Idenix brought a motion to amend its pleadings. The Prothonotary granted leave to make certain amendments, however denied leave to make certain others relating to s. 53 of the Patent Act. Idenix appealed that decision to a Federal Court Judge, who granted the appeal. Gilead appealed the Judge’s decision to the Federal Court of Appeal (FCA).
The FCA denied the appeal. The FCA was not persuaded that the Judge’s decision was plainly wrong. The Judge held that the question of whether the disclosure of the names of the inventors of the patent in the petition is a material allegation pursuant to s. 53(1) of the Patent Act is a matter that should be considered by the trial judge.