Case
Timeline [2001 - 2012]
|
Snapshot of Key Events ● 2001 – Battelle-PNNL solicited small business owner
Pulver to commercialize/market PalmFon [software enabling users to download
data to Palm handhelds]. Battelle gave
demos and made explicit representations to Pulver that PalmFon had
functionality needed by handheld users.
Based on this, Pulver began to commercialize PalmFon; his market
research validated its market potential.
The September 11, 2001 attacks further confirmed
the criticality of mobile data software technology, including the need for two-way
communication [data download and upload] as opposed to the limited one-way [download only] capability
of PalmFon and all other mobile device software at that time. ● January - March 2002 – In January, Battelle delivered non-functional PalmFon software to
Pulver; in March, their scientist Dorow confirmed this who told Pulver to
abandon the non-fixable PalmFon. [Battelle later admitted to the court that
PalmFon only worked with Battelle-PNNL’s phonebook, making it useless to
anyone outside the lab!] In March, Pulver utilized the DOE-funded Technical Assistance Program [TAP] that paid Battelle-PNNL to develop the new Mobile
Data Manager [MDM] software [based on Pulver’s specifications] with critical
and innovative commercially-valuable features including 2-way communication [upload/download] between mobile
users and desktop computers/servers. ● June - October 2002 – In June, the core functioning MDM was finished; the MDM
invention reports were written in September and DOE
chief counsel granted permission for Battelle to copyright MDM
in October. That summer,
Battelle became aware of the growing commercial interest in MDM and began
interfering with & harassing
Pulver’s marketing partners, stalling the MDM licensing process, and delaying
the next phase, i.e., enhancing MDM to meet commercially-critical market
requirements. In August 2002, they renamed MDM to “PDAC” [Pocket Data Access
Components]; documents show Battelle commercially market MDM under PDAC,
nominating it for an R&D 100 award in 2003. ● September
2002
– Battelle pressures MDM team [small businesses] to commit
in writing to paying for future Use-Permit [1831] private and lucrative [high
profit margin] contracts with Battelle in exchange for Battelle
commercialization letting the DOE/TAP MDM project [they stalled] to
resume. Pulver and his team rejected
this blatant quid-pro-quo that violates kickback rules of Federal Acquisition
Regulations [FAR]. ● December 2002 – Battelle
granted Pulver’s company an exclusive worldwide
license to market, sell and develop derivative [follow-on] enhanced
versions of the MDM software in all commercial fields of use. Per policy, the
US Government [DOE, DHS...] retained the right to use and develop
derivative versions, but NOT to commercialize them. Battelle demoed a
working MDM product to Pulver at PNNL during the meeting to finalize an MDM
specification for the 2003 enhancements to MDM. ● January - August 2003 – Based on
specifications approved by Pulver and using TAP funding [pooled by 5 other
small businesses], Battelle Scientist Dorow undertook the 2003 MDM
enhancement phase of adding functionality [with testing] needed for Pulver’s
MDM sales team to commercially market MDM to users in many industries. Discovery later
confirmed they plagiarized Pulver’s MDM documents, and marketed MDM [under
the “PDAC” and later “RDADS” aliases] in competition with him starting in
spring 2003, e.g., Fortune 500 Ecolabs [cited below]. [In 2006, Battelle admits to the court that it
demoed a working & functional MDM
to Pulver in May 2003, the month Battelle commercialization wrote “send
Pulver to Iraq!-One way of course...MOAB” email and 3
months before it delivered the non-working crashing MDM version to him ] ● August 29, 2003 – Battelle
delivers a non-working MDM software version to small business TAP recipient
Pulver. Discovery documents & PNNL testimony confirmed that Battelle was meanwhile [spring-fall
2003] marketing
the working & functional version to Ecolabs regarding a sales & consulting [Use-Permit] and licensing opportunity pertaining
to deploying a handheld mobile catalog for its worldwide sales force. [In 2008 deposition testimony, Battelle’s own
software expert also confirmed the MDM software version delivered to Pulver
didn’t work and actually crashed. In
his July 2008 declaration, Dorow admitted that the 8/29/03 version had
“problems” running and was untested. For detailed evidence [documents &
testimony] regarding Pulver’s receiving a non-working version, see the Documents section. ● Sept. 2003 - Early 2004 – After Battelle MDM developer Dorow admitted, on 9/10/03, to
delivering a non-working “embarrassment” MDM version and marketing the
“working” MDM version(s) for their commercial interests, Pulver filed a
complaint with DOE’s Office of Inspector General [OIG]. In their
January 2004 response to OIG, Battelle’s lead IP attorney Branton affirmed
Pulver’s exclusive license rights to the three-part MDM/PDAC software and
directed that staff [e.g., Dorow] not
to market it commercially. ● 2004 - 2005 – Meanwhile, the Dept. of Homeland Security [US Customs & Border Protection] Radiation Portal Monitor
Project [RPMP] funded Battelle to enhance the MDM/PDAC
software to run on Blackberry handhelds [for installers of
radiation monitors at ports & borders] which increased its commercial potential. This is repeatedly confirmed by Battelle
documents & testimony cited in
the Derivative section. [Note, in a 6/28/10 document to the court, Battelle confirmed MDM was
ported to BlackBerry and licensed [commercialized] in 2004!] ● January -
February 2005 – After Battelle’s
Morgan confirmed Pulver had exclusivity to follow-on [derivative] versions
[e.g., MDM/PDAC-on-Blackberry], Battelle, the very next day, embarked on its “new
code…new name” tactic to evade Pulver’s exclusive license and misappropriate PDAC/MDM
software. Namely, it suddenly
called PDAC/MDM “new code”, wrote a “NEW” invention
report renamed RDADS. Documents show Battelle was commercially
marketing RDADS under non-disclosure agreements. [Details on RDADS are
below.] These excerpts of Morgan’s
explicit 1/27/05 email chain
clearly reveal Battelle’s intentions that they carried out [as shown by
extensive evidence including testimony]:
“Why don’t you guy’s file a new IR and tell
me that this is all “new code”…Gary
Morgan“ ”Cool we’ll process as new copyright and new IP - so Pulver is toast…Morgan” ”Had to share this with you—you’ve got to love the IP guys…Kevin“ [IP=Intellectual Property] ”Nice. Hope no one
ever subpoenas GM email
records…Thurman“ ● May 2005 – Pulver served Battelle with a Federal lawsuit. Causes of action included breach of MDM license
and TAP agreements, fraud, misrepresentation, and other unfair business
practices. The main breach of contract
claim was not dismissed as the Court clearly stated: “Plaintiff
has proffered evidence that, if believed by a jury, could support a finding
that Defendant breached this contract.” [CD #253 1/29/09] ● September 2005 – Battelle files a
patent application on “new” invention RDADS; the USPTO published the patent
application in 2007. Note, Battelle concealed the 2002 MDM
inventions from the patent office, failing to name them as prior art to
RDADS. As evidence below confirms,
Battelle didn’t cite MDM because the MDM and RDADS inventions are the very
same thing. See patent
fraud section for details. ● Spring 2006 – Battelle began producing
discovery documents that confirmed allegations in the OIG complaints and
lawsuit. For example, documents show Battelle was showcasing the working
MDM/PDAC version for corporate pursuits [Ecolabs] before & after delivering the non-working version to
Pulver on 8/29/03. [Battelle later admitted that MDM worked
3 months before delivery to Pulver.] In response to Pulver’s request to produce
documents on software named MDM, PDAC or other alias, Battelle [with legal dept. approval] produced some
“RDADS” documents confirming that RDADS was another name for PDAC/MDM. See Derivative section for evidence. ● Summer 2006 – In response to Pulver’s request
to obtain additional RDADS documents, Battelle suddenly denied RDADS had
anything to do with MDM or this lawsuit.
As the evidence shows, Battelle’s DOE-funded counsel Miller and
top-secret Q clearance holder Dorow began making materially inaccurate
representations and submitting materially false declarations to the court
regarding RDADS, MDM, RPMP and other matters.
Specifically,
they represented to the court that RPMP rejected/abandoned the TAP-DOE-funded MDM and instead funded “new”,
“different” and separate software [RDADS] that’s irrelevant to the case and
therefore all further RDADS versions must be blocked from discovery, i.e.,
concealed from Pulver. Evidence unequivocally refutes Battelle,
showing that RPMP funded development of follow-on versions of MDM/PDAC.
[RDADS was the “new code” in the January 2005 email cited above.] Details on Battelle’s RPMP and other
misrepresentation are in the following sections: Derivative, Evidence [Condensed Documents]
and Patenting.
[See also Evidence
Presented to Court.] Note: Battelle
DOE-funded counsel’s sudden refusal turn over RDADS documents [after PNNL confirmed
RDADS is MDM/PDAC & voluntarily produced them] resulted in major litigation battles [re:
discovery/evidence] at significant expense to ● October 2006 – Battelle admitted to the court that it used Pulver’s MDM documents
to pursue private/commercial PDAC/MDM business. ● January 2007 – DOE’s site office
[PNSO] released time sheets of Kevin Dorow [MDM/PDAC/RDADS
software architect & inventor] that revealed he depleted his funded hours for DHS-RPMP enhancements to
PDAC/MDM on 1/26/05. The next day
[1/27/05], Battelle hatched the “call it ‘new code’” tactic; a few weeks
later Dorow wrote a “NEW” invention report, and renamed PDAC/MDM software to
“RDADS.” ● March 2007 – The Patent & Trademark Office published Battelle’s RDADS
Patent Application.
Patent
diagrams, screens & invention text confirm that (1) “RDADS” is a new
name for PDAC/MDM and (2) Battelle scientist and Miller
misled the court when it represented RDADS as new software funded by DHS having
“absolutely nothing to do with” Pulver and MDM, (3) Battelle withheld TAP-funded functionality [e.g., drilldown search] from the non-working MDM
version delivered to Pulver on 8/29/03, and thus violated the False Claims
Act and committed patent
fraud. This
supporting evidence is in the Derivative
section. ● January - February 2008 – Depositions by Battelle staff [Gary Morgan, Steven Shoemaker
and Dr. Ian Gorton (software expert)] confirmed that the RDADS
software is a follow-on version [derivative] to the 2003 TAP-funded MDM
software exclusively licensed to Pulver.
In
February, Battelle produced 2004 screens of PDAC [aka RDADS] that are identical to
Mobile Data Manager. This 2008 testimony & exhibits further confirm that Kevin Dorow [top-secret (Q) clearance holder] has repeatedly
misrepresented RPMP; screen shots, his lab official record book, DOE-RPMP
time records, and testimony of three PNNL scientists [including Battelle’s declared expert Gorton] all confirm Dorow made material misrepresentations [declarations & testimony] to the court
regarding DHS-RPMP research. [Documents confirmed that the DHS Air Cargo
Explosives Detection Pilot Program [ACEDPP] also enhanced/adopted the software, thereby showing the viability of
MDM/PDAC/RDADS]. ● 6/30/08 – Pulver
filed a Declaration with evidence [source code, DOE &
RPMP timecards, TAP-completion reports, USPTO documents] confirming that Dorow
withheld federally-funded code from the 8/29/03 MDM version that Battelle
delivered to Pulver, the TAP recipient for whom the federal government paid
Battelle to develop; Pulver told the court that such withholding was a false
claim against the government, i.e., violation of the False Claims Act [31 USC §3729].
Pulver’s declaration opposed Battelle’s
motion to dismiss MDM claims. On 1/29/09, the
court denied Battelle’s motion to dismiss
the MDM/TAP breach of contract, the most critical one in the lawsuit having
the same allegations as Pulver’s 2003 complaint to DOE’s Inspector General,
misusing PNNL’s Technical Assistance Program [withholding DOE-funded
software]. ● 7/28/08 – In
his Reply to Pulver’s declaration, Dorow provided absolutely no evidence to
refute this serious allegation that he made False Claims against the
government by withholding DOE-funded software from small business
TAP-recipient Pulver. Dorow further verified
that Battelle withheld the DOE-funded best efforts software by stating the
8/29/03 MDM version was unfinished & untested “pre-Beta” quality, which is contrasted by Battelle documents showing they marketed
‘their’ MDM/PDAC version(s) to Fortune 500 firms, nominated for R&D 100 Award [R&D Magazine], and stated MDM was Beta-tested [high quality]. Dorow
finally confirmed there are two sets of 2003 MDM versions: (1) The unfinished non-working MDM delivered to Pulver [TAP recipient] and (2) The working, functional Beta-quality MDM they kept for Battelle corporate/venture opportunities. As cited above, RPMP funded Battelle to enhance/adapt the working 2003 MDM version to BlackBerry etc. in 2004; in deposition, Dorow testified that subsequent PDAC versions were developed to work with RFID devices [e.g., sensors]. ● January 2009 – Q-clearance holder Dorow’s
inability to refute Pulver’s evidence of Battelle’s withholding MDM Best Efforts,
resulted in the court ● March 2009 – DOE
documents obtained via FOIA confirm that Battelle’s litigation has already cost DOE/Taxpayers $750,000 through the end of 2008. When the case goes to trial, Battelle’s cost
to taxpayers for defending its misconduct will exceed $1M. This cost figure does not include all the
technical staff scientists’ time spent on this case. ● July 2010 – After Pulver stated to the court in July 2010 that Battelle
made material misrepresentations that have corrupted discovery for the
upcoming Sept. 2010 trial, the judge dismissed case, enabling him to seek 9th Circuit Court review/remedy to
address Battelle’s withholding evidence implicating them in defrauding Pulver
and the patent office as well as violating the False Claims Act [withholding
the TAP-funded software from the governments intended recipient]. ● March 2011 – DOE
documents obtained via FOIA confirm that Battelle’s litigation has already cost taxpayers over $900,000 through 2010. This figure does not include all the Battelle-PNNL technical staff
scientists’ time spent on this case. ● April 2012 – Inspector General Greg Friedman implicated by DOE-FOIA documents. He admits guilt by stonewalling, i.e., refuses
to release unredacted smoking-gun email of his
investigations agent leaking whistleblower/DOJ information to accused
contractor Battelle’s legal team. ● June 2012 – Pulver submits his opening
brief to the Ninth Circuit Court of Appeals. The brief details the extensive perjury &
false representations to the court by Q-Clearance
holder Dorow [accessing classified information, e.g., air cargo explosives
research] done to block fraud evidence. |