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Mallon v. Marshall

United States District Court, D. Massachusetts

September 30, 2016

ANDREW P. MALLON, Plaintiff,
v.
JOHN MARSHALL, and DENNIS J. GOEBEL, Defendants.

          Andrew P Mallon, Plaintiff, represented by Brian D. O'Reilly, O'Reilly IP PLLC.

          John Marshall, Defendant, represented by Kevin Tottis, TottisLaw, pro hac vice, Rachel M. Vorbeck, Tottis Law, pro hac vice & Kathryn A. O'Leary, Gould & Ettenberg, PC.

          Dennis J Goebel, Defendant, represented by Kevin Tottis, TottisLaw, pro hac vice, Rachel M. Vorbeck, Tottis Law, pro hac vice & Kathryn A. O'Leary, Gould & Ettenberg, PC.

          Dennis J Goebel, Counter Claimant, represented by Kevin Tottis, TottisLaw, Rachel M. Vorbeck, Tottis Law, pro hac vice & Kathryn A. O'Leary, Gould & Ettenberg, PC.

          John Marshall, Counter Claimant, represented by Kevin Tottis, TottisLaw, Rachel M. Vorbeck, Tottis Law, pro hac vice & Kathryn A. O'Leary, Gould & Ettenberg, PC.

          Andrew P Mallon, Counter Defendant, represented by Brian D. O'Reilly, O'Reilly IP PLLC.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket No. 48)

          TIMOTHY S. HILLMAN, District Judge.

         Plaintiff Andrew Mallon brings this action seeking a declaratory judgment that he is co-owner of the copyright in a scientific paper, Impairment of TrkB-PSD-95 Signaling in Angelman Syndrome, published in the academic journal PLoS Biology on February 12, 2013. Dr. Mallon also seeks an accounting, full retraction of the paper from the journal, damages, costs and attorney fees. Defendants John Marshall and Dennis Goebel, co-authors of the paper, moved for summary judgment on the grounds that i) Dr. Mallon's contributions to the paper were made within the scope of his employment as a postdoctoral research associate at Brown University, and thus constitute a "work for hire" pursuant to the Copyright Act of 1976, 17 U.S.C. § 201(b); and ii) the published PLoS Biology paper is not a "joint work" of Dr. Mallon and the Defendants, as defined in 17 U.S.C. § 101. For the reasons set forth below, the Defendants' motion for summary judgment (Dkt. #48) is granted.

         Background

         Dr. Andrew Mallon joined Brown University as a Postdoctoral Research Associate in July 2007, and in mid-2008 began working in the laboratory of Dr. John Marshall, a professor and principal investigator in the Department of Molecular Pharmacology, Physiology, and Biotechnology. From January to October 2011, Dr. Mallon and Dr. Marshall co-authored a manuscript related to research conducted in Dr. Marshall's lab. This manuscript, titled Defective BDNF Signaling in Angelman Syndrome and Rescue by Modulating PSD-95-Arc Interactions, was submitted to the scientific journal "Neuron" on October 26, 2011, with Dr. Mallon listed as first author, and Drs. Marshall and Goebel, along with five others, listed as co-authors. Dr. Mallon continued to make edits to the manuscript in November and December 2011, after it was submitted to Neuron, in anticipation of reviewer comments.

         On December 1, 2011, Dr. Marshall received notice from Neuron declining publication of the manuscript. Dr. Marshall forwarded this email, which included commentary from the reviewers, to Dr. Mallon, inquiring whether Dr. Mallon had "[a]ny suggestions." Dkt. #48-2, Ex. 19. Dr. Mallon replied with his thoughts on the reviewers' comments, and provided a list of other journals to which they might consider submitting, including PLoS Biology. On December 9, 2011, Dr. Marshall sent an email to Dr. Mallon, stating "I agree with you about submitting to PLOS biology. It has a good impact factor. I plan to contact them with a presubmission letter." Dkt. #48-2, Ex. 20. At some point by the Fall of 2011, the collaborative relationship between the parties had deteriorated.

         In preparation for submission of the manuscript to PLoS Biology, Dr. Marshall emailed Dr. Goebel an edited draft of the manuscript which listed Dr. Mallon as fourth author, and asked for Dr. Goebel's thoughts on his proposed changes to title and authorship. Dkt. #53-7. A revised version of the paper was submitted to PLoS Biology in March 2012, which did not list Dr. Mallon as an author. This submission was followed by a May 4, 2012 letter to Dr. Marshall from an editor at PLoS Biology, declining to publish the manuscript. The letter stated,

Based on the reviews and discussion with our academic editor, I regret that we will not be able to accept the current version of the manuscript for publication. We would, however, be willing to consider an extensively revised version if you are able to fully address all of the reviewers' concerns, with additional data, to an extent that satisfies our reviewers and our editorial standards. Such a revised manuscript would be treated as a new submission.... (Dkt. #48-3).

         Throughout 2012, the manuscript was rejected, revised, and resubmitted multiple times as part of the peer review process. After each rejection from the journal, and in response to reviewer comments, new experiments were conducted, new data and figures were generated, and new text was drafted and included with the resubmissions. Some of this new material was contributed by individuals ...


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