Saturday, November 17, 2007

Judge to hear anti-SLAPP arguments in Cha/Flamm matter on Nov. 20

As noted previously in IPBiz, K. Y. Cha filed a lawsuit against Bruce Flamm concerning alleged defamation against Cha related to the issue of whether an article in Fertility & Sterility was plagiarized. The relevant written text is:

"This may be the first time in history that all three authors of a randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism."

One has to pay close attention to detail here. The "three authors" (one of which is Cha) related to an article published in Journal of Reproductive Medicine [JRM] which article Flamm has been discussing for years, although the plagiarism issue relates to a different article published in Fertility & Sterility, of which Cha was an author.

On Tuesday, November 20, 2007 in Dept 26 of Los Angeles Superior Court, Judge James Dunn will hear oral arguments on the anti-SLAPP motion filed by Flamm's attorneys in the case against Flamm filed by Cha.

SLAPP is an abbreviation for "strategic lawsuit against public participation," and is intended to provide protection to those who speak out on matters of significant public interest.

Here, K. Y. Cha is a major player in the in vitro fertilization [IVF] area, and the accuracy of his paper on prayer influencing the results of IVF [in JRM] is of potential interest to many undergoing or planning to undergo IVF treatments, which can be expensive, time-consuming, and sometimes painful. Separately, interests of K. Y. Cha controlled the hospital in South Korea where Dr. Kim obtained his results, which were presented first in Dr. Kim's thesis and then in the journal KJOG of KSOG. The later presentation of these results in the American journal Fertility & Sterility became the subject of the plagiarism controversy.

Plagiarism, while having a bad connotation, is not a defined offense in federal law. Plagiarism is not the same thing as copyright infringement. As the recent matter involving SIU President Poshard illustrates, all people do not agree on the definition of plagiarism. The panel convenved by SIU Chancellor Trevino to analyze the Poshard matter came up with the concept of "inadvertent" plagiarism, to create a category of plagiarism wherein copying without attribution was acknowledged, but said copying was done unintentionally.

Discussing the issues surrounding plagiarism is of significant public interest to define some sort of societal norm on what will, and will not, be tolerated as to the copying of the works of others.

As an aside, LBE mentioned the Flamm inquiry about the JRM paper in LBE's article in JIP:

footnote 13: I contacted both Professor Moore and the Boston University Law Review about the basis for the criticism in footnote 22, but to date have not received a response. In the area of scientific research, inquiries are not always answered, as Leon Jaroff has illustrated for the inquiries of Bruce Flamm about the paper by Kwang Y. Cha, Daniel P. Wirth, and Rogerio Lobo, 46 J.Repro. Med. 781 (2001); see,9565,660053,00.html.

IPBiz notes that, to this day in November 2007, LBE never received a response from Moore, who is now a judge on the CAFC.


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