Allens

Intellectual Property

Client Update: University of Western Australia seeks leave to appeal Gray decision

5 October 2009

In brief: In the latest instalment of the long running UWA v Gray saga, the University of Western Australia has today sought leave to take its dispute with Dr Bruce Gray, a former Professor of Surgery at the university and founder of biotech company Sirtex Medical Limited, to the High Court. Partner Richard Hamer (view CV) and Senior Associate Louise Brunero report.

Seeking leave to appeal to the High Court

The University of Western Australia (the UWA) is seeking leave to appeal the Full Federal Court decision handed down last month which confirmed the Hon Justice Robert French's decision last year that the intellectual property rights in inventions made by Dr Gray during the course of his employment with the university were owned by the professor – and not the university – because, while he was under a duty to conduct research, he was not under a duty to invent.

In a statement to the press released by the UWA today, UWA Vice-Chancellor Professor Alan Robson said that the university would seek leave to appeal against the Full Court decision because it challenged the principles upon which universities operate when requiring employees to undertake research duties at universities while using public funds.

'This course of action is a matter of principle because the judgment has important ramifications for all university-initiated research.  It could stem the potential flow on benefits of intellectual property resulting from such research to the broader community,' Professor Robson said.

'Research and innovation undertaken within universities, by their very nature, build on the work of those who have gone before,' he said.  'We must ensure that this research – which will almost always be done for the benefit of the broader community – is recognised as university IP,' Professor Robson said.

While the distinctiveness of a university such as the UWA and of academic employment in it was central to the Full Court's reasons, it will be interesting to see whether the High Court makes a similar distinction and upholds the conclusions of Justice French and the Full Court.

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