Fordham Law

Amid Claims Cancer Center Chief Took Research, A Look at Who Owns What

Joel Reidenberg on WNYC, February 06, 2012

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The president of Memorial Sloan-Kettering Cancer Center, Dr. Craig Thompson, has been accused of using research from his former employer to help launch a biotech company — a charge he denies, but one that draws into the spotlight the question of ownership over ideas.

If a discovery gets patented or copyrighted, it’s possible for a researcher to negotiate for a percentage of the profits. But unless you have an awful lot of clout or work for an exceptional university, that patent and copyright stays with the school – and often with an external research funder, too, such as the National Institutes of Health.

“Essentially, the university owns the researcher’s brain,” said Professor Arti Rai, who teaches intellectual property at Duke University.

But if a researcher’s ideas are under development, and there is no new invention ready for patenting, things can get more complicated. When scientists move to a new lab – and they often do – they frequently land in an intellectual property grey zone. And when the stakes are high enough, the parties often land in court.

This appears to be the case with Thompson, the president and chief executive of one of the country’s premiere cancer hospitals. His previous workplace is suing him in federal court for $10 million.

The Leonard and Madlyn Abramson Family Cancer Research Institute alleges that Thompson “abscond[ed]” with scientific research from his time leading the University of Pennsylvania-affiliated institute. Thompson is not charged with bringing that research to Sloan Kettering – which is not named in the lawsuit – but to a biotech startup he co-founded, called Agios Pharmaceuticals.

Thompson and his attorney declined to be interviewed. In a written statement, Thompson said "The allegations in this lawsuit are unfounded and without merit.  It is unfortunate that the Abramson Family Cancer Research Institute has chosen to go down this path."   

According to the civil complaint, when Thompson joined the new cancer research institute in 1999, he signed a typical contract, granting the institute “all right, title and interest” to just about everything he “conceived, discovered, developed . . . in the course of institute research programs.”

The complaint summarizes some of Thompson’s discoveries – and his development of Agios Pharmaceuticals, without telling the Abramson Institute.

Thompson is accused of stealing intellectual property in a broad sense, but not of making off with anything as concrete as a patent or copyright.

Arti Rai said university research scientists – unlike their industrial counterparts – often move from place to place and take their knowledge with them with impunity. But it depends on the perceived financial value of their research.

“In cases of pre-patentable know-how, where there isn’t money involved, and it’s just the researcher’s brain going from Lab A to Lab B,  there wouldn’t be a lawsuit, because there isn’t money to be gained, “ Rai said. “Here, there’s a startup company that’s signed a lucrative deal. Evidently, the cancer institute thought there was enough money to be made in the not-too-distant future [to sue].”

Lawsuits like this one are becoming more common, Prof. Joel Reidenberg, from Fordham Law School, said, especially in an era where the line is “blurred” between academic research and commercial for-profit activity.

“This research is very expensive to undertake. Typically the public money isn’t there,” Reidenberg said. “Universities and funders are going to be increasingly sensitive to the ownership of discoveries and inventions, and the contracts are going to wind up being far more detailed than we’ve seen in the past.”