Standards for Correction of Clerical Errors in Patents By District Courts

Originally published by Michael C. Smith.

Smith v. ORBCOMM, Inc., 2:14-CV-666 (9/10/2015) (Gilstrap, J.)

Ever wondered when district courts can correct clerical errors in patents?

Of interest in this claim construction opinion is the Court’s finding that two of the asserted claims were indefinite and that they lacked antecedent basis. But wrapped up in this finding was the plaintiff’s contention that the claims contained a typographical error and that the Court should correct it.

After reviewing the applicable standards for when it is appropriate for district courts to correct clerical errors in patents (hint: the error has to be evident from the face of the patent and the correction must not be subject to reasonable debate), Judge Gilstrap concluded that neither requirement was met. Specifically, the Court wrote that “plaintiff’s arguments and action in this case indicate that the correction is subject to reasonable debate” and observed that “[i]f the error was evident from the face of the patent, then Plaintiff would not continue to argue for an alternative construction. Instead, once identified, plaintiff could have sought to correct the error with the PTO.”

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