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Judge Andrews grants motion to dismiss defendant’s counterclaim seeking “Declaratory Judgment . . . for Failure to Comply With the Rules Governing U.S. Stage National Entry of a PCT Application”

Judge Richard G. Andrews recently granted plaintiff’s motion to dismiss defendant’s counterclaim seeking “Declaratory Judgment of lnvalidity and/or Unenforceability for Failure to Comply With the Rules Governing U.S. Stage National Entry of a PCT Application.”  Nox Medical EHF v. Natus Neurology Inc., No. 15-709-RGA (D. Del. Jun. 20, 2016).  In short, after filing the patent application at issue, the PTO notifed the applicant that the inventor oath or declaration was missing.  Id. at 1.  The applicant subsequently supplied the requested oath and declaration.  Id. at 1-2.  Years later, plaintiff filed a statement to correct inventorship, adding an additional inventor, and the PTO issued a Certificate of Correction.  Id. at 2.  Judge Andrews found that defendant’s counterclaim failed as a matter of law because the defects to the patent at issue were fixed by the Certificate of Correction issued pursuant to § 256, which provides that omitting inventors shall not invalidate a patent if the error can be corrected.  Id.  at 2-4.

Nox v. Natus, No. 15-709-RGA

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