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.