Oath Defect

  • Incorporation By Reference May Cause Oath Defect, But May Not Be Invalidity Defense: Each applicant is supposed to read the application before signing the oath. If the patent incorporates anything by reference, explore (e.g., in deposition of the “inventor”) whether the incorporated material was provided to, or read by, the applicant(s). But, this may not be a defense under Aristocrat Tech. (Fed. Cir. 09/22/08) (“sections 133 and 371 … provide none of the signals that Congress has given in other circumstances to indicate that these sections provide a defense to an accused infringer.”)