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The question in Conor Medsystems Inc v The University of British Columbia (No.2) [2006] FCA 32 (Finkelstein J) was this:

1. if you have two joint patentees
2. one of those joint patentees is a University which claims title through two people claiming to be inventors,
3. but it turns out that those people were not in fact inventors,
4. is the patent liable to revocation, on the grounds that it was not granted to the actual inventors or those claiming under them – even though the other patentee is not affected by the problem?

Finkelstein held yes: the patent is liable to revocation in these circumstances, because it was not granted to the ‘actual inventors’ or those claiming title through the actual inventors. Although Finkelstein noted that there are several questions still open:

1. if this ground ends up being made out, is the making of a revocation order discretionary, and if so, should the discretion be exercised?
2. can the other patentee seek a declaration that it is an eligible person in relation to the claimed inventions, so that it can take steps to obtain the grant of patents for itself, and
3. is the power of rectifiaction available in lieu of revocation?