In an action pitting two doctors against The General Hospital Corp. (TGH) the doctors sought to correct inventorship of a patent under 35 U.S.C. § 256. They also sought to have the patent invalidated under 35 U.S.C. § 102(f). TGH sought to dismiss the § 102(f) action on the grounds that § 102(f) only provides a defense to patent infringement, not an affirmative cause of action. The plaintiffs opposed, but only because they were under the misunderstanding that they needed to plead § 102(f) in order to seek correction of the patent.
After a hearing where it was determined that inventorship was all that was at stake, Magistrate Judge Collings recommended dismissing the § 102(f) count because it was duplicative of the § 256 action, citing several Federal Circuit cases.
Rubin v. The General Hospital Corp., 09-10040-PBS (D. Mass. Nov. 1, 2010)
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