Stealing Science
So here you are, toiling away in a drab basement laboratory in some nondescript brick building, surrounded by white walls, fluorescent lights, and God-awful smells. Sure, it's a prestigious lab, Ivy League even, which makes these all-nighters hunched over tissue samples, petri dishes, and Bunsen burners at least tolerable. But what's the motivation? Money?
If it were only money you were after, you would have taken that six-figure education and become a surgeon who holds beating hearts in his hand, an obstetrician who brings life into the world, a therapist who heals our heads. The money would be nice, of course, but researchers strike gold about as often as Einstein got a haircut. No, you didn't take this lonely, obscure path with visions of dollar signs dancing in that brainy head of yours. You took it because competition drives you. There's a puzzle out there and you think you can solve it – first. You want the credit, the kudos, the journal articles, the Today show appearances, the knowledge that this breakthrough was yours. You want bragging rights.
“The primary currency of academia is fame, and fortune follows fame,” says Lita Nelsen, director of MIT's Technology Licensing Office. “That's the game – publication. It's not about the money. Being second in academic findings is being last. There is no second in academia.”
No one knows that better than the researchers themselves, which is what made a string of arrests last summer so startling. Four scientists at three Ivy League universities were nabbed within six weeks and accused of going to extreme measures to protect – and cash in on – their research, and in the process cut out the universities where they worked.
June 19: Two former Harvard researchers are charged with sneaking off from their lab in the middle of the night with samples of their work on antibodies that could help prevent organs from being rejected by transplant patients. In a detailed FBI affidavit, they're accused of stealing trade secrets and trying to sell the samples to a Japanese company.
July 28: Security workers at Syracuse Hancock International Airport find 100 vials, test tubes, and petri dishes with an unknown substance in the luggage of a former Cornell University researcher and his family. He's convicted of stealing biological materials and trying to take them to China.
August 2: Police in New York arrest a former Brown University doctoral student for allegedly breaking into a lab where he'd worked, deleting files, and stealing computer data, antibodies, and a herpes virus. He later confesses that he acted to prevent someone else from getting credit for his work.
Labs around the country were already tense before last summer's arrests. The 2001 terrorist attacks had sparked panic over what could happen if some deadly bug like anthrax or smallpox landed in the hands of one of those evildoers. When a Harvard biochemist vanished in Memphis, conspiracy theorists immediately concluded that it must have something to do with anthrax – a substance he had never actually worked with. (His body later surfaced in the Mississippi River and his death was ruled an accident.) But the hysteria lingered. Who, we demanded, was minding the stores – in this case, the labs – where these substances are so available to hijack and unleash on us?
The answer, of course, is scientists, from twentysomething research fellows to distinguished, tenured, gray-haired professors. And as the Ivy League arrests showed, in the world of science – where billions of dollars are at stake and life is one long race to the finish line – at least some scientists appear willing to go to any lengths to protect or exploit their work. Even if it lands them in jail.
The sidewalks are empty along Longwood Avenue. It's nine o'clock and the marble and brick buildings all look dark. Then a figure appears in a lit basement window, hunched over a glass vial. Upstairs, the hallways are lined with pictures and busts of the world's great scientists. There's Joseph Murray, who won the 1990 Nobel Prize for performing the world's first kidney transplant, and James Watson, who earned it in 1962 for helping crack the DNA code. But it's downstairs at Harvard Medical School where that work begins, where brilliant young minds grind away anonymously in the hope that they might see their own picture upstairs on the wall one day.
“Everyone's looking for that one big discovery,” says Mark S. Frankel of the American Association for the Advancement of Science. It's that pie-in-the-sky mentality that motivates colleges and universities, which filed 8,534 patents in 2000 and collected about $1 billion in royalties – a figure that continues to increase.
“I think a good chunk of people are fascinated about trying to solve the puzzle,” says Walter Robinson, associate director of Harvard Medical School's Division of Medical Ethics. “I think some just want to be sure the puzzle is solved. Some want to be sure they are the ones who solve it.” It's a mistake, Robinson says, to think that just because you did the research the work is yours to keep. The funding, he says, “was granted to the institution and you as a partnership.”
Were Jiangyu Zhu and Kayoko Kimbara hungry for a piece of that pie as, according to the affidavit, they crept across the Harvard Medical School campus late at night back in 1999, their arms loaded down with boxes? Working under lab supervisor Frank McKeon, the couple – who had met in the lab and married – were closing in on a breakthrough for organ recipients that, if successful, would save lives and rake in millions for them and for Harvard.
Zhu, who is Chinese, and Kimbara, who is Japanese, switched their research hours from daytime to an overnight shift, say court documents, allowing them to work without supervision. It didn't slow their progress, however: On October 22, 1999, Harvard obtained a patent on two of the genes they'd discovered, listing McKeon, Zhu, and Kimbara as the inventors.
But McKeon was growing suspicious, according to the FBI. His assistants were working odd hours and sharing little of their progress (they had reportedly discovered 11 genes but told McKeon about only 4). On December 13, 1999, Zhu got an offer from the University of Texas to run his own lab and teach. The next day, while still employed by Harvard, the FBI says, he e-mailed a Japanese biotech company based in San Antonio with his plans to commercialize the antibodies, mailing samples so the work could begin. Two weeks later, with Harvard on Christmas break, Zhu and Kimbara allegedly took about 20 cartons from the deserted lab, including Styrofoam containers designed for shipping perishable materials.
Prosecutors say these samples – even the containers – were not theirs to take. They were, according to an agreement all Harvard researchers sign before beginning their work, university property. When other researchers noticed the samples missing, the school treated it as a theft of valuable trade secrets. Zhu and Kimbara denied stealing anything, resigned their posts, and moved to Texas. It didn't help. Harvard and the FBI chased them down with cooperation from the Japanese firm that had produced the antibodies, purportedly without knowing the genes allegedly had been stolen. Many of the missing materials from Harvard, valued at more than $300,000, were eventually discovered at the Texas lab where Zhu and Kimbara were working, leading to their arrests.
Zhu and Kimbara appeared in court in Boston last summer; their attorneys are negotiating with prosecutors for what will likely be reduced charges. Meantime, both have landed research jobs in San Diego.
When Congress passed the Economic Espionage Act in 1996 to thwart the theft of trade secrets, U.S. businesses had already lost an estimated $100 billion to such crimes. “If someone stole your ideas for an article or how you make certain things, it was not as clear as if someone had stolen your furniture,” says David Green, deputy chief of the Computer Crime and Intellectual Property section at the Department of Justice. “We needed a federal law to protect the most valuable assets of any company: its trade secrets.” Universities also have secrets, of course, and the revenues from patents are increasingly important to them as other sources of funding dry up.
Green won the first conviction under the act when he nailed a Taiwanese corporation that makes adhesives and was charged with stealing trade secrets. It was also under the Espionage Act that an Iowa engineer who had been helping Boston-based Gillette design a new shaving system was prosecuted for selling secrets to Gillette's competitors. Steven Davis pleaded guilty under the Espionage Act and was sentenced to 27 months in prison.
Even those successes haven't stopped critics from saying prosecutors aren't using the law enough, a point Green challenges. There have been 34 cases against 47 people since the act was passed; four ended with trial convictions, others with guilty pleas or pretrial dismissals. “We look for clear-cut theft, consciousness of guilt, like when someone downloads files in the middle of the night,” Green says. “If reasonable minds could disagree and lawyers will fight for years, we don't touch it.”
By being so picky, the Justice Department makes it difficult to know if last summer's arrests are more than just coincidental. “Three cases don't make a trend,” says Frankel of the Association for the Advancement of Science. “I don't know if this is the iceberg or the tip of the iceberg. My sense is there is more of this that's gone on and hasn't reached the level of the Espionage Act.”
What is clear is that Asians are charged with academic theft in one of every four cases, more than any ethnic group. Racial profiling? Probably not. Research in the U.S. belongs to the institution where it's conducted, but in Japan data is casually passed around with no agreements. That distinction has prompted more U.S. universities to teach arriving Japanese postdocs about intellectual property rights. Green says the first few cases happened to be against Asians but insists the government is not targeting any nationality.
Just common thieves, he says.
Zhu and Kimbara stole, according to prosecutors. If that's true, Harvard shouldn't be blamed for what happened. But Zhu and Kimbara say it was a misunderstanding, a miscommunication. If that's the case, Harvard deserves all the blame.
Harvard Medical School started a program in the practice of scientific investigation in 1990, after the National Institutes of Health, which distributes research funding, began requiring training of people who received grant money. The school has a policy about what materials belong to the university, from the data collected to the scribbles in a postdoc's notebook. But critics say Harvard and other schools must do more than teach the rules of research for a few weeks. Universities must make science ethics a vital cog in the curriculum from the day a student sets foot on campus, so there can be no mistaking later what belonged to whom.
Even then, however, Nelsen, of MIT, says nothing will ever completely reign in the competitive juices of a researcher. “If you're not competitive, you're not going to make it in academia any more than in football,” she says. “If you don't get the credit, you're not going to get the next grant – and that's the only way to keep your lab alive.”