Lessons from the Okamoto case

The Tokyo High Court earlier this week rejected a U.S. request to extradite a medical researcher to face charges of industrial espionage in the United States. The court ruled that Mr. Takashi Okamoto, a former employee of the Japanese government-affiliated Institute of Physical and Chemical Research, or Riken, did not commit any offense that would warrant his handover. It was the first time that a Japanese court had turned down a U.S. extradition demand.

Mr. Okamoto was indicted by a U.S. federal grand jury in May 2001 on charges of stealing trade secrets — including DNA samples on Alzheimer’s disease — from the Learner Research Institute of the Cleveland Clinic Foundation, Ohio, in July 1999 and taking some of those samples to Riken after leaving the U.S. laboratory. In 2002, the U.S. requested that Japan surrender him under a bilateral extradition treaty.

The high court determined, however, that Mr. Okamoto had no intention of profiting from the delivery of the samples to Riken. “There is no sufficient reason to suspect that he committed a crime (that would make him liable to extradition),” the court said. This represents a reasonable judgment.

During the hearings, Mr. Okamoto admitted destroying some of the genetic materials he had developed and taking the rest with him when he quit the Ohio institute to take up a new position at Riken. These acts, it was revealed, had stemmed from troubled relations between him and his subordinates. Riken did not use the samples in an experiment because, it said, they had little proprietary value.

Japan has no legislation similar to the U.S. economic espionage act, and extradition is not allowed unless it is for an offense punishable in both countries. Although the illegal acquisition of trade secrets is now punishable in Japan, thanks to last year’s change in the Law Against Unfair Competition, this provision did not exist when Mr. Okamoto was indicted.

Prosecutors argued that the samples belonged to the U.S. laboratory and that Mr. Okamoto’s taking them without permission amounted to larceny — an offense punishable in both countries. The high court dismissed that argument as “tenuous,” pointing out that the extradition procedure is meant to determine from the viewpoint of human rights protection whether the suspect would be found guilty in the country requesting his or her extradition.

This judgment is important because the government is duty-bound to protect Japanese nationals from unwarranted foreign pressure. Accordingly, an extradition request needs to be handled very carefully when charges made by the requesting country do not apply under Japanese law.

This is not to say that Mr. Okamoto is entirely free of blame. He must be held morally responsible for destroying and removing his research materials from a foreign laboratory. In other words, he cannot escape criticism that he violated professional ethics as a scientist. If he thought only that he was doing that he had a right to do because the samples belonged to him, then he was woefully ignorant of the changing research environment in the United States.

The U.S. economic espionage act, established in 1996 at the strong request of American industry seeking protection of intellectual property rights, covers a broad range of trade secrets related to finance, business, science, technology and engineering. Anyone who benefits, or tries to benefit, any foreign government or agency is liable to punishment. As such, the law embodies an aggressive strategy of protecting U.S. national interests.

By contrast, Japan is falling behind in the international race to protect intellectual property rights, such as patents. The lack of a solid strategy in this increasingly competitive arena may have contributed partly to Mr. Okamoto’s misconduct. During the hearings he said it was not uncommon for Japanese researchers to take their data and materials with them when moving from one institute to another.

It was not until last year that the Ministry of Education and Science and Technology compiled guidelines for Japanese researchers abroad, urging them to carefully study relevant laws and regulations in the host countries. While such an advisory is helpful, the basic need for individual researchers is to become more aware of their obligations, not just their rights.

The government’s General Council on Science and Technology last year published an interim report calling for efforts to prevent the drain of trade secrets to foreign organizations. The report also emphasized the need to tighten the legislative system for protecting corporate know-how and other confidential business information. These moves are essential for mapping out an effective intellectual property strategy.

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