Management of Intellectual Property – Inventors and Employees

1. Identifying the True Inventor(s)

Why is it so important?

The patent regime established in Australia and in other parts of the world, is a system by which innovative endeavours are rewarded by granting successful applicants limited monopolies in exchange for the full disclosure of the invention.¹ It therefore becomes important to reward the right person or persons, as it is not the intention of any government with a patent regime, to create a monopolistic environment in favour of some person or persons who have not exercised inventive ingenuity.

The categories of persons entitled to be granted a patent

The Patents Act 1990 (Cth) provides a specific framework of recipients who may be granted a patent.² The Designs Act 2003 (Cth) also establishes a similar regime.³ Relevantly, s 15(1) of the Patents Act provides:

Who may be granted a patent?

(1)  Subject to this Act, a patent for an invention may only be granted to a person who:

The principle of Stack v Brisbane City Council

This case may qualify as the longest running case in IP litigation history with over 25 reported decisions. It was fourteen years to the day from the time the patentee George Stack commenced proceedings for injunctive relief to stop the Brisbane City Council (‘BCC’) from using a device he and another person, Alan Grieves, invented. The device known as a ‘water meter assembly’ (‘WMA’) provided a revolutionary new way for the BCC to rate water in a single manifold unit.

The patent was challenged by the BCC contractors who won the tenders to supply WMA’s. They did not succeed on any of the usual grounds of lack of novelty, lack of inventive step or any of the technical attacks of clarity or fair basing. They did succeed however on one ground — entitlement. The patent had been by agreement between the inventors, applied for by Stack and granted to Stack. Stack assigned the patent to a company in which both inventors had shares.

The court determined that the Patents Act did not permit one of two co-inventors to obtain a patent to the invention to the exclusion of the other co-inventor.⁴ The decision of Cooper J was upheld on appeal.

2. The implications of non-joinder and mis-joinder of inventors

What are the implications?

Australian law requires absolute precision in identification of the inventor. The law which has flowed from the Stack  decision is that even if something is truly inventive over the prior art base, it will all fall like a pack of cards if just one inventor has been omitted from the inventors named.

In the same way as the omission of a person who has made an inventive contribution will be fatal for a patent, so too the addition of someone as inventor who has not made an inventive contribution will be fatal.⁵

How could it go wrong?

There is a growing trend to collaborative research.⁶ Teams of researchers are not unique as are collaborations of teams.⁷ In Ranbaxy, the court considered the composition of the skilled addressee which comprised multidisciplinary members. Can it seriously be suggested that in every case the ‘true inventors’ will be identified with complete accuracy?

Who may undermine the patent?

In Australia, anyone may apply to revoke the patent on the basis of entitlement.⁹ Such a right is not limited as in the U.K., to persons claiming an interest in the patent. If just one person is named as an inventor within the team who has not made an inventive contribution, the patent is open to be held invalid.¹⁰ Similarly, if someone has made an inventive contribution, and is not part of the team and is excluded from the list of inventors, the patent will be invalid, simply because the ‘inventor’ in s 15(1)(a) must included all the inventors and only the ‘true inventors’.

3. The U.S. and the U.K. positions

The U.S. position

The 1952 United States Code, Title 35 ‘Patents’, contains laws relating to patents in the U.S. (the ‘U.S. Patents Code’).¹¹ The United States, in approximately 1950, undertook a revision of its patent laws. Relevantly, the U.S. Patents Code provided for an entitlement in the inventor to a patent grant.¹² Entitlement would be lost where the grantee was not the inventor.¹³

However, there is a process which may be undertaken for a correction to be made in relation to a granted patent, in the case of a mis-joinder or non-joinder, where there has been a bona fide error or mistake in the naming of the inventors.¹⁴

The U.K. position

The party lodging the application for patent is presumed to be the party entitled to the grant.¹⁵ The U.K. Act makes provision for the ‘mention of the inventor’ on the patent grant.¹⁶ The UK Act also provides, that an applicant for a patent is required within a prescribed period, to file with the Patent Office, a statement identifying the person who he or she believes is the inventor or inventors and where the applicant is not the sole inventor or the applicants are not joint inventors indicating the derivation of his or their right to be granted the patent.¹⁷

Section 72 of the UK Act contains the grounds upon which a patent might be revoked.¹⁸ As in the Australian legislation, entitlement is a ground for the revocation of the patent.¹⁹ Unlike the Australian provision however, there is a limitation as to who may raise this objection. In the U.K., it may only be raised by a person found to be entitled to the grant or to share in the grant. This finding may be through the court or pursuant to a referral to the Comptroller under s 37 of the U.K. Act.²⁰

4. Establishing who owns the IP? 

The Nature of IP

In many cases difficulties arise with IP rights because they are created in an environment which has not properly prepared for their arrival. IP does not make an announcement such a property auction or a classified ad. Of course, it may be created by a simple phone call to ‘sketch a floor plan for a 3 bedroom home on split levels with living areas downstairs and bedrooms upstairs.’

The call however, with nothing more said, has commenced the creation process and will lock in place the ownership issues. Add to the equation that the call was made to an employee of a design firm and further colourings on the ownership issue arise.

Identification or preparation?

The cases would seem to bear out the proposition that as far as possible, structures should be in place in anticipation of the acts giving rise to the creation of the IP rights. In some cases there will be less risk. The draftsperson who received the call and who is employed to prepare drawings is, subject to any agreement to the contrary, making a drawing, the copyright to which is owned by the persons employer.²¹

Difficulties

The cases reveal that things are not always so clear. Someone within an organisation may see a need;²² that person may even have certain adaptable skills beyond their employed position.²³ Researchers may have several positions²⁴ or not have a clear duty to invent.²⁵

Cases

Case 1

Mr Hudson was employed as a senior storekeeper by Electrolux and was not expected to make inventions which could be of commercial benefit to his employer. Mr Hudson and his wife devised an adaptor for use in vacuum cleaners which made it possible for any open mouthed bag to be used to catch dust.

They applied for a patent for their invention which they later assigned to a third party. Electrolux claimed that all of its employees were subject to its standard conditions of employment and that pursuant to those terms it was entitled to the invention made by Mr and Mrs Hudson.

Whitford J dismissed the claims based on the special terms and conditions but it was submitted on behalf of Electrolux in the alternative, that Mr Hudson owed a fiduciary obligation to Electrolux, i.e. to put the interests of Electrolux before his own, which he had breached.

His Honour accepted that Mr Hudson owed such an obligation but found that he had not breached it, on the basis that Mr Hudson was a storeman; the invention was made in Mr Hudson’s home and he made no use of the facilities and materials of Electrolux.

(Electrolux Ltd v Hudson [1977] FSR 312)

Case 2

In the second case, the employee (Mr Collins) was employed as a sales manager by his employer, the applicant (Spencer Industries). Mr Collins had developed an invention, a rasp, which was an assembly for removing the tread from worn tyres.

Mr Collins though could not at first get the interest of his employer in the invention. Subsequently however, the effective controller of Spencer Industries asked Mr Collins to prepare further drawings. A patent attorney’s advice was sought on whether the invention was patentable, and Mr Collins was described to the patent attorney as the inventor. On behalf of Spencer Industries the patent attorney lodged petty patent application naming Spencer Industries as the applicant and Mr Collins as the actual inventor.

Mr Collins had not however, assigned the invention to Spencer Industries. Despite this, the patent attorney lodged a notice of entitlement asserting that Spencer Industries had entitlement “on the basis of an Assignment”.²⁶ The petty patent was sealed in the name of Spencer Industries.

Mr Collins and another company interested in the invention, challenged the validity of the petty patent based on entitlement. They asserted that the patent was invalid on the ground that Spencer Industries was not entitled to be granted the patent. The Commissioner of Patents decided that Mr Collins made the invention outside the course of his normal duties as an employee of Spencer Industries and accordingly it did not belong to the employer. Spencer Industries appealed.

Branson J determined that the invention was not made by Mr Collins within the course and scope of his employment as sales manager of Spencer Industries. Mr Collins held a sales position. It was observed that Spencer could give him reasonable directions to perform duties outside of the area of sales that were within the area of his technical skills, which were consistent with his employment position as sales manager.

The development of the rasp was something which fell within this area and was consistent with his skills and his employment and could be the subject of his employer’s directions. It was held however that the development of the rasp was not pursuant to the direction, and in fact Mr Collins had been reminded that his focus was to be on sales.²⁷

(Spencer Industries Pty Ltd v Collins (2003) 58 IPR 425)

Case 3

In this case, an oncologist had been exclusively employed in the oncology clinic of a major hospital. Subsequently, pursuant to a policy of the hospital to encourage ‘specialist staff to pursue training in research’ in specific areas, the employee, Dr Kelly, sought and obtained a research grant from a fund within the hospital , for the purpose of conducting research “in the field of clinical or experimental oncology, radiobiology, cancer epidemiology”.

A salary was given to Dr Kelly who worked part time in the oncology clinic and part on the research project. In addition, laboratory and travelling expenses were included, as were the costs of an assistant. The research project which Dr Kelly extended to a doctorate thesis. This led to the filing of a patent application in respect of a claimed cure for a form of pancreatic cancer based on the treatment of pancreatic disease through administration of cyanohydroxybutene, a product found in cruciferous vegetables, raw canola and many stock feeds. The application was assigned to a third party venturer. The State government, acting through the Department of Health, objected to the granting of the patent, arguing that the patent should proceed in its name.

Dr Kelly argued that she had on a number of occasions sought the department’s assistance and direction as to the filing of a patent, but no meaningful response had been received.

The delegate of the Commissioner found ‘that an inventive contribution was made by Dr Kelly in the course of her employment as a Research Fellow but later development of the invention, although supported by her employer, was not in the course of her normal employment as a part time clinical oncologist’. The result was that the application would proceed in both names.

(Pancreas Technologies Pty Ltd v The State of Queensland [2005] APO 1)

Case 4

In 1985 the University of Western Australia (UWA) appointed Dr Bruce Gray as its Professor of Surgery and Head of Department, as a fulltime employee and remained as such until March 1997 when he changed to a part time employment, whilst concentrating on clinical work at the Royal Perth Hospital (RPH).

In his time as a fulltime employee, Dr Gray was required by his terms of appointment to teach and to conduct and stimulate research. The terms incorporated the Statutes and regulations of UWA including its Patents Regulations. Prior to his appointment with UWA, Dr Gray had been engaged for some years in researching the treatment of liver cancer by using microspheres, injected into the blood vessels of the liver to deliver anti-cancer therapies to the sites of tumours. It was this line of research that Dr Gray pursued at UWA along with other researchers, including Dr Mark Burton, who had worked with him previously at Melbourne University.

UWA commenced proceedings against Dr. Gray and two companies with which he was associated claiming a interest in certain technologies UWA claimed were developed by Dr Gray, while he was employed by the university.

UWA alleged that Dr Gray had breached his contract of employment with it by failing to comply with disclosure and associated obligations imposed by its Patents Regulations which had been made in 1971 and their successors, the Intellectual Property Regulations (the IP Regulations) which were passed by the Senate of UWA. French J found that UWA had a problem in seeking to rely upon its Patents Regulations because it was found that from 1988 UWA had effectively abandoned the Patents Committee which the Regulations provided for. In addition, it was found that the Patents Regulations had not been promulgated, as required by the University of Western Australia Act 1911 (WA) (UWA Act) at a relevant time. His Honour proceeded on the basis that they did not come into effect before that date.

UWA further argued that it was an implied term of Dr Gray’s contract of employment that intellectual property developed in the course of his employment belonged to UWA. His Honour says at [12]:

Although there seems to have been an assumption among some at UWA that such an implied term operates generally in the case of academic staff who research and use university facilities, I have concluded that the assumption is not well founded. Absent express agreement to the contrary, rights in relation to inventions made by academic staff in the course of research and whether or not they are using university resources, will ordinarily belong to the academic staff as the inventors under the 1990 Act. The position is different if staff have a contractual duty to try to produce inventions. But a duty to research does not carry with it a duty to invent.

His Honour considered that the only secure way for UWA to acquire property rights from its academic staff in respect of intellectual property developed by them in the course of research at UWA was by express provision in their contracts of employment.²⁸

5. Suggested Steps

Awareness

If there is to be a reasonable effort to avoid litigation to determine the owners of certain rights, it must involve a strategy of awareness of the parties before matters proceed to a point where ownership is considered in hindsight.

The Relationship

Integral in this early awareness strategy is the categorization of the relationship and its tailoring to suit the agreement between the parties on the issue. If there is no agreement relating to it, then one should be formulated.

The Alternative

The alternative is to ignore the issue, invest research and development dollars and if that investment yields rights which have commercial utility, then examine who owns those rights. French J in the UWA case has made a recommendation in these terms:

Even then, as this case demonstrates, the transaction costs of administering and enforcing such provisions and the uncertainty surrounding their scope and application, raises a real question as to their utility. The length and complexity of this litigation has been exceptional. However any claim by a university to intellectual property rights whose creation has involved a team of research workers, external funding, collaborative arrangements and extended periods of conceptual and practical development is likely to pose similar difficulties. UWA and other universities might well consider the alternative of deriving benefits from inventions produced by their staff by offering highly competent and experienced commercialisation services in exchange for a negotiated interest in the relevant intellectual property. That alternative offers many benefits in terms of incentives, harmony and certainty that are not available through the enforcement of legal rights unlikely to be capable of precise definition. (emphasis mine)

The suggested mix is essentially one of a venture capitalist and creative, which usually brings together parties with different ideals and methodologies as to the manner in which IP rights are to be exploited. It will be interesting to see if research institutions, particularly universities, respond to the suggestion.

6. Summary 

The key must be, as far as possible, to identify the relationships formed to ascertain the management strategy for the IP rights created and address them at an early stage. If the employer clarifies its intellectual property policy, implements it and incorporates the essential ownership elements into its contracts in an express manner, this should in many cases alert employees, before the investment of time and money. Persons working in product development must have their tasks specifically documented.

Of course there will be issues, however awareness of the potential creation of rights through relationships, will give rise to better practice strategies and will reduce instances of uncertainty and cost. 

Dimitrios Eliades

Endnotes

1. LexisNexis Butterworths, Lahore Patents Trade Marks and Related Rights, vol 1 (at 93) 5041: ‘A patent is a temporary monopoly granted by the Crown to the patentee in return for the disclosure of the invention to the public in the patent specification’;  IP Australia, What is a Patent? (2006) Australian Government <http://www.ipaustralia.gov.au/patents/what_index.shtml> at 9 May 2006: ‘A patent is legally enforceable and gives the owner the exclusive right to commercially exploit the invention for the life of the patent’.
2. Patents Act 1990 s 15(1).
3. Designs Act 2003 s 13(1).
4. Stack v Brisbane City Council 47 IPR 525 at [60].
5. Conor Medsystems, Inc v The University of British Columbia (No 2) [2006] FCA 32, [8]:Most, but not all, of the Australian colonies adopted the English patent legislation with few modifications. The exceptions were Victoria and Western Australia where the legislation was different in significant respects. Relevant for present purposes is the Victorian statute, the Patents Act 1889 (Vic). That Act provided that the only person who could apply for a patent was the ‘actual inventor’ or his assigns or legal representatives (if deceased) or a person to whom the invention had been communicated by the “actual inventor” or his representatives or assigns: s 7(3). The applicant for the patent was required to declare that the applicant, or, if more than one, the applicants claimed to be the “true and first inventor or inventors”: s 8(2). “True and first inventor” was defined in s 3 to mean “the actual inventor of any invention” or his assigns or legal representatives…
6. The Australian Government introduced in the 2004/2005 budget, the National Collaborative Research Infrastructure Strategy (NCRIS), whose focus was to co-ordinate and identify strategies promoting collaborative research as an essential tool for innovation:The Australian Government has recognised the need to bring more strategic direction to Australia’s investment in research infrastructure. In the 2004-05 Budget, the Government announced that the National Collaborative Research Infrastructure Strategy (NCRIS) would be implemented to provide the greater focus and coordination required. Funding of $542 million to 2010-11 was allocated to fund the Strategy in the Backing Australia’s Ability: Building Our Future through Science and Innovation package…The Advisory Committee submitted its recommendations to the Minister in July 2005 following a public call for submissions and extensive consultations with stakeholders. The Minister has accepted the recommendations as the basis for the implementation of NCRIS…

   National Collaborative Research Infrastructure Strategy Committee, Strategic Roadmap (Exposure Draft) (2005) Parliament of Australia <http://www.dest.gov.au/NR/rdonlyres/97ACCF02-0860-484F-B200-278EB609FA20/10385/ExposureDraftforWebSiteApril06.pdf> at 24 July 2006.

7. AG v Bausch & Lomb (Australia) Pty Ltd [2004] FCA 835 (Merkel J, 24 August 2004), [29]:The invention the subject of the patent is claimed to achieve ophthalmic compatibility for periods of extended wear. The invention was the outcome of the “SEE3” project, a collaboration between Ciba Vision in the United States, Ciba-Geigy’s Central Research Unit in Switzerland, and the Cooperative Research Centre for Eye Research and Technology (“CRCERT”) in Australia. CRCERT was itself a collaboration between various Australian research groups, including the second applicant and the Cornea and Contact Lens Research Unit (“the CCLRU”) at the University of New South Wales. The SEE3 project was headed by Paul Nicolson (“Nicolson”), who was called as a witness for Novartis. Other people who played significant roles in the SEE3 project and/or the patent’s drafting, and who were called as witnesses for Novartis, included the Ciba Vision patent attorneys for the United States and Europe respectively, Scott Meece (“Meece”) and Joerg Dietz (“Dietz”), and Lyn Winterton (“Winterton”) who developed the ionoton measurement for ion permeability.
8. Ranbaxy Australia Pty Ltd v Warner-Lambert Company LLC (No 2) [2006] FCA 1787, [83] and [84] (emphasis added):The evidence from the experts concerning the identity of the skilled addressee of the 981 Patent and the Enantiomer Patent was broadly to the same effect. All of the experts considered that the patents were addressed to a team involved in drug discovery and development. The team would include medicinal chemists responsible for designing and making compounds with high biological activity, assisted by biologists, clinical researchers and technicians. The medicinal chemists would have the skill to undertake work designed to determine the relationship between the structure and biological activity of compounds, ie the structure activity relationship. The team would include highly qualified team leaders assisted by a number of research associates (including PhD students and post-doctoral researchers). It would also include biologists and/or biochemists who would be consulted in connection with creating and developing biological assays in which to test compounds. (emphasis added)

   The size and composition of the team would vary depending on the project being undertaken and the focus of its work would be directly related to the particular drug discovery process being pursued. Where relevant, the team would also include other chemists or pharmaceutical scientists with expertise in relation to relevant disease mechanisms and therapeutic opportunities. Physical chemists and pharmacologists may be required to test the physiochemical and pharmacokinetic properties of the most promising new molecules, and it is likely that formulation and process chemists would be retained during the development phase of the project. Toxicologists may also have been required to carry out in vivo testing of any compounds which show sufficient promise to be considered for further development. It is possible that, as Dr Watson suggested, a computer molecular modeller, with qualifications in science and information technology, may have been engaged to suggest new molecular structures which could inhibit the target biological system but the weight of evidence was that this would not have been common in the 1980s.

9. Patents Act 1990 s 138(3)(a).
10. Note the comments of Bennett J in University of British Columbia v Conor Medsystems, Inc [2006] FCAFC 154.
11. Act July 19, 1952, c 950, 66 Stat. 792 codified and enacted into positive law, Title 35 of the United States Code; Information on Foreign Industrial Property Systems (2006) Japan Patent Office< http://www.jpo.go.jp/shiryou_e/s_sonota_e/fips_e/pdf/mokuji_e/e_us_tokkyo1.pdf> at 9 August 2006.
12. 35 U.S.C. 101 Inventions patentable.
    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.
13. 35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.
    A person shall be entitled to a patent unless —
    …
    (f) he did not himself invent the subject matter sought to be patented,
14. 35 U.S.C. 256. Correction of named inventor.
    Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Director may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issued a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Director shall issue a certificate accordingly.
15. The UK Act s 7(4) provides: ’Except so far as the contrary is established, a person who makes an application for a patent shall be taken to be the person who is entitled under subsection (2) above to be granted a patent and two or more persons who make such an application jointly shall be taken to be the persons so entitled.’
16. The UK Act s 13(1).
17. Ibid s 13(2). Note the distinction with German Patent Law as discussed at [3.95]. The UK law states the inventors are in the singular or plural: where the applicant is not the sole inventor or the applicants are not joint inventors. German Patent Law makes a distinction, in terms of the applicant between ‘the inventor’ and ‘the sole inventor’, because on the courts reasoning in Stack, the inventor = the sole inventor.
18. The section provides:72. Power to revoke patents on application
    (1) Subject to the following provisions of this Act, the court or the comptroller may on the application of any person by order revoke a patent for an invention on (but only on) any of the following grounds, that is to say–

    (a) the invention is not a patentable invention;
    (b) that the patent was granted to a person who was not entitled to be granted that patent;
    (c) the specification of the patent does not disclose the invention clearly enough and completely enough for it to be performed by a person skilled in the art;
    (d) the matter disclosed in the specification of the patent extends beyond that disclosed in the application for the patent, as filed, or, if the patent was granted on a new application filed under section 8(3), 12 or 37(4) above or as mentioned in section 15(4) above, in the earlier application, as filed;
    (e) the protection conferred by the patent has been extended by an amendment which should not have been allowed.

19. The UK Act s 72(1)(b).
20. Ibid s 72(2)(a):
    2) An application for the revocation of a patent on the ground mentioned in subsection (1)(b) above–
    (a) may only be made by a person found by the court in an action for a declaration or declarator, or found by the court or the comptroller on a reference under section 37 above, to be entitled to be granted the patent or to be granted a patent for part of the matter comprised in the specification of the patent sought to be revoked;

    Section 37 provides a mechanism for persons having or claiming a proprietary interest in a patent to refer a question to the Comptroller so that the person may be added either alone or with others to the patent or have someone removed from the title. It was introduced as a new provision in the 1977 U.K. Act and states:

    37. Determination of right to patent after grant

    (1) After a patent has been granted for an invention any person having or claiming a proprietary interest in or under the patent may refer to the comptroller the question–
    (a) who is or are the true proprietor or proprietors of the patent,
    (b) whether the patent should have been granted to the person or persons to whom it was granted, or
    (c) whether any right in or under the patent should be transferred or granted to any other person or persons;
    and the comptroller shall determine the question and make such order as he thinks fit to give effect to the determination.

    (2) Without prejudice to the generality of subsection (1) above, an order under that subsection may contain provision-
    (a) directing that the person by whom the reference is made under that subsection shall be included (whether or not to the exclusion of any other person) among the persons registered as proprietors of the patent;
    (b) directing the registration of a transaction, instrument or event by virtue of which that person has acquired any right in or under the patent;
    (c) granting any licence or other right in or under the patent;
    (d) directing the proprietor of the patent or any person having any right in or under the patent to do anything specified in the order as necessary to carry out the other provisions of the order.

    The U.K. Patent Office Manual relevantly provides at 72.40:

    Thus revocation of a patent on the ground that the patent was granted to a person who was not entitled to be granted that patent may only be sought by a person who has already satisfied the court or the comptroller that he himself should have been the or a proprietor… No one else may apply for revocation on this ground. Nor may any application be made on this ground unless proceedings to contest the proprietor’s right to the patent had been started within two years of the date of grant, unless the applicant can show bad faith on the part of the proprietor.

    Patent Office Practice Manual, (2006) U.K. Patent Office<http://www.patent.gov.uk/practice-sec-072.pdf > at 4 February 2007.

21. Copyright Act s 35(6).
22. Electrolux Ltd v Hudson [1977] FSR 312; In Victoria University of Technology v Wilson(2004) 60 IPR 392 at [149] Nettle J (Supreme Court of Victoria) held that a university professor and a senior lecturer, owed to the university fiduciary obligations not to profit from their position at the expense of the university and to avoid conflict of interest and duty. To avoid liability a full disclosure was necessary and consent of the employer.
23. Spencer Industries Pty Ltd v Collins (2003) 58 IPR 425.
24. Pancreas Technologies Pty Ltd v The State of Queensland acting through Queensland Health [2005] APO 1 (5 January 2005).
25. University of Western Australia v Gray (No 20) [2008] FCA 498 (French J, 17 April 2008)
26. Patents Act s 15(1)(c).
27. Spencer Industries Pty Ltd v Collins (2003) 58 IPR 425 at [77] — [86].
28. University of Western Australia v Gray (No 20) [2008] FCA 498 at [14].