In Regeneron Pharmaceuticals, Inc v Canada (AG), 2023 FC 768, the Federal Court granted Regeneron’s application to add an inventor to its issued patent, which was the subject of pending litigation. The Court was satisfied, based on the evidence, that the omission of the inventor was made by inadvertence or mistake and not for the purpose of delay.

While Regeneron did not provide affidavits from the already named inventors, the Court noted that this was not a requirement, and that the balance of the evidence favoured granting the application. For example, the Court considered that the same amendment to inventorship was accepted by the Canadian and US Patent Offices in respect of related patent applications. 

Finally, the Court found that granting the application would not impact any third-party rights, as the parties to the ongoing litigation were notified of the application and did not seek to intervene.

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