Bayer brought a motion for summary judgment on the basis that Monsanto had missed the time set out by the Commissioner under section 43 of the Patent Act to respond to the conflict proceeding. The Court dismissed Bayer’s motion.

The facts were not in dispute. Monsanto had asked for and was granted an extension of time during the conflict proceeding. Bayer argued that the Commissioner did not have the power to grant an extension of time and thus the extension was a nullity making Monsanto out of time to reply. Thus, Monsanto could no longer be a party to the conflict. The Court found that Bayer was precluded from raising the extension issue now because it did not do so when the matter was before the Patent Office. The Court held that it would bring the administration of justice into disrepute if Bayer was permitted to raise the issue now. The Court further found that the Commissioner made no error in granting the extension of time to Monsanto.

The full text of the decision can be found at:

http://decisions.fct-cf.gc.ca/en/2010/2010fc124/2010fc124.html