The Federal Court of Appeal overturned the decision of the Federal Court and reinstated a number of paragraphs in the Statement of Defence and Counterclaim relating to the issue of inventorship.

The Federal Court had struck paragraphs relating to inventorship on the basis that this issue was determined by Consent Order during conflict proceedings, and could not be re-litigated. The Court of Appeal found that the Defendant in this action was not a party to the conflict proceedings or the Consent Order, so it could not be said to be attempting to re-litigate issues found in that Order. As a result, it was wrong to conclude that the invalidity allegations regarding the issue of inventorship in the Defendant's pleadings constituted an abuse of process.

Thus, it was not plain and obvious that the Defendant could not succeed on its inventorship allegations, and they should therefore not have been struck.

The full text of the decision can be found at:  http://decisions.fca-caf.gc.ca/en/2007/2007fca350/2007fca350.html