For Your Eyes Only: American Science Scandal Brings Possession of Scientific Data to Forefront

When Judy Mikovits had a ‘keystone’ scientific discovery widely discredited, resulting in the loss of her job, it is unlikely that she considered the state of the intellectual property laws governing the work that she performed for her former employer, the Whittemore Peterson Institute (WPI). However, in November 2011, following the initiation of civil action by WPI for theft of intellectual property, including punitive damages, felony criminal charges were brought against Dr. Mikovits as well. Although the criminal charges were dropped on June 11, 2012, the civil case is still pending and may send a shockwave through the research community.

This post elaborates on the concept of criminal theft of IP, which I discussed at length in a previous IPilogue post with respect to software code, in the form of scientific research. In laboratory science, it is customary to keep a lab notebook, which details all research conducted, including methodologies, applied results, and interpretations. The notebooks are the ultimate reference for raw, unaltered data, and are essential for troubleshooting and the transfer of knowledge within labs between experiments. Upon leaving a lab, graduate students and lab technicians typically leave their notebooks in the lab of the principal investigator (PI), who is the recipient of grant funding for the research project. However, the question of IP ownership becomes murkier when the PI is the individual looking to take possession of their notebooks and materials upon leaving an institution, which was the case with Dr. Mikovits.

With limited government funding available in North America for public research, scientists are very secretive and protective of their results, as they are all striving to publish novel, groundbreaking work and posture themselves to procure funding. Thus, it stands to reason that Dr. Mikovits would want to take her work with her so that she could continue to continue her progress and publish her results elsewhere. However, in instances of potential IP theft, is the criminal court the proper venue for these matters?

The State of Nevada has suggested, despite Dr. Mikovits’ initial arrest, that no, these matters should be resolved by civil action. However, it has been suggested that the prosecutors withdrew the charges as a result of the legal indiscretions of the CEO of WPI. Thus, the question of the criminality of such alleged IP theft may come up again in the future, particularly with the increasingly competitive nature of the realm of science that is the result of scarce funding.

Even in Dr. Mikovits’ case, it is unclear that the criminal charges should have been withdrawn seven months after the charges were laid. Despite being a leading investigator, she was the employee of a research institution, relying heavily on their staff and equipment (not to mention the salary that she was paid). Although she should be afforded some sort of protection for her time and work, institutions should have guarantees as well. Most public research grants are administered to the individual under the condition that they are affiliated with a recognized institution that moderates the funding process. Thus, the institution retains partial control of what is ultimately government-funded research. It is NIH policy that researchers make publicly funded research available to the public-at-large, and the institution cannot ensure this if they do not remain in control of the data collected.

With respect to the factual nature of the criminal allegations, the charges in the present matter may have been dropped due to a technicality in what was already sure to be a complicated and landmark criminal matter. Dr. Mikovits did not personally remove the notebooks detailing her research, but had a colleague retrieve them after the fact. Should this factor into the concept of theft? Is “counseling to commit intellectual property theft” too far beyond the scope of what the criminal laws should regulate? These are questions that have not yet been answered in the courts, and are a minutia of the bigger issue of IP theft in science.

Whether criminal courts are the proper venue for IP theft is still open to interpretation, and unfortunately, without a trial and judicial reasons, this matter does little to contribute to the criminal jurisprudence of IP theft. However, the results of the civil matter will be particularly interesting to follow, as there are various interests at stake, namely: WPI (the institution), Dr. Mikovits (the researcher), and NIH (the government funding agency). The balancing of interests may set an important precedent and guidepost for how scientific research is both conducted and funded in the future, as this IP discourse between an institution and a former researcher is unprecedented.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

  1. It would’nt kill you to mention the corrupt family who tried to put her away. The Whittemore family should be the ones doing time!

  2. I am an attorney of 25 years. You made some interesting points and musings in your article.

    I am familiar with the subject material you write of. Thus, I must speak out to you about it. I do not have your email at hand or I would write you there. Therefore, here goes:

    You are mistaken in one of your assumptions in your otherwise interesting article.

    The NIH, NIAID, HHS research grant laws, and guidelines that are another iteration of those laws are a different kind of cat that one might expect, when seen in practice.
    As you know, once published, having been created by public funding, the institution cannot appropriate and secrete IP from research created by those funds. The exception is when the research grant funding is the rough equivalent of Small Business Administration Loans, which these agencies do grant on occasion.

    The notebooks” you refer to are not IP. You are mistaken about the nature of these particular lab notebooks. They do not contain interpretations – nor are all the minutia of results recorded by hand in them. Those are recorded elsewhere. The lab notebooks contained the day-to-day recitations of what was done. This is high-level research, not college level. The recipes and algorithms are not in them. The other information was, and remains, according to the contract monitor, in place at the WPI on the mainframes. Some was also in large bound binders. The recipes and algorithms were shared with other institutions and labs as required by the grant conditions. There were no secrets. Graduate students often take their notebooks with them. The information in the lab books is part of what is published in the theses and in publications.

    Dr. Mikovits did not steal anything. Dr. Mikovits also had every right to see and use those notebooks. The real issue is her obligation to protect patient codes-as an adjunct professor for UNR, and as the only NIH/NIAID researcher who was licensed, and thus by law obligated, to see and protect patient codes as human subjects.

    Look at her conduct over the past 30 years. Look at the CEO and co-CEO’s conduct. There are telling conformities of behaviors. You are mistaken to assume it might have been professional secretiveness on Dr. Mikovits’ part, as to what belonged with the grants. It was not that at all.

    I noted your passing suggestion that a “technicality” might have been the reason for dropping the criminal case. It could be facile and serve your article, but it is not correct. I apologize for any condescension that you may interpret in what I am saying; However, I believe that you will find when you are in practice, that “technicalities” are rare in criminal cases.

    The criminal charges were dropped for solid reasons-as it stated, in the documents of the prosecuting attorney’s office, there was insufficient evidence. Why would you think it “unfortunate” that a criminal case not be followed through with when the charging office drops the charges? Why should such a thing be a good theoretical laboratory for IP laws? I do not think you truly meant it to sound as if it would be but a slight inconvenience to proceed, for the sake of gaining some IP case law.

    I have some concern where you stated “…unfortunately, without a trial and judicial reasons, this matter does little to contribute to the criminal jurisprudence of IP theft.”

    Criminal charging and criminal defending are not without huge consequences for everything and everyone at stake. The import is enormous. Please wait until you do some defense work yourself. Find out it is possible to have an innocent client. It is the most frightening thing in the practice of law. Even as a prosecutor, it is possible to discover you may have charged the wrong person.

    However, that all said, there will be more that becomes known as all the issues work through the systems.

  3. Louise,

    Thank you very much for the thorough and thoughtful insight.

    With respect to the NIH, etc. protocols, I will admit that I am approaching this as a Canadian student who has only done research under NSERC grants, and realize that funding policies are variable under each agency, which may account for the discrepancy in part.

    Also, as I have only conducted scientific research in labs at the graduate level, I can only comment on the laboratory policies with respect to notebooks at that institution. In my graduate program, it was commonplace for the notebooks to contain raw data, observations, and some basic statistical analyses and rough results with basic interpretive notes. I only posted the MIT college link re: notebooks to give a basic overview for those unfamiliar with laboratory science as a discipline, although I acknowledge that this is a vast oversimplification to the practice of professional science.

    As for whether the notebooks are IP, I recognize that the books themselves are not IP, but if the books include data that is not contained elsewhere (e.g., on a lab computer or server), then this may be more murky. I intended more to allude to this on a wider scale rather than with respect to this case in particular, but that certainly seems to have been lost, which was a clarity error on my behalf. In this case, I am curious if WPI would have taken action if Dr. Mikovitz had copied data to a personal flash drive rather than getting a former colleague to sneak in at night, and how the eventual result would be affected.

    I appreciate your comment regarding the protection of patient codes, as this is a fact that I missed. However, it seems to me that she could have gone about protecting the confidentiality in a more professional manner than she did. I suspect that it may have involved legal action on her behalf, but it would have likely shielded her from countersuit.

    Also, as I am limited to 750 words in my posts, I have to take unfortunate shortcuts in semantics, as you astutely observed. I used the term “technicality” to describe the resolution of a criminal case other than by way of an adjudication or a verdict. I certainly did not mean to indicate that the matter was abandoned without reason due to the nature of the matter or that it should have absolutely been pursued in the interest of building caselaw, so you are right in your analysis of my perceived overstatement.

    With respect to your last comment, I certainly understand the gravity of defence work. Through my work with our law school’s legal clinic, I have had the opportunity to defend some of the most persecuted populations in our society in provincial offence courts. I was certainly not alluding to the fact that every matter should proceed to trial, as I am aware of social injustice, and I believe that everyone should be afforded a fair process, which would not be protected if every frivolous or unsupported matter went to trial. However, I was indicating that, since there is still the potential for the charges to be revisited, if similar issues come up in the future, this matter does not contribute to jurisprudence or the state of the law. Also, as such a high profile matter, I have some concern of how an unresolved case will affect the state of academia and scientists leaving or being dismissed from their workplaces.

    I hope this clarifies some of the issues that you raised, and thank you again for your thorough and thoughtful review. It is an honour to know that respected professionals are taking an interest in my pieces here, and I am pleased to learn from your experience!

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