Evidence Site Index
Evidence: Battelle Misused / Defrauded / Skimmed DOE Small
Business Technical Assistance Program [TAP]…
1.
Background 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. “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 [1831] 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. 7.
Conclusion 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. |
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