The case on Dr. Shakida Britchett has several issues involving contract law. To start with, there is the issue of determining whether Dr. Britchett actions were conducted “in the course of employment” or not. This will be paramount in determining who is entitled to the ownership of the intellectual property rights involved.
Another relevant issue is that of Dr. Britchett treating patients outside the required scope of operation. Can this issue be referred to as a breach of contract? This is highly dependent on how the entire activity was being undertaken. Does the treatment of these patients occur during the stipulated work hours? Does she treat the patients using the company’s resources? Answering such questions would help in evaluating Dr. Britchett’s obligations towards the company and her fulfillment of those obligations. Breach of contract is normally served with consequences for any party involved in the contract.
The effects of express terms in a contract can be viewed as a relevant issue in this case too. This regards the details about intellectual property as expressed in Dr. Britchett’s employment contract. Dr. Britchett’s act of treating patients while in holiday is also a relevant issue that needs assessment to ensure whether it affects her status of the course of employment.
Several legal principles pertaining to contract law can be applied in this case. To begin with, the employee-employer relationship tends to set the foundations of implied obligations under the employment contract (Sappideen et al., 2016, p. 138). Patents Act 1990 (Cth), s 15(1) asserts that a company can apply for a patent for an invention that has been created by the employees in the course of employment. However, the Act does not explicitly designate the employer’s right to inventions developed by employees. Patents Act 1990 (Cth), s 15(1)(b) outlines that the employer’s claim to the intellectual property rights of such inventions is dependent on the terms of the employment contract involved. There is an implied term that the intellectual property rights rest with the employer so long as the invention is developed “in the course of employment”.
There are general principles used in the interpretation of the terms “in the course of employment”. What exactly an individual is paid to do determines whether they are working within this scope. If the making of inventions that are covered by copyright does not involve an employee’s specific duties, then it cannot be regarded as being “in the course of employment” (Stewart et al, 20014, p. 33). In this case, the rights to intellectual property remain with the employee. An employer might be entitled to intellectual property rights and the benefits accrued from it if its creation by the employee resulted in the breach of fiduciary duties. A good example is where the work is executed without the informed consent of the employer or its execution adversely affected the normal work duties. In case there are specific directives by the employer requiring the production of certain inventions, the activities are likely to be considered as being “in the course of employment.
A breach of contract, in this case, would occur if Dr. Britchett neglected the requirements of her employment contract while working on her side businesses. Did she utilize the work hours to undertake her treatments towards other patients not involved with the company of employment? In case there is a breach of contract under this respect, it would not necessarily warrant the intellectual property rights to be granted to Modern Matters Company. This is because there are relevant remedies available with regards to breach of contract.
It is always imperative to ensure that issues to do with intellectual property have been stated in the employment contract clearly. This helps in eliminating the difficulties of trying to ascertain whether such terms are implied. In the case of EdSonic Pty Ltd v Cassidy 272 ALR 589, the court held that even when the employer-employee relationship exists, the terms included in the employment contract are significant in determining whether a copyright material produced by an employee belongs to the employer. This helps to avoid the need to interpret Copyright Act 1968 (Cth), s 35 that a copyright is owned by the employer if it is produced “in pursuance of the terms of the employee’s employment” (Stewart et al, 20014, p. 97).
The above principles can be used to reach a justifiable conclusion for the issues involved in the case. The actions of Dr. Britchett seem to be “in the course of employment”. This is because Modern Matters Pharmaceuticals employed her so that she can continue on her research involving breast enlargement. This is to mean that the company would own the intellectual property rights emanating from the research.
Whether Dr. Britchett was treating employees outside working hours or not, the aspect does not affect ownership of the intellectual property. Even the usage of employer’s resources is not sufficient by itself to indicate that the employer is entitled to the intellectual property developed with the use of those resources. The employee is only subject to disciplinary action for using the resources in undesignated manner. She may even be subject to dismissal, but this does not affect the ownership of intellectual property rights.
In this case, there are express terms in Dr. Britchett employment contract regarding intellectual property rights. It is expressly stated that all the intellectual property rights created by Dr. Britchett during her employment are owned by Modern Matters Pharmaceuticals. This is usually a favorable way of avoiding conflict with regards to this issue. The case of Courier Pete Pty Ltd v Metroll Queensland Pty Ltd  FCA 735emphasized this importance. It was held that the employee (involved with the case) was not employed with the objective of being creative in his terms of employment. Therefore, the employee and not the employer owned the intellectual property rights of the designs in question.
In conclusion, Dr. Britchett’s operations were “in the course of employment”. This means that any invention that she makes during her employment period is owned by Modern Matters Pharmaceuticals. Her employment contract also includes a clause ascertaining that intellectual property rights created during her employment period vest with the company. This means that Modern Matters is entitled to money that Dr. Britchett makes through the intellectual rights ownership. However, the company is entitled to part of the money and not all of it. This is to say that they are entitled to money that comes as a result of intellectual property rights created while Dr. Britchett was the employee of the company. They are not entitled to any other intellectual property created before she commenced her operations in the company.
Copyright Act 1968 (Cth)
Patents Act 1990 (Cth)
Courier Pete Pty Ltd v Metroll Queensland Pty Ltd  FCA 735
EdSonic Pty Ltd v Cassidy  272 ALR 589
Sappideen, C, O’Grady, P, Riley, J, Smith, B (2016). Macken’s Law of Employment – 8th Edition. Australia: Thomson Reuters.
Stewart, A, Griffith, P B, Bannister, J, & Liberman, A (2014). Intellectual property in Australia. LexisNexis Butterworths.
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