Bing Baksh v. Probiohealth, LLC

In this case, Mr. Bakash contended that he was wrongly removed as a named inventor on a patent. In 2006, when CIPO asked for evidence that Probiohealth was the legal representative of the inventors, one inventor assigned his rights, while Baksh refused. Probiohealth then removed those claims it thought were relevant to Mr. Baksh’s contribution. Mr. Baksh filed the removed claims as a divisional. That divisional was originally refused, but upheld on judicial review (summary here).

Probiohealth asked the Commissioner to remove Mr. Baksh as an inventor and the Commissioner agreed. Mr. Baksh challenged that decision on the basis that it was not supported by affidavit evidence. That challenge was eventually settled. However, Probiohealth then filed a second request to remove Mr. Baksh, this time supported by an affidavit of the other inventor. The Commissioner again removed Mr. Baksh. Mr. Baksh challenged that decision by both appeal and judicial review in the within case.  

The Court held that only parties to the original decision can appeal it. Thus, the proper course of action in this case is judicial review. Furthermore, the Court held that only evidence before the decision-maker can be considered on an application for judicial review. Thus Mr. Baksh’s affidavit from the previous judicial review, and the subsequent cross-examination were not considered. The Court held that the Commissioner was not estopped from removing Mr. Baksh as an inventor due to the previous settlement agreement, as in the previous case, it was clear that the settlement was because there was no affidavit evidence, not because the Commissioner was convinced that Mr. Baksh was an inventor. Furthermore, the Court held there was no unfairness to Mr. Baksh in not giving him an opportunity to make submissions in response to Probiohealth’s request. Finally, the Court held that the Commissioner’s decision was not unreasonable and dismissed the application.