When is a student a consumer?

In 2015 the Competition and Markets Authority issued guidance to the higher education sector and took the position that undergraduate students are “consumers” for the purposes of various statutory consumer protection measures.

That position, until recently, has not really been tested in the courts and it also left open the question of research students.

However, the Patents Court has now had to consider the issue in a claim for royalties brought by Oxford University against one of its spin-out companies, Oxford Nanoimaging Limited:

Oxford University Innovation Ltd v Oxford Nanoimaging Ltd [2022] EWHC 3200 (Pat) (23 December 2022) (bailii.org)

The spin-out company argued that the intellectual property in the “nano imager” belonged to their CEO from his time as an intern, then a DPhil student, in the relevant lab in the University.

The deputy High Court judge who heard the case upheld the University’s claim and concluded that the IP vested in the University under its IP policy.

The court rejected the spin-out company’s argument that the University’s IP policy was not enforceable. In his capacity as a DPhil student, the CEO was a consumer and that, on analysis, the vesting of the IP in the University was not “unfair” under the applicable consumer law provisions in force at the relevant time.

The judge was of the view that DPhil students are normally consumers “and that it does not matter for this purpose whether the student is undertaking that educational qualification with a view to her career, profession and/or professional advancement”.

Although outside the scope of the issues in dispute before the court, the judge also considered that undergraduate students are normally consumers.

The court declined permission to appeal. At the time of writing, it is not known whether the spin-out company has sought permission to appeal from the Court of Appeal.

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