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.

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