In a ruling of first impression, the Federal Circuit found that the six-year period plaintiffs have to file a patent inventorship suit does not begin to run until the patent issues. Hor v. Chu, No. 2011-1540 (Fed. Cir. Nov. 14, 2012).
Plaintiffs filed a suit under Section 256 of the Patent Act, which creates a cause of action to correct inventorship “whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent.” Specifically, plaintiffs filed suit in 2008 and 2010 claiming that two patents on superconductive compounds that were issued in 2006 and 2010 failed to list them as joint inventors of the patents. The District Court dismissed the suit as being time-barred, holding that plaintiffs knew or should have known in the mid-1980s that they were not named as inventors on the patent applications.
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