University rules against British Titanium
British Titanium has lost its appeal against Cambridge University’s handling of valuable intellectual property, which it says saw it stripped of its commercialisation rights after seven years of work and millions of pounds of investment, Business Weekly can exclusively reveal.
While means of redress now look thin on the ground for BTi following the collapse of its High Court action and today’s refusal of its appeal, the company has vowed to “fight on” and says it will “throw a spanner in the works” of arch-enemy, Metalysis’ efforts to commercialise the technology.
BTi has been scrapping with former “sister company,” Metalysis for nine months over rights to commercialise a revolutionary way of producing super-metal, titanium. BTi had been developing the FFC Cambridge process for the production of titanium under the auspices of a sub-licence from one-time head-licence holder, QinetiQ.
However, the University, through its technology transfer arm, Cambridge Enterprise, decided that BTi was not up to the job and handed the head licence to its direct spin-out, Metalysis.
James Hamilton, chief executive of BTi, has described Prof Sir Bob Hepple QC’s adjudication in favour of Cambridge University and Metalysis a “complete whitewash.”
Judge Hepple, who is Master of Clare College and professor of law at the University, was brought in as a ‘technology referee’ to sit on an appeal brought by the inventor of the technology, Cambridge don Prof Derek Fray, who believes that BTi has been treated unfairly.
Prof Fray has helped both companies develop their technology but has latterly aligned himself with BTi. Metalysis maintains that Prof Fray is the chairman of its scientific board, but that position looks increasingly untenable.
Judge Hepple concluded that Cambridge University acted fairly and in the best interests of commercialisation when it awarded Metalysis the so-called head licence to breakthrough metals technology.
British Titanium alleges the award of this licence resulted in its own exclusive sub-licence being cancelled, although Metalysis denies this, saying that it offered BTi a sub-licence and that this offer was dismissed out of hand.
Hamilton claims that his company has been “mugged.”
“The whole thing is a bloody mess and makes a nonsense of Lord Sainsbury’s recent claim that the UK is brilliant at commercialising technology. We are five years ahead of Metalysis in the development of this technology,” he said.
Hamilton added: “The University had a choice when reviewing this case: to act with probity or with self-interest. I think it made the wrong choice. It is effectively sending out the message to prospective entrepreneurs that it will allow them to spend time and money on technology and then at the crucial point, hand that technology to a company in which they have a stake.”
Hamilton further alleges that Judge Hepple came to his decision without seeing “crucial evidence” – an independent 18-page report commissioned by the University prior to awarding Metalysis the head licence. Metalysis was unavailable for comment at the time of going to press, but the University is maintaining a conciliatory stance on the issue.
A spokesperson for the University of Cambridge said: “We welcome the ruling and recommendations of the referee, but this is only a step towards finding an acceptable means to commercialise this important technology.
“Clearly the launching of legal proceedings (by BTi despite opportunities to negotiate and engage in mediation,) has not contributed to a solution. Hopefully we can move forward from here.”
In light of Judge Hepple’s ruling, BTi is sticking by its earlier threat to withhold access to crucial gateway intellectual property, called FFC Improvements, which it says will prevent Metalysis from commercialising the technology.
But this will do little to win BTi’s rights back. Business Weekly understands that there are still a number of avenues that it could pursue, but much depends on the will of inventor, Prof Fray, who is currently lecturing in China.
He has two further modes of appeal open to him: An external appeal before three referees, or a further hearing within the University’s legislative structure. This public appeal would be made before the Senate and requires the signatures of a certain number of University members before it comes into force.
Failing that, BTi says it is mulling the possibility of resurrecting its High Court action against Metalysis, even though its first attempt forced it into administration.
Such a course of action requires around £1 million worth of sophisticated ‘after the event’ insurance cover, the funding for which has still to be committed.