CLOSING SOME LEGAL LOOPHOLES IN
THE PEER-REVIEW PROCESS
Philip C Swain
Foley, Hoag, & Eliot LLP, One Post Office Sq, Boston, MA 02109, USA
In a US federal court case that was scheduled to go to trial in November 1996, one of the issues that would have been presented to the lay jury was whether there were any legal restrictions preventing peer reviewers from using unpublished data from a manuscript to further their own research. Cistron Biotechnology of New Jersey alleged that a reviewer from Immunex Corporation of Seattle purloined a valuable DNA sequence from an unpublished manuscript and claimed it as Immunex's own in a series of patent applications. The case was settled on the courthouse steps, with Immunex agreeing to pay Cistron $21 million and transfer its patents to Cistron. The legal issues raised, but not definitively resolved, by the Cistron litigation suggest that authors, journals, and reviewers may need to modify the way manuscripts are handled so that valuable intellectual property is protected. If protection of intellectual property during peer review is not ensured, the integrity of research that the peer-review process is designed to maintain may be compromised, and the communication of research may be slowed dramatically. In addition, without intellectual property protection, private industry (such as biopharmaceutical companies) will be less willing to sponsor and invest in biomedical research. As the lead attorney for Cistron Biotechnology, I will examine the facts and arguments made in the Cistron vs Immunex case, and discuss the legal aspects of the peer-review process. I will then propose a series of reforms to help ensure that the intellectual property of authors is maintained.
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