Go Unpublished or Perish

In a dispute over the intellectual-property rights of a postdoctoral researcher at RPI, the truth is murky, but the power imbalance is clear.

By Miriam Axel-Lute

Dr. Roumen Dimitrov. Photo: John Whipple

Dr. Roumen Dimitrov cares about science. That much is clear. Even though the 44-year-old scientist from Bulgaria is facing the destruction of his career, when he starts to explain the work he was doing at Rensselaer Polytechnic Institute, his eyes shine. He stops to draw a picture of strands of RNA in solution—he was working in “bioinformatics” on software that predicts RNA conformations and melting curves. The drawing wouldn’t mean much to a layperson, but Dimitrov sees in it great possibilities for biotechnology applications.

But then, running his fingers through his graying black hair, he rapidly turns back to the question at hand. He has been fired, his H1 professional visa has expired, and he and his family must return to Bulgaria, where Dimitrov hasn’t been for 15 years.

The question of why is as complicated as RNA folding. It hinges on technical matters of how intellectual property is handled inside an academic lab, but at base it may be more about the murky territory occupied by postdoctoral researchers.

Postdocs are neither students nor faculty, so their roles, rights and responsibilities in a university are often undefined, governed more by convention than policy. This often leaves postdocs at the whim of domineering advisors, but also can find advisors facing distrustful and frustrated postdocs.

Dimitrov began working in the lab of Michael Zuker, a professor in the Mathematics Department, in January 2001. He was optimistic that it would be a good place for him to build up the kinds of things scientists need to advance a career: published articles, public seminars and professional connections with other researchers. “Zuker said, ‘If you want to do science, we can do it together,’ ” recalls Dimitrov. “I said ‘I want to have a scientific career, I want articles in good journals,’ and Zuker said ‘I will support you.’ ”

For a year and a half, things seemed to be going according to plan. Dimitrov was assigned to work on a theoretical model for RNA folding and melting curves, and to create software that would allow that model to be tested and used. This would be added to a suite of programs predicting the behavior of DNA and RNA that Zuker had been developing with colleagues and housing on his Web server.

Dimitrov took to the project with gusto, remembers his wife Dina, who holds a doctorate in microbiology from Uzbekistan. He “never took a vacation,” she says. “He would work until 3 in the morning.”

But in summer 2002, Dimitrov reached an impasse. The software he created was giving wonderful results—except, he said, for a section of code contributed by Zuker. That code, called “mfold,” made the program fail, or just produce wrong results, except with very simple cases.

Soon after he told Zuker this, Zuker reassigned the programming work to his masters students, telling Dimitrov to stop working on his software because his role was to “help [the students] when they needed it,” according to Dimitrov.

Dimitrov was stunned. If the masters students rewrote the software, even if the underlying theory was the same, he would no longer be considered the author under copyright law. The masters students’ theses would be based on his work, but he would be dropped out of the loop before ever getting credit for what he did, and before any article was published on the results. “I was used,” he says.

Dimitrov believes that Zuker wanted to rewrite the code so that he would have control over it. “Once he understood the only thing that needed changing was his program,” Zuker became hostile, says Dimitrov. “He wanted to expand the program and include my part and the students’ [part] so it’s all considered his.”

Why would Zuker do this? Though getting official credit and publication was concern number one for Dimitrov, a postdoc, Zuker had plenty of publication credits under his belt. But authorship can matter beyond bragging rights or résumés.

Photo: John Whipple

Although the university owns everything created by its employees, RPI shares the profits of any commercially useful invention with the inventor. And the program Dimitrov was working on certainly had commercial applications. During the spring of 2002, representatives from Integrated DNA Technologies, a supplier of custom-synthesized DNA to biotech researchers, visited the lab three times, talking with Dimitrov about his work. The company was interested in licensing the program, says Dimitrov, and the inventor would then garner in the vicinity of 35 percent of the royalties.

Zuker tells a completely different story. He says he reassigned the programming, reluctantly, because Dimitrov’s programming wasn’t very good, and he wanted him to focus on the theory, which was his strong point. “I told him, ‘Your programming is not up to the standards, [but] you’re quite valuable to me for your ideas and theories,’ ” says Zuker. “He can write a program and it can compute, but no one else can use it. . . . But hey, that’s OK. A postdoc doesn’t have to be a programmer! We’ve got good students who can do that.”

But if the program wasn’t any good, counters Dimitrov, why did Zuker represent it as his own in seminars at the University of Michigan, in order to form collaborations with researchers there? And why did he previously tell Dimitrov that he was a good programmer, whose programs were very robust? He also says there was no reason he should be told to stop working on his version, even if Zuker wanted to create a more commercialized or user-friendly version.

Zuker also maintains that Dimitrov’s fears about not getting credit were unfounded. “We could not have put it all together if it had not been for things we learned from Roumen,” he says readily. “There were critical gaps I couldn’t figure out—he showed me how to do that. I’ll give him credit for that. I’ll say ‘Yeah, Roumen did this.’ ”

But Zuker also acknowledges that the assigning of credit for the software itself is a fluid thing. “My student has written new software to replace everything he’s done. . . . It’s orders of magnitude better,” he says. “What he [Dimitrov] should’ve done, he should’ve worked closely with us and been extremely helpful, [then] he’d get his name on all the specialized journal [articles]. Instead I have no intention of putting his name on anything. He blocked us in any way he could. He gets his name on this one paper in the Biophysical Journal.”

Dimitrov’s dilemma didn’t come out of the blue. Across the country, the difficult working conditions of postdocs have been getting some attention lately. As the number of people getting doctorate degrees outpaces the number of tenure-track faculty positions, the number of postdocs has been rising, and people are spending much longer in these types of positions. Complaints about everything from pay scales to hostile work environments to lack of access to university resources have surfaced in numerous polls of postdocs. In March 2003, a group of postdocs, mostly leaders of postdoc organizations at their respective institutions, decided they needed a coordinated national voice. They formed the National Postdoctoral Association to advocate for better postdoc rights.

The employee nature of postdocs puts them in a unique situation, says Alison Reed, the executive director of the NPA. Postdocs are “not faculty, not a student, not a member of staff, they’re this nonentity.”

“The PI [principal investigator, the head of a lab] has the person as almost a private employee,” adds Avi Spear, a molecular neuroscientist who was one of NPA’s founders. “There’s often no grievance procedure, no warning system, no form of complaint.” As an employee, all the work of a postdoc is under the control of the advisor, or principal investigator. Faculty say this is because the postdocs’ salaries are being paid out of their own grant money.

But some think this exclusive one-on-one power structure isn’t conducive to good science. “These people are budding, talented, creative people. They should not be held at the whim of one person who has often little management training,” says Spear. Although Spear says he doesn’t have enough details to comment on Dimitrov’s case directly, he does say, “There are people who steal your ideas and steal your credit. The postdoc has very little leg to stand on if the PI wants to do that.”

The situation is even worse for foreign postdocs, whose visa status is dependent on their employment, and therefore on their advisor. They can “play with me because I need a green card,” says Dimitrov. The number of postdocs coming from other countries has increased dramatically over the past 15 years. According to a National Science Foundation study, the number of foreign postdocs in science and engineering rose by 8,000 from 1988 to 2000, while the number of U.S.-citizen or permanent-resident postdocs rose by only about 1,500.

As for forcing a postdoc to turn over his project for grad students to work on, Spear says, “It’s mean, it’s abusive, but it’s allowed. What you work on in a lab is the property of the lab.” But, he adds, “It’s not common practice.”

Dimitrov thinks it’s too common. “It’s a system problem,” he says. “It smells as a business, it doesn’t smell as science, doesn’t smell as equal opportunity.”

“Postdocs are considered cheap labor without any inherent rights,” agrees one RPI postdoc who doesn’t wish to be identified. “[In the United States] postdocs are [often] taken to do grad-student work. No one ever did that for me. I had to do it on my own.”

Age discrimination also rears its head from time to time, and was one of the nails in the coffin of Dimitrov’s trust for Zuker. When he was reassigning the programming, says Dimitrov, Zuker told him he was too old for a career in science and should resign himself to being a postdoc assisting other professors. Zuker vehemently denies that he ever made any such comments.

But others have seen that sentiment expressed among some American faculty. “I think that they think that 39 or 40 is the [limit],” says the unnamed RPI postdoc. “I don’t know why. I was always used to that people were rewarded for their experience and length of time. [But] people without experience are younger and they’re cheaper.”

Within RPI, there is an atmosphere of fear among the postdocs, especially the foreign ones, says Dimitrov.

The Dimitrovs say they know of several international postdocs who were forced out of their positions after they had turned data over to their advisors, but before they could publish the results and receive the credit. Those postdocs, one from Bulgaria, one from Brazil, one from Colombia, could not be reached for comment since they had to return to their home countries once their employment ended—and RPI did not keep contact information for them.

RPI administrators say such things are not happening at RPI. “I’ve never heard of that happening at a place like this,” says Charles Carletta, RPI’s general counsel. “The academic community at research institutions—in the U.S. anyway—have a lot of integrity and are usually very careful about attribution amongst themselves.”

But two RPI researchers, who want to remain anonymous, say they believe Dimitrov. One actually warned him to get out while he could. Another said both credit stealing and age discrimination are rampant in the United States, and Dimitrov’s was not the only case that had arisen at RPI.

Such an atmosphere could be enough on its own to make someone in Dimitrov’s position distrustful. But the conflict with Zuker was not Dimitrov’s first tangle with the system. He had originally been hired to work in the lab of Chris Bystroff, an assistant professor of biology. Dimitrov says that relationship was strained from the beginning. “The professor wanted complete control, just someone to produce results for him,” says Dimitrov. He said he was constrained from doing anything independently, and told, “If you come here [to this country] and want to stay, you have to work for me and give me everything.”

Dimitrov says he was assigned to work on small problems and gaps in Bystroff’s research, and when he asked if he would get credit for solving them, he was told emphatically no. “I need your results and what I do with it is my business,” Dimitrov says Bystroff told him.

Bystroff remembers it differently. “He worked for 10 months, he couldn’t account for his time working in the lab,” he recalls. “When I pressured him for some results, he was reluctant. I assigned him some projects, he didn’t work on them. He never gave me any kind of a scientific result. . . . [But] there was never a question that he’d get credit for what he’d produced.”

Dimitrov insists he did everything Bystroff asked of him, quickly ticking off a list of projects as examples. Dimitrov says he asked for a transfer; Bystroff says he asked him to leave.

After their first falling out in Summer 2002, Zuker’s and Dimitrov’s next battle was over publishing an article about the new theoretical model. Dimitrov, feeling credit for the software slipping away from him, was determined to at least have one official publication about the theoretical model under his belt.

He found some limited experimental data for which the programs as they stood returned good results, and wrote up an article. Zuker said he didn’t want it to be published until the code was fixed to work more consistently for a wider range of cases.

After much argument, however, the paper was submitted to the Biophysical Journal on Dec. 4, 2002—with Dimitrov’s name first and Zuker as a correspondence author. It is common practice in a lab situation to add an advisor’s name to anything produced within the lab. The paper was well-received but sent back to have some deviations explained.

Those deviations also stemmed from Zuker’s mfold program, says Dimitrov, and since Zuker wouldn’t explain that code to him, he eventually sat down and wrote an algorithm that replaced the mfold program. Though it was still limited to a specific type of case, the new algorithm worked perfectly, Dimitrov says, for much longer strands of RNA than mfold. “I used my programs on very long sequences from the company [IDT], and it hit them perfectly,” he enthuses.

He was very excited, but since he had been told to stop working on the program, and it appeared that Zuker didn’t want the article published until the code would be entirely under his own copyright, Dimitrov didn’t share the algorithm with Zuker. He rewrote the article with the new results, but didn’t include the actual code there either.

The problem was, as an employee of the lab, Dimitrov was required to share his work with the “principal scientist.” Dimitrov knew this, but says at that point he was just trying to do what he could to salvage his career. “I was doing this to survive,” he says. “All I wanted was evidence I’d created this.”

Dimitrov sought the advice of the intellectual-property office at RPI. “They told me if you have this problem in your lab, you should [apply for a patent]. This was RPI, not me,” insists Dimitrov. “You have copyright on the code, but they can rewrite it so its not yours,” he recalls being told by Paul Fredette, assistant director of what is now called the Office of Technology Commercialization, “so you need to patent the whole model.” Fredette says he does not remember the specifics of his conversation with Dimitrov. The office filed a pre-patent form for Dimitrov in April 2003.

Under U.S. patent law, who contributed what to an invention is determined by patent officials. Distinctions of faculty, postdoc or student do not come into play. The patent application made Dimitrov even more determined to keep his algorithm to himself, so he could prove to the patent officials that he was in fact its creator. RPI, however, does own the patent rights on anything made with “significant use of RPI resources,” which Dimitrov acknowledges. He just wanted credit.

Meanwhile, the new version of the article was accepted by the Biophysical Journal in May 2003. It has not yet appeared in print. Zuker has requested extensions, missed deadlines for returning proofs, and, more recently, removed certain portions of Dimitrov’s additions, because, he says, he doesn’t want a publication to go out with information he cannot replicate. In October, the journal’s Web site claimed the article would be included in November’s issue. As of this week, mention of it has been removed from the site entirely.

Dimitrov fears the piece will never see the light. In fact, when he chose to cancel a settlement with RPI this October—which he said he’d signed under intense pressure—Dimitrov says that human-resources vice president Curtis Powell stated, “Now the article will never be published.”

The struggle over the unrevealed code peaked this summer. In July 2003, Zuker wrote a letter to Dimitrov, complaining about Dimitrov’s secrecy and his reluctance to work as part of a team, and sent copies of it to six administrators. “It seems to me that your secretive behavior comes from a false belief that you have sole intellectual-property rights to what we have developed,” the letter ends.

Finally, the chairman of the Mathematics Department, Donald Drew, brokered an agreement. Zuker and Drew promised Dimitrov, in writing but without the approval of human resources, a three-year contract in return for Dimitrov’s agreement to direct Zuker’s masters students, so that their software could reproduce the results Dimitrov was getting with his. Feeling backed into a corner, Dimitrov agreed.

Dimitrov began to work with one of the computer-science students, trying to give him the theoretical background to understand the model he was programming for. The student, however, said in an e-mail message to Zuker that Dimitrov was refusing to give him his code. Dimitrov pointed out that that was not what he had agreed to do.

On Aug. 27, Zuker and Drew showed up at Dimitrov’s office to tell him he was fired. Though they gave him the required 30-days notice, his termination letter required him to vacate the campus that day. In fact, he was escorted from the building by a security guard, who told him he was “persona non grata” at the institution from now on.

Zuker doesn’t dispute this. “Why was it done in such an abrupt manner? Why was he escorted out of the building?” he says. “I wanted to look at his computer without warning [him] so I could see the files, which was his right and his duty to expose to me.”

Dimitrov fought his firing, appealing to RPI President Shirley Jackson for help. Jackson’s office referred the matter to Powell of human resources, who promised, in writing, an investigation by “external legal counsel.” RPI hired Pattison, Sampson, Ginsburg & Griffin, its own attorneys, to carry out the investigation. That’s an odd definition of “external counsel,” says Christina Diamante, a friend of the Dimitrovs who attended most of their meetings with Powell.

“We don’t use words like ‘external’ and ‘internal,’ ” says Charles Carletta, RPI’s general counsel. “They requested an investigation and we went to the firm that does our investigations.”

The investigators concluded that Dimitrov’s termination was warranted, saying he had demonstrated “a failure to adhere to Rensselaer’s policy regarding intellectual property.”

This wasn’t surprising to postdoc advocate Avi Spear. “Whenever there’s a dispute between a PI [principal investigator] and a postdoc, the postdoc always gets sacked,” says Spear. “Whoever’s at fault is variable, but the net result is always the postdoc gets fired.”

According to Diamante, when asked about their results regarding the charge of age discrimination, Powell said the Dimitrovs had never brought the issue up. She denies this strenuously. “I heard them mention it,” she says. “I have it in my notes.” The issue was also raised in Dimitrov’s letter to Jackson, which prompted the investigation.

While he was contesting his firing, Dimitrov had also begun to look for other work, in order to be able to stay in the country. People with H1 professional visas have one month after the end of a contract to get another job or their visa expires. He had plenty of nibbles, but they all ended in the same suspicious way. Despite a promise from Powell to “erase all black marks,” employers would be initially interested, and then suddenly turn him down after calling RPI for references.

Powell refused to comment for this article.

In the midst of all this, Dimi- trov insists that his gripe is not personal. His message, he says, is that there is a systemic problem—universities, particularly through the institution of postdocs, are becoming more and more like private companies, and less conducive to good science.

“Curtis Powell told me I have to do what my manager is telling me,” says Dimitrov. “Is this a university environment, or a private company where I’m not doing science, but moving objects from here to there? Postdocs in this country have no rights. We work and feel as horses, not scientists.

“You are just a tool, they just use you,” he adds. “I don’t like [that] they will do this to other people.”

The NPA’s approach to these problems is to advocate for formalized, and standardized, agreements made—in writing—between the postdoc and the advisor before they begin work. These agreements should include the postdoc’s scope of work and how credit will be assigned, as well as expectations regarding use of institutional resources, mentoring and progress evaluations, says Reed. Whether such an agreement would have prevented the problems between Zuker and Dimitrov is unclear, but it might at least have made the rules of engagement plain.

Meanwhile, the Dimitrovs are preparing to leave. They have sold their belongings to purchase airfare back to Bulgaria, and jumped through dozens of hoops to secure visas for Dina and their 6-year-old daughter, who was not born in Bulgaria. Because they had prepaid their daughter’s tuition for the fall, they have no savings. Their friend Diamante has set up a fund to help ease their transition, because employment prospects are likely to be dim upon their return. Since Dimitrov has been gone, the country has transitioned to capitalism, new social systems have sprung up and most professors he used to work with have retired. “I am outside of the system,” he says. “Nobody knows me. I have to start from zero.”

“We came here in hope,” says Dina sadly, “but in the end, they closed all the doors.”