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In Summer-Fall
2003, Battelle Was Pursuing Sales Opportunity with Ecolabs: Customizing & Licensing Mobile Data Manager [Violation of Pulver’s Exclusive MDM License]
When Battelle
delivered a non-working MDM version to Pulver on 8/29/03, MDM Developer Dorow
and others were actively marketing
MDM for Ecolabs handheld catalog sales automation Licensing/Consulting Use
Permit (1831) Deal [Motive – Conflict of
Interest: Use Permit Opportunity vs. DOE Small Business Technical Assistance] Below are 2003 emails
pertaining to Battelle’s private/corporate [Use-Permit] consulting and
MDM licensing opportunity with Fortune 500 Ecolabs Inc. that had a requirement for handheld/mobile product
catalogs with category drilldown search, critical functionality missing from
the non-working MDM version delivered to Pulver on 8/29/03. These catalogs-on-handhelds would be
adopted by its worldwide sales force and accrue significant fee income to
Battelle; namely, Ecolabs would purchase thousands of MDM software licenses
and many hours of corporate [1831 PNNL Use
Permit] consulting at much higher profit margins than DOE-funded work. [Background: In 2002-2003, the DOE
Technical Assistance Program [“TAP”] funded PNNL scientist Kevin Dorow
to develop the Mobile Data Manager [MDM] software for small business owner
Pulver who provided the functional specifications for MDM. Per DOE policy, the TAP Agreement
obligated Battelle to deliver all
DOE-funded TAP work [best-efforts] to Pulver at completion of the MDM
project. In
December 2002, Battelle granted Pulver’s company the exclusive worldwide license to market, sell, and develop
follow-on [derivative/enhanced] versions of MDM
software in all commercial fields of use. On August 29, 2003, Battelle
delivered a non-working MDM version to Pulver that was missing functionality,
e.g., drilldown search. Their documents confirm they withheld the working MDM version for which
they wrote white papers, enhanced, marketed/commercialized, ported to BlackBerry
and patented.] The following facts/events provide
further context for the Battelle-PNNL emails cited below: ·
Battelle granted
Pulver an exclusive license to the MDM software system, as Quadrel
acknowledged in the 10/29/03 email below warning Goodwin not to conceal
Pulver’s exclusive license rights from Ecolabs. Battelle confirmed his
license rights to DOE’s Inspector General & Office of Science in 2004. ·
MDM developer
Dorow’s August
2003 TAP completion reports explicitly confirmed that catalog-like search [drilldown
thru categories] had been developed for MDM prior to the 8/29/03 delivery to
Pulver. ·
The emails show
Battelle, despite Pulver’s exclusive license, was actively moving to license
MDM to commercial firms [e.g., Ecolabs] during the time Pulver received a
non-working MDM version that was missing the catalog-like drilldown, functionality
critical for Battelle securing the Ecolabs business. ·
In a July 2008 declaration to the court, Dorow cited no evidence to
refute that Battelle withheld catalog drilldown and other TAP-funded software functionality from the 8/29/03
version delivered to Pulver. ·
At the 11/18/08
court hearing, DOE-funded lawyer Miller actually argued Battelle had the
right to deliver “zero”, “less than a
Barbie doll” to Pulver under the TAP &
MDM license agreements; note, Battelle admits that it demoed the operable
& functional version of MDM to Pulver three months before delivery. [transcript] · On 1/29/09, the judge denied Battelle’s motion to dismiss
MDM cause of action, stating in part: “Plaintiff has proffered evidence that,
if believed by a jury, could support a finding that Defendant breached this
contract. Plaintiff [Pulver] 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.” [Crt. Doc.
#253 – Pages 14-15] ·
In his 6/30/08
declaration to the court, Pulver summarized the
8/29/03 delivery vis-à-vis Ecolabs opportunity: “This
detailed evidence confirms that before [and after] 8-29-03 MDM delivery, Battelle was pursuing a major commercial sales
prospect requiring catalog drilldown. It’s my belief, based on the emails and
Mr. Dorow’s Lab Record Book, that Battelle was competing against me and
withheld the TAP-funded Best-Efforts [working & functional] MDM, keeping
it for themselves to pursue Ecolabs and other commercial licensing [1831]
opportunities.” [§1-7d] and “Battelle
“pocketed” DOE-TAP work [research] ...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]” [§1-9] [Note: The Laul-v-Battelle section cites Congressional
Record, NBC, DOJ et al. re: Battelle-PNNL past violation of the False Claims Act & high litigation costs to taxpayers.] 2003 Emails: Battelle Pursued Ecolabs Use-Permit MDM Deal
While Delivering Non-Working MDM to Pulver Note: Clicking the links
opens the Battelle document. Key text is highlighted;
comments are added for context/clarification. PDAC was Battelle’s alias for
the MDM software developed under DOE’s Technical Assistance Program. Bandwiz & Neotech were
affiliated with Ecolabs. Battelle’s
Goodwin was goaled on generating private [Use-Permit(1831)] consulting revenue/profit. SVS-00217
June 30, 2003 email [Goodwin to
Likula copied Shoemaker]
“Dorri - the below note from Steve Shoemaker indicates
he needs assistance with an NDA [Non-Disclosure
Agreement]. Mark, I want to discuss the TAP
request from Neotech…meeting
with them on Thursday and would like to give them the NDAs for signature. 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 in place.
I think they want some kind of understanding on the potential cost before any proposal to Ecolabs. They are wanting to schedule Ecolabs here for
a visit to demonstrate the systems and
discuss the proposal details...Thanks Steve Shoemaker.” [Comment: Battelle was already competing with Pulver
and pursuing the MDM licensing & Use-Permit Ecolabs opportunity less than 2 months before
delivering a non-working version of MDM/PDAC to him on 8/29/03.] SVS-00305 July 12, 2003 email [Shoemaker to
Marr Subject: Conference Call: July 11,2003]
“We had
conference call with one of ECOLAB’s VPs on Friday. This has some real possibilities.
They are a global company with 3 Billion in annual sales. World leader in their market, which is sales of
cleaning products for industry, food services, hotels, …I will talk to Mark [Goodwin] when I get back from
vacations, he know that we are talking and I am putting the NDAs in place…Thanks Steve Shoemaker” [Comment: Battelle recognized the high-potential
non-Government [1831] commercial business opportunity.] July 23, 2003 email [Dorow to Shoemaker Subject: PDAC InformationAttachments: PDAC White Paper.doc; PDAC.ppt, PDAC Market Opportunities.doc] “Steve, Ken from Bandwiz contacted me last week requesting more technical information on PDAC-below are the files that I sent him. He also discussed with me the opportunities they are pursuing with Ecolabs and PepsiCo…Kevin” [Comment: Pulver authored these papers. Battelle distributed them to Ecolabs et al. without his consent, a violation of the TAP Agreement.] KED-01387-Ecolabs [Kevin Dorow Lab Record Book Entries] [KED-01387 has all 101 pages.] August 12, 2003 “I am meeting to talk about the
Ecolabs visit... I also need to remove
the MDM references from the
demonstration material.
Restaurant, Hotel and industrial are the targets.” August 6, 2003 “Ecolabs see this [MDM]
as a real-time production system-this means it is a profit generating
mechanism. A real-time sales automation interface-Bandwiz
has not been able to identify any competitors
in the market.” [Comment: Battelle realized that
MDM had unique & valuable
functionality for sales automation & handheld catalogs.] July 29, 2003
“Work Package for Ecolabs
visit-F50519…They would like to be able to click on a image (or object
in an image) that indicates a category and drills into a list of products that are applicable. You could then
drill into the details for each product.
Neotec would be the product support organization.” [Comment:
On 8/3/03, in his TAP reports, Dorow certifies to DOE-TAP that he
completed catalog drilldown search for MDM On
8/29/03, Battelle delivers a
non-working version that did not have that critical category drilldown
functionality. ] GES-00202
August 1, 2003 [Technical
Assistance Reports] Note: MDM developer Dorow writes final reports on the technical assistance program [TAP] projects that were funded by the Office of Science. One report [F36593] confirms that Dorow completed development of catalog drill down category mechanism for the MDM software. This feature was critical and necessary for handheld catalogs and sales automation, including the major Ecolabs 1831 sales opportunity; as seen below, it was missing in the version delivered to Pulver. [Comment: The category drilldown was missing from the
8/29/03 MDM, but appears in the 2005
RDADS [“new code”] control panel. Otherwise, the RDADS control
panel is virtually identical to the 2003 MDM control panel. See 2005 RDADS Patent
vs. 2003 MDM ]
September
17, 2003 email [Goodwin to Schwenk
[Assoc. Lab Director], Spanner [TAP Manager] et al] “We are in
discussions with Ecolabs, Bandwiz and Neotech about an adaptation called Pocket
Data Access Components (PDAC/MDM) platform.
We have
all three companies her next month to
craft the relationship...” [Comment: After
delivering non-working version to TAP recipient Pulver, Battelle was paving
the way for 1831 Use-Permit opportunities
with the actual best-efforts, working/viable, and customizable MDM product.] October 7, 2003 email [Shoemaker to Goodwin, Dorow, et al Subject: Ecolabs Presentation Attachments: virtualmerchperscriber.ppt]“All, See the attached concept for the Ecolabs sales tool. We are proposing implementing this using the PDAC[MDM]… Note, this is under an NDA [Non-Disclosure Agreement] so do not distribute the briefing…Also do we have any update on the status of their request to work a license for the software[MDM]…Thanks Steve Shoemaker.” [Comment: With a signed NDA, Battelle was in serious discussions
with Ecolabs to market/license MDM/PDAC.
The attachment
explicitly shows that MDM would be implemented as a handheld catalog for
products.] October
27, 2003 email [Shoemaker to Farris, Goodwin, Dorow et. al Subject: Neotech options agreement] “Kevin, If you have any
additional IP or corrections to the information above, please let Bill
know. We are trying to get things in position to
support the Nov. 12th Ecolabs web-x conference.” [Comment: After signing an NDA, Battelle was actively
pursuing an options agreement with MDM.
This further shows that the MDM version withheld from Pulver worked
and had compelling functionality with high commercial & government-use
potential. Options agreements [for
licensing] are not pursued and executed on non-working, un-sellable and
un-enhanceable junk. ] October
29, 2003 10:00am email [Goodwin
to Quadrel copy to Stryker Subject:
Re: Ecolab’s visit preparation] “This is related to a presentation on 11/12 to a
Dave Hooker who runs Special Products office for Ecolabs, which is a $3.5B
business. They have some 1800 sales professional for
whom budget has been authorized to equip with tablet PCs loaded hopefully with S/W that would use a combination
of pocket data access [MDM] and elements of Topographical Risk Assessment IP. The 1831 scope is
fluid, but represents ~200-500K according to Steve.…pocket data access [MDM] really is truly the only if not most
appropriate bi-directional solution that is platform agnostic, etc. …Mark L. Goodwin
Director of Information Science & Engineering Programs” [Comment: As with Dorow’s 8/6 lab book entry, Battelle
realized MDM’s platform-independent 2-way solution was unique & valuable.]
October
29, 2003 12:28pm email [Quadrel to Goodwin
copy to Stryker Subject: Re:
Ecolab’s visit preparation] “Fair enough Mark. Keep in mind that we just went through an exercise
about delivering Mobile Data Manager to Onyx and found that we’re really hamstrung because of the exclusive license to Phil
Pulver. We can deliver partial components, but not the full capacity.
Don’t know if we run into the same problem here, but suggest we be up-front with Ecolabs about our limitations in this area…. Rich Quadrel” October 29, 2003 1:57pm email [Goodwin to Quadrel Subject: Re: Ecolab’s visit preparation] “We’ve been very careful to avoid MDM
terminology… Mark L. Goodwin Director of Information Science &
Engineering Programs” [1831-Use Permit] [Comment: It’s apparent that Goodwin ignored Quadrel
and concealed the “MDM” name and
Pulver’s exclusive license rights from Ecolabs.] December
9, 2003 10:00 am email [Goodwin
to Farris, Quadrel, Dorow, Shoemaker, et al] “Ecolabs has authorized budget for
the Phase II, which includes $’s for us. …Pocket data access [PDAC/MDM] are
core IP
[Intellectual Property] with
foreground though 1831. Start is likely Feb. there’s a meeting/visit in planning for late Jan involving Ecolabs’
senior management, which will have presentation of scope in response
to requirements that are currently being gathered. Steve and Kevin [Dorow]
have done a GREAT job putting this together. So
far so good... Mark L. Goodwin, Director of Information Science &
Engineering Programs PNNL.” December
9, 2003 9:50 am email [Farris to Dorow, Goodwin et al] “I had
offered $2500 to cover the commercialization
aspects of this opportunity.
That offer is still good and I will get a wp# to Kevin. It looks like
Kevin/Eric/Steve have 23 hours to cover...BTW I have not heard how the
opportunity is progressing. Any news?”
December
9, 2003 9:37 email [Dorow to Goodwin, Farris, et al] “All, Is there
going to be a work package number issued for the marketing
work with Mobile Data Manager and Bandwiz/Ecolabs/Neotech...?”
[Comment:
This $2,500 confirms that Battelle was investing in commercializing
Mobile Data Manager to undercut Pulver who had an exclusive license to MDM as Battelle’s Quadrel
stated above on October 29th.] |