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DBL%20Hendrix%20small.png College chemistry, 1983

Derek Lowe The 2002 Model

Dbl%20new%20portrait%20B%26W.png After 10 years of blogging. . .

Derek Lowe, an Arkansan by birth, got his BA from Hendrix College and his PhD in organic chemistry from Duke before spending time in Germany on a Humboldt Fellowship on his post-doc. He's worked for several major pharmaceutical companies since 1989 on drug discovery projects against schizophrenia, Alzheimer's, diabetes, osteoporosis and other diseases. To contact Derek email him directly: derekb.lowe@gmail.com Twitter: Dereklowe

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May 24, 2012

Publishing Without Consent

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Posted by Derek

Here's a note on an ugly situation: when a post-doc publishes a paper without the permission of the principal investigator. Now, this is a fairly rare situation, but still not as rare as you might imagine - the article itself has several citations, and it quotes a journal editor who's seen it happen a number of times.

In most of these cases, there seems to be a more fundamental confusion about ownership of data, with publishing as the sequel. People leave a research group with their piles of results, and decide that since it's theirs, that it's time to get it out into the literature with their name on it. But as the article points out, if work is done under NIH funding, then the results belong to the institution, and the grantee/PI is the person who decides when and where things are published. You may, as a grad student or post-doc, feel that the data you worked so hard to generate are rightfully yours, but most of the time that's just not the case.

In industry we have our own disputes, but this isn't one of them. There's rarely any argument about ownership of data: that's all company property, and you sign documents when you're hired that explicitly spell that out. And publication is rarely as bitter a business as it is in academia (where it's the coin of the realm). We argue about whether a particular project is advanced enough (or dead enough, more likely) to be written up for a journal, but these are secondary questions.

Who gets on the patent is a slightly bigger question, but it's not like you get a cut of the profits based on whether your name is on the list. That's as opposed to Germany, where that's exactly what happens, and I've often wondered if we should try that here. That system leads to some elbow-throwing when it comes to inventorship on a hot project, but it also leads to everyone having a clear idea of the legal requirements to be an inventor. Ownership is, naturally, not in dispute at all. Every invention realized at the company is company property, too (those same documents take care of that back when you're hired on).

So while rogue academic publishing is a known phenomenon, rogue industrial patenting isn't. Well, as far as I know it isn't - anyone have an example of someone who tried to get away with it?

Comments (35) + TrackBacks (0) | Category: Patents and IP | The Scientific Literature


COMMENTS

1. mass_speccer on May 24, 2012 6:58 AM writes...

This reminds me of this piece that was recently on retraction watch:

http://retractionwatch.wordpress.com/2012/05/17/journal-retracts-protein-paper-from-serial-data-thief-who-used-deceased-mentors-name/

Seems like it can sometimes be very difficult to prove that you own the data - one journal seemed to agree with the PI and one with the post-doc in this case....

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2. Deliberately Anonymous on May 24, 2012 6:58 AM writes...

Hmmm, even if I had an example of a rogue industrial patent or publication attempt, I couldn't tell you about it because of another part of the document to which you might be referring that I might have signed that might have assigned all my ideas and inventions to the company might have language prohibiting me from disclosing information relevant to litigation that may or may not be pending. I'm not saying I do have an example of that, because saying that could taken as a violation of that agreement. I'm also not saying that any agreement I might have signed might have contained such language prohibiting me from talking about what might have been in the document I signed, because another part of that document might have language prohibiting me from talking about the contents of that document. I'm just saying...

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3. anonymous on May 24, 2012 7:10 AM writes...

I have seen (and experienced) more the opposite, people who have made a clear intellectual constribution but left the company are routinely not included as author of a paper. Same happened to my wife after her postdoc, so it's not limited to the company world.

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4. ppp on May 24, 2012 7:14 AM writes...

I feel there are plenty of patents where the authorship is not the correct one (e.g., biologists who just ran the screening, in general people who did not give an intellectual contribution to the discovery) and many companies fail to acknowledge how dangerous this can be when it comes to litigations, interference etc.

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5. piko on May 24, 2012 8:12 AM writes...

My friend finished PhD (chemistry related), gatchered a lot of data and went to post doc abroad. When she came back, two years later, nothing was published, topic she worked on was "abandoned" by PI. She wrote even few drafts in her spare time. But PI refuse to even read them - He don't like her. He had big team, not need two more publications.
What should She do?

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6. fuelcelldave on May 24, 2012 8:22 AM writes...

I had similar situation to 5 but now it is years later, former supervisor 'retired' and papers long given up on. Have happily gone from post-doc (with plenty of publications) to industry. Is there however any point at which it becomes acceptable to publish yourself without sign off from supervisor?

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7. turnedandburned on May 24, 2012 8:23 AM writes...

The exact opposite happened to me ten years ago. After having my second child at the end of post-doc year one, my contract was not renewed. Coincidence? Maybe.

PI then set out throwing away every single clone and cell line I'd generated, and discarded every single piece of raw data I generated (but, conveniently not my lab notebooks or the clones I'd gotten from collaborators). PI then had my replacement (a lab tech, by the way)spend the next nine months reproducing my experiments exactly so PI could publish without my name on the paper. Paper published in Nature Genetics. Not even an acknowledgement for me or said tech.

That PI is now in the HHMI and fully tenured...

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8. jd on May 24, 2012 8:32 AM writes...

I found this post kind of funny. It sounds like you are relieved that this problem may not really exist in industry, because most of the people actually doing the day-to-day work involved have little to no say on authorship issues.

Kind of like saying 'gee, I'm glad we have an authoritarian government so we don't have to deal with all of that messy voting business; what with all that debating and election day mess!'

I'm glad academia still doesn't require you to sign over the entirety of your brain prior to starting work. Although that is slowly changing.

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9. turnedandburned on May 24, 2012 8:33 AM writes...

P.S., I didn't mean to imply that the work I did was worthy of Nature Genetics in and of itself. I was a good postdoc, but not superhuman. It took the lab an additional three years to complete and publish the studies, which I had conceived and designed, and for which I had provided initial proof of principle data.

Oh, well. At least I have job security in industry...

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10. anon anon on May 24, 2012 8:36 AM writes...

Re @5, I finished my PhD defense, my professor collected the copies of my dissertation from the other committee members to consolidate comments, and I headed 2000 miles away for a post-doc. Then, my professor made a brinksman play for tenure, lost, and quit on the spot and vanished...for a year. Eventually, he sent everything to my Chairman and I walked across the platform to get my diploma 18 months after defending.

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11. anon on May 24, 2012 8:50 AM writes...

Universities own all of the results of work done in their labs regardless of NIH funding. In contrast with industry, typically universities are only concerned about their ownership when a PI submits a IP disclosure for patent considerations. They do not prescreen attempts to publish in an effort to secure IP protection.

I know of an example of someone who tried to publish every project they were a part of after their advisor unexpectedly passed away. The PIs name was included but the results were not up to the standards of the lab and probably would never have been published.

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12. anon on May 24, 2012 8:52 AM writes...

Universities own all of the results of work done in their labs regardless of NIH funding. In contrast with industry, typically universities are only concerned about their ownership when a PI submits a IP disclosure for patent considerations. They do not prescreen attempts to publish in an effort to secure IP protection.

I know of an example of someone who tried to publish every project they were a part of after their advisor unexpectedly passed away. The PIs name was included but the results were not up to the standards of the lab and probably would never have been published.

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13. Will on May 24, 2012 9:31 AM writes...

Rogue patenting would be a colossal waste of money for the I-Pilferer. Spend thousands (if not more) of dollars to acquire the patent, then when it pops out your company sees it and forces a reassignment based on employment contract.

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14. Dave on May 24, 2012 10:15 AM writes...

"their advisor unexpectedly passed away."

Homicide?

Dave

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15. InvitroPharm on May 24, 2012 10:26 AM writes...

@5 and others:

Q: If the said biologist designs and creates the assay from scratch (eg clones the gene, expresses it in cells, works out how to measure the response) in addition to running the assay, should they get on the patent?

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16. RM on May 24, 2012 11:57 AM writes...

"as the article points out"

Derek, which article are you referring to? Your post (at least when I read it) is completely lacking in hyperlinkage.

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17. Anonymous on purpose on May 24, 2012 12:48 PM writes...

NIH should get its guidelines straight. I don't think its right to give all rights to the PI. In Europe, many a times you own the data, like in my case. Still to avoid 'more' conflicts with my PI, I waited for 5 years to published my scooped out paper. That was also published when I complained to grad committee. Now, I have loads of data rotting on his desk, again due to his hegemony, waiting to be scooped out. I can publish the article without his permission but I don't want to be left out in this research community where PI is more than a god (and everyone supports the notion). May be someone should look from grad student or post-doc's perspective.

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18. cynic on May 24, 2012 3:08 PM writes...

Like 16, I'd like to see what "the article points out" but similarly am missing the link or citation.

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19. chemist on May 24, 2012 5:27 PM writes...

By taking over the management/administration of the data that had been generated in his deceased wife’s laboratory, Sanders took on a moral responsibility to ensure that this data is published within a timely fashion. Sanders should thus be happy if the student/postdoc who generated the data writes them up and submits them for publication.

Maybe there should be a policy by funding agencies that all data (from all experiments, both from those that gave the expected results and those that did not perform as expected) must be published within, let’s say 10 years, of generating them.

A good place to publish data using post-publication public-review, instead of the current secret pre-publication peer-review, is http://figshare.com/

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20. Helical_Investor on May 24, 2012 5:53 PM writes...

Odd situation. One would think the researcher could petition the university for the right to publish if the PI (or their heir) was reluctant. At least then an argument for and against would have some hearing.

As a scientist, philosophically I respect a researcher feeling an obligation to publish.

Zz

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21. Helical_Investor on May 24, 2012 5:53 PM writes...

Odd situation. One would think the researcher could petition the university for the right to publish if the PI (or their heir) was reluctant. At least then an argument for and against would have some hearing.

As a scientist, philosophically I respect a researcher feeling an obligation to publish.

Zz

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22. Propublisher on May 24, 2012 8:31 PM writes...

It seems that the guy blocking his dead wife's student's publications is acting like a total idiot.

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23. Algirdas on May 24, 2012 9:28 PM writes...

"an ugly situation: when a post-doc publishes a paper without the permission of the principal investigator."

Is it any uglier than a PI publishing without the permission of the post-doc?

I'd say both are equally ugly, but PI screwing over post-doc is far more common, simply due to realities of where the power in PI - postdoc relationshipo lies.

NIH or other research sponsors may give absolute decission power wrt publishing to the PI, but that does not nacessarily make it a moraly right thing. Ideally, research findings would be published when a consensus is reached among the participants - here the PI and the postdoc - regarding the authorship, journal, content of the paper etc. Now, you can't please everybody every time, so PI should be able to vield some (considerable) power in these matters. The post-doc is a trainee after all, here to learn ways of the wise from the PI. But the situations where a postdoc suffers due to incompetent or malicious publishing decisions made by the PI (it is these situations that fall under "the PI publishing without the permission of the post-doc" umbrella, because the post-doc would withhold her permission in these cases, had she any say in the matter) vastly outnumber instances where PIs suffer due to actions of post-docs.

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24. Ben Zene on May 25, 2012 3:55 AM writes...

There's no recognition of the concept of IP in China. Publish whatever you want!

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25. MTK on May 25, 2012 6:56 AM writes...

I knew a guy (non-Chinese btw) who did the exact same thing. He was ticked off that his former advisor wasn't publishing his work, which he felt was hampering his ability to get a job. So he wrote it up and submitted it himself.

The editor called him up and said, "Uh, we have a problem." The editor informed him he would not publish it without consent of the PI. I was unfortunately then subjected to overhearing a series of embarrassingly profane and heated phone calls. It was stunningly uncomfortable just to listen to even one-half of the calls.

After one of them, the guy comes over and beams, "How'd you like that. I put him in his place, huh?" I simply nodded and said, "Oh yeah. You showed him" while muttering beneath my breath, "and me."

In any event, for all of these cases, I don't understand why the postdoc doesn't just write it up and plop it in front of the PI and say "I'd like to get this published, please look it over, make the edits necessary, and I'll submit it."

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26. fuelcelldave on May 25, 2012 8:00 AM writes...

@plop it in front of the PI and say "I'd like to get this published, please look it over, make the edits necessary, and I'll submit it."

didn't work. Full manuscripts written for two Ph.D.s and a few project students work. Never did understand why they couldn't be submitted but became not important enough to worry about. My best guess was that my supervisor was bored of science and wanted to cruise to oblivion. Seems the answer is no you can't submit it anyway. Shame since it would be the work of a couple of days to get them publishable again.

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27. boo on May 25, 2012 10:22 AM writes...

I ran into a mirror situation: after I left my old lab, my grad advisor published work with my name among the co-authors, but he never told me about the publications. I did do some of the work described in the papers, and I certainly influenced how the lab thought about certain matters, but I was still quite upset that I was not told of the publications. I know, I know. What am I complaining about? Call me old fashioned, but if someone is going to be a co-author, they should at least have the opportunity to read and comment upon a work before it is published.

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28. Helical_Investor on May 25, 2012 10:59 AM writes...

Call me old fashioned, but if someone is going to be a co-author, they should at least have the opportunity to read and comment upon a work before it is published.

Agree. I've had my name on a couple of manuscripts published by collaborating laboratories that I wish I had an opportunity to edit. Oh well. No complaint on the research, just some of the language had me cringe.

Zz

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29. Curt F. on May 25, 2012 12:10 PM writes...

I don't understand how the fact that a university "owns" the data can prevent someone from publishing papers, which, after all, are just writings.

What if you were a post-doc and you wanted to write a paper that relied entirely on literature data but proposed a new theory/interpretation? Would that be "owned" by your PI?

I would hope that most PIs, if it ever came to a dispute over something was publishable, would never refuse to allow something to be published. That seems like an absurd overreach of their powers.

A far more reasonable move for the PI would just be to refuse to have their name on the paper as an author.

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30. newnickname on May 26, 2012 10:38 AM writes...

Derek asked: "So while rogue academic publishing is a known phenomenon, rogue industrial patenting isn't. Well, as far as I know it isn't - anyone have an example of someone who tried to get away with it?"

Two examples come to mind. (1) Myriad Genetics and Eli Lilly submitted a patent app on BRCA genes and failed to include the NIH group that had collaborated on and contributed to that discovery. (Greed: Partial ownership by a national lab [public entity] would have meant less royalty income going to the private companies.) The NIH then submitted their own patent app which would have undermined the Myriad - Lilly app. Eventually, an agreement was worked out. Myriad has been making money from BRCA for now, but an upcoming court decision on gene patents might change that.

(2) As I recall, PerSeptive Biosystems was launched by an MIT grad or post-doc who had worked on the project while at MIT. He filed patents on his own (and assigned to PerSeptive?) and excluded some MIT co-workers from the patents. An excerpt from one of the court cases:

In response to the PerSeptive allegations, Pharmacia raised, among others, the defenses that the patents were invalid for failure to name the correct inventors, and that they were unenforceable due to inequitable conduct practiced by the named inventors during prosecution. In January 1996, the district court ruled on cross-motions for summary judgment on the question of whether the patents were invalid for failure to list the correct inventive entity. See PerSeptive Biosystems, Inc. v. Pharmacia Biotech, Inc., No. 93-12237, slip op. at 32-33 (D. Mass. Jan. 9, 1996) ("PerSeptive I"). In that decision, the district court concluded that there was "undisputed, clear and convincing evidence" that the inventorship was incorrect, but declined to hold the patents invalid.

PerSeptive made a number of other business related mistakes (SEC filing violations; falsely booking "demos" as "sales"; investor lawsuits; etc.) but succeeded in the marketplace and was eventually acquired by Perkin-Elmer. (Possible interpretation: "Crime pays.")

@13: For PerSeptive, it was a grand payoff for the rogue pilferer.

@others: One example of a student publishing his work following the death of the PI: Pat Confalone was a grad student with RB Woodward around 1968. RBW died in '79. Confalone, then a big honcho at DuPont, published the work in '83: "A Novel Synthesis of Peptides Based on the Photochemistry of 5-Aziod-1,3,4-Oxadiazoles", PNC and RBW, J Am Chem Soc, 1983, 105(4), 902-906. (Traceless peptide coupling! Pretty darn clever!)

@27: Co-authors should be notified and "should at least have the opportunity to read and comment upon a work before it is published." Absolutely!

Suggestion to some others: Write up your results to JOURNAL STANDARDS and list on your CV as "Manuscript available" or similar. No one will ever ask to see it, but at least you'll be prepared for the fluke event when it does happen. Or even submit the mss with a job app and see if anyone does read it.

DOUBLE POSTINGS: Some people often post their comments twice. I find that something between my browser and Corante's server takes a long time to process a "Post". Wait a couple of minutes (yeah, minutes) before hitting "Post" a second time. Have others noticed the long delay after hitting the "Post" button?

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31. Keith on May 26, 2012 6:40 PM writes...

The problem of course is many PIs will intentionally not publish a students work. This is done because the PI did not like the student. It is a direct effort to harm the student. I think this happens more to post-docs but the same thing happens. Work redone by others but the original "inventor" was left off.

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32. keith on May 26, 2012 7:09 PM writes...

People need these publications to get a job! A PI refusing to publish papers puts you on welfare! It is a very serious issue. It is more common for the PI to mess over the life of a post-doc than the reverse. The power is simple not in the hands of the post-doc or student. Many many PhD students as well as post-docs work incredible long hours for the hope of publishing results so they can move on to the next part of their career. It is very inappropriate for a PI to refuse publication of reasonable work. It is also inappropriate for the PI to not publish publicly funded work. If the work was/is not publishable, the PI must redirect the post-doc or student to another project and not waste public money and a persons time. That is why the PI is the PI! Learn to manage PIs and stop being children!

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33. glinkst on May 27, 2012 12:04 AM writes...

With regards to DL's last comment on getting a cut of the profits if you are an inventor on a patent that generates revenue - not a good idea IMHO. Seems like scientists have enough distractions without trying to horn their way onto patents.

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34. scientistbymistake on May 29, 2012 4:24 AM writes...

The PI screwing the student/post-doc is disturbingly common - I know of a case where the PI left a friend off the author list for a paper, even though about a third of the work concerned was theirs, and the reason?

So the PI could publish as "Student & PI" (2 authors) rather than "Student et al" (3 or more authors) How cheap?

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35. Richard Ash on May 29, 2013 4:01 PM writes...

I can think of an industrial design (in another field) that went out to a university for validation. The validation report came back saying it didn't work. The core of the design showed up as a patent application shortly afterwards! The applicant was an unrelated industrial player, but naming an individual from the university as inventor.

Thankfully the design in question had been published long ago (not under patent) and so preventing the rogue patent was relatively easy, at least under the more robust European system of examination.

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