A pharmaceutical researcher is suing his postdoctoral advisor and former business partner, accusing him of publishing a paper in PLoS Biology they wrote together, and removing him as an author.
According to the complaint, Andrew Mallon and John Marshall co-founded a company, Ardane Therapeutic, to commercialize a potential therapy that Mallon discovered for Angelman Sydrome, a developmental disorder characterized by cognitive impairment and autism.
In 2011, the two, along with several other members of Marshall’s lab at Brown University, wrote and submitted a paper to Neuron (listing Mallon as the first author), which was not accepted. Shortly after submission, “Mallon and Marshall had a falling out,” the complaint says — specifically, they “disagreed about how Ardane should be operated and about the required standards of legal and ethical conduct.” Mallon left the lab and founded his own company, Calista Therapeutics.
In 2013, Marshall and his team published a paper in PLoS Biology, “Impairment of TrkB-PSD-95 Signaling in Angelman Syndrome,” that had some passages taken almost verbatim from the Neuron submission, the complaint says, but Mallon was not included as an author. According to the lawsuit:
Dr. Marshall decided not to list Dr. Mallon as an author on the PLOS Biology Paper in an attempt to gain a competitive advantage for himself and his company Angelus at the expense of Dr. Mallon.
Mallon filed suit in the United States District Court of Massachusetts, against both Marshall and Marshall’s research partner Dennis Goebel.
Marshall’s lawyer filed a motion to dismiss, on the grounds that co-authors of jointly written papers aren’t covered under copyright law. The motion was dismissed. We spoke briefly with the lawyer, Kevin Tottis:
We filed a motion to dismiss saying even if everything he said is true, he still wouldn’t have a claim. The judge ruled on the motion to dismiss but he didn’t answer some questions that were raised, so we filed a motion to reconsider and for clarification.
Part of what Dr. Mallon is asking for is to have his name put on the paper, and as we say in our court paper, under copyright law there’s no right to attribution except in cases of digital art…I’m not going to litigate issues in this case through the press or any blog. If you read our motions you’ll understand no one is disputing authorship of the Neuron paper. Joint authorship means anybody has the right to then take the work and use it in subsequent work.
According to the “Facts” section of the judge’s denial of the motion to dismiss:
Defendants Marshall and Goebel made additional changes and revisions to the paper, however, the core of the paper remained Plaintiff’s work related to CN 2097…Defendants now move to dismiss Plaintiff’s claim, arguing that Plaintiff has not created copyrightable work, that he has no rights of attribution under the Copyright Act, that he is not a joint author of the PLOS Biology Paper, that his copyright is assigned to Brown as a work for hire, and that the case should be dismissed because Plaintiff has not registered a copyright. Plaintiff opposes the motion and contends that his work on the CN 2097 draft was indeed independent copyrightable expression and that he is co-author of the PLOS Biology paper within the meaning of 17 U.S.C.
Mallon’s lawsuit suggests that the lack of authorship was retribution for Mallon’s “cooperation with authorities into the actions of Drs. Marshall and” Cong Cao, another former researcher at Marshall’s lab, who according to the lawsuit is no longer working in the lab. The lawsuit doesn’t go into many details, but does say Mallon “detected fabrication and falsification of data” by Cao, and “Dr. Marshall excluded Dr. Mallon from submission of the PLOS Biology Paper so he would not insist on proper standards of integrity of the data.”
Cao has had at least one retraction, in the Journal of Biological Chemistry for a reused image. PubPeer commenters also tapped some possibly duplicated images. Here’s the notice for “AMP-activated protein kinase contributes to UV- and H2O2-induced apoptosis in human skin keratinocytes”:
This article has been withdrawn at the request of the authors.
Reason: To demonstrate that the activation of AMPK is mediated by EGFR activation, the authors included data in Fig. 2 (A, G, and H) that had been used in a previous publication. After publication of the above article, the authors were made aware of this and are therefore withdrawing this paper. Despite these errors, the authors stand by the reproducibility of the experimental data and the conclusion.
The PLOS Biology paper, which has been cited 17 times, according to Thomson Scientific’s Web of Knowledge, was subject to two corrections. First, a month after publication, a grant was added:
The following information was missing from the Funding section: This study was supported by a Postdoctoral Award (#11POST5820019) from the American Heart Association (R.T.).
Then, in April 2014, a conflict of interest was added for Marshall:
JM wishes to declare the following competing interest, which should have been indicated in the research article. JM owned shares in Angelus Therapeutics. However, for clarification, no materials or support were received from this company, and no agreements were in place concerning the execution or publication of this work. In addition, a US patent application entitled “Long term potentiation with cyclic-GluR6 analogs” (US Patent Application #20120149646) has been filed by Brown University, with JM listed as co-inventor.
That patent lists two inventors – Mallon and Marshall.
We were forwarded emails between PLoS Biology and Brown University, in which a representative of Brown says it had conducted an investigation of misconduct regarding the paper, and concluded that no misconduct had taken place.
We’ve reached out to Mallon, Marshall, Goebel, and PLoS. Mallon declined to comment due to ongoing litigation; Marshall directed us to his lawyer, who is on vacation.
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I have never before thought of authorship on academic papers as a ‘copyright’ issue. Isn’t it just plain, old misconduct not to include an author who did a significant amount of work for the paper, and in this case apparently most of the work since he was the first author in a previous draft on which the paper is based?
On the misconduct level, it’s not as serious as fabrication, and it doesn’t harm the career of the missing author quite as much, but when companies and money are involved, unfortunately in these cases you can expect the lawyers to get involved as well. The similarity of the papers should be easy to prove since they have the earlier submission. But if it’s only written ‘passages’ then I’m on the side of the prof. He shouldn’t have lifted passages, but the lawsuit seems excessive. If it’s also data, then I’m on the side of the postdoc.
Maybe the new author repeated the experiments and generated their own data, which is similar to earlier data? In that case, I don’t know if it’s ethical to remove the name of the old postdoc, since technically, the data used is not theirs, even though they observed the phenomenon first. Can anyone comment?
Obviously to someone it is worth stealing the authorship. Stealing generally is its own evidence of some sort of worth. Is the value somehow unique to the thief (I need it for my career or some job publish-or-perish situation)? And is the case one of “if it is worth stealing, it is worth protecting”? A beginning, or even continuation or expansion of a “slippery slope”? Some need to use the new data to counteract some disadvantageous prior data or research product? Some other pattern?
Why was the first author removed entirely? Why not put him in the middle of the paper? It does not make sense. Only Marshall and Mallon seem to be from the Marshall lab and the new first author is a cancer biologist from the Wen-Ming Chu lab. If he was still a middle author, would he have been entitled to request the retraction due to his concerns over the integrity of the data and I assume the undisclosed Conflict of Interest?
I read the plaintiff’s argument, which is that the authors of the paper have violated the postdoc’s moral rights (which include the copyright) as he has contributed the significant amount of intellectual work to the paper. The postdoc has the rights to his work that contributed to the paper regardless whether his data has been used in the paper.
“Maybe the new author repeated the experiments and generated their own data, which is similar to earlier data” That would not affect the postdoc’s rights to the work that he contributed to this paper, because the repeated experiments and new generated data were based on his previous work and/or his contributions. Simple questions also could be asked, is there any data used in the paper that was from the lab head and/or his research partner? Did they perform the experiments and generate the data?
Just a quick question – if you are a post doc, working for pay, then isn’t anything you generate a property of the institution (intellectual or other)? I know that any lab books etc. remain behind as the property when you leave….
Each institution has own policy. In general, any staff member of an institution created the intellectual property belongs to the institution, but the staff member owns the moral rights, which allows the staff member to publish own work.
If you are a post doc, you are a staff member of an institution. Of course, anything you generated in institution is a property of the institution. Any lab books etc. must be remained behind as the property of the institution when you leave, but you also can have a copy of your lab books etc. and you own the moral rights of your work.
I see, thank you.
It may be difficult to include someone as an author or coauthor who does not fully represent the experiments, results and conclusion; I doubt that one can easily use the copyright laws for fighting authorship (how should one protect unpublished work with copyright?), but institutions like universities should better stick to their own rules of plagiarism. Not mentioning the originator of an idea, experiment, results or similar contributions is usually considered as one form of plagiarism. Scientific work (unfortunately) often belongs to the institution – the exception often is a doctorate/PhD work which should be independent…
As to your question “(how should one protect unpublished work with copyright?)”, in the United States (for at least 40 years, I believe) something that can have be copyright does have copyright as soon as it is created (“at birth”); publication is no longer required. That is not to say that it is “protect”ed in any or all important senses; as I understand it, a necessary (but not sufficient?) condition for the copyright holder to sue successfully for monetary damages in compensation of copyright infringement, copyright in the created work must be officially registered.
I am certainly not a lawyer; some lawyers do comment here from time to time, and may be able to correct and/or complete what I have just written.
This article has recently published an expression of concern that refers to concerns with the figures. It is not clear what the concerns relate to but it must be considered pretty serious to publish. The institution, Brown University, concluded no misconduct occurred after a prior investigation (see above). Can anyone see anything of concern?
“Matters arising
Posted by john_marshall1 on 10 Feb 2016 at 15:46 GMT
I have been made aware of concerns regarding some of the figures presented in this study. Together with my institution and PLOS Biology, we are working to resolve the situation.”
There is now a discussion on pubpeer regarding this paper.
https://pubpeer.com/publications/FD2CF905EF612DC4B9162D9F482D73
There are multiple concerns raised with the veracity of Western blot results across different figures. Still waiting for an author response to this discussion. I do not see how this will be resolved.