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Your-Lawyer-Better-Know-Science-as-Well-as-Criminal-LawWhen federal agents swarmed the home of Temple University physics professor Xiaoxing Xi and charged him with spying for China, scientists across the country better have taken note. This was an egregious case of an alleged IP crime which turned out to be nothing at all. Unfortunately, it is likely to happen again.

Scientists and inventors need to keep in mind the key defense that ultimately led to the charges against Xi being dropped. The factor that saved Xi from a life of disgrace and imprisonment – though not from the horror of being arrested and wrongly accused in the first place – was that his legal team understood the science behind his work.

The moral of this particular story? Regardless of the type of case, whether it be criminal, civil, trade secret or patent, the case always turns on the science. Your legal team must understand and know how to leverage the science, no matter how complex it is, just as well as it understands the law. When lawyers understand the science, they are much more able to attack the government’s case on its merits.

This story is about much more than an overreach by the DOJ. It is about a growing effort by a lot of businesses to use the criminal justice system to deal with issues that really are civil in nature.

Physics Would’ve Helped

The Justice Department arrested Xi in May 2015, accusing him of sharing sensitive information – information regarding which he had signed a nondisclosure agreement, promising to keep it secret – with China. A Chinese-born American citizen who has lived in the United States for more than 25 years, Xi has dedicated his life to physics research and was the chair of Temple’s physics department. At the time of his arrest, he was conducting research on superconductors, among other things.

Federal prosecutors claimed Xi had sent schematics of a pocket heater, lab equipment used in superconductor research, to contacts in China. As the case moved forward, though, independent experts found the fatal flaw in the DOJ’s case.

The designs, which prosecutors said were for a pocket heater, were not. Leading scientists, including the inventor of the pocket heater, signed sworn statements saying the government had gotten it wrong.

The feds not only failed to understand the science themselves, they never sought to obtain guidance from relevant experts who did before they levied charges, a fact many leading observers excoriated. The New York Times wrote, “It was an embarrassing acknowledgment that prosecutors and F.B.I. agents — did not understand and did not do enough to learn— the science at the heart of the case before bringing charges that jeopardized Dr. Xi’s career and left the impression that he was spying for China.”

Balancing IP Protection with Due Process

As an IP attorney and former federal prosecutor, protecting trade secrets and enforcing patent rights is what I do. U.S. companies and the government are right to be concerned about corporate espionage and the theft or disclosure of classified or secret information.

In our drive to protect intellectual property, however, we must be able to identify and pursue the real and legitimate threats to its disclosure and infringement, and to do that, we have to understand the science behind it.

As Professor Xiaoxing Xi learned firsthand, enlisting help from legal counsel who understand both the law and science is crucial to rebutting allegations of IP-related fraud, espionage, and theft.

In September 2015, the DOJ dropped the charges against Xi, but did so “without prejudice,” which gave them the option to revisit charges in the future. On March 22, 2016, The Inquirer reported that the DOJ said it would not file new charges and promised to give back Xi’s computers and other property they had seized as part of their investigation.

Meanwhile, Xi’s friends and supporters set up a website to raise funds to pay for Xi’s legal defense. As of April 13, 2016, it had raised about $30,000, far less than the more than $220,000 it cost to defend him against charges that turned out to be based on a flawed understanding of complex science.

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