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INTELLECTUAL PROPERTY

Can I Stop the Media from Publishing Leaked Results of My Research?

Reader Question: I have been keeping some of my lab's exciting research results confidential until I can announce them at the annual meeting of our specialty in six months. However, I now find my post-doc has been dating a local newspaper reporter and has told her the whole story. She and her editor want to publish this science news scoop right away, whether I cooperate or not. Do I have any legal power to stop them? What should I do? Should I alert any top brass on campus?

Expert Comments by Karen Hersey, LLB & Stanley Kowalski, PhD, JD

Karen Hersey, LLB, retired senior counsel for intellectual property at the Massachusetts Institute of Technology (MIT) and currently a professor of law and senior scholar in residence at Franklin Pierce Law Center, Concord, NH. Stanley Kowalski, PhD, JD, is director of the International Technology Transfer Institute at Franklin Pierce Law Center and serves on the editorial board of the ipHandbook at www.iphandbook.org.

The answer depends on whether there’s a non-disclosure agreement (NDA). If there’s no NDA, you have no real legal power or authority to stop publication. However, if the university/PI and/or the post-doc have signed an NDA, you can stop this information “leakage” by notifying both the reporter and the newspaper as to the confidential, and protected, nature of the information. If the reporter and editor fail to desist, you can seek an injunction to stop them.

In the absence of an NDA, there still are at least three actions you can take:

1. Look into whether the post-doc’s actions would violate the university's research policies/guidelines. His or her actions may constitute academic misconduct (although probably do not rise to the level of misconduct in science). In any case, the post-doc does not have authority to copy and distribute data that probably belongs to the school (although whether your institution has a data policy is another issue). You should, in any case, go to your department head or dean and the department head/dean needs to instruct the post-doc on how to properly manage university information.
2. The school should tell the newspaper that your and your laboratory people cannot and will not substantiate the story. Further, if written material has been handed over to the newspaper, the university can claim ownership and demand its return (unless it's a state university and the state's open-document laws don't protect the information). Whether any written information is protected or not, the school should make sure the newspaper editor knows that the research results are not ready for publication and that if the newspaper proceeds it will be publishing non-validated, unsubstantiated science from a secondhand, non-credible source (the girlfriend). Of course, you yourself are under no obligation to respond to any inquiries from the newspaper and, in fact, should not.
3. If you wish eventually to file a patent based on the information, filing a provisional patent application is one way to avoid losing a patent (a provisional application establishes priority of invention and keeps the results patentable in the event of subsequent public disclosure); but a provisional patent application won't help the PI who wants to control and/or delay the publication of the research findings per se.  Without an NDA, the best initial action would be to prevent publication in the first place, and the most prudent course might include filing a provisional patent application, depending on the nature of the findings.  Clear and open lines of communication with the school’s technology transfer office (TTO) will be of enormous value to any PI facing such a dilemma. Get to know your TTO colleagues; they are there to help.

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Expert Comments by Reporters Committee for Freedom of the Press

Lucy Dalglish is the executive director, Reporters Committee for Freedom of the Press, Washington, D.C.

The answer, in all likelihood, is No, you cannot block the media from publishing the information. That would be a prior restraint on publication. The U.S. Supreme Court has never upheld a prior restraint on the press. (Or anyone else, for that matter.)

However, if this were false information, you could sue for libel after the fact (of publication).

If the information were stolen by the reporter, you could bring theft charges after the fact (and likely do so even before it's published, if you have proof).

If the information is a trade secret, your attorney could pursue legal action against the person who knowingly took information to which he or she was not entitled.

But if the reporter is the unwitting, lawful recipient of information (i.e., didn't ask someone to steal it, didn't steal it herself, or didn't engineer the appropriation of the material in any way), there's likely nothing you can do to the reporter or stop the publication.

The Supreme Court has hinted that the only time it might approve a prior restraint is in the most extreme circumstances, something that could result in physical harm to someone.

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Editor's Note: The New England Journal of Medicine (NEJM), one of the highest-regarded periodicals in bioscience, is famous for a very strict policy on prior dissemination of key content from articles PIs hope it will accept and publish. In short, they take a very dim view of any publicity prior to their publication of the item, and often turn down submissions which have somehow received advance spotlighting. (See their "Embargo Policy")

Expert Comments by the New England Journal of Medicine

Karen Pederson Buckley is the Media Relations Manager of the New England Journal of Medicine. Editors at the New England Journal of Medicine (NEJM) review the circumstances in cases such as this.

A Journal's Policy

Editors at the New England Journal of Medicine (NEJM) review the circumstances in cases such as this.

If the leak is not careless or deliberate, the editors are likely to publish the article. If it's determined that the PI's careless behavior led to the leak, the editors would probably pull the article and remember the case, should the PI submit a future manuscript.

These decisions are made on a case-by-case basis. Like all policies, there's room for judgment and interpretation. Among the relevant considerations in deciding whether pull the article (if it's not already in print) and work with the PI again is the answer to such questions as: Who was at fault? How did the leak occur? Was the PI careless?

In this case, where a post-doc leaked a PI's NEJM article manuscript to a paramour who's a member of the press: If the PI left the manuscript laying around where anyone could have access to it, that would be careless behavior in the editors' view.

Bottom line: NEMJ expects PI authors to secure their information until the embargo date for its publication.