...the inventive concept could be viewed as the idea that sodium meta-arsenite could be active against specific solid tumours, or alternatively it might be viewed as the broader idea that metabolites of arsenic trioxide might be active against tumours.
He went on to conclude that:
The broader formulation of the inventive concept is an idea for an area of research and is not sufficiently developed to be regarded as the inventive concept.In reaching this conclusion, it appears that he was influenced by the fact that selection of sodium meta-arsenite for testing was somewhat arbitrary (ie due to its commercial availability, rather than any pre-existing expectation of efficacy), and thus Dr Lee could not have had this compound specifically in mind in December 1998 (at ).
Having thus defined the inventive concept, it was not necessary to decide between Dr Lee's and Dr Rademaker's accounts of the Novotel meeting, because Dr Lee was no longer involved at the time when the inventive concept became clearly defined in the inventor's – ie Dr Rademaker's – mind.
The Delegate found that the contract between Dr Lee, Mr Yang and Komipharm confirmed an existing understanding regarding ownership of the international application. However, the contract did not purport to effect any transfer of rights (at ).
As a consequence, neither Dr Lee nor Mr Yang could be entitled to a share in any patent(s) granted on the application. They were not inventors, nor had they derived any rights (directly or indirectly) from the inventor. The contract was Komipharm was based on a "mistaken understanding of the ownership of the patent application" (at ).
Komipharm is therefore the sole applicant of the Australian patent applications.
Importance of correctly identifying inventors and applicants
There were a number of clear failures on the part of the various parties to this dispute.
They failed to correctly identify the inventor in the first instance (or, it seems, even to attempt to do so).
They also failed to distinguish between merely being named as an applicant on a patent application, and actually being entitled to ownership of the associated rights. It cannot be emphasised enough (because it is a common misconception) that the naming of inventors and applicants amounts to a statement to the relevant authorities of a pre-existing factual situation. It does not actually result in any transfer of ownership, or acquisition of rights.
In some instances (depending on the circumstances and the relevant national laws) erroneous identification of inventors or applicants may be considered fraudulent, and render the resulting patent invalid and/or unenforceable.
The law and practice in Australia is relatively forgiving of these these kinds of lapses, at least prior to the grant of a patent. However, there is at least one example of a case in which doubt has been cast over the possibility of correcting certain types of errors in ownership after a patent has been granted (see Conor Medsystems, Inc. v The University of British Columbia (No 2)  FCA 32).
The evolving law of inventorship?
This decision arguably continues an ongoing "Americanisation" of the law of inventorship in Australia. Certainly, the US law in this area is more highly developed, and for this reason the Federal Court of Australia has referred to US cases on a number of recent occasions.
However, part of the reason for the more-developed approach in the US is the "first to invent" system, which requires not only identification of the inventor, but also may require the establishment of a (more or less) specific date of invention. The division between "conception" and "reduction to practice" assists this identification. Under the US law, the conception is complete once the invention is fully-formed in the inventor's mind. Reduction to practice, by definition, is a non-inventive process.
This is not necessarily so in Australia. There is no need, in most cases, to ascribe a date to invention, and thus no need to draw a bright line between inventive and "routine" activity. As the Full Federal Court has stated, "the reduction to practice of an inventive concept may or may not require an invention or inventive step" (University of Western Australia v Gray  FCAFC 116). Thus, care should be in affording too much weight to US authorities.
We also wonder about the apparently diminishing role of the "but for" test of inventorship (see Harris v CSIRO  APO 43). While the Delegate may well have been correct in this case that Dr Lee was not an inventor, it may not always be the case that a suggestion of a productive research direction is insufficient to establish inventorship.
In any event, it is apparent that determining inventorship is a heavily fact-based enquiry, and that each case needs to be considered on its particular merits.