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UWA v Gray anatomises universities and IP

By Peter Jorm - posted Thursday, 27 February 2014


Although there was a statute on IP in place, the University had no power under its foundation Act to acquire compulsorily the IP generated by its staff.

There was also an issue of when and where the IP had been created. If the concepts (as distinct from any invention) had been developed before Dr Gray's employment at the University, then the IP in any invention belonged to him.

Team Membership

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The team that worked with Dr Gray were not all employees of the University. Dr Gray, and not the University, had assembled his research team. Membership of his team varied over the years and the contributions made by team members also varied in quantity and quality.

Finance

Much of the funding for Dr Gray's research came from grants and not from University sources.

If the University were to obtain IP rights from Dr Gray's research, it would be benefiting from the financial inputs of others.

Employer-Employee Relationship

The Full Federal Court re-stated the basic principle that the employer owns the IP created by employees.

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However, the Court also found that the relationship of an academic staff member with a university cannot simply be defined in terms of a contract of employment. There is a distinctive dimension of that relationship – that of corporate membership of the University.

Membership of a university has distinctive features: a university does not engage staff for commercial purposes.

Legislation

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About the Author

Peter Jorm is an administrative lawyer whose pro bono activities post retirement have involved him in aspects of commercial and intellectual property law.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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