Evidence: Battelle Misused / Defrauded / Skimmed DOE Small Business Technical Assistance Program [TAP]…
In 2002-03, Dept. of Energy’s Technical Assistance Program [TAP] funded Battelle-PNNL scientist Kevin Dorow to develop the Mobile Data Manager [MDM] software for small business owner Pulver who provided the MDM functional specifications to Dorow. Per federal law, the TAP Agreement obligated Battelle to deliver all DOE-funded work performed [e.g., all software versions produced] to him at completion of the MDM TAP project. In December 2002, Battelle granted Pulver’s company an exclusive worldwide license to market, sell and develop follow-on [derivative] enhanced versions of the MDM software in all commercial fields of use. On August 29, 2003, Battelle delivered a non-working MDM version [with functionality removed] to TAP recipient Pulver.
Battelle documents, examination of MDM source code and evaluations by software experts [Pulver & Battelle’s] confirm that Battelle withheld DOE-funded software code from the non-working version delivered to Pulver on 8/29/03. In sum, there are two sets of TAP-funded 2003 MDM software versions described as follows:
1. Non-working & Crashing - Missing DOE-funded functionality/code and pre-Beta [low quality & untested] version delivered to Pulver on 8/29/03.
2. Working & Functional - Beta [high quality & tested] MDM versions that Battelle withheld/pocketed from Pulver, marketed commercially to others [e.g., Fortune 500], described in management-approved papers as having extensive & unique functionality [e.g., catalog drilldown search], and nominated for prestigious technology commercialization awards [R&D 100 R&D Magazine (breakthrough products)].
Following the key summary points and chart, presented below is Battelle evidence consistently confirming there were two sets of 2003 MDM versions because Battelle withheld the actual working “best-efforts” TAP-funded MDM version from Pulver and delivered non-working version to him. Cited below are excerpts of (a) Battelle’s asserting [to the court] their right to deliver “zero…less than Barbie Doll” to Pulver, (b) Court’s ruling that there’s enough evidence to justify the case going to trial, and (c) 2003 emails confirming that Battelle [Dorow et al.] was actively pursuing its ‘own’ MDM licensing opportunities [violating Pulver’s exclusive license] with Ecolab [Fortune 500 - $3.5B] many weeks before and after delivering the 8/29/03 non-working MDM version to Pulver who told the court this was motive for its withholding working versions]. [Note, Battelle named MDM to “PDAC” in 2002; MDM and PDAC are used interchangeably (PDAC/MDM). In 2005, Battelle renamed PDAC/MDM to RDADS.]
2. MDM Versions Side-by-Side [See also Summary Chart: Versions Battelle Kept vs. Version Delivered to Pulver]
Events Timeline Showing Battelle Withheld/Pocketed DOE-Funded Working & Functional MDM Version
3. Evidence: 2 Sets of 2003 MDM Versions: (i) Working (Battelle Withheld/Enhanced/Marketed) (ii) Non-Working ( Delivered to Pulver)
3.1 Unlike the 8/29/03 version, Battelle 2003-04 papers nominated the working/functional version for awards. Battelle 2003-04 documents in Exh. 1-1 confirm, in contrast to 8/29/03 version, the actual DOE-funded working MDM version that Battelle demoed and marketed to many commercial firms, was high quality [Beta-tested], contained critical catalog category drilldown functionality and was nominated by Dorow and management for prestigious R&D 100 Award [R&D Magazine] for innovative and commercially viable products:
KED-00989 [9/15/03 Email with Attachment: MDMWhitePaper09152003.doc] [2 weeks after delivering non-working MDM to Pulver]
Excerpts: “Mobile Data Manager—White Paper 9/15/03 – Kevin Dorow
The MDM Java application enables PocketPC and Palm users to easily extract and download data from standard databases,
spreadsheets...2-way transfer allows users to upload changes...MDM supports...category level...search by...catalog-like drilldown.”
KED-00069 [12/4/03 Dorow Email Subject: 2004 R&D 100 Entry Candidates]
Excerpts: “I think that Mobile Data Manager would be a good candidate based on what’s listed below...Thanks! Kevin...
It’s time to select the lab’s candidates for the 2004 R&D 100 Awards. R&D Magazine sponsors the competition, which honors
...the year’s 100 most significant products. Fortune 500 companies, federal labs...compete for recognition for their outstanding
technical developments. DOE holds these awards in high esteem. Battelle...received more awards than any other recipient!”
[R&D web site at http://www.rdmag.com]
KED-00074 [12/19/03 Heister Email to Dorow Subject: R&D 100 Nomination for PDAC/MDM Attach: PDACWhitePaper12182003.doc]
Excerpts: “Nice job on this write up. Earl Heister” [Heister was the Director of Information Systems & Engineering.]
“12/18/03 PDAC supports...category level...real-time handheld catalogs. The Pocket Data Access Components [PDAC]
software currently exists as an advance prototype (beta software) and has been demonstrated to several external clients.
The software has been licensed in its current state to a local company called Mobile Data Methods (operated by Phil Pulver).
We are also pursuing future development and licensing with other external partners including…Ecolabs / Neotech –
A demonstration...in late spring of 03. They were so impressed… If the pilot goes well, the software will be deployed to
all Ecolabs sales staff worldwide...users can search by catalog-like drilldown”
KED-00880 [2/24/04 Email] [Re: 2004 Article from Newsletter on Mobile Data Manager]
Excerpts: “The Mobile Data Manager [MDM]...supports...category level [drilldown]...impact on a wide variety of marketing segments: Sales force automation…real-time handheld catalogs, remote ordering...(beta software)...demonstrated to several...has been licensed to...Mobile Data Methods (operated by Phil Pulver). We are also pursing future development and licensing with other external partners.”
3.2 All experts who tested the 8/29/03 MDM version [including Battelle’s Dr. Gorton] confirmed that it crashed [did not work].
Exhibit 1-6 cites test results of outside experts and 2008 expert testimony of Battelle’s Dr. Gorton. Further corroborating that the 8/29/03 version didn’t work is Battelle-PNNL MDM developer Dorow who delivered the software to Pulver; excerpts of his July 2008 declaration [Exhibit 1-2] confirm that the 8/29/03 version was unfinished, had “problems” running and was low quality [pre-Beta].
The non-working MDM 8/29/03 version clearly wasn’t the version that Battelle nominated for an R&D 100 Award, received enthusiastic response from Ecolab et al., and described in white papers as high-quality [Beta] with robust functionality, e.g., catalog drilldown search.
In sum, Battelle’s Dorow admits that Pulver’s 8/29/03 version didn’t work; at the same time, Battelle emails [Exhibit 1-1] confirm it developed working MDM version with catalog drilldown and other unique/critical functionality for which Dorow et al. nominated for awards.
Note: Battelle admits to the court that it demoed an operable, functional MDM version to Pulver on Battelle-PNNL premises
in May 2003, three months before Dorow delivered an MDM version that he now admits to court doesn’t work.
3.3 Battelle invoicing and certifications to DOE confirms it withheld the working DOE-funded software version. Dorow’s April-May 2003 timecards for his developing drilldown [Exhibit 1-5A], August 2003 TAP reports to DOE [Exh. 1-5A (drilldown)] and two versions of the MDM main control panel file [Exhibit 1-5B (IdentifyFields.java)] confirm that he withheld the DOE-funded drilldown code/functionality from the 8/29/03 version. He delivered two versions of the MDM control panel to Pulver, dated 4/14/03 and 6/30/03. From late-April to May 2003, Dorow charged/billed DOE to develop drilldown; his August 2003 TAP report [Exhibit 1-5A (GES-00202)] confirmed this:
“The coding required to support a “drill-down” mechanism on both the administrative application server component... was
completed...modifications and additions to the web pages of the administrative application”. [Missing from 8/29/03 MDM version]
The 6/30/03 version delivered to Pulver should’ve had the drilldown functionality, but didn’t. [Exh. 1-5B shows the 6/30/03 version had no changes/additions to the 4/14/03 file.] Instead, on 8/29/03, Dorow delivered the 4/14/03 administrative control panel file [Re-dated 6/30/03] and withheld the file with drilldown functionality that DOE paid Battelle to develop for TAP recipient Pulver. [In his 6/30/08 MDM declaration, Pulver noted Battelle’s withholding this government-funded work from its intended recipients violates the False Claims Act.]
Further showing that drilldown functionality is missing from the 8/29/03 MDM version is a simple text search that didn’t find the words “drill”, “drilldown”, “level”, and/or “category” in the administrative control panel file; no drilldown mechanism whatsoever is in the control panel source code file. Finally, attached in Exhibit 1-5C are administrative control panels from the 2005 RDADS software patent application [published March 2007] and the 8/29/03 MDM version. These control panels are virtually identical, except that RDADS has the drilldown mechanism that’s missing from Pulver’s 8/29/03 version. [Note, Battelle documents confirm MDM/PDAC was renamed to RDADS in February 2005; details in the Derivative[RDADS=MDM] Section.]
Note: In his July 2008 declaration, Dorow cited absolutely no evidence to refute that Battelle withheld catalog drilldown and
other DOE-TAP-funded software functionality/code from Pulver’s small business when it delivered the 8/29/03 version.
4. DOE-Funded Counsel Miller Statements to Court: Battelle claims right to deliver “zero” to TAP recipient Pulver.
Excerpts of the court transcript [11/18/08 hearing] of Battelle’s motion to dismiss the case are below. Exhibit 1-3 cites other excerpts of Battelle’s actually asserting the right to deliver “zero”, “less than a Barbie doll”, and an unworkable MDM product to TAP recipient Pulver, despite admitting that MDM worked three months earlier! These assertions further confirm Battelle evidence of delivering a non-working MDM version while keeping and marketing the working best-efforts version for its commercial [non-DOE] interests. The following excerpts and his ruling [next section] clear show that the judge rejected Battelle [Miller] arguments that “Barbie doll software” or “zero” met the best-efforts provisions of the DOE Technical Assistance Program:
5. Court Denies Battelle’s 2008 Dismiss Motion - Rejects Battelle’s asserting right to deliver “zero” to Pulver.
On January 29, 2009, Chief District Judge Whaley rejected DOE-funded counsel Miller’s argument that the TAP and MDM License Agreements allowed Battelle to withhold the Best-Efforts [working/useful] version developed & funded via the DOE Technical Assistance Program. Excerpts of his ruling that address Defendant Battelle’s withholding DOE-funded MDM software from TAP recipient & licensee Pulver are as follows:
“Under Defendant’s theory, Plaintiff was not contractually entitled to expect to receive any useful version of MDM because
Plaintiff had expressly accepted the product “as is.” [Page 14, lines 14-16]
“Construing the contract as a whole, including the TAP Agreements, the Court finds that Defendant promised to exert its best efforts to develop MDM and to turn over to Plaintiff the results of those best efforts – workable or not” [Page 14, lines 18-21]
“Plaintiff has proffered evidence that, if believed by a jury, could support a finding that Defendant breached this contract. Plaintiff claims that the version was inferior to a workable version Defendant previously demonstrated for him. Plaintiff also claims that Mr. Dorow intentionally withheld the workable version and essentially attempted to extort money from Plaintiff for its delivery...Resolving this factual dispute requires a determination of credibility and, therefore, summary judgment is inappropriate.” [Pg. 14, ln. 24-28 & Pg. 15 ln. 1-6]
6. Motive to Withhold Working MDM Versions [Battelle’s Competing Ecolab MDM Licensing Opportunity – June–Dec.2003.]
[For details, see Battelle/Ecolab 2003 MDM emails when Battelle delivered non-working version to Pulver’s small business on 8/29/03.]
Documents reveal that, at the same time Pulver received a non-working MDM version, Battelle itself was pursuing a major commercial MDM sales/licensing opportunity with Fortune 500 Ecolab that pertained to handheld/mobile catalogs with category drilldown search, key functionality missing in the MDM version delivered to Pulver. These catalogs-on-handhelds would be adopted by its worldwide sales force and accrue significant fee income to Battelle as Ecolab would purchase thousands of MDM software licenses and Battelle corporate  consulting. [This violated its exclusive license with Pulver’s small business.] Catalog drilldown was a critical requirement due to their extensive products with detailed documentation.
Three sets of Battelle documents excerpted below confirm that MDM/PDAC developer Dorow and other Battelle staff were actively pursuing this major MDM sales opportunity with Ecolab at the very time Pulver received a non-working MDM version on 8/29/03 that lacked catalog drilldown functionality which Dorow certified to DOE-TAP as completed for MDM. Specifically, the following documents reveal material events occurring within days of the 8/29/03 delivery:
1. Battelle’s MDM developer Dorow’s Official Lab Record Book confirms catalog drilldown search functionality was critical to the Ecolab MDM licensing sales opportunity. These excerpts of documents in Exhibit 1-7A confirm this:
a. KED-01387 – 7/29/03 Dorow’s Lab Record Book: “Ecolabs visit…They would like to be able to click on a image or object in an image) that indicates category and drills into a list of products that are applicable...then drill into the details for each product.”
b. KED-01387 – 8/6/03 Dorow’s Lab Record Book: “Ecolabs sees this as a real-time production system-this means it is a profit generating mechanism...sales automation interface...not been able to identify any competitors in the market.”
c. KED-00687 – 8/6/03 Email [Pulver to Dorow]: “Kevin...The mobile catalog feature [e.g., Dixie] is perhaps the most unique aspect of this software; any company can put their entire catalog on the handheld.”
2. Battelle signed non-disclosure agreements [NDA] on MDM with Neotech/Ecolab one week after delivering the non-working 8/29/03 version. [MDM was exclusively licensed to Pulver.] Document excerpts [Exhibit 1-7B] confirm this:
a. MLG-00829 – 6/30/03 Email [Subject: Neotech NDA & Ecolabs Proposal]: “They are also wanting to move on the licensing of the mobile data manager, so I need to know where we are on getting the agreements for tech transfer”
b. KED-00666 – 7/8/03 Email [Subject: NDAs]: “Battelle will be providing Neotech/Bandwiz with details on the internal design for...Mobile Data Manager...as we work joint proposals or licensing of these technologies.”
c. KED-00718 – 9/8/03 Email [Subject: NDA with Neotech[Ecolabs]]: “This agreement has been fully executed.”
3. Two weeks before the 8/29/03 MDM delivery to Pulver, Dorow and Battelle commercialization managers submitted an investment proposal to customize MDM for Ecolab opportunity. Excerpts from Exhibit 1-7C are as follows:
KED-01011 – 8/15/03 Email [“Investment Proposal Kevin Dorow...The proposed project will build on the existing
Pocket Data Access Components [PDAC/MDM] platform...Research and current marketing efforts indicate significant
and increasing demand by organizations for deploying corporate or organizational information to the field via mobile devices
Ecolab (http://www.ecolab.com)--a $3.4 billion environmental firm, has an existing need for this type of product...This technology has commercialization potential in a large number of vertical market segments including medical, sales force automation, emergency management, industrial process, and law enforcement...Ecolabs is proposing to use this technology in...automation of their sales force. The following gross returns have been estimated by the pilot alone:
5 administrative server licenses at $500 per server - $2,500
1500 handheld device deployments at $40 per handheld - $60,000
3 months of 1831 contract business to adjust the base product ($120/hour) - $64,000”
Note: See other Battelle/Ecolab 2003 MDM emails during the time Battelle delivered a non-working version to Pulver’s small business.
Cited below, Pulver told the court that this evidence [showing conflict of interest] suggests motive for withholding the TAP-funded best-efforts working MDM version from Pulver and keeping the viable version for commercial opportunities [Use-Permit] that are more profitable than work for DOE. Their acknowledging that Ecolab was impressed with MDM in spring 2003 is in stark contrast to Pulver’s 8/29/03 non-working version that Dorow’s 2008 declaration described as having problems even running and was untested. This further confirms that the 8/29/03 Pulver version is NOT the one Battelle was demoing/marketing to Ecolabs [signed NDA] and other commercial firms in 2003 and is NOT the working/functional version demoed to Pulver in May 2003 as Battelle now admits.
The following excerpt of Pulver’s 6/30/08 Declaration [Ct. Doc. #220 - Part 1], further supported by Battelle’s Nov. 2008 assertions to the court [right to deliver “zero…less than a Barbie doll” to Pulver], summarizes the evidence information presented above:
“Battelle had the means, opportunity and motive to 1) withhold the DOE-funded MDM functionality for “their” MDM version to pursue Ecolab [et al], and 2) deliver a non-working dysfunctional MDM version to prevent Pulver from being a “competitor” to their profitable 1831 corporate business involving MDM and derivatives. Based on extensive discovery documents and 2008 testimony ...Battelle “pocketed” DOE-TAP work [research], withheld it from the 8-29-03 MDM version, deprived it from the intended TAP recipients, nonetheless accepted payment from the Federal Government for this work, and hence violated the False Claims Act [31 USC §3729].” [Note: 1831 is Battelle’s unique Use-Permit allowing them to do lucrative private work using government facilities.]
Note: Battelle never produced ANY documents refuting/controverting the extensive evidence proving that they withheld the DOE-funded working MDM version(s) which they admit demoing three months before delivering the non-working version to Pulver on 8/29/03. The judge agreed and denied Battelle’s 2008 Motion to Dismiss.
July 2010: Pulver told the judge that Battelle’s misrepresentations [perjury] corrupted discovery and the jury would be thus denied evidence that Battelle is withholding. In August, the Court enabled Pulver to seek remedy with the 9th Circuit Appeals Court by dismissing the case on the very same evidence proffered in 2008 in which the judge ruled that evidence, if believed by a jury, could support a finding that Defendant [Battelle] breached this contract.
June 2012: Pulver files the opening brief to the Ninth Circuit Court of Appeals which includes detailed discussion w/ evidence that Battelle withheld the government-funded MDM software from Pulver’s small business. See Sect. 3A, 4B and 4F re: Ecolab.