Buffalo case highlights MTAs
http://www.biomedcentral.com/news/20040809/03
Material transfer agreements can be misunderstood or considered an annoyance, say officials | By Paula Park
The indictments of two US professors accused of fraud for their alleged misuse of bacteria provide a lesson to scientists that material transfer agreements (MTAs)—which many researchers consider irksome red tape—can be used against academics in court, especially in today's climate of heightened biosecurity, say attorneys and technology transfer officials.
The indictments charge that Robert Ferrell, a professor of human genetics at the University of Pittsburgh, provided Steven Kurtz, an art professor at the State University of New York, Buffalo, with Serratia marcescens and Bacillus atrophaeus for use in one of Kurtz's projects for the Critical Art Ensemble. Kurtz has pleaded not guilty to the charges, and Ferrell plans to plead not guilty, according to his attorney. The next hearing is scheduled for December, according to prosecutor, William J. Hochul, chief of terrorism in the US Attorney's Western New York District.
One of the issues in the case is that the American Type Culture Collection (ATCC) MTA said that researchers could use the material only in their own labs, and only for research, according to the indictment. When Ferrell signed his application for the material, he indicated that he would comply with the MTA, the indictment says.
But professors commonly interchange scientific material informally, paying little heed to documentation, according to the American Association of University Professors (AAUP). The organization has urged professors to more closely scrutinize these documents to ward off potential legal problems. The University of Pittsburgh has already tightened its procedures for purchasing material from ATCC, requiring that the Department of Environmental Health and Safety scrutinize all purchases. "People should know about these very serious consequences that are being visited upon them," Ruth Flowers, an AAUP spokesperson, told The Scientist.
Technology transfer officials, who work with MTAs daily, said that researchers often do not comply with them. "Many academic investigators view MTAs as annoying bureaucratic distractions that only impede or in some instances prevent research," Joel B. Kirschbaum, director of the Technology Management Office at the University of California, San Francisco, wrote in an E-mail to The Scientist. Few professors understand the legal notion of property rights, he said. "Consequently, I am not surprised that some investigators intentionally or unintentionally sidestep the MTA process and, in doing so, run the risk of creating legal problems," Kirschbaum said.
At Rutgers University and some other universities, an MTA can be signed only by a university administrator with authority to represent the institution, said Vincent Smeraglia, associate director of intellectual property in the Rutgers Corporate Liaison and Technology Transfer Office. The university has in the past had trouble with professors transferring materials themselves, and not long ago, the office intervened to prevent a professor-to-professor MTA, Smeraglia said. "There's a lot of legal language in those agreements," he said. "It's not clear what [the language] means."
At the Massachusetts Institute of Technology (MIT), companies have historically had MTAs signed by professors, only to find out that "it was unclear whether professors had the authority to sign them," said Lita Nelson, director of MIT's Technology Licensing Office. It's not that unusual for professors to ignore the documents anyway, she said. "There's a tendency for people to think, 'this is just a piece of paper I have to sign,'" she added. "They are over 21 and too old to have their mother sign it. But they don't always read it. When they do, they aren't concentrating. They just want the material."
While technology transfer officers and attorneys say that scientists should be more aware of their legal responsibilities, several expressed surprise that a violation of MTA could result in fraud charges. MTAs are normally used to secure intellectual property, according to Smeraglia and others, and traditionally, any legal action would be related to patent rights. "It does sound like the prosecutor got a little carried away," Smeraglia said. "I don't understand why it wasn't handled in the university. It seems like a bit of overkill."
Robert O'Neil, director of the Thomas Jefferson Center for Protection of Free Expression, said that the MTAs protect universities from liability from unauthorized transfers. "A fraud claim would make sense only if there was substantial material benefit," added O'Neil, a former president of the University of Virginia. Kurtz's use of the bacteria is "uncommercial, indeed artistic—that part of the case, to me, is misplaced."
