The company behind Marian Sturm’s life-changing cellular treatment has failed in its bid to have the state health department’s lawsuit against it thrown out, as the battle for patent ownership continues.
The East Metropolitan Health Service sued Dr Sturm, Isopogen and two scientists last year demanding compensation and the rights to the treatment she developed while leading Royal Perth Hospital’s Cell and Tissue Therapies facility.
The treatment, developed for those battling inflammatory illnesses, was registered in Dr Sturm’s name and that of her public company Isopogen.
She founded the company in order to raise capital for clinical trials of the patent before it received approval in Australia, the US, South Africa, Japan, Israel, and Singapore.
EMHS claimed Dr Sturm breached her employment contract by dishonestly diverting the ownership of the treatment and exploiting the intellectual property rights; breaches it alleged the other scientists were complicit in.
In June, Ispogen’s high-profile lawyer Martin Bennett asked the court to put the lawsuit on ice, citing a clause in its licence deal with EMHS that stated disputes would be dealt through private mediation.
Isopogen director Paul Fry told the court there had been no attempt to resolve the ownership dispute as stipulated under the deal, which it claimed clearly identified the public company as the patent’s rightful owner.
But EMHS insisted the dispute resolution clause did not extend to a clash of this nature and told the court mandatory mediation at this stage would be “futile”.
The application coincided with a move by EMHS to amend the writ and remove reference to the license deal, which allegedly contains a covenant that it would not challenge ownership of the invention.
In a determination handed down this afternoon, Justice Jeremy Curthoys threw out the application, finding the clause incapable of enforcement and the stay application inappropriate.
With the four other defendants not parties to the agreement, Justice Curthoys feared any mediation could fragment the proceedings.
Isopogen has been lumped with the costs of the legal pursuit, as the battle over the treatment continues.
