University of Western Australia v Gray (No 20)
[2008] FCA 498
•17 April 2008
FEDERAL COURT OF AUSTRALIA
University of Western Australia v Gray (No 20) [2008] FCA 498
CORRIGENDUM 2
THE UNIVERSITY OF WESTERN AUSTRALIA v BRUCE NATHANIEL GRAY, SIRTEX MEDICAL LIMITED (ACN 078 166 122) and CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)
BRUCE NATHANIEL GRAY v THE UNIVERSITY OF WESTERN AUSTRALIA and YAN CHEN
SIRTEX MEDICAL LIMITED (ACN 078 166 122) v THE UNIVERSITY OF WESTERN AUSTRALIA
SIRTEX MEDICAL LIMITED (ACN 078 166 122) v BRUCE NATHANIEL GRAY and CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)
WAD 292 OF 2004FRENCH J
17 APRIL 2008 (CORRIGENDUM DATED 29 APRIL 2008)
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 292 OF 2004
BETWEEN:
THE UNIVERSITY OF WESTERN AUSTRALIA
ApplicantAND:
BRUCE NATHANIEL GRAY
First RespondentSIRTEX MEDICAL LIMITED (ACN 078 166 122)
Second RespondentCANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)
Third RespondentBRUCE NATHANIEL GRAY
First Cross-ClaimantTHE UNIVERSITY OF WESTERN AUSTRALIA
First Cross-Respondent to First Cross-ClaimYAN CHEN
Second Cross-Respondent to First Cross-ClaimSIRTEX MEDICAL LIMITED (ACN 078 166 122)
Second Cross-ClaimantTHE UNIVERSITY OF WESTERN AUSTRALIA
Cross-Respondent to Second Cross-ClaimSIRTEX MEDICAL LIMITED (ACN 078 166 122)
Third Cross-ClaimantBRUCE NATHANIEL GRAY
First Cross-Respondent to Third Cross-ClaimCANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)
Second Cross-Respondent to Third Cross-Claim
JUDGE:
FRENCH J
DATE:
17 APRIL 2008 (CORRIGENDUM DATED 29 APRIL 2008)
PLACE:
PERTH
CORRIGENDUM
1In the Reasons for Judgment delivered on 17 April 2007 remove Annexure 2 and substitute the attached.
Associate:
Dated:
ANNEXURE 2
This annexure covers what were described by Dr Gray in his closing submissions as successful research applications 1985 to 1996 and 'NH MRC Grants’.
Application Doc Title Investigator Grant Body Amount Received Invention Date 28/01/1985 Augmentation of effect of chemotherapeutic agents Mander, Gray, Burton RPH $10,000 (microspheres) $3,770 (lab assistant) DOX* 28/01/1985 (1985-4) Augmentation of effect of chemotherapeutic agents Mander, Gray, Burton RPH $10,000 (microspheres) $3,770 (lab assistant) 25/07/1985 Manipulation of tumour blood flow to facilitate therapy Gray UWA Special Research Grant $57,510 for 1986-1987; Additional $2060 awarded for ‘maintenance’ in 1987 SIR 25/07/1985 (1986-87) Manipulation of tumour blood flow to facilitate therapy Gray UWA Special Research Grant $57,510 for 1986-1987; Additional $2060 awarded for ‘maintenance’ in 1987 6/12/1985 Treatment of Hepatic Metastases with Intra-hepatic radioactive microspheres Mander, Burton UWA (Faculty of Medicine) $3,990 SIR 24/03/1986 The Utilization of Microspheres as Vehicles for the Accurate and Sustained Delivery of Anti-Cancer Drugs. Hodgkin; Mau; Burton; Gray CSIRO/UWA Collaborative Research Fund $36, 571 DOX* 30/01/1987 The Manufacture of Chemotherapeutic Microspheres with Novantrone, Floxuridine and Mitomycin-C C Jones; Burton; Gray RPH $3,000 DOX* 26/06/1987 (1987-4) Hyperthermia of tumours utilising hysteresis heat loss from selectively targeted ferromagnetic particles Gray, Detchon Clive and Vera Ramaciotti Foundation Research Nil. Grant is marked “unsuccessful” 27/11/1987 Assessment of the ability of 5-FU to prevent liver and peritoneal metastases from colonic carcinoma Archer, Gray UWA – Faculty of Medicine Not in Evidence 9/12/1987 Polymer mediated chemotherapy of localised tumours Gray, Burton RPH $6,240 DOX* 16/08/1988 Manufacture of sustained release microspheres for 5FU, FUDR and mitrozantone Burton; Trotter CFWA (administered by UWA) $32,330 DOX* 28/11/1988 Selective internal radiation therapy for metastatic liver cancer Gray UWA – Faculty of Medicine $8,800 SIR x/x/1988 ** Clinical Trials in Bowel Cancer / Redistribution of liver blood flow NHMRC $17,000/ $42,000 29/11/1988 Electromagnetic Radiation induced Hyperthermia treatment of Liver Tumours Kelleher UWA – Faculty of Medicine $3,567 THERMO* x/x/1988 ** Electromagnetic Radiation induced Hyperthermia treatment of Liver Tumours MEDWA $38,750 sought - amount received not specified. 26/01/1989 Selective Internal Radiation Therapy for the Treatment of Metastatic Liver Cancer Gray RPH $6,518 SIR 31/01/1989 Electromagnetic Radiation induced Hyperthermia Treatment of Liver Tumours Kelleher; Burton RPH $3,567 THERMO* 31/01/1989 A pilot study of Adjuvant SIR-Therapy Burton RPH $2,104 SIR 24/02/1989 Augmentation of the Dynamics of adriamycin chemotherapy Burton, Chen NHMRC (administered by UWA) $117,279.84 for 1990 to 1992 DOX 26/06/1989 Efficacy of floxuridine transported on ion exchange microspheres Burton; Chen CFWA (administered by UWA) $36,132 DOX 27/08/1989 Research Grant Application entitled 'Effect of treatment on immune cell population' Gray; Codde RACS (administered by UWA) Not in Evidence 16/02/1990 Development of Ferromagnetic Microspheres for treatment of Cancer by induced hyperthermia resulting from hysteresis heating S Jones RPH $5,700 THERMO 16/02/1990 Formulation of Macromolecular Conjugates of FUDR Chen, Blackbourn RPH $5,700 DOX* 16/02/1990 Grants 1990-7: Optimization programme for SIR-Therapy Gray; Burton RPH $5,555 28/02/1990 Randomised Trial of Selective Internal Radiation Therapy in Liver Cancer Gray; Van Hazel NHMRC (administered by UWA) $213,212.68 over 3 years to 31 July 1994 SIR 20/06/1990 Hyperthermia of tumours utilising hysteresis heat loss from selectively targeted ferromagnetic particles S Jones; Gray Clive and Vera Ramaciotti Foundation Research Not in evidence THERMO 20/06/1990 (1990-8) Hyperthermia of tumours utilising hysteresis heat loss from selectively targeted ferromagnetic particles S Jones; Gray Clive and Vera Ramaciotti Foundation Research (administered by RPH) Not in Evidence 23/01/1991 Therapeutic evaluation of Cytotoxic Drug Carriers Codde RPH $13,260 DOX* 31/01/1991 Formulation of sustained release carriers for Cisplatin Chen, Blackbourn RPH $9,970 DOX 31/01/1991 Optimization of Magnetic Parameters for Hyperthermia Cancer Therapy using Hysteresis heating S Jones, Gray RPH $8,994 THERMO 3/05/1991 Development of complexed doxorubicin-metal ion microspheres Hodgkin; Mau; Burton; Chen CSIRO/UWA Collaborative Research Fund $31,917 DOX 11/02/1992 Scheduling Hyperthermia and Chemotherapy Burton RPH Not in Evidence 14/02/1992 Development of biodegradable magneto- responsive microspheres' Gray, Chen, Blackbourn RPH $3,680 Other Projects (THERMO*) 19/05/1992 Magnetoregulated release of doxorubicin from albumin-heparin microspheres Jones; Chen CFWA (administered by RPH) $37,000 Other Projects (THERMO*) 15/09/1992 Development of a Hyperthermia Research Program Burton, Jones, Gray, Chen, Codde Telethon Unclear. Possibly $50,000 or $40,000 THERMO* 2/12/1993 Magneto-regulated doxorubicin delivery Chen RPH $4,350 Other Projects (THERMO*) 2/12/1993 Grants 1993-1: In Vivo Investigation of Induced Hyperthermia by Ferromagnetic Hysteresis Technique S Jones RPH $10,010 THERMO 2/12/1993 Grants 1993-2: Magnetoregulated Doxorubicin Delivery Chen RPH $4,350 11/02/1994 Investigation of Microsphere Mediated Hyperthermia in Rabbit Tumour Model S Jones RPH $9,650 THERMO 7/07/1995 Development of a Device for Evaluation of a Rotational Hysteresis Losses S Jones ARC (administered by UWA) $12,609 THERMO 8/11/1997 The development of targeted products for the treatment of cancer Start, Ausindustry Grant $950,000 [Agreed Maximum Grant] THERMO* * Where the designated invention is asterisked, the claim of relevance to that invention is disputed by the University either on the basis that the named investigators are or include people who are not relevant inventors or that the grant relates to different issues.
** Where an entry is double asterisked, the relevant application is not itself in evidence, but is rather referred to in an endorsement on a separate application for a different grant.
The following dates represent applications that were duplicated across Schedules B and C and were thus removed. 6/12/1985 24/03/1986 30/01/1987 9/12/1987 16/08/1988 28/11/1988 29/11/1988 26/01/1989 31/01/1989 31/01/1989b 24/02/1989 26/06/1989 16/02/1990 16/02/1990b 2/11/1994 28/02/1990 23/01/1991 31/01/1991 31/01/1991b 3/05/1991 14/02/1992 19/05/1992 2/12/1993 7/07/1995 FEDERAL COURT OF AUSTRALIA
University of Western Australia v Gray (No 20) [2008] FCA 498
CORRIGENDUM
THE UNIVERSITY OF WESTERN AUSTRALIA v BRUCE NATHANIEL GRAY, SIRTEX MEDICAL LIMITED (ACN 078 166 122) and CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)
BRUCE NATHANIEL GRAY v THE UNIVERSITY OF WESTERN AUSTRALIA and YAN CHEN
SIRTEX MEDICAL LIMITED (ACN 078 166 122) v THE UNIVERSITY OF WESTERN AUSTRALIA
SIRTEX MEDICAL LIMITED (ACN 078 166 122) v BRUCE NATHANIEL GRAY and CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)
WAD 292 OF 2004FRENCH J
17 APRIL 2008 (CORRIGENDUM DATED 22 APRIL 2008)
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 292 OF 2004
BETWEEN:
THE UNIVERSITY OF WESTERN AUSTRALIA
ApplicantAND:
BRUCE NATHANIEL GRAY
First RespondentSIRTEX MEDICAL LIMITED (ACN 078 166 122)
Second RespondentCANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)
Third RespondentBRUCE NATHANIEL GRAY
First Cross-ClaimantTHE UNIVERSITY OF WESTERN AUSTRALIA
First Cross-Respondent to First Cross-ClaimYAN CHEN
Second Cross-Respondent to First Cross-ClaimSIRTEX MEDICAL LIMITED (ACN 078 166 122)
Second Cross-ClaimantTHE UNIVERSITY OF WESTERN AUSTRALIA
Cross-Respondent to Second Cross-ClaimSIRTEX MEDICAL LIMITED (ACN 078 166 122)
Third Cross-ClaimantBRUCE NATHANIEL GRAY
First Cross-Respondent to Third Cross-ClaimCANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)
Second Cross-Respondent to Third Cross-Claim
JUDGE:
FRENCH J
DATE:
17 APRIL 2008 (CORRIGENDUM DATED 22 APRIL 2008)
PLACE:
PERTH
CORRIGENDUM
In the Reasons for Judgment delivered on 17 April 2007:
1. Page 2, Order 14 should read:
“Any party in respect of whom an order ……”
2. Page 3 delete “Introduction” and insert “Index”.
3. At [20], after “make orders” insert “as to costs”.
3.At [87] on p 28, the first line after the quotation, delete “London and North Western Railway Co [1893] 1 Ch 16 at 78” and insert “London and North Western Railway Co v Evans [1893] 1 Ch 16 at 28”.
4. At [161], line 6, delete “grant”.
5.At [246], item 14, delete “, and were described by its Vice-Chancellor as being,”. Delete quotation marks around “in a state of disarray” so that item 14 now reads:
“In 1986 UWA’s intellectual property policies and practices were in a state of disarray.”
Associate:
Dated:
FEDERAL COURT OF AUSTRALIA
University of Western Australia v Gray (No 20) [2008] FCA 498
INTELLECTUAL PROPERTY – patents – inventions – inventions made by employees – academic staff of university – employed to research – whether duty to invent – whether implied term in contract conferring rights on university – no duty of non-disclosure – no duty to invent – significant requirement for external funding – no implied term – inventorship – discovery – inventive concept – identification of inventive concept – specification or claim by claim analysis – unjustified threats of infringement or similar proceedings – claim for constructive trust in patent rights – whether “similar proceedings” – not similar proceedings – no unjustified threats
CONTRACT – employment – implied term – invention – academic staff – employment to teach and research – whether duty to invent – whether implied term vesting invention rights in university – no implied term
DELEGATED LEGISLATION - regulations – university – regulation making power – promulgation requirement as condition of operation – content of requirement – construction – whether regulations may validly acquire intellectual property rights from academic staff – presumption against alienation or interference with property rights – no valid authority to acquire or interfere with property rights by regulation – not related to control or management of university property
TRADE PRACTICES - misleading or deceptive conduct – representations – future matters – application of s 51A – requirement to plead or demonstrate implied representations as to reasonable grounds
CORPORATIONS – directors – director’s duties – failure to disclose material information to company in due diligence prior to float – information indicating risk of claim against intellectual property held by company – loss of opportunity to company to avoid claim by negotiation or otherwise
TORT - defamation – qualified privilege – malice – letter of demand – whether content and timing of letter of demand actuated by maliceThe University of Western Australia Act 1911 (WA) s 3, s 16E, s 31,
The University of Western Australia Act Amendment Act 1929(WA) s 2, s 3
The University of Western Australia Act Amendment Act 1970 (WA)
The University of Western Australia Act Amendment Act 1975 (WA
Interpretation Act 1918 (WA) s 36
Patents Act 1952 (Cth) s 69, s 152(1), s 34, s 26,
Patents Act 1990 (Cth) s 15, s 32
Patents Act 1960 (Cth)s 5
Patents Act 1969 (Cth)Patents Regulations
Intellectual Property RegulationsAdamson v Kenworthy (1932) 49 RPC 57
Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1998) 194 CLR 171
AMP Inc v Utile Pty Ltd (1971) 45 ALJR 123
Anaesthetic Supplies Pty Ltd v ResCare Ltd (1992) 111 ALR 205
Anaesthetic Supplies Pty Ltd v ResCare Ltd (1994) 50 FCR 1
Aponte Inc v Welcome Foundation Ltd [2002] 4 SCR 153
Boll Acceptance Corporation Ltd v GWA Ltd (1983) 50 ALR 242
Bristol-Myers Squibb Co v FH Failing & Co Ltd (2000) 97 FCR 524
British Celanese Ltd v Moncrieff (1948) 1 Ch 564
British Reinforced Concrete Engineering Co Ltd v Lind (1917) 34 RPC 101
British Siphon Co v Homewood (No 2) [1956] 73 RPC 225
Burroughs Welcome Co v Barr Laboratories Inc (1994) 40 F 3d 1223
Charles Selz Ltd’s Application (1954) 71 RPC 158
CI Covington Fund Inc v White (2000) 10 BLR (3d) 173
CJ Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400
Collag Corp v Merck and Co Inc [2003] FSR 15
Commissioner of Patents v Microcell Ltd (1959) 102 CLR 232
Comstock Canada v Electec Ltd (1991) FTR 241
Dalzell v Duaber Manufacturing Co 149 US 315
Durack v Associated Pool Builders Pty Ltd (1983) 1 IPR 545
Eastland Technology Australia Pty Ltd v Whisson (2005) 223 ALR 123; [2005] WASCA 144
Edisonia Ltd v Forse (1908) 25 RPC 546
Electrolux Ltd v Hudson [1977] FSR 312
Empress Abalone Ltd v Langdon (2000) 2 ERNZ 53
Florida State Board of Education v Bourne (1942) 150 Fla 323
Fine Industrial Commodities Ltd v Powling (1954) 71 RPC 253
French v Mason [1999] FSR 597
Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2007] FCA 1205
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Goddin and Rennie’s Application [1996] RPC 141
Greater Glasgow Health Board’s Application [1996] RPC 207 at 222
Greville v Williams (1906) 4 CLR 694
Gunter v Stream 573 F 2d 77 (1978)
Hapgood v Hewitt 119 US 226
Harris’ Patent [1985] RPC 19
Henry Bros (Magherafelt Ltd v Ministry of Defence and the Northern Ireland Office I [1997] RPC 693
Hicton’s Patent Syndicate v Patents and Machine Improvements Co Ltd (1909) 26 RPC 339
Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41
Joos v Commissioner of Patents (1972) 126 CLR 611
Kimberley Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1
Kwan v Queensland Corrective Services Commission (1994) 31 IPR 25
Lamb v Evans [1893] 1 Ch 218
Lane-Fox v Kensington and Knightsbridge Electric Lighting Co (1892) 29 RPC 413
Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (2007) 235 ALR 202
Madey v Duke University (1999) US Dist Lexis 21379
Madey v Duke University (2002) 307 F 3d 1351
Markem Corporation v Zipher Ltd (2005) RPC 31
Marshall and Naylor’s Patent (1900) 17 RPC 553
Mellor v William Beardmore & Co Ltd (1927) 44 RPC 175
Mueller Brass Co v Reading Industries Inc 325 F Supp 1357 (1972)
National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252
Nottingham University v Fishel [2000] ICR 1462
Polwood Pty Ltd v Foxworth Pty Ltd (2008) 75 IPR 1
Quickenden v O’Connor (2001) 109 FCR 243
LH Hoare Pty Ltd’s Application [1976] Tas SR 156
Robb v Green [1895] 1 QB 215 315
Rogers v Commissioner of Patents (1911)10 CLR 701
Sabaf SpA v MFI Furniture Centres Ltd [2005] RPC 10
Seanix Technology Inc v Ircha 53 CBLC (3d) 257
Solomons v United States (1890) 137 US 342
Spencer Industries Pty Ltd v Collins (2003) 58 IPR 425
Spencer Industries Pty Ltd v Collins (2002) 54 IPR 434
Spiroll Corp Ltd v Putti (1975) 64 DLR (3d) 280, aff’d (1976) 77 DLR (3d) 761
Stack v Davies Shephard Pty Ltd (2001) 108 FCR 422
State of Florida v Neal (1943) 152 Fla 582
Staeng Ltd’s Patents [1996] RPC 183
Stanlec Fibre Optics Ltd’s Application [2005] RPC 15
Stephenson Jordan & Harrison Ltd v MacDonald& Evans (1952) 69 RPC 10
Sterling Engineering Co Ltd v Patchett [1955] AC 534
Sython BC v SmithKline Beecham plc [2006] 1 All ER 685
Triplex Safety Glass Co v Scorah [1937] 1 Ch 211
United States v Dubilier Condenser Corporation (1933) 289 US 178
University of Southampton’s Application [2005] RPC 11
University of Southampton’s Application [2006] RPC 21
University of Western Australia v Gray (No 17) [2007] FCA 924
Victoria University of Technology v Wilson (2004) 60 IPR 392
Windsurfing International Inc v Tabur Marine (Great Britain) Ltd [1985] RPC 59
Worthington Pumping Engine Co v Moore (1903) 20 RPC 41
Yang v Owners-Strata Plan No 3529 (2001) 54 NSWLR 60
Yeda Research and Development Co Ltd v Rhone Poulenc International Holdings Inc [2008] 1 All ER 425
Viziballs’s Application [1988] RPC 213Carter, Peden and Tolhurst, Contract Law in Australia (5th ed, Butterworths, 2007)
Chandler PA “Employees’ Inventions: Inventorship and Ownership” [1997] 5 EIPR 262
Corcoran S, First Principles in the Interpretation of University States (2000) 4 Flinders Journal of Law Reform p 143
Cornish W and Llewellyn DM, Intellectual Property – Patents, Copyright, Trade Marks and Allied Rights (6th ed, Sweet and Maxwell, 2007)
La Roche, Collard and Chernys, “Appropriating Invention: The Enforceability of University Intellectual Property Policies” (2007) 20 IPJ 135
Monnotti and Ricketson, Universities and Intellectual Property (2003, Oxford University Press)
Pearce and Geddes, Statutory Interpretation in Australia (6th ed, 2006 Lexis Nexis Butterworths)
Raper E, “Employee Ownership of Inventions – A Re-examination “ (2004) 17 AJLL 81
Ricketson S, The Law of Intellectual Property (Law Book Co, 1984)
Phillips and Hoolahan, Employees’ Inventions in the United Kingdom – Law and Practice (1982) ESC Publishing, Oxford, Ch 2
Swan K, Patent Rights in an Employee’s Invention (1959) 75 LQR 77
Thorley S, Terrell on the Law of Patents (16th ed, London, Sweet & Maxwell, 2006)THE UNIVERSITY OF WESTERN AUSTRALIA v BRUCE NATHANIEL GRAY, SIRTEX MEDICAL LIMITED (ACN 078 166 122), CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005),
BRUCE NATHANIEL GRAY v THE UNIVERSITY OF WESTERN AUSTRALIA, and YAN CHEN
SIRTEX MEDICAL LIMITED (ACN 078 166 122) v BRUCE NATHANIEL GRAY and CANCER RESEARCH INSTITUTE INCORPORATED (REGISTERED NUMBER 1001005)
WAD292 OF 2004FRENCH J
17 APRIL 2008
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD292 OF 2004
BETWEEN:
THE UNIVERSITY OF WESTERN AUSTRALIA
ApplicantAND:
BRUCE NATHANIEL GRAY
First RespondentSIRTEX MEDICAL LIMITED (ACN 078 166 122)
Second RespondentCANCER RESEARCH INSTITUTE INCORPORATED
(REGISTERED NUMBER 1001005)
Third RespondentBRUCE NATHANIEL GRAY
First Cross-ClaimantTHE UNIVERSITY OF WESTERN AUSTRALIA
First Cross-Respondent to First Cross-ClaimYAN CHEN
Second Cross-Respondent to First Cross-ClaimSIRTEX MEDICAL LIMITED (ACN 078 166 122)
Second Cross-ClaimantTHE UNIVERSITY OF WESTERN AUSTRALIA
Cross Respondent to Second Cross-ClaimSIRTEX MEDICAL LIMITED (ACN 078 166 122)
Third Cross-ClaimantBRUCE NATHANIEL GRAY
First Cross-Respondent to Third Cross-Claim)CANCER RESEARCH INSTITUTE INCORPORATED
(REGISTERED NUMBER 1001005)
Second Cross-Respondent to Third Cross-Claim
JUDGE:
FRENCH J
DATE OF ORDER:
17 APRIL 2008
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first and second respondents’ costs of the application.
3.The first respondent’s cross-claim against the applicant be dismissed.
4.The first respondent pay the applicant’s costs of the first respondent’s cross-claim.
5.The second respondent’s cross-claim against the applicant be dismissed.
6.The second respondent pay the applicant’s costs of the second respondent’s cross-claim.
7.The second respondent’s cross-claim against the third respondent be dismissed.
8.There be no order for the costs of the second respondent’s cross-claim against the third respondent.
9.The second respondent’s cross-claim against the first respondent stand over for a directions hearing for directions as to an assessment of damages based upon the first respondent’s breach of his duty as a director of the second respondent and for misleading or deceptive conduct in contravention of the Fair Trading Act 1987 (WA) arising out of his non-disclosure to the second respondent of correspondence between himself and the Vice-Chancellor of the first respondent in 1999.
10.The first respondent pay the second respondent’s costs of its cross-claim against him.
11.The directions hearing be fixed for 23 June 2008 at 9.00am or such other date as may be directed.
12.The first respondent’s cross-claim against Dr Yan Chen be dismissed.
13.There be no order for the costs of the first respondent’s cross-claim against Dr Yan Chen.
14.Any party against whom an order for costs has been made in the preceding orders is at liberty to file and serve written submissions on or before 8 May 2008 seeking a variation of the costs order.
15.Any party who wishes to respond to a written submission filed and served pursuant to the preceding order is to do so by filing and serving a written submission by 29 May 2008.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Introduction
Introduction [1] – [20]
Statutory framework – The UWA Act [21] – [26]
The law making power of UWA – legislative history [27] – [34]
Statutory framework – The Patents Regulations of UWA [35] – [44]
The Patents Regulations – a futile debate about promulgation [45] – [48]
Statutory framework – Intellectual Property Regulations [49] – [63]
The Intellectual Property Regulations – the promulgation debate [64] – [83]
Limitation on UWA’s power to make regulations affecting
intellectual property rights [84] – [94]Statutory Framework – The Patents Acts 1952 and 1990 [95] – [104]
Employee inventions and the Patents Acts 1952 and 1990
of Australia [105] – [107]Employee inventions in the Patents Act 1949 and 1977
of the United Kingdom [108] –[111]Employee inventions at common law – the United Kingdom
Authorities [112] – [130]Employee inventors in other jurisdictions [131] – [143]
Employee inventors at common law – the Australian cases [144] – [157]
Application of general principles to university researchers [158] – [164]
Evolution and implementation of UWA’s Intellectual Property
Policy – 1985/2002 [165] – [238]UWA’s Intellectual Property Committee – 1993/1996 [239] – [245]
Summary of findings about implementation of intellectual
property policy and regulations – 1985/2006 [246] – [247]Legal consequences of the non-appointment of a Patents Committee [248] – [257]
Gray – professional history to 1980 [258] – [263]
Microspheres against cancer – 1948/1982 [264] – [276]
Gray commences microspheres research – 1980/1984 [277] – [301]
The DOX-Sphere concept [302] – [303]
Findings of fact on Sir-Spheres as at 1985 [304] – [305]
The Thermo-Sphere concept [306] – [307]
Targeted microspheres – research funding applications 1981/1984 [308] – [313]
Commencement of Gray’s employment by UWA [314] – [319]
Gray’s conditions of appointment [320]
The pleaded case about Gray’s conditions of appointment [321] – [328]
Gray’s administration of UWA Department of Surgery
– February 1985/1987 [329] – [334]Gray’s publications – 1985/1987 [335]
Establishing the microsphere research program – 1985/1988 [336] – [344]
CSIRO/UWA DOX-Spheres collaborative research funding
application – April 1985 [345] – [349]Ferric ions to bind Doxorubicin – Hodgkin’s idea – 1985 [350] – [352]
C Jones’ research on DOX-Spheres and SIR-Spheres – 1985/1988 [353] – [365]
The Thermo-Sphere conception -prior art - 1957/1985 [366] –[368]
The physics of hysteresis heating [369] – [378]
Gray initiates the Thermo-Sphere project -1986 [379] – [380]
Funding microsphere research generally – 1985/1988 [381]
Attracting post-graduate students – 1987 and following [382] – [383]
Gray’s deals with CABR – May 1986/1987 [384] – [388]
Application to Lederle – December 1986 /May 1987 [389] – [390]
Gray meets Parfitt and prepares CABR proposal – 1987 [391] – [399]
CABR seeks advice about patentability – May 1987 [400] – [402]
Nicholas asks Gray to summarise DOX-Spheres research – 1987 [403] – [407]
Gray approaches Fauldings – June 1987 [408] – [410]
Gray writes to CABR about Thermo-Spheres – September 1987 [411] – [414]
Burton reports progress to UWA on vasocative agents
- October 1987 [415]Further commercial contacts – November 1987/May 1988 [416] – [419]
Clinical trials of SIR-Spheres – 1986/1988 [420] – [428]
Increasing use of SIR-Spheres in patient treatment – 1990s [429] – [434]
Attempts to develop hollow SIR-Spheres – 1989/2001 [435] – [443]
Kelleher and Codde join research group – 1987/1988 [444] – [447]
Gray approaches Street about Thermo-Spheres – 1987 [448] – [450]
CSIRO engaged on Thermo-Spheres - October 1987/September 1988 [451] – [465]
Gray lodges Thermo-Sphere Provisional Specification PJ0371
- September 1988 [466] – [473]Thermo-Spheres left to Parfitt - September 1988 [474]
Uniscan “hands back” DOX-Spheres - September 1988 [475] – [476]
Thermo-Spheres proposal for Uniscan - October 1988 [477] – [482]
Burton and Gray present and publish - 1985/1995 [483] – [486]
Chen – employment history with UWA and RPH
- September 1989/October 1994 [487] – [493]S Jones’ employment with UWA and Sirtex – 1989/2006 [494] – [505]
S Jones’ works on hyperthermia – 1989/1994 [506] – [539]
S Harrison and rotational hysteresis – 1994 [540] – [547]
Chen on DOX-Spheres – 1989/1994 [548] – [577]
McCulloch on DOX-Spheres work – 1991/993 [578] – [592]
LCI established – 1989/1990 [593] – [613]
CRI established – January 1991 [614] – [615]
Burton encounters resistance and resigns – 1989/1993 [616] – [621]
Chen salary dispute - 1990/1991 [622] – [636]
Irvine complaint – April 1992 [637] – [638]
Michael Report – October 1992 [639] – [647]
Memorandum of Understanding – LCI and RPH Medical
Research Foundation – November 1992 [648] – [650]LCI applies for affiliation – 1991/1992 [651] – [660]
Faculty defers affiliation – January 1993 [661] – [666]
Jillean Winter/CRI – 1993 [667] –[668]
Chen/Gray DOX-Spheres provisional application PN2492
- 18 November 1993 [669] – [677]Gray-SIRT-2 applications 54724/94 – 21 January 1994 [678] – [679]
Revised LCI affiliation application – 1993/1994 [680] – [683]
LCI/UWA affiliation approved – July 1994 [684]
International Application DOX-Spheres PCT/AU94/00708
- 17 November 1994 [685] – [687]Gray-Thermo-Spheres-1 Application PN0213 – 23 December 1994 [688]
Gray and Robson – 1994/1997 [689] – [692]
The Rindos Affair – 1993 [693] – [695]
Gray begins commercialisation – 1994 [696] – [701]
Gray meets Barber – 11 May 1994 [702] – [704]
Gray and Shervington meet Barber – 15 August 1994 [705] – [711]
Gray and Shervington meet Stokes and King – 17 August 1994 [712] – [713]
The “Newco” Board meets – October 1994 [714] – [722]
Gray phones Gale – December 1994 [723] – [724]
Chen and CRI Board 1992/1994 [725] – [726]
Chen and DOX-Spheres PCT application – November/December 1994 [727] – [737]
International Application for SIRT-2 filed – 20 January 1995 [738]
Williams at CRI -1993/1996 [739] – [750]
Williams at CACS – 1996/2000 [751] – [753]
Incorporation of Paragon Medical – April/May 1995 [754] – [759]
Gray deals with ANSTO – February/June 1985 [760] – [769]
Paragon Medical approaches Tolhurst – June 1995 [770] – [772]
Paragon Medical board meeting – August/September 1995 [773] – [774]
The Tolhurst Information Memorandum – September 1995 [775] – [779]
Affiliation Agreement negotiations – August 1994/October 1995 [780] – [802]
The Affiliation Agreement – 30 October 1995 [803] – [807]
Paragon Medical board meetings – October 1995/February 2006 [808] – [814]
Gray’s directorship – Gale’s response – November 1995/
January 1996 [815] – [824]Paragon Medical approach to Western Australian Innovation
Support Scheme – February 1996 [825] – [829]Paragon Medical board meeting – 28 February 1996 [830]
Gray/Hall conflict at RPH – the CACS proposal – December/
February 1996 [831] – [838]Harrison – rotational hysteresis research 1996 [839] – [850]
Dane/Gorn/CRI/Sirtex – February 1996/September 2003 [851] – [856]
The Gray Relocation Agreement – 29 February 1996 [857] – [858]
The CACS Agreement – 1 March 1996 [859] – [867]
The CACS Advisory Board [868] – [869]
Gray relodges Thermo-Spheres-1 Provisional – 10 May 1996 [870] – [872]
Paragon Medical board meetings – 8 and 29 May 1996 [873]
Gorn’s fund raising attempt – 1996 [874] – [882]
Paragon Medical meets Panaccio – mid 1996 [883] – [897]
Gray meets Lennon 14 July 1996 [898] – [900]
Gray writes to Barber – 26 July 1996 [901[ - [909]
Intellectual property clearances pursued – September/October 1996 [910] – [911]
Gray and Panaccio – September/October 1996 [912] – [920]
Gray meets Lennon – October 1996 [921] – [925]
Chen and US DOX-Spheres patent assignment – October/
December 1996 [926] – [929]The Nomura/JAFCO offer – January 1997 [930] – [932]
Gray meets Lennon again – 14 January 1997 [933] – [943]
The Gorn and Barber letters – January 1997 [944] – [972]
Gorn’s discussion paper – January 1997 [973] – [975]
Paragon Medical’s SIR-Spheres price increase – January 1997 [976] – [978]
Harrison/Jones and Theremo-Spheres patent – January 1997 [979] – [990]
S Jones on hyperthermia prior art – 6 February 1997 [991] – [993]
Barber/Gray re Paragon Medical directorship – February/
March 1997 [994] – [996]Dr Gray moves to a 0.3 appointment – March 1997 [997] – [998]
Robson demands payment for damaged equipment
– February/March 1997 [999] – [1008]Jones/Cox re MHE figures in Thermo-Spheres-1
-April 1997 [1009]–[1010]Cherry/Panaccio – Thermo-Spheres patent – 27 March 1997 [1011]–[1013]
The Paragon Medical/Nomura/JAFCO transaction
– 1 May 1997 [1014]–[1016]Asset Purchase Deed ASPL to new Paragon Medical
– 1 May 1997 [1017]-[1024]Asset Purchase Deed ASPL to new Paragon Medical
– 29 April 1997 [1025]Subscription and Shareholders’ Agreement – 1 May 1997 [1026]-[1034]
Employment Agreement Gray/Paragon Medical – 1 May 1997 [1035]-[1036]
Services Agreement S Jones/CRI/Paragon Medical [1037]-[1041]
Gray/Paragon Medical – Assignment of intellectual property rights
- 1 May 1997 [1042]-[1045]Robson complains to ACC re Gray – May 1997 [1046]-[1054]
Paragon Medical treats ACC inquiry as Gray’s problem
– June/July 1997 [1055]-[1057]Gray/CRI assignment to Paragon Medical – 28 October 1997 [1058]
Harrison and CACS confidentiality issues – July 1996/October 1997 [1059]-[1068]
Robson demands Gray resign Paragon directorship – 19 November 1997 [1069]-[1075]
Raffaele Cammarano – 1997 [1076]-[1079]
Students/CACS/intellectual property – ongoing issue
March 1998/July 1999 [1080]-1089]P Moroz – 1998/2002 [1090]-[1096]
Paragon Medical news release – 12 November 1998 [1097]-[1098]
ACC refers Robson complaint to UWA – May 1999 [1099]
Key/Robson – 10 June 1999 [1100]-[1101]
Schreuder/Gray – 17 June 1999 [1102]
Schreuder/Gray correspondence – 28 September 1999 [1103]-[1104]
Key/Sirtex Website – 30 September 1999 [1105]
Schreuder/Gray – 11 October 1999 [1106]-[1107]
Gray/Schreuder – 17 November 1999 [1108]-[1109]
UWA’s knowledge – November 1999 [1110]
Sirtex’s knowledge of Gray/UWA 1999 correspondence [1111]-[1115]
Sirtex public float commences [1116]-[1118]
Paragon Medical due diligence – 2000 [1119]-[1171]
What Sirtex Knew – July 2000 [1172]-[1174]
Gray leaves CACS – April 2000 [1175]-[1180]
The Sirtex Prospectus – July 2000 [1181]-[1198]
Barber declines to act on Sirtex Prospectus – July 2000 [1199]-[1204]
Williams raises Sirtex concerns – September/November 2000 [1205]-[1210]
Williams’ Discussion Paper – December 2000 [1211]-[1213]CACS Advisory Board – 25 January 2001 [1214]-1215]
Williams/CRI litigation – 2001/2002 [1216]-[1225]
Boyce – Sirtex director – 2002 [1226]-[1227]
S Jones/Gray and laboratory books – 2002/2005 [1228]-[1246]
UWA investigates Sirtex IP – 2002 [1247]-[1258]
Events preceding UWA’s letter of demand – September/October 2004 [1259]-[1264]
Boyer – expert evidence on Gray patent applications [1265]-[1276]
Boyer – public availability of patents databases [1277]-[1282]
Chen/UWA coordination – 2003/2004 [1283]-[1303]
UWA’s letter of demand to Sirtex – 26 October 2004 [1304]Timing and purpose of letter of demand [1305]-[1314]
UWA/CRI settlement – 22 February 2007 [1315]-[1319]
Sirtex corporate history – Wong [1320]-[1329]
UWA’s causes of action against Sirtex – some defined terms [1330]
UWA claims against Gray for breach of contract [1331]-[1332]
UWA claims against Gray for breach of fiduciary duty [1333]-[1334]
UWA claims against Sirtex for knowing involvement in
breaches of fiduciary duty [1335]Gray’s cross-claim against UWA for unjustifiable threats,
misleading or deceptive conduct and defamation [1336]Sirtex’s cross-claim against UWA for misleading or deceptive
conduct and unjustifiable threats [1337]Sirtex’s cross-claim against Gray for breach of warranties [1338]
Sirtex’s cross-claim against CRI for misleading or deceptive
conduct and breach of warranty [1339]Gray’s cross-claim against Chen [1340]
Pleading amendments - reserved rulings [1341]-[1346]
UWA “interests” and “property rights” in relation to inventions [1347]-[1356]
Implications from Dr Gray’s contract of employment [1357]-[1367]
Dr Gray’s work at RPH [1368]-[1369]
Agreements said to affect Dr Gray’s contractual obligations [1370]-[1392]
Dr Gray’s defences based on the Affiliation and CACS Agreements [1393]-[1397]
Agreement 5 March 1997 [1398]-[1400]
Modification of the Regulations [1401]
Inventions for treatment of the human body [1402]-[1409]
The development and/or discovery of inventions [1410]-[1418]
Ideas, discoveries and inventions [1419]-[1427]
Identifying inventions for the purposes of entitlement in England [1428]-[1441]
Conclusion on general principles [1442]-[1443]
SIRT-Spheres inventions [1444]-[1447]
SIRT-1 Invention – microspheres bearing Yttrium [1448]-[1453]
The SIRT-1 PCT application claims [1454]
SIRT-1 invention – UWA submissions [1455]-[1465]
SIRT-1 invention – Dr Gray’s submissions [1466]-[1467]
SIRT-1 – conclusions [1468]-[1470]
SIRT-2 invention – hollow Yttrium microspheres [1471]-[1485]
SIRT-2 – conclusion [1486]
DOX-Spheres [1487]-[1493]
The DOX-Spheres provisional specification [1494]-[1498]
DOX-Spheres – contentions and conclusions [1499]-[1507]
Thermo-Spheres-1 invention [1508]-[1510]
Thermo-Spheres-1 provisional specification [1511]-[1514]
Thermo-Spheres-1 – contentions and conclusions [1515]-[1537]
Thermo-Spheres-2 invention [1538]-[1544]
Thermo-Spheres-3 inventions [1545]
Thermo-Spheres-3 – contentions and conclusions [1546]-[1550]
UWA contract claims against Gray [1551]-[1562]
Claims for breach of fiduciary obligations by Dr Gray [1563]-[1567]
UWA’s claim against Sirtex [1568]-[1570]
Sirtex cross-claim against UWA [1571]-[1584]
Gray’s cross-claim against UWA [1585]-[1599]
Sirtex’ cross-claim against Gray [1600]-[1613]
The Sirtex/CRI cross-claim [1614]-[1615]
Gray/Chen cross-claim [1616]-[1618]
Conclusion [1619]
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD292 OF 2004
BETWEEN:
THE UNIVERSITY OF WESTERN AUSTRALIA
ApplicantAND:
BRUCE NATHANIEL GRAY
First RespondentSIRTEX MEDICAL LIMITED (ACN 078 166 122)
Second RespondentCANCER RESEARCH INSTITUTE INCORPORATED
Third RespondentBRUCE NATHANIEL GRAY
First Cross-ClaimantTHE UNIVERSITY OF WESTERN AUSTRALIA
First Cross-Respondent to First Cross-ClaimYAN CHEN
Second Cross-Respondent to First Cross-ClaimSIRTEX MEDICAL LIMITED (ACN 078 166 122)
Second Cross-ClaimantTHE UNIVERSITY OF WESTERN AUSTRALIA
Cross-Respondent to Second Cross-ClaimSIRTEX MEDICAL LIMITED (ACN 078 166 122)
Third Cross-ClaimantBRUCE NATHANIEL GRAY
First Cross-Respondent to Third Cross-ClaimCANCER RESEARCH INSTITUTE INCORPORATED
(REGISTERED NUMBER 1001005)
Second Cross-Respondent to Third Cross-ClaimJUDGE:
FRENCH J
DATE:
17 april 2008
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
In 1985 the University of Western Australia (UWA) appointed Dr Bruce Gray as its Professor of Surgery. He was a fulltime employee of UWA and remained as such until March 1997 when he changed to a fractional 30% appointment focussing 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.
At the time of his appointment Dr Gray had been engaged for some years in researching the treatment of liver cancer by using microspheres, in the general size range of 10 to 50 microns, injected into the blood vessels of the liver to deliver anti-cancer therapies to the sites of tumours. Microspheres were directed to those sites with the aid of a vasoactive agent which temporarily promoted blood flow into the tumour blood vessels at the expense of blood flow into normal liver tissue. 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.
In the years that followed Dr Gray’s appointment work was done on three microsphere technologies. One was known as SIR-Spheres, the acronym SIR standing for Selective Internal Radiation. It was designed to transport a short lived radioisotope to irradiate cancerous tissue. A second class, DOX-Spheres, was designed to transport and release, in a controlled way, anti-cancer drugs and particularly doxorubicin. A third technology, Thermo-Spheres, involved the delivery of microspheres of magnetic material into the cancerous tissue and heating them by the external application of an alternating or rotating magnetic field. It relied upon a phenomenon known as “magnetic hysteresis”. Provisional applications for various patents and international applications under the Patent Cooperation Treaty were made in respect of inventions said to have been developed in relation to the various technologies. Various applications were made over a period of years.
The history of Dr Gray’s employment at UWA, the people with whom he worked and the work they carried out, the conflicts he had with other academics and administrators at UWA, his attempts to secure funding from external sources and ultimately to commercialise the technologies are set out in this judgment in an extensive history which covers a period of over 20 years.
By 2000 Dr Gray was a director of Sirtex Medical Limited (Sirtex), a publicly listed company which was floated in that year to commercialise and market the technologies. In 1997 the company had acquired from Dr Gray and the Cancer Research Institute (CRI), a body set up to provide support for his research work, intellectual property rights arising out of the inventions said to be associated with the technologies. In the late 1990s Dr Gray’s employer, UWA, was aware of his involvement with an external company and the prospect of commercialisation of the technologies. Its officers formed the view, certainly by 1999, that UWA might have some claim on the intellectual property rights being used by the company. A letter from the Vice-Chancellor of UWA, Professor Schreuder, to Dr Gray in 1999 made that clear. It was a letter which Dr Gray did not disclose to Sirtex. UWA was also aware in 2000 of the float of the company, its prospectus and that it acquired intellectual property rights in respect of the targeted microsphere technologies which it proposed to commercialise. The Pro Vice-Chancellor (Research) took a decision that any investigation into whether UWA had an interest in the intellectual property would be difficult because of its “messy lineage”. He said at the time that he hoped that if Dr Gray made a lot of money out of the float he might donate a Chair of Surgery to UWA. He concluded that the risks of legal action were not outweighed by the likely benefits. Ultimately, for reasons which appear in the judgment, UWA decided to initiate proceedings to vindicate its asserted rights to the intellectual property associated with the microsphere technologies late in October 2004. In the meantime many people had invested and traded in Sirtex shares and it had expended money on the development of the technology.
In October 2004, UWA sent letters of demand to Dr Gray and to Sirtex alleging that the inventions the subject of the intellectual property rights which Sirtex had acquired were developed or made in the course of Dr Gray’s employment at UWA and that of other academic researchers working with him. UWA commenced proceedings against Dr Gray, Sirtex and CRI on 21 December 2004. It sought a declaration that Dr Gray had held his shares and options in Sirtex on trust for UWA. It also sought orders that he transfer them and that he account to UWA in respect of any benefits obtained by him by reason of those shares and options. It sought a declaration against Sirtex that all the rights, title and interest in the relevant patent applications, patents and inventions were held on trust by Sirtex for UWA. It sought an order that Sirtex transfer that right, title and interest to UWA. Other ancillary orders were also sought.
Before the trial the Court appointed a receiver to CRI whose board of management was purportedly reconstituted to consist of Dr Gray, his sister and his solicitor. The receiver was given power to conduct the litigation on behalf of CRI or to settle with UWA subject to the approval of the settlement by the Court. UWA and CRI settled and the settlement was approved by Graham J. Sirtex and Dr Gray appealed against the approval to the Full Court. That appeal was dismissed.
The trial of the action lasted some 50 days with the Court sitting extended hours most days to ensure that the trial was finished within the available time. There were some 4,586 pages of transcript and more than 1,000 documentary exhibits. Much of the case was based on the documentary evidence. So much time had passed since many of the events relevant to these proceedings that it was not unusual for witness testimony to be based on inference derived from contemporary documents rather than actual recollection. The witness inference being mere opinion was not evidence.
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 on 22 July 1996. I have found that the latter Regulations were not shown to have been promulgated, as required by the University of Western Australia Act 1911 (WA) (UWA Act) before 30 November 1997. I have proceeded on the basis that they did not come into effect before that date. UWA also alleged that Dr Gray had breached his fiduciary obligations to it. It claimed that Sirtex had been knowingly concerned in those breaches by Dr Gray and had provided knowing assistance to him in those breaches by the issue of shares to him.
Dr Gray and Sirtex each cross-claimed against UWA. Dr Gray’s cross-claim included a claim for defamation based on the letter of demand to Sirtex and asserted that malice informed the content and timing of the letter. The malice claim attracted a good deal of evidence about conflicts which arose between Dr Gray and various individuals in the University, particularly the current Vice-Chancellor, Professor Allan Robson. I was not satisfied that the letter of demand was actuated by malice so as to defeat a defence of qualified privilege to the defamation claim. I have rejected claims by Dr Gray and Sirtex that UWA’s letter of demand and the institution of the proceedings constituted unjustified threats of infringement action within the meaning of s 128 of the Patents Act 1990 (Cth) (1990 Act). Similarly, I have rejected claims brought by them against UWA alleging misleading or deceptive conduct.
UWA had a problem in seeking to rely upon its Patents Regulations. I have found that from 1988 it had effectively abandoned the Patents Committee mechanism for which the Regulations provided. After that time the possibility that a committee could be appointed on an ad hoc basis to respond to reports of particular inventions was never considered. Instead UWA moved down an alternative pathway using a company called Uniscan and a centre which it established called “The Centre for Applied Business Research” (CABR). It also appointed a Deputy Vice-Chancellor (Research) and later a Pro Vice-Chancellor (Research) to provide a framework within which inventions could be commercialised. In contractual terms UWA failed to maintain the mechanism necessary for the performance of the notification obligations said to have been imposed upon its staff by the importation into their contracts of the terms of the Patents Regulations. This conclusion adversely affected UWA’s contract claims against Dr Gray for alleged non-compliance with the Patents Regulations. However that was the least of its difficulties in this case.
UWA’s case against Dr Gray and Sirtex was critically dependent upon the proposition 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. 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.
Moreover, in my opinion, such provisions of the Regulations made by UWA as purport to vest intellectual property rights in it or interfere with the intellectual property generated by its academic staff, are not valid. UWA did not rely upon the earlier Patents Regulations as a source of its property rights. But the IP Regulations assert ownership by UWA of all intellectual property developed by its staff (apart from most copyright). UWA was authorised, by the UWA Act, to make regulations relating to the control and management of its own property. It was not authorised by the Act to make regulations acquiring property from others or interfering with their rights.
It would seem 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 is by express provision in their contracts of employment. 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.
The legal foundation of the UWA case did not exist and for that reason its claims against Dr Gray and Sirtex will be dismissed. In addition, I was not satisfied that the inventions, other than the so-called DOX-Spheres were made by academic staff of UWA in the course of their employment there. That conclusion depended upon a consideration of the times at which the inventive concepts constituting the inventions were created.
The cross-claims by Dr Gray and Sirtex against UWA will be dismissed. The cross-claim by Sirtex against Dr Gray succeeds in so far as it alleged that he breached his duty as a director of the company and engaged in misleading or deceptive conduct by failing, in 2000, to disclose to Sirtex correspondence between himself and Professor Schreuder, the Vice-Chancellor of UWA, in 1999. The correspondence would have alerted Sirtex to the risk of a claim against its intellectual property rights by UWA. The damages flowing from that cross-claim will have to be assessed at a separate hearing if they are not able to be agreed between Sirtex and Dr Gray. They are likely to relate to the costs of these proceedings incurred by Sirtex and not recovered from UWA.
There were two remaining cross-claims. One was Sirtex’s cross-claim against CRI for breach of warranty and misleading or deceptive conduct. It is dismissed. There will be no order as to costs as CRI took no part in the proceedings following its settlement with UWA. The other was Dr Gray’s claim for a declaration that one of his research team involved in the work on DOX-Spheres, Dr Chen, had no interest in a provisional application for that invention filed in November 1993. Although I have made findings adverse to Dr Chen’s claim of inventorship, in my opinion the case is not one in which I should make a declaration in favour of Dr Gray who has no obvious interest in seeking it.
In the reasons for judgment I have attempted to give a reasonably comprehensive history of the events of over 20 years which had led to these proceedings. Some of the facts which have been found were not directly related to the conclusions reached on the various claims and cross-claims. Some of them would be relevant to issues in defences raised under the Limitation Act 1935 (Cth) and by way of laches or undue delay by UWA in bringing the proceedings against Dr Gray and Sirtex. Some may also be relevant to other defences. The positive defences were the subject of extensive argument. However given my conclusions on UWA’s case, it is not necessary to deal with them here. It would add more length to an already long judgment and provide hypothetical answers to questions which have not arisen.
For the reasons that follow, UWA’s claims against Sirtex and Dr Gray fail. All cross-claims in the proceedings are dismissed save for Sirtex’s cross-claim against Dr Gray for breach of his duty as a director and misleading or deceptive conduct which will stand over for a hearing (if it be necessary) for assessment of damages.
I will make orders but the parties will have the opportunity to file written submissions seeking variation of those orders.
Statutory framework – The UWA Act
UWA was established by s 3 of the UWA Act which provides:
There shall be from henceforth for ever in the State of Western Australia a University to be called “The University of Western Australia” with such faculties as the Statutes of the University may from time to time prescribe.
The Preamble to the UWA Act states, inter alia:
WHEREAS of the States of the Commonwealth Western Australia alone is unprovided with a University:
And whereas it is desirable that provision should be made for further instruction in those practical arts and liberal studies which are needed to advance the prosperity and welfare of the people:
And whereas it is desirable that special encouragement and assistance should be afforded those who may be hindered in the acquisition of sound knowledge and useful learning by lack of opportunity or means:
And whereas for these purposes it is expedient to incorporate and endow a University within the State of Western Australia,
…UWA consists of the Senate, Convocation, staff and graduate and under-graduate students (s 4). It is a body corporate with all the attendant capacities to sue and be sued and to take, purchase, hold and alienate real and personal property (s 6). The definition of UWA, including staff and students, no doubt traces its ancestry back at least as far as s 1 of the statute of 1571 relating to Oxford University which provided that “The Chancellor, Masters and Scholars of Oxford” shall be incorporated and have perpetual succession in fact, deed and names. Similar formulae appear in a number of University Acts throughout Australia, including those in New South Wales, Victoria, South Australia and the Northern Territory. The definition is not used in University Acts in Queensland. Those statutes that use the traditional formula recognise staff and students as members of the university and not merely as employees and clients respectively. It has been suggested that this has implications for the interpretation of university statutes, bylaws and regulations which affect them: Corcoran S, First Principles in the Interpretation of University Statutes (2000) 4 Flinders Journal of Law Reform, 143 at 149. It may also have implications for the nature of the employment relationship between UWA and its academic members although none was argued.
Subject to the UWA Act and Statutes made under its authority, the entire control and management of the affairs and concerns of the university is vested in the Senate which “… may from time to time appoint deans, professors, lecturers, examiners, and other officers and servants of the University, …” (s 13). Control and management of real and personal property vested in or acquired by UWA is also conferred upon the Senate (s 14).
The Senate has power under sections 16A and 16B to make bylaws regulating the use of UWA lands. The power to make such bylaws is conferred by section 16A(2). It is constrained by the requirement that the bylaws be approved by the Governor. The purposes for which they may be made are “managing, preserving, and protecting the lands of the University … and … regulating the terms and conditions on which such lands may be visited or used by any persons … and the conduct of such persons when on or upon such lands”. Specific subjects of bylaws are set out in paragraphs (a) to (k) together with a catchall purpose in paragraph (l):
… for carrying out the purposes of this Act, or any Statute made by the governing authority of the said University.
Section 16B requires that bylaws made under section 16A and any alteration and repeal of such bylaws be submitted for approval by the Governor and publication in the Government Gazette (WA) (the Gazette). They “take effect and have the force of law as from the date of such publication, or from a later date specified in the publication”.
The Senate may also make regulations. Section 16E provides:
(1) The Senate, in the name and on behalf of the University, may, from time to time, make, alter and repeal regulations for the purpose of carrying out this Act, or any amendment thereof, or any Statute made by the governing body of the University, or for the purpose of securing and enforcing the management, good government and discipline of the University; and every such regulation shall be binding upon all deans, professors, lecturers, examiners, and all other officers and servants of the University and also on all students attending the University.
(2) The provisions of s 36 of the Interpretation Act 1918 do not apply to a regulation made by the Senate under subsection (1), and shall be deemed never so to have applied, and any such regulation shall take effect from the date of its promulgation in the University or from such later date as may be therein specified.
The Senate is said in section 5 to be the “governing authority” of UWA. Section 31 empowers the “governing authority” to make, alter, and repeal “Statutes” with respect to a variety of matters set out in that section. They include the following:
(a)the management, good government and discipline of the University;
…
(g)the number, stipend, manner of appointment and dismissal of deans, professors, lecturers, examiners and other officers and servants of the University;
…
(u) the control and investment of the property of the University;
…(x) Generally all other matters not inconsistent with the provisions of this Act.
By section 31(2) the draft of every proposed Statute is to be submitted to the Convocation for its consideration. Under section 31(3) the Convocation may consider and draft amendments to the proposed statute and return the draft to the Senate. If the Senate agrees, it may forthwith make the Statute. If it does not, there is a process for a conference between the Senate and the Convocation. Where agreement cannot be reached, the Senate can nevertheless make the statute. By section 33 Statutes require approval of the Governor and must be published in the Gazette and “shall thereupon have the force of law”. They are subject to annulment by resolution of either House of Parliament.
The law making power of UWA – legislative history
Before turning to the Patents Regulations and the IP Regulations of UWA which are involved in this case it is necessary to consider the delegated legislative powers under which they are made and the history of those powers. As it turns out, consideration of the legislative history by the parties would have avoided some wasted debate.
UWA has a rather confusing and overlapping mix of delegated legislative powers. The UWA Act as originally enacted conferred upon the Senate the “control and management of the affairs and concerns of the University” and of real and personal property vested in UWA (sections 13 and 14). There was no express power to make bylaws or regulations. Section 31, in much the same form as it is now, conferred power upon the Senate to make, alter and repeal Statutes. That power was subject to the constraints imposed by section 33 requiring the approval of the Governor, publication in the Gazette and laying before Parliament.
When the UWA Act was introduced into the Legislative Assembly in 1911 the then Premier who delivered the Second Reading Speech made reference to the statute making power. He said:
The other clauses of the measure provide for the holding of examinations, and the granting of degrees and diplomas, and they give ample power to the governing authority to make statutes in regard to various matters of internal control and the general management of the University.
Parl Deb WA LA 24/1/1911 at p 3268The relevant dictionary meaning of “statute” is “a law made by a guild or corporation for the conduct of its members, a by-law of a borough; a provision in a municipal charter”: Oxford English Dictionary, 2nd Ed (1989). An example of that usage from 1538 given in the dictionary referred to the “Masters of the Collegis in Cambryge and Oxforde with there Statuytts: Latimer in Ellis Orig Lett (Ssr III III.204)”.
As appears from the dictionary definition the term “Statute”, which designates delegated legislation made by UWA under section 31, dates back in usage to domestic rules made by universities in England as chartered corporations under the Royal prerogative such as the Colleges of Oxford and Cambridge. Such statutes did not enjoy legislative status and were subject to judicial review for unreasonableness and inconsistency with the general law. However, where a university was established by an Act of Parliament with power to make statutes as a species of delegated legislation, statutes so made had the force of law. An early example was the Oxford University Act 1854 (UK) which authorised the Hebdomadal Council and ultimately Convocation to make statutes: University of Oxford – Statutes and Regulations: Preface: Constitution and Statute-making Powers of the University Whittaker S, “Public and Private Law-making: Subordinate Legislation, Contract and the Status of Student Rules” (2001) 21 Oxford Journal of Legal Studies pp 103-128. Against that background it is helpful to turn to the history of the by-law and regulation making powers of UWA which were first conferred upon it some 18 years after its establishment.
Sections 2 and 3 of the University of Western Australia Act Amendment Act 1929 (WA) (the 1929 Amendment Act) conferred on the Senate power to make bylaws in the terms and subject to the constraints now reflected in sections 16A and 16B of the UWA Act. Section 6 introduced the regulation making power now found in section 16E(1). The 1929 Amendment Act was to be read with the UWA Act. There was no provision requiring promulgation of regulations in order for them to take effect. Sections 2 to 7 of the 1929 Amendment Act were renumbered as sections 16A to 16F of the UWA Act by the University of Western Australia Act Amendment Act 1970 (WA). The University of Western Australia Act Amendment Act 1975 (WA) amended section 16E of the principal Act by redesignating it as subsection (1) and enacting the present subsection (2). At the time that the Patents Regulations were made by the UWA Senate in 1971 there was no requirement in the UWA Act for their promulgation. This issue is further considered below.
A point was made, in closing argument, about distinctions between the powers to make Statutes, bylaws and regulations and the implications of those distinctions for the extent, if any, to which regulations could affect property rights derived from the general law and, in particular, intellectual property rights. That is discussed later in these reasons, but it is useful to note what was said about the regulation making power when it was enacted in 1929.
The Second Reading Speech in the Legislative Assembly for the 1929 Amendment Act dealt principally with the bylaw making power which was concerned with UWA lands. In the Second Reading Speech in the Legislative Council however, specific reference was made to the regulation making power which was described thus:
The regulations mentioned in Clause 6 are chiefly details regarding degree courses, scholarships etc. They occupy the greater part of the University calendar for example from page 30 to 103 of the 1929 Calendar. Small alterations are made in these regulations at almost every meeting of the Senate in order to meet the changing conditions of University work. The University Act and the statutes set out the main principles on which degrees are given, and the regulations concern themselves only with minor details. At present however, these regulations have not the force of law, and the Bill proposes to give the Senate power to make such regulations.
Parl Deb WA LC 16/10/29 at 982The Chancellor of UWA, the Hon AJH Saw, who was also a member of the Legislative Council at the time, followed immediately upon the Second Reading Speech in supporting the Bill and did not qualify what was said about regulations.
Statutory framework – The Patents Regulations of UWA
On 13 December 1971 the Senate of UWA approved Patents Regulations proposed by the Senate Legislative Committee.
The Patents Regulations commenced with a Preamble reciting that “Although it is not the policy of University research to seek patentable inventions, there can arise in the course of research, inventions which, in the interests of the public, the University and the inventor, should be patented.” The purposes of the Patents Regulations were said to be:
… to define the procedures for determining which inventions resulting from University research should be patented, and to establish the procedures for obtaining patents without cost to the inventor and for dealing with them so as to safeguard the interests of the University and of the inventor in a manner consistent with the University’s obligations to the public.
The application of the Patents Regulations was set out in reg 2:
These Regulations shall apply –
(i)to all members of the staff of the University whether employed in a full-time or part-time capacity; and
(ii)to all students using the research facilities of the University, each of whom shall enter into an agreement to assign to the University his rights in any invention made or developed wholly or in part through the use of such facilities.
The procedure where financial support was offered by a third party was set out in regulation 3:
(1) No offer of financial support from any outside person or organisation which may claim rights in any invention made or developed in the course of work undertaken with such support, may be accepted without the prior consent of the Vice-Chancellor and will be subject to such conditions as he may impose.
(2) Any person authorised under the preceding sub-regulation to undertake work supported by any outside person or organisation, shall assign to the University such rights as may be necessary to enable it to exercise the inventor’s rights in any invention made or developed with such outside support.
The Patents Regulations set up a Patents Committee in the following terms:
4(1) There shall be a Patents Committee appointed by the Senate to advise the Vice-Chancellor on all action to be taken in relation to inventions made or developed by persons subject to these regulations and in particular on –
(i) whether the University should exercise its rights in such inventions;
(ii)whether action to patent an invention once commenced should at any time be abandoned;
(iii)whether the patent rights should be applied for in other countries and if not whether the right to do so should be assigned to the inventor;
(iv)the action to be taken to negotiate the development of the patent and the terms of the arrangements to be made.
(2) In considering matters referred to it by the Vice-Chancellor the Patents Committee shall consult the inventor.
(3) Subject to approval of the financial implications by the Vice-Chancellor in each case, the Patents Committee may seek expert advice and employ the professional services of a Patents Attorney or other person.
The power of the Vice-Chancellor in relation to inventions subject to the Patents Regulations was circumscribed by the requirement to act with the advice or, after the event, the endorsement of the Patents Committee:
5(1) The Vice-Chancellor acting on the advice of the Patents Committee may act on behalf of the University in all matters relating to inventions made or developed by any person subject to these regulations: provided that this authority shall not extend the financial powers otherwise vested in the Vice-Chancellor.
(2) In any case where the Vice-Chancellor deems it necessary to act without the advice of the Patents Committee he shall as soon as possible thereafter seek the endorsement of such action by the Patents Committee.
(3) Should the Patents Committee refuse to endorse the action taken by the Vice-Chancellor under sub-regulation (2) the Vice-Chancellor shall report the matter to the Senate for directions.
The key obligation on persons developing a patentable invention was imposed by regulation 6:
(1) Any person subject to these regulations shall immediately inform the Vice-Chancellor of any patentable invention made or developed wholly or in part during the course of that person’s duty or whilst using the University’s research facilities.
(2) The Vice-Chancellor shall refer any report received under sub-regulation (1) to the Patents Committee and, acting on the advice of the Committee, shall inform the inventor as soon as possible, and not more than sixty days after receiving a written request to do so, whether or not the University will exercise its rights in the invention.
(3) If the University decides to exercise its rights in the invention, the inventor shall assign his rights therein to the University.
(4) If the University decides not to exercise its rights in the invention, the University shall assign its rights therein to the inventor.
If UWA decided to exercise rights in an invention its responsibilities and the rights of the inventor were covered by regulations 7 to 9, which provided:
7(1) If the University decides to exercise its rights in an invention the Vice-Chancellor shall cause application to be made for the patent as soon as reasonably possible and the inventor shall not publish the invention until after the application for the patent has been lodged.
(2) The University shall be responsible for the costs of patenting the invention.
8(1) If the University decides to exercise its rights in an invention the Vice-Chancellor shall cause all necessary action to be taken to negotiate the exploitation of the patent.
(2) The University shall be responsible for any necessary expenses incurred in the reasonable promotion and exploitation of the invention.
9. The inventor shall be entitled to 33 1/3 per cent of the net financial return from any invention exploited under Regulation 8 after any expenses incurred by the University in patenting and exploiting it have been met: provided that, if the net annual return to the University from the invention exceeds $50,000 the proportion to be received by the inventor shall be progressively reduced until at a net annual return to the University of $500,000 it shall be 10 per cent; and provided also that, even before the University’s expenses have been met, the inventor shall at no time receive less than 10 per cent of the gross returns to the University from his invention.
The profits made by UWA from patents, assignments or exploitation of an invention under the Patents Regulations were to be set aside for research (regulation 10). And under regulation 11 it was provided:
Nothing in these regulations shall prevent the University from abandoning action initiated under Regulation 7 or Regulation 8 at any time should the Vice-Chancellor, acting on the advice of the Patents Committee, decide it to be in the interests of the University to do so.
Nothing in the Patents Regulations could prevent the Senate from entering into a special agreement with an inventor in the case of a particular invention on terms differing from those set out in the preceding regulations.
The Patents Regulations – a futile debate about promulgation
As noted earlier, section 16E(2) of the UWA Act provides that a regulation made under the Act comes into effect “from the date of its promulgation or from such later date as may be therein specified”. This provision was the subject of considerable debate advanced by Dr Gray and Sirtex about whether and when the Patents Regulations had been promulgated and thereby came into effect. UWA joined issue on that debate. Much reference was made to the publication of University Calendars, inter-faculty handbooks and the like. This was unnecessary because section 16E(2) had not been enacted when the Patents Regulations were made by the Senate. It was not enacted until 1975.
A question arose after the passage of the Murdoch University Act 1973 whether regulations made by UWA attracted the requirements of s 36 of the Interpretation Act 1918 (WA). Section 36(4) of that Act applied to Acts which provided for regulations to be made by any authority other than the Governor. Regulations so made were subject to paragraphs (b), (c) and (d) of s 36(1) and to ss 36(2) and (3). Such regulations were to be published in the Gazette. They would “take effect” and have the force of law from the date of such publication, or from a later date fixed by the order making such regulations. Section 36(1)(d) required such regulations to be laid before both Houses of Parliament. By s 36(2) they were subject to disallowance by either House. The term “regulation” was defined in s 36(5) to include “rule” or “by-law”.
There was no evidence that the Patents Regulations had ever met these requirements. It is highly likely that they did not. The problem which existed in respect of those and other UWA regulations was resolved in 1975 by the first limb of section 16E(2) of the UWA Act. That deemed the provisions of s 36 of the Interpretation Act never to have applied to a regulation made by the Senate under section 16E(1). The deemed non-application of s 36 of the Interpretation Act was retrospective in its application. It was, in effect, deemed never to have applied to any regulation made by the Senate prior to the date from which section 16E(2) came into force. The second limb of section 16E(2) is prospective only as appears from the use of the word “shall”.
The purpose of section 16E(2) appears from the Second Reading Speech introducing the University of Western Australia Act Amendment Bill 1975 in which the Minister said:
With regard to the proposed amendments to the provisions of s 16E of the principal Act, the University authorities requested that provisions similar to s 27 of the Murdoch University Act, 1973, be included following doubts raised as to whether the regulations made by the university senate were regulations for the purposes of the provisions of s 36 of the Interpretation Act relating to disallowance.
The amendment now sought makes it clear that a regulation of the university senate is not, and never has been, such a regulation and emphasises the time at which it is to take effect.WA ParlDeb LA 24/4/745 p 1087
It may well be that regulations made by UWA prior to the enactment of section 16E(2) did not have the force of law for failure to comply with s 36 of the Interpretation Act. This may have been the case with the Patents Regulations until 1975. But whatever the true position may have been between 1972 and 1975, the Patents Regulations were in effect at all material times after the coming into effect of the 1975 amendment to section 16E of the UWA Act.
Statutory framework – Intellectual Property Regulations
At a meeting of the Senate of UWA held on 22 July 1996 the Senate resolved:
that the Patents Regulations be rescinded and that the Intellectual Property Regulations be introduced with immediate effect.
The IP Regulations begin with the statement that:
These regulations, effective from 22 July 1996, supersede the University’s Patents Regulations.
Regulation 1 is an interpretation provision. It contains a wide definition of “intellectual property”, relevant parts of which are as follows:
‘intellectual property’ means, without limitation, all rights in relation to any:
…
.confidential information which means information of any kind which, because of its confidential character, is capable of protection by contractual or equitable means, and includes information of a valuable commercial or technical character.
.copyright work which means any work or thing in which copyright may subsist including, without limitation, ‘artistic work’, ‘literary work’, ‘dramatic work’, ‘musical work’, ‘sound recording’, ‘cinematograph film’, ‘television broadcast’, ‘sound broadcast’, ‘published edition of work’ or ‘photograph’, as those terms are defined by the Copyright Act 1968 (Commonwealth) as amended or replaced from time to time.
…
.invention which means an invention (including both products and processes) which may be patentable under the Patents Act 1990 (Commonwealth) as amended or replaced from time to time.
.patent which means a patent within the meaning of the Patents Act 1990 (Commonwealth) as amended or replaced from time to time, and includes a standard patent, provisional patent application, patent application, or a petty patent.
…
and includes rights of a related nature.
Other relevant definitions include the following:
‘originator’ means any person who creates, whether or not in conjunction with another person, any intellectual property.
‘patent’ refers to intellectual property.Regulation 2 deals with sponsorship of research in the following terms:
Where –
(a) a person sponsors research within the University by providing funding for the research; and
(b) an agreement has been made between that person and the University governing ownership of intellectual property which would otherwise by virtue of these regulations be owned by the University, the provisions of the agreement prevail to the extent of any inconsistency between that agreement and these regulations.Other agreements may be made between UWA and the originators as provided for in regulation 3:
(1) The University may enter into an agreement with an originator or other person in relation to the creation, ownership, licensing, use or commercialisation of intellectual property.
(2) Where the ownership, licensing or exploitation of any intellectual property is governed by any agreement between the University and a student or member of staff or any other person, the provisions of the agreement prevail to the extent of any inconsistency between that agreement and these regulations.
Regulation 4 deals with the ownership of intellectual property. Originators are to own the copyright in all copyright works created by them subject to the other provisions in the IP Regulations (regulation 4(1)). Students are to own intellectual property which they create (regulation 4(2)). Regulation 4(4) provides:
In respect of intellectual property created by an originator in the course of the originator’s employment with the University, the University shall own copyright in computer programs, but no other copyright, and own all other intellectual property.
There is an obligation on the originator to execute documents as required by UWA (regulation 4(8)):
An originator shall, if required by the Vice-Chancellor or authorised officer, execute a document or do anything reasonably required by the University in relation to intellectual property created in whole or in part by the originator to demonstrate or prove ownership to third parties or secure intellectual property protection, or assist the University to commercialise the intellectual property.
Originators are not to disclose the details of or use of intellectual property if the disclosure or use is determined by the Pro Vice-Chancellor (Research) to be a disclosure or use which would prejudice the protection, enforcement or commercialisation of that intellectual property which is owned wholly or in part by UWA or by another person under an agreement made with UWA or would be contrary to any Government or legislative requirement.
In his closing submissions dealing with the merits of the Sirtex cross-claim, Dr Gray met the allegation of non-disclosure of Professor Schreuder’s letter by arguing that he had given significant disclosures to Mr Cherry of Freehills. The disclosures he relied upon related to his involvement with Dr Burton working together at the University of Melbourne before their move to Perth and the work they had done there in relation to precipitation treatment of resin microspheres. Mr Cherry, he said, was aware that he had been working on the SIRT technology in 1983 with Dr Burton. Dr Gray’s submissions also referred to a note of a telephone conversation between himself, Sandeep Mann and Ben Davey of Freehills on 24 March 2000. The note, apparently made by Sandeep Mann, contained the following reference:
… raises a problem. UWA stoush. Unfavourable terms left on. Potential conflict couple of years ago. Now not so. Quadruple cost of SIR-Sphere at Perth Hospitals RPH not related. Seek permission issue made. BGC clarification of conflicts of interest situation …
This file note was said to evidence the disclosure by Dr Gray to Freehills of disputes between him and UWA and to put Freehills on notice. Mr Cherry was said to have had experience as early as 2000 that universities have polices and regulations relating to intellectual property. He had been a lecturer at Monash University in 2000. He recognised that UWA might well have a policy relating to intellectual property ownership. Dr Gray also referred to Mr Cherry’s understanding, by 13 March 2000, that clinical trials were carried out by Dr Gray in his capacity as a Professor at UWA. He considered the need to check whether UWA had terms relating to intellectual property ownership in its professorial staff as he understood that many universities did have such terms. Dr Gray said this was sufficient to put Sirtex on notice of the potential for UWA to claim an interest in intellectual property.
Dr Gray further submitted that he was entitled to view Professor Schreuder’s correspondence of 1999 as part of a campaign intending to force him to resign from UWA. His resignation effectively ended UWA’s complaints. They did not respond to his correspondence.
I do not consider that the “disclosures” relied upon by Dr Gray and arising out of his communications with Mr Cherry and the other Freehills solicitors discharged the duty that he undoubtedly owed to Sirtex to draw to its attention the 1999 correspondence from Professor Schreuder. That correspondence indicated the possibility that UWA could inquire into whether it had interests in the relevant intellectual property. It was immaterial to that duty that Professor Robson was behind the letter or that Dr Gray thought it might “go away”. It was a breach of his duties, including his statutory duty under s 180 and s 181, as a director of the company, not to disclose it.
Having regard to his provision of the Barber letter of 20 February 1997 and his answers to the due diligence questionnaires, Dr Gray’s silence on the 1999 letter was, in my opinion, misleading or deceptive. That is to say, the circumstances of his silence were such as to convey the wrong impression that no possibility existed that UWA had or was likely to be interested in the intellectual property underpinning the Sirtex float.
In my opinion Sirtex is entitled to relief in respect of Dr Gray’s breaches of his duties as a director and for misleading or deceptive conduct in contravention of s 10 of the Fair Trading Act 1987 (WA). Had it been aware of the correspondence it would, in all probability, have been advised to make further inquiries of UWA. It would either have been notified of a potential claim or would have negotiated a release for some consideration, perhaps by way of a share issue. It lost the opportunity to so resolve the matter with UWA and has been exposed to this litigation. The fact that the litigation was unsuccessful does not affect the Sirtex causes of action against Dr Gray in respect of his duties as a director and in respect of the claim for misleading or deceptive conduct. Sirtex is entitled to compensation or damages for the loss which it has suffered as a result of opportunity to avoid the instigation of these proceedings and to resolve matters in advance with UWA. The measure and assessment of damages will be a matter for a separate hearing if the quantum cannot otherwise be agreed between Sirtex and Dr Gray. Counsel for Sirtex indicated in argument that the recovery it would seek from Dr Gray would be related to the costs of the proceedings. If that is so, having regard to the outcome of the proceedings, the compensation or damages should be able to be agreed.
Sirtex also sought to erect a rather elaborate case of fraud against Dr Gray based upon a constellation of circumstances and events. It is unnecessary to make any such finding. The finding of misleading or deceptive conduct and breach of the duty as a director of Sirtex does not require any finding of fraud.
The Sirtex/CRI cross-claim
Sirtex’s cross-claim against CRI, as put in closing submissions, was based on warranties in the CRI Deed. The breach of warranty claim was posited on UWA succeeding against Sirtex.
The claim for misleading or deceptive conduct against CRI was based upon its provision of the Barber letter to Nomura/JAFCO and Sirtex. Again the claim, as put in the closing submissions, was posited on the UWA claim being successful. The Sirtex cross-claim against CRI will be dismissed. CRI took no part in the proceedings so there will be no order as to costs on the cross-claim.
Gray/Chen cross-claim
Dr Gray cross-claimed against Dr Chen. He alleged that on or about October or November 1993 she falsely represented to Dr Gray that she was the inventor or an inventor of the invention specified in the DOX-Spheres provisional application ultimately filed on 18 November 1993. Dr Gray sought a declaration against Dr Chen that she “had no interest at any particular time in the patent application [sic] referred to in paragraph 38 of the further substituted statement of claim”. Dr Chen denied any false representation as alleged. She claimed that she was the inventor or at least an inventor of the invention specified in the provisional specification.
I have read the submissions of both Dr Gray and Dr Chen in support of and in opposition to the cross-claim. I am unable to see the basis upon which Dr Gray can contend that he has an interest sufficient to warrant the granting of a declaration. Although I have made findings adverse to Dr Chen in the context of the dispute between UWA and Dr Gray, I decline, as a matter of discretion, to make a declaration. In any event the terms of the declaration sought are meaningless. There can be no interest in an application.
The cross-claim by Dr Gray against Dr Chen is dismissed. In the circumstances that Dr Chen’s factual contentions did not succeed there will be no order as to costs.
Conclusion
For the preceding reasons the claim and all cross-claims will be dismissed save for the Sirtex cross-claim against Dr Gray which will be stood over for assessment of damages.
I certify that the preceding (1619) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate:
Dated: 17 April 2008
Counsel for the Applicant Mr TK Tobin QC and Mr M Green Solicitor for the Applicant Jackson McDonald
Counsel for the First Respondent: Mr ML Bennett and Mr IR Freeman Solicitor for the First Respondent:
Counsel for the Second Respondent:
Solicitor for the Second Respondent:
Counsel for Dr Chen:
Solicitor for Dr Chen:
Lavan Legal
Mr JD Elliott SC, Mr EJC Heerey and Mr JS Emmett
DLA Phillips Fox
Mr G Provan
Mr G Provan
Dates of Hearing: 15-16, 19-23, 26-30 March,
2-5, 11-13, 16-19 April,
1-3, 7-11 May, 28-31 May.
1. 11-15, 18-20 June, 5, 23-27 July 2007Date of Judgment: 17 April 2008 ANNEXURE 1
ANNEXURE 2
Summary of relevant patent documents
A number of patent documents in respect of each of the claimed inventions were tendered under certification as part of Exhibit 435. It is convenient to summarise their contents.
1.SIRT 1.
1.1 Provisional Patent Application PR O983 filed 25 October 2000.
The invention title was “Polymer based radionuclide containing microspheres”. The applicant was Sirtex Medical Ltd and the actual inventor, Bruce Gray.1.2Provisional specification in connection with Application PR 0983
This is entitled “The provisional specification for polymer based radio nuclide – containing microspheres”. The detailed description of the invention referred to irradiation of Yttrium oxide to form the isotope Yttrium90 which was solubilised. Ion exchange resin was provided as an aqueous slurry of microspheres having a particle size of 20 to 50 microns, preferably 30 to 35 microns. Yttrium90 solution was added to the slurry to absorb the Yttrium90 onto the microspheres. The Yttrium90 was precipitated as a phosphate salt to stably incorporate it into the microspheres. The resulting product would have a high pH which could cause serious side effects in a patient. To decrease the pH the microspheres were washed to remove unprecipitated Yttrium. It was very important that the pH of the microspheres suspension was to be lower than 9.5 and preferably less than 9 and, most preferably, less than 8. Mechanisms for providing a suspension of the required pH were described. The technique of Selective Internal Radiation Therapy was also described as involving either laparotomy to expose hepatic arterial circulation or insertion of a catheter into the hepatic artery via the femoral brachial or other suitable artery. Angiotensin-II could be infused to redirect arterial blood to the metastatic tumour component of the liver and away from normal parenchyma. Repeated injections of the microspheres were made until the desired radiation level was reached.
1.3 International Application PCT/AU01/01370 filed 25 October 2001This application was for an invention entitled “Polymer based radionuclide containing particulate material”. The field of the invention was said to relate to a particulate material comprising a polymer, particularly a polymer and a radionuclide, to a method for the production thereof, and to methods for the use of the particulate material. In a specific aspect it related to microspheres comprising a polymer and a radionuclide such as radioactive Yttrium and to their use in the treatment of cancer in humans and other mammals. There were some 23 claims. They included the following:
(i)a particulate material having a diameter in the range of from 5 to 200 microns comprising a polymeric matrix and stably incorporated radionuclide;
(ii)the particulate material according to claim 1 wherein the radionuclide is incorporated by precipitation;
Claims 3 to 5 covered the particulate material wherein the polymeric matrix is partially cross linked, comprises 1% to 20% cross linking, and alternatively comprises about 4% cross linking.
Claim 6.The particular material according to claim 1 wherein the polymeric matrix is an ion exchange resin.
Claims 7 to 10 specified different varieties of ion exchange resin including, in claim 10, an ion exchange resin comprising polystyrene partially cross linked with divinyl benzene.
Claims 11 and 12 covered various radionuclides, claim 12 relating specifically to Yttrium90 . Claim 13 specified a microsphere and in claim 14 a particulate material having a diameter in the range of from 30 to 35 microns comprising a copolymer comprised of styrene and divinyl benzene and precipitated Yttrium90 .
Claims 15 to 17 related to the process for the production of the microspheres. Claims 18 to 23 related to methods of administration and the use of the particulate material.
2.SIRT-2
2.1Standard status report and patent request 54724/94, filed 21 January 1994.
This was a request for grant of an invention entitled “Radioactive Particles for Treatment of Cancer”. Dr Gray was shown as the actual inventor and applicant and also as the nominated person to whom the patent was to be granted. Davies Collison Cave were the Patent Attorneys. An international application claiming priority from 54724/94 was filed on 20 January 1995. It was allocated a number PCT/AU95/00027 through the PCT system and published by the World Intellectual Property Organisation (WIPO) on 27 July 1995. It entered the Australian national phase and was allocated Complete Patent Application number 15279/95 entitled “Particulate material”. It was open to public inspection on 8 August 1995 and accepted on 6 March 1998. It was sealed on 13 August 1998 and given Australian Patent No 690630.
2.2Complete specification in connection with application 54724/94, filed 21 January 1994.
The invention title was “Radioactive Particles for Treatment of Cancer”. It was said to relate to the treatment of cancer in mammals by the use of small hollow particles (collectively called microspheres) containing a radioactive substance. They were designed to be administered into the arterial blood supply of the organ to be treated whereby they become entrapped in small blood vessels of the target organ and irradiate it. The claims defining the inventions focussed upon the methods for the production of hollow microspheres. Essential steps relating to grinding to a fine powder, combining base material with a suitable binder, spray drying the slurry and thermal spraying of the spray dried particles were referred to. The production of microspheres having a diameter from 10 to 200 microns was claimed in one claim. The use of Yttrium or any salt of Yttrium as the basic element of the microspheres was also claimed.
2.3International application PCT/AU95/00027, filed at Australian Receiving Office on 20 January 1995.
This invention is described as “Particulate Material”. It was said to relate to a particulate material comprising small hollow or cup shaped ceramic particles called microspheres, a process for their production and methods for its use. The claims in this specification included radioactive particulate material comprising hollow or cup shaped ceramic microspheres comprising a beta or gama radiation emitting radionuclide and having a diameter in the range of from 5 to 200 microns (claim 5). Narrower claims defined the material as Yttrium and diameters in the range from 20 to 80 microns. A process for the production of the material by forming aggregates of powdered base material with a suitable binder and thermal spraying to melt the base material and vaporise the binder to form hollow or cup shaped microspheres was also claimed. Related method and use claims were made.
2.4Entry in the Patents Register in respect of Patent Number 690630.
This certified entry showed Paragon Medical as patentee and Dr Gray as inventor of an invention entitled ‘Particulate material’ and was given Application number 15279/95. The term of the patent was 20 years commencing 20 January 1995. It was stated to take priority from number 54724/94 dated 21 January 1994. The entry also recorded a change of name of Paragon to Sirtex, registered on 14 June 2000.
2.5Patent specification 690630.
The invention entitled “Particulate Material” showed Paragon as applicant and Dr Gray as inventor. Again it related to the production of hollow or cup-shaped ceramic microspheres comprising the relevant radionuclide and having a diameter from 5 to 200 microns.
3. DOX
3.1Status report and provisional patent request in connection with Provisional Patent Application Number PM 2492.
This document was a request in the name of Yan Chen and Dr Gray for the grant of a patent for an invention entitled “Controlled Release Matrix for Dugs and Chemicals”. It was dated 15 November 1993. The address for service in Australia was shown as Davies Collison Cave. A letter from IP Australia indicated that an International Application claiming priority from PM2492 was filed on 17 November 1994. The International Application through the PCT system was allocated number PCT/AU94/00708 and was published by WIPO on 26 May 1995. The International Application entered Australian national phase and was allocated a Complete Patent Application No 81363/94 entitled “Controlled release preparation”. That application was open for public inspection on 6 June 1995, accepted on 2 June 1998, sealed on 5 November 1998 and given Australian Patent No 693821.
3.2Provisional Patent Application PM2492, filed on 18 November 1993.
This was a provisional specification for an invention entitled “Controlled Release Matrix for Drugs and Chemicals”. The invention was said to describe a novel formulation for the transport and controlled release of a variety of therapeutic and chemical agents using metal ions-drug interaction as a release control mechanism in combination with either a degradable or non-degradable ionic supporting matrix. One particular application of the formulation was to transport cytotoxic drugs designed to be used in patients and animals for the treatment of cancer. The concept of using metal ion-drug complexes in combination with ionic polymers could also be used for the transport and controlled release of other drugs and chemicals for a variety of other applications.
The invention was said to involve the use of metal ion complexation of the active drugs as a mechanism to control their release. Experimental results demonstrated that this resulted in many advantages over other formulations of drug-matrix complexes such as high loading, reduction of the initial burst release of drug, control of drug release and biodegradability.
3.3 International Application PCT/AU94/00708 filed 17 November 1994.
This related to the invention entitled “Controlled Release Preparation”. There were some 15 claims. They included the following:
(i)a controlled release preparation comprising an ionic polymer matrix loaded with an active compound being complexed with a complexing agent to modify the release of the active compound from the polymer matrix;
(ii)a preparation according to claim 1 wherein the ionic polymer matrix is in the form of microspheres;
(iii)a preparation according to claim 2 wherein the microspheres have a diameter in the size range of 10-200 micron, preferably in the size range of 20-70 micron.
Subsequent claims defined the active compound as pharmaceutically active (claim 4). A cytotoxic or cytostatic drug (claim 4), doxorubicin, daunorubicin or cisplatin (claim 6). The claim was made for an ionic polymer matrix comprising a biodegradable cross linked albumin/dextran sulphate matrix (claim 7) and a preparation wherein the complexing agent was a metal ion (claim 8) and in which the metal ion was Fe (claim 9). The loading of the ionic polymer matrix with Fe-complex doxorubicin was claimed (claim 10) and with chitosan-complex cisplatin (claim 11). Methods of treatment and use were also claimed.
3.4Entry in the Patents Register in respect of Patent Number 693821.
This entry showed Application No 81363/94 entitled “Controlled release preparation” as held by Paragon which changed its name to Sirtex. The inventors were shown as Yan Chen and Dr Gray. Its term was 20 years commencing 17 November 1994.
3.5Granted patent specification in respect of Patent Number 693821.
This was a certified copy of Patent Number 693821 entitled “Controlled release preparation” in the name of Paragon as applicant and showing Yan Chen and Dr Gray as inventors. It contained the same claims as set out in PCT/AU94/00708.
4.Thermo 1
4.1Publicly available details in connection with Provisional Patent Application PN 0213, filed on 23 December 1994.
This recorded the filing of a provisional specification for an invention entitled “Targeted hysteresis hyperthermia as a method for treating cancer”. The applicant’s name was “Bruce Gray”.
4.2 Status report and Provisional Patent Request in connection with provisional patent application PN 9782, filed on 10 May 1996.
The request was for the grant of a patent entitled “Targeted hysteresis hyperthermia as a method for treating cancer.” The applicant was Dr Gray and the actual inventor was Dr Gray. A letter from IP Australia indicated that the application was given number PN9782. An International Application claiming priority from it was filed at the Australian Receiving Office on 30 May 1997. The international application, through the PCT system, was allocated number PCT/AU97/00287 and was published by WIPO on 20 November 1997. The international application entered Australian national phase and was allocated a complete patent application number 26277/97 entitled “Targeted hysteresis hyperthermia as a method of treating diseased tissue”. The application was open for public inspection on 5 December 1997 but never entered the Australian national phase.
4.3Provisional patent application PN9782, filed 10 May 1996.
The provisional specification for Thermo 1 was entitled “Targeted hysteresis hyperthermia as a method for treating cancer”. The provisional specification was signed by Dr Gray and dated 10 May 1996. It appended two documents. The first described the concept of the invention in greater detail, while the second described the preliminary investigations said to confirm its scientific credibility. The first document was entitled “Patent Application for Tumour Hyperthermia by Hysteresis Heating”. The second did not bear a title. It reported, under the heading “Scope of This Study” on the minimum power levels required, possible health and environmental effects and engineering constraints.
4.4International application PCT/AU97/00287 filed on 9 May 1997.
The invention was entitled “Targeted Hysteresis Hyperthermia as a Method for Treating Diseased Tissue”. The claims defining the invention included the following:
1.a method for site specific treatment of diseased tissue in a patient comprising the steps of:
(i)selecting at least a magnetic material which has a magnetic heating efficiency of at least about 4.5 x 10-8 J.m./A.g, when magnetic field conditions are equal to or less than about 7.5 x 107 A/s;
(ii)delivering the magnetic material to diseased tissue in a patient; and
(iii)exposing the magnetic material in the patient to a linear alternating magnetic field with a frequency of greater than 10kHz and a field strength such that the product of field strength, frequency and the radius of the exposed region is less than about 7.5 x 107 A/s to generate hysteresis heat in the diseased tissue.
Magnetic material with different characteristics was covered by claims 4, 5 and 6. Claim 7 was in the following terms:
A method according to claim 1 wherein the magnetic material is selected from compounds within the group of CrO2 metallic iron, cobalt, nickel, gamma-ferric oxide, cobalt treated gamma-ferric oxide, ferrites of general form, MO.Fe2 O3 where M is a bivalent metal, cobalt treated ferrites or magnetoplumbite type oxides (M type) with general form MO.6Fe2O3 where M is a large divalent ion…
5.Thermo 2
5.1 Publicly available details in connection with Provisional Patent Application PP 0081, filed 29 October 1997.
These details indicated the applicant in respect of provisional application PP0081 was Paragon under the invention title “Improved targeted hysteresis hyperthermia as a method for treating diseased tissue”. The provisional filing date was 29 October 1997.5.2Certified Provisional Patent Application PP 0081.
This is a provisional specification for an invention entitled “Improved Targeted Hysteresis Hyperthermia as a Method for Treating Diseased Tissue”. A summary of the invention indicated that it was directed to the use of a rotational magnetic field thus:
The present invention provides an improved method for site specific treatment of diseased tissue in a patient, which comprises the steps of:
(i)selecting at least a magnetic material which has a magnetic heating efficiency of at least about 4.5 x 10-8 J.m/A.g, when rotational magnetic field conditions are equal to or less than about 5 x 108 A/m.s;
(ii)delivering the magnetic material to diseased tissue in a patient; and
(iii)exposing the magnetic material in the patient to a rotational magnetic field with a frequency of greater than about 10kHz and a field strength selected such that the product of field strength, frequency and the radius of the exposed region is less than about 7.5 x 107 A/s to generate hysteresis heat in the diseased tissue.
6.Thermo III
6.1 Status report and Provisional Patent request in connection with Provisional Patent Application PP 8998, filed on 29 October 1997.
This is a copy of the provisional specification in connection with the application PP0081 and entitled “Improved Targeted Hysteresis Hyperthermia as a Method for Treating Diseased Tissue”. The application was filed by Paragon. The description of the invention follows that in the provisional specification mentioned in the preceding entry and bears the same title.
6.2 Status report and Provisional Patent request in connection with Provisional Patent Application PP 8998, filed on 3 March 1999.
The patent request accompanying the provisional specification was lodged on behalf of Paragon as applicant under the invention title “Magnetic Material”. An International Application claiming priority from PP 8998 was filed at the Australian Receiving Office on 3 March 2000. The international application was allocated the number PCT/AU00/00151 and published by WIPO on 8 September 2000. It entered Australian national phase and was allocated a Complete Patent Application Number 28952/00 entitled “Heating of magnetic material by hysteresis effects”. Ultimately it lapsed and was advertised in the Official Journal of 8 August 2002.6.3Provisional Patent Application PP 8998, filed 3 March 1999.
The invention was entitled “Magnetic Material”. Under the heading “Disclosure of the Invention” the provisional specification stated:
The present invention consists in a magnetic material having a magnetic heating efficiency of at least 4.5 x 10-8 J.m/A.g in a rotational magnetic field where the product of the amplitude and frequency of the applied field is less than or equal to 5 x 108 A/m.s, and the frequency of the applied field is at least 20kHz.
6.4International Application PCT/AU00/00151 filed 3 March 2000.
The invention was entitled “Magnetic Material”. It was said to relate to “…magnetic materials that exhibit high magnetic hysteresis heating in a cyclic magnetic field”.
ANNEXURE 3
ANNEXURE 4
Application Type Application Number Current Status Applicant at PCT filing Investors at PCT filing International Application PCT/AU01/01370 (WO02/34300) Concluded Sirtex Medical Limited Bruce Nathaniel Gray Priority Document PR0983 Ceased National Phase Australia 10278/02 (2002210278) Pending Canada 2426602 Awaiting Examination Europe 01978015.4 Awaiting Examination Japan 2004511576 Filed USA 20030007928 (10/173496) Notice of Appeal Filed International Application PCT/AU95/00027 (WO95/19841) Concluded Bruce Nathaniel Gray Bruce Nathaniel Gray Priority Document AU54724/94 Ceased National Phase Australia 15279/97 (690630) Granted now Ceased Canada 2181254 Ceased China 1075959 Lapsed Europe 0740581 Granted France In force Germany In force Great Britain In force Ireland Lapsed Luxembourg Lapsed Spain In force Sweden In force Japan 03770906 Granted – In force USA 5,885,547
6,258,338
6,537,518
Granted – In force
Granted – In force
Granted – In forceInternational Application PCT/AU94/00708 (WO95/13798) Concluded Cancer Research Institute Yan Chen; Bruce Nathaniel Gray Priority Document PM2492 Ceased National Phase Australia 81363/94 (693821) Granted/ceased Canada 2176933 Ceased China 1139380 Lapsed Europe 0727984 Granted France In force Germany In force Great Britain In force Ireland Lapsed Italy In force Sweden In force Japan 09505059 Awaiting examination USA 5,932,248 Granted – In force International Application PCT/AU97/00287 (WO97/43005) Concluded Paragon Medical Limited Bruce Nathaniel Gray; Stephen Keith Jones Priority Document PN9782 Ceased National Phase Canada 2253963 Ceased 28/2/03 China 1218415 Lapsed 30/4/03 Europe 0952873 Granted France In force Germany In force Great Britain In force Ireland In force Luxembourg In force Spain In force Sweden In force Japan 2000503879 Refused South Korea 0034772 Lapsed USA 6,565,887
6,167,313Granted
GrantedInternational Application PCT/AU00/00151 (WO00/52714) Concluded Paragon Medical Limited Bruce Nathaniel Gray; Stephen Keith Jones; Raffaele Cammarano Priority Document PP8998 Ceased National Phase Canada 23654403 Ceased Europe 1166291 Awaiting examination Japan 2002538616 Awaiting examination USA 6,599,234 Granted
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