"The insuperable difficulty in UWA’s submissions is that Dr Gray’s employment duties did not even require him to perform tasks from which inventions might result. The subject matter and the manner of discharge of his duty to research were in his discretion. He was not employed to invent."
196 UWA has sought to circumvent his Honour’s conclusion in the following way.
Though Dr Gray was entitled to determine the subject and manner of his research, if what he
chose to do required him to bring his inventive faculty to bear, then the doing of that research
should, it is said, be regarded as that which he was engaged to do and for which he was paid.
Any invention resulting from his so doing should, in consequence, attract the implied term.
197 Such a deemed, contingent duty to invent requires an untenable implication. It is
not what Dr Gray’s terms of employment required; there is no “necessity” for it being implied
by law into the employment contracts of university academic staff; and, importantly, it is
inconsistent with the researcher’s freedom to share and to publish research results.