Genencor brought this proceeding, appealing the decision of the Patent Re-examination Board. The Board concluded that all of the claims of Genencor's patent were anticipated by a patent owned by a third party (Novozymes), as a result of re-examination pursuant to Section 48.1 of the Patent Act.
By this motion, Novozymes was applying for leave to intervene in the appeal. Novozymes had originally applied to be a party to the appeal, which was denied, with leave to file for intervener status. The Prothonotary below dismissed. This Court upheld the decision of the Prothonotary denying leave to intervene.
The Court held that Novozymes' interests will not be affected by Genencor's appeal as the Court is not construing the claims of Novozymes' patent, it is merely assessing what that patent discloses as a piece of prior art. The Court held that Novozymes' argument would lead to a summary impeachment procedure through the re-examination process. The proper form is for Novozymes to seek to impeach Genencor's patent pursuant to Section 60 of the Patent Act.
The full text of the decision can be found at: http://decisions.fct-cf.gc.ca/en/2007/2007fc843/2007fc843.html