallove, a cold fusion zealot who founded and published Infinite Energy magazine, was beaten to death during a robbery near a rental property he was visiting in Norwich, CT.

    Now, cold fusion has been unearthed once again, as another fusion proselytizer won a six-year battle to overturn his firing as a patent examiner. Thomas Valone's 1999 dismissal had been the direct result of efforts he had undertaken to promote cold fusion.

    Valone's boss at the US Patent and Trademark Office (USPTO) alleged violations of federal regulations in the course of his efforts to locate and schedule a government facility to house a cold fusion conference he was organizing. In late July, a federal arbitrator overturned his dismissal, ordering USPTO to reinstate Valone. He also ordered the agency to pay the salary he would have received during his six years off.

    The mediator, Robert Moore, didn't try to weigh the merits of cold fusion, though he did find "nothing wrong in being in the forefront of ideas and theories whose time may have not yet arrived, and may never." His decision was based on the fine points of human relations practice; PTO had built its case for firing Valone in part on incidents that were too minor to have counted against him, he ruled. Valone had been denied due process, he said, and USPTO had also failed to sufficiently substantiate its two principal charges against Valone—that he had repeatedly misrepresented the agency and that his cold fusion activities had interfered with his job. More about that later.

    But Moore's lengthy narrative of the case and his decision strayed well beyond the particulars of Valone's case. The reader is presented with an unflattering look inside USPTO offices, where examiners are expected to meet quarterly "goals" on the number of applications they process, a workplace feature Moore said outside observers might view as contributing to a "sweatshop."

    Examiners' ineligibility for overtime or compensatory time is "fully exploited" by the agency, he wrote.

    Plenty of evidence was uncovered during the arbitration proceedings showing that examiners routinely must work in excess of 40 hours a week. Job tension, he wrote, "is a way of life for examiners." In such an environment, it was "unimaginable" that Valone had been "counseled" (a disciplinary action shy of a reprimand) by a supervisor for taking an hour off to speak during the public comment session of a DoE meeting.

    "With the disruption and destruction of the private and family lives of examiners caused by the PTO's goals systems, it is amazing to have to chastise [Valone] over skipping out on an hour of government time," he wrote.

    Moore also took a dim view of a directive issued by USPTO prohibiting Valone from visiting the examiner who handled cold fusion and other "alternative energy" patent claims. USPTO argued the ban was needed to keep Valone from harassing the examiner, but the examiner's own accounts of the meetings seemed to indicate that he didn't feel harassed.

    The PTO officials' real motives, Moore judged, were to muzzle Valone's cold fusion beliefs. Moore rhetorically wondered if the same officials would have dared to prevent an examiner who opposes intrauterine devices on moral grounds from meeting with and proselytizing the USPTO examiner who processes IUD claims.

    But Moore didn't let Valone off the hook entirely. The "grievant," he said, was "deceptive" and "manipulative," and was incapable of owning up to his actions. By naming Commerce as cosponsor on a conference flyer, Valone had engaged in misrepresentation, he ruled, and for that he received a 30-day suspension from the job he should have had for the past six years. As a practical matter, Moore's finding means Valone's back pay will be reduced by a month.

    Moore's treatise also dwelled at some length on cold fusion persecutors Bob Park, the American Physical Society (APS) curmudgeon who authors the weekly What's New column, and Peter Zimmerman, a former science adviser in the State Department's arms control agency. The pair played a critical role in thwarting Valone's "Conference on Free Energy," or COFE, which ultimately led to the firing. The contempt with which the two physicists' treated cold fusion was no mystery to this arbitrator:

    "The federal government's budget research and development pie in the areas of theoretical physics and chemistry is limited and, by and large, only traditional physicists represented by organizations like the APS and its counterpart for conventional chemists, have been invited to sup on that pie. The last thing they want is any new guests invited to the table."

    Park, he noted, was still crowing in What's New about his part in removing a "heretic" from the patent office eight months after Valone's firing. And the March 2000 edition of APS News carried a front-page story congratulating Park for his years of accomplishments in keeping "non-conventional physicists" away from the federal funding trough.

    Moore chided USPTO, and retired Commissioner of Patents Nicholas Godici—who admitted during the proceedings that he once had the job of examining mouse trap patent applications—for continuing to enforce a strict ban on cold fusion-related patents put in place in 1989. "Certainly, some better understandings and approaches to cold fusion and its related technologies must have occurred which ordinarily, and but for the ban, would meet the new and useful criteria for a patent or constitute what I'll call a 'non-obvious improvement of existing technology'."

    The events that led to Valone's dismissal began with his diligent attempts to find a home for a conference on "free energy," including cold fusion, to be sponsored by his "Integrity Research Institute." Valone had all but sealed an agreement to use an auditorium at the State Department through a program known as the "Open Forum's Speakers' Program," whose mission was "to explore new and alternative views on vital policy issues of the day."

    But when Park got wind of the event, he alerted Zimmerman. Outranking the official in charge of the Open Forum, Zimmerman was able to quash the deal, in part by demanding that only papers and presentations that had undergone peer review would be presented at a State Department-hosted event.

    Undaunted, Valone turned next to the Commerce Department, which happens to be USPTO's parent agency. He nearly received the approval of schedulers there for three days' use of the auditorium and hall space. The schedulers later insisted to their supervisors that they hadn't been told that the conference was a private event, but Moore dismissed USPTO's contention that Valone had deceived them into believing the conference was federally-sponsored. He had in fact been working to arrange cosponsorship by the Patent and Trademark Office Society (PTOS), and he had gotten a sympathetic ear from one PTOS official. But those discussions came to a screeching halt when Park blew the whistle again in his column on Valone's machinations.

    Soon after that, the patent office began getting its ducks in a row to fire Valone. The procedures for firing an employee are formalized in the collective bargaining agreement with the Patent Office Professional Association (POPA). The agreement calls for binding arbitration to resolve dismissals that are challenged.

    POPA represented Valone throughout the arbitration process, sparing him what doubtless would have been huge legal expenses.

    Meanwhile, when it became apparent that DoE wouldn't consider hosting the event, Valone reserved space at a Holiday Inn in nearby College Park. He's now planning for a "Victory COFE II" conference for September 2006, also at a Washington-area hotel.

    Interestingly, Moore's report notes how two other examiners who were well known as cold fusion advocates have been fired since Valone's removal. While one was dismissed for misconduct, the other, removed for failure to produce, has charged the agency with discrimination based on his religious-like belief in cold fusion. The Equal Opportunity Employment Commission has allowed his case to proceed through the tortuous bureaucratic process by which such claims are resolved.

    Moore said POPA had attempted to argue a religious discrimination claim for Valone in spite of his warnings not to pursue that angle with him. He couldn't resist revealing how he might have ruled in that event:

    "Fortunately, the rest of his case makes it unnecessary to determine whether in the absence of an alter (sic) and any special vestments, a belief in cold fusion is any more a religion intended to be protected under Title VII (of the Civil Rights Act) from discrimination than an equally fervent belief in the curative effects of the color blue. Both are more the type of subjects protected by the free speech provision of the Constitution."

    Valone said he has completed a doctoral degree and written several books during his six-year hiatus, in addition to continuing the operation of his nonprofit institute. He said he plans to continue campaigning for recognition of cold fusion patents when he returns to the agency this month.

    "Almost 10 years ago, the PTO adopted a motto 'Help our customers get patents,' which still has not been fulfilled for cold fusion applicants," he stated. Additionally, he hopes to press for increased funding for the continuing education of patent examiners. Funding is currently so low that 95% of examiners are kept from attending outside conferences and seminars to update them in their field of specialty.

    "These are the issues I fought for while I was there and hope to continue when I go back," he said.

    Valone is also worried about what he says is the "glut of allowances" that are now being given to patent applications in the nanotechnology area. The relative ease with which such patents are being awarded is liable to encourage patent litigation, he frets.

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