The Court of Appeal affirmed the decision of the Federal Court allowing the owner of a patent to be joined to the proceedings, despite not initially being made a party to the proceedings.

The Court has the discretion to add the patentee at any time. While section 6(4) of the NOC Regulations is mandatory, it does not give a time limit for the patentee to be added as a party. The Judge in the Trial Division was correct to use the Federal Court Rules to supplement the NOC Regulations. The Federal Court Rules provide that a claim shall not be defeated by reasons of misjoinder or non-joinder of a party.

The full text of this decision can be found at:

 http://decisions.fca-caf.gc.ca/en/2008/2008fca15/2008fca15.html