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University of Western Australia v Gray: An Academic Duty to Commercialise Research?


In an era of tightening university budgets and pressure to commercialise academic knowledge, many higher education institutions see the exploitation of new inventions and discoveries, through the use of patents, as an additional revenue stream. To that end, many such organisations have in place policies and by-laws which regulate “ownership” and disclosure of inventions created by employees. This can be seen as a continuation of an ongoing process of shifting universities from institutes of “pure research” to commercial operations, seeking to maximise financial gains from the efforts of their researchers. However, new opportunities present new risks. One of the last Federal Court decisions by the High Court of Australia’s new Chief Justice, Justice French, in University of Western Australia v Gray [2008] FCA 498 explores some of the challenges which Australian university administrators and policy developers will need to overcome if an appropriate balance between private interests and public good is to be maintained in this context.

If their movement into commercial patenting is to be reconciled with the time-honoured position of universities as centres of learning, support for public goods and open access research, then government intervention, through an expansion of the “fair use” provisions in the Copyright Act and Patents Act to include academic research, may need to be considered. At the very least, patenting should be seen against its historical background: as an authorised, but limited, monopoly privilege granted temporarily and primarily in the public interest, to encourage innovation and to assist in the dissemination of knowledge.

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