Science, or corporate interest?

One local scientist battles over the right to publish his discovery

BY TRACY IDELL HAMILTON

It’s been a rough couple of years for Peter V. Schwartz.

His troubles began in October of 1999, when the post-doctoral researcher, now a physics lecturer at Cal Poly, began clashing with his lab director at Northwestern University in Illinois.

When Schwartz began to alert the senior professor that there might be problems with his science, Schwartz claims he was yelled at and threatened in front of his colleagues.

Frustrated, the then 36-year-old physicist had already decided to end his fellowship early, and had been hired by Cal Poly to resume his teaching career.

But the day after his "job" at the lab was over, Schwartz says he discovered a new process that not only achieved the same results the lab director had been asking for (although through a different method), but did it fast enough to possibly have future commercial and industrial applications.

The discovery would change Schwartz’s life, but not in the way he might have imagined, with papers published in scientific journals, patents that named him inventor, an increased profile in the scientific community.

Challenging the science of his senior professor–well-known researcher Chad A. Mirkin, head of Northwestern University’s Institute for Nanotechnology–Schwartz tried to publish a paper about his discovery without Mirkin’s permission. That decision embroiled Schwartz in a controversy that may have threatened the future of his academic career.

His story has legs, at least in the academic media. Two articles have been published so far by the Chronicle of Higher Education, plus one each in Science, Nature, and Chemistry & Engineering News. Another will be published this September in Academe, the publication of the American Association of University Professors.

The stories focus on two main issues: May a junior researcher publish findings without the permission of his or her senior professor? And if so, what are the implications for future intellectual property rights?

For Leonard Minsky, executive director of the National Coalition for Universities in the Public Interest, founded by he, Ralph Nader and David Noble, Schwartz’s case highlights how big corporate money and something called the Baye-Dole Act of 1980 have forced university scientists to become entrepreneur-scientists. Adding financial incentives to science, Minsky says, has created incentives for bad (or even outright fraudulent) science, and can work to suppress, rather than disseminate, scientific truths.

"The business of science in the university is supposed to be cooperative. Scientists are supposed to share information in the pursuit of truth, über alles," Minsky said. "None of that exists anymore."

The Baye-Dole Act of 1980 is significant, he explains, because it allowed ownership of federally-sponsored inventions to be taken from the public, and sold to corporations. "Before, if the feds invested in university research, the assumption was, whatever product was invented belonged to the people of the United States–the taxpayer pays, the taxpayer gets a result." Now, says Minsky, the product of a federally-funded project can be sold by a university to a private corporation "which then owns a product produced by taxpayer money, to be sold back to the taxpayer, at any amount they decide."

Because Schwartz’s invention could potentially be worth a lot of money, and because the work he did refuting Mirkin’s claims could also cost Northwestern’s lab (and Mirkin’s two start-up companies) lost revenue, it’s easy to see why efforts to stop Schwartz from publishing his work have been vigorous, Minsky says.

Mirkin, who was at a conference and could not be reached for this story, has a much different claim. He has said in letters and interviews with other publications that the reason Schwartz’s work should not be published is two-fold: the science is not complete, and, if and when it is, Schwartz would hardly be the sole author, but one of many who worked on the project. He claims Schwartz is a rogue–a young and irresponsible scientist trying to claim others’ work as his own. Mirkin has also said that no one in his lab has reproduced Schwartz’s results.

Schwartz says he has been told that the work is now off-limits, and that no one has even tried to reproduce his results.

Controlling matter

At the heart of this story is DNA, and the ability to pattern it. Patterning DNA molecule by molecule, Schwartz says, could open up a host of biological, biomedical, chemical, and electronic applications, including next-generation, organic computers.

"The goal is to control matter down to the molecule," he says. "The commercial possibilities are endless. Because of that, research in nanotechnology (a nano is about the size of a molecule) is considered very sexy, and it’s very well-funded."

When he arrived as a fellow at Northwestern University’s Institute for Nanotechnology, Schwartz says he was told by lab director Mirkin that the lab was patterning DNA onto gold surfaces by a process called Dip-Pen Nanolithography, or DPN. Mirkin claims that DNA molecules fall onto the surface of the gold from the tiny pen tip through the microscopically-thin layer of water that’s found on every surface.

"I was told, ‘We’re patterning DNA on a nanoscopic level. Make it work,’" said Schwartz. "He wanted the positive result to show people."

That positive result, of course, could be worth some serious cash. Positive results mean continued funding, Minsky says. And not just for the university: Mirkin owns two start-up companies based on his work, Nanosphere and NanInk. Those companies rely on venture capital for their funding. Mirkin also consults for Monsanto. "He has interests far beyond the truth," says Minsky.

Instead of "making it work," Schwartz found he could not, even after multiple attempts, make DNA pattern through DPN. "They were patterning something, but it wasn’t DNA," he said. At a meeting, when he tried once again to bring up the results of his work, Schwartz says he was again personally attacked by Mirkin. A letter warning that insubordination would not be tolerated, and would be grounds for immediate dismissal, came from the senior scientist the next day.

Schwartz said that after that, he kept his mouth shut, but kept working. He says he found that not only was the lab not patterning DNA, but that whatever molecules trying to be patterned weren’t falling off the pen tip onto the gold because of the water on the surface, but because molecules inherently move with thermal energy.

He says he not only came up with a test to make sure it was DNA that a researcher was using, but also a way to pattern DNA on the gold surface a thousand times faster than Mirkin’s technique–fast enough to potentially become commercially viable.

After confirming his results–Schwartz said he worked feverishly, day and night for two weeks, confirming his discovery– he says he went to Mirkin and essentially said, "We patterned DNA by a different method, and here’s how we proof it." He says he also asked if Mirkin wanted co-authorship of the paper Schwartz was preparing for publication.

Schwartz claims Mirkin said no to the authorship, and told Schwartz they would no longer be collaborating on anything. He also ordered Schwartz to contact him only through Lydia Villa-Komaroff, the university’s vice president for research.

Villa-Komaroff says she told Schwartz to wait on publication of his paper, because Mirkin and others in the lab felt that the work wasn’t ready to be published.

Schwartz said it quickly became apparent to him that no one in the lab was trying to reproduce his work, and that Mirkin only wanted to squelch publication of his paper.

Publish or perish

So Schwartz submitted his work anyway, first to Nature, which rejected it, then to Langmuir, a leading chemistry journal. Schwartz says he was up front about the dispute with the journal’s editors, causing them to send the paper to four peer reviewers rather than the standard two.

While at first that extra caution angered Schwartz, when four glowing reviews of his work came back, he said he now feels relief that the journal went the extra mile. But when Langmuir editors contacted Mirkin, he responded with a letter warning that if the paper were published, it would tarnish his reputation and the university’s intellectual property rights would be jeopardized. He argued not only that Schwartz did not have the right to publish the article alone, but that the research itself was not ready to be published.

The journal responded by shelving the paper until the issue of authorship could be worked out.

The paper was finally published this week on Langmuir’s website (http://pubs.acs.org/journals/langd5/), with an addendum written by Mirkin. Schwartz said he agreed to the addendum in order to get his work published. The editors of Langmuir say they have never published a paper with anything like the brief paragraph that will follow Schwartz’s acknowledgments.

That addendum reads: "This work was done in the laboratories of the Mirkin group at Northwestern University while Peter Schwartz was a postdoctoral associate working with us. While we all contributed to many of the ideas and experiments presented in this manuscript, to the best of our knowledge much of the work has yet to be reproduced by Schwartz or by us. We believe some of the conclusions may be erroneous, and we intend to correct them in a future manuscript that credits all those involved with the work. Until the data [has] been reproduced and the proper control experiments have been done, none of us feels comfortable including our names as co-authors." The addendum is signed by Mirkin and three of Schwartz’s fellow scientists who worked with him at Mirkin’s lab.

Schwartz admits that the letters from those former colleagues, disassociating themselves from his work, hurt him deeply. But he believes they had to write the letters, that they did so in their own self interest. Challenging Mirkin, he said, would have been professional suicide for any one of his colleagues, as they depend on the connections and recommendations of the senior scientist for future positions.

The university’s Villa-Komaroff says the junior researchers wrote the letters denouncing Schwartz’s work because they believe he appropriated their work, that the science was incomplete, and because he wrote the paper without anyone’s input–highly unusual, Villa-Komaroff says. "Writing a paper like that is usually a very interactive process."

Schwartz agrees that the process by which his paper was written was unusual, but he said he was forced into the position by Mirkin, and the university. "Publishing is what scientists do. It’s our currency." He said he needed to publish and give presentations on the work he did in order to get a job. He also disputes Villa-Komaroff’s assertion that he took work from others. Several members of the team helped him, Schwartz said, and he acknowledged them in his paper. "But no one sat with me while I did these experiments. No one gave me insights, or argued with me, or said, ‘Let’s try this.’ No one."

Patent protection

While Mirkin and Villa-Komaroff continue to insist that Schwartz’s science is incomplete, they also insist that whatever it is he may have discovered belongs to the university. "When any member of the faculty or staff here at Northwestern discovers anything patentable, it belongs to Northwestern," said Villa-Komaroff.

But now that the paper is published, she said, it’s in the public domain, and may be worth far less than if Northwestern had been able to patent it. "Because it’s out there now, we may not be interested," said Villa-Komaroff.

While that sentiment drives Schwartz wild–"What? So that’s what all this is about? Just the money?"–his lawyer, Nancy Ways Vensco, says that Villa-Komaroff is wrong.

"Peter was smart enough to realize that he needed to protect his work," said Vensco, a biotech patent attorney with the Newport Beach-based Knobbe, Martens, Olson and Bear. "He knew that before it was published or presented, he needed to file a provisional patent, and that’s just what we did." Doing so has protected Northwestern’s interests as well, she said. Schwartz never wanted more than inventor status, and he’s never disputed that Northwestern would own the patent, she said.

But a provisional patent application is only good for a year. Then a basic patent application must be filed. If Northwestern chooses not to do that, Vensco said, based on its own published policy, it must "kick it back to Pete," who would then be free to file the basic patent application himself.

Under its published policy, Vensco said, Northwestern shouldn’t allow the provisional patent to expire. "Peter would suffer a terrible loss of rights." But Vensco seems unfazed that this could happen. "We know Northwestern will do the right thing."

But because it’s unclear to officials at Northwestern whether Schwartz’s discovery is completely separate from work done by others in the lab, Villa-Komaroff said the university is still not ready to file for a basic patent. "We’re not ready yet. We won’t pay for this lawyer," she said, referring to Vensco.

Minsky is disappointed that Schwartz gave into Mirkin’s and the university’s demands, that the paper will be published with the addendum. "Peter caved in," Minsky said. He acknowledges that doing so was keeping with Peter’s character of science above all–"I just want to publish," Schwartz has said, over and over. "I just want the science to get out."

But the university needs whistle blowers like Schwartz if things are to ever change, Minsky says. "How is a layperson to know something is crooked?" he asked. At a conference convened by Minsky’s coalition several years ago, he polled scientists on how much fraudulent science they thought was being created. "Several said 10 to 15 percent, and everyone nodded. The integrity of science is seriously corrupted if that’s the case."

Schwartz has said he won’t just drop the ball on this issue, however. He says he’s been contacted by others who are in similar situations, and has been working with another person to form some kind of network to help others out.

But mostly, Schwartz is just happy that his work has finally seen the light of day. He admits that it probably isn’t worth millions, and is still concerned about his future in academia. But he feels confident about the science, and says in the end, that’s all he has to stand on:

"How can I compromise what I believe in, just to maintain my status in the scientific community? How can I do that if I’m not willing to defend the integrity of my science? I only wrote what the molecules told me." Æ

Discuss DNA and patent law with staff writer Tracy Hamilton at [email protected].