CornCard Incident
November 22, 1999
Gerald Biby
509 Shugart Street
Beatrice, NE 68310
Phone: (402) 223-0100
Email: paravance@mailcity.com
Board of Regents
University of Nebraska
Lincoln, NE 68583-0745
Dear Board of Regents:
There is strong evidence that a culture at the University of Nebraska
Lincoln, Technology Transfer Office exists which is having a negative impact
on the administration of intellectual property, Nebraska agriculture and
agricultural related business. Support for this allegation is attached
in the form of a Grievance Appeals Committee report, an audio tape, a video
tape and documents. A bound volume of documents (approximated 170 pages
of additional documentation has been attached to letters send to three
regents: Chuck Hassebrook, Kent Schroeder, and Rosemary Skrupa; the cost
was prohibitive for me personally to make more copies) (additional audio
tapes from an April 1999 meeting, phone conversations and other documents
were not provided, however they are available). The information was accumulated
by me during a grievance process I filed against the Director of the Technology
Transfer Office, Dr. Donald Helmuth.
The five month anniversary has now passed on my grievance against Dr.
Helmuth and six weeks have passed since Chancellor Moeser received copies
from the Grievance Appeals Committee and two weeks since the State Ombudsman's
office wrote Chancellor Moeser, and still no response (Exhibit II).
This letter is now being written as an unemployed citizen of the
state of Nebraska, who was now been fired, is direct violation of the
University Policy on retaliation for filing a grievance and possibly, more
importantly, for not going along with the UNL "line." It is my personal
belief that the administration has been "sitting" of my grievance hoping
that I would "go away" and when that did not happen, they fired me to avoid
having to issue a "final" report that what very critical of how Dr. Helmuth
and Dr. Darrell Nelson treated me and my unit during the recent "arbitration
process" between the Corn Card International and the University Technology
Transfer Office (Exhibit III).
What happened to me and Dr. Milford Hanna during the last 11 months
can only be described as grotesque and unless you lived it, as we did,
unbelievable. In the following examples I will illustrate events, although
these events are part of my grievance, they can stand alone as some glaring
examples of unchecked power, or as I referred to it as in my grievance,
"absolute power". Recently our unit was forced to pay the $27,000 for legal
fees on the Corn Card International arbitration. What an irony, the people
responsible go on just as if nothing has happened and the unit I was assigned
to is destroyed financially and attacked to the point that morale is now
nonexistent.
You can ignore evidence, but you cannot ignore the truth. The truth
is, after a two-month review by the Grievance Appeals Committee, myself,
and by association my unit, was vindicated by their report, just as any
reasonable, independent person would have done (Exhibit I).
Here are examples of a few of the areas that one or more university
administrators should be held responsible for their actions:
Example I
On January 20, 1999 Dr. Helmuth initiated a phone conversation with
Mr. William Brown, president of Corn Card International (Mr. Brown taped
recorded that conversation and provided me the copy attached to this letter).
Tape recording a conversation in Nebraska is legal. The subject of the
conversation was regarding Corn Card's license and the delay that was taking
place as a result an intellectual property disagreement with Cargill. Dr.
Helmuth repeatedly assured Mr. Brown that the only delay in allowing Mr.
Brown request to assign his license to another company was an intellectual
property disagreement with Cargill (This was the same thing Dr. Helmuth
told me in December 1999 and Turan Odabasi, in house patent attorney told
me) (Exhibit IV - Audio Tape)(Exhibit XII).
Contrast this with what Dr. Helmuth stated in a meeting I was present
at on January 18, 1999 with other UNL employees and administrators. (That
meeting was taped recorded by me and the last 30-40 minutes are on the
reverse side of the Corn Card Tape). In this meeting he states that the
University is going to break Corn Card's license and that there are three
specific areas that Corn Card had violated the licensing agreement. (In
Dr. Helmuth's deposition you will see that when he was under oath in August
1999, he could not identify any violations made by Corn Card International.
All deposition excerpts are included in the bound volumes provided to:
Chuck Hassebrook, Kent Schroeder, and Rosemary Skrupa).
In other words, Dr. Helmuth "just wanted to" break the Corn Card license
so the Technology Transfer Office could "give/sell" it to someone else.
That was ultimately confirmed during the deposition of Walter O'Farrell
(deposition excerpts not included, I only had the opportunity to read the
deposition) when his deposition was taken in August 1999. Should a UNL
administrator have the right to lie to a UNL employee, or businessman who
licensed UNL technology or anyone else. The people responsible for this
are the ones that should be dismissed; other Universities of Nebraska employees
have been dismissed for a less egregious act.
* * *
Example II
What concerns me even more than being fired is the cavalier attitude
that seems to exist at the University about the selective enforcement of
both Regent Policies and University Policies. This example is how the grievance
procedure has worked for me. It was my understanding that when I filed
a grievance with the UNL Ombudsman that confidentiality existed (Bylaws
of the Board of Regents of the University of Nebraska: 2.15; Amended, 42
BRUN 151 (10 Nov. 1978); Amended, 40 BRUN 2 (20 Nov. 1976).
Yet, each time the University Ombudsman came to a conclusion, a letter
with a report of that conclusion was sent to numerous UNL administrators
(Dr. Irvin T Omtvedt, Dr. Marsha Torr, Dr. Melvil Jones, Mr. Bruce Currin,
Dr. Darrell Nelson). I did not authorize this action and unfortunately,
the Ombudsman never sent any information about "my side" to anyone. So
for the last five months, prior to being fired, the only story heard about
what was going on, has been the 1990's "spin" put on Dr. Helmuth's actions
for being proper and appropriate. This "spin story" is the opposite of
the findings (in my favor) after a two-month study by the independent Grievance
Appeals Committee, appointed by the Vice Chancellor for Business (Exhibit
V).
Although the grievance was filed on June 21, 1999, the administration
(Chancellor Moeser) has not issued his report (a least to me) on what he
is going to do (Generally the grievance process appears tp take about two
months). The Grievance Appeals Committee is comprised of a faculty member,
a managerial/professional (this was my employee rank) and a clerical person;
they reviewed all the evidence and issued a report (the due date for my
report was October 11, 1999). Their report supported all my allegations
(copy attached). However, the Chancellor has never acted on this report.
Instead on September 23, 1999, in violation of the retaliation provisions
of the UNL grievance policy, I was placed on paid administrative leave,
pending a hearing. The hearing took place on October 12, 1999 (8:00AM).
I was dismissed on November 12, 1999 and in light of the short time
between these statements and the negative treatment, I find it impossible
not conclude that I have been retaliated against for the exercise of my
rights to file a grievance and to the exercise of my rights under the First
Amendment. These actions seem arbitrary and irrational in light of the
Grievance Appeals Committee's report. There is still with no report by
the Chancellor. The people responsible for this are the ones that should
be dismissed; other University of Nebraska employees have been dismissed
for a less egregious act.
* * *
Example III
Another example is how Dr. Helmuth has convinced other UNL administrators,
i.e. Darrell Nelson and apparently University Counsel Richard Woods, that
intellectual property (patents) belong to the University unless they are
rejected by the University. It is this specific issue, I raised in a letter
to Dr. Darrell Nelson in February 1999. Now I believe this was lighting
a fuse that ultimately I can only describe as a "rain of terror" that was
initiated against me and Dr. Milford A. Hanna (Director of the Industrial
Agricultural Products Center). In the letter I sent to Darrell Nelson,
I raised the question of ownership of a patent by UNL and its potential
impact on arbitration with Corn Card International (Exhibit VI).
Even on August 13, 1999, at the time of Darrell Nelson's deposition
(page 32), he still stated, that all patents were owned by the University
unless they had been rejected. This is not correct according to the information
posted on the Internet regarding intellectual property. What is so bizarre
to me, is that between the time of my February 1999 letter and August 1999,
it would seem reasonable to me that Dr. Darrell Nelson and other UNL administrators
should have read the university policy. And more specifically Dr. Darrell
Nelson (under oath) should not have made a statement, that he should have
to be incorrect, especially in light of how long the policy has been in
existence. How can any administrator(s) justify being in a position of
responsibility and authority and not be aware or/and willing to support
Board of Regent Policies. The people responsible for this are the ones
that should be dismissed; other University of Nebraska employees have been
dismissed for a less egregious act.
* * *
Example IV
Although the administration of intellectual property is well formalized
in Board of Regent Policies, the policy is not being implement with by
Dr. Helmuth. In the following offers of inventions that I have made to
the University, I have never received a written acceptance of any kind
nor have I every seen any documentation on how the royalties would be split,
except for the proposed royalty split I always included in my transmittal
letter with the offer of invention. Based upon my understand of business
law, an offer must be followed by an acceptance.
On March 7, 1997, I and my co-inventors submitted an offer of invention
to the University of Nebraska as provided for in the Board of Regents By-Laws
as provided for under its patent policy. This project was a fast-moving
one in the Spring of 1997, with the pending sale of phone cards to Congressman
Bill Barrett by Corn Card International. I wrote the offer of invention
(March 7th) and a provisional patent disclosure (March 14th)
and Turan Odabasi arranged for it to be filed. At the request of the Technology
Transfer Officer, the inventors (Hanna, Biby and Fang) subsequently executed
an affidavit, under an oath that we were hiring Shook, Hardy and Bacon
L.L.P. as our patent attorney. The provisional patent was converted to
a non provisional patent on March 13, 1998 (The applicants and owners,
the same as the provisional patent).
The only overt action by the University to claim ownership of the technology
was the license it issued to Corn Card International, an electronic copy
was sent to me in October 1997, with no dates or signatures. This was more
than six months after the Offer of Invention in March 1997 .
Although the interpretation of license and assignment agreements is
generally a state law question, there are important federal provisions
that one needs to pay attention to, in particular regarding the recording
of assignments in the Patent and Trademark Office as set forth in 35 U.S.C.
sec. 261, which reads in part as follows:
". . . A certificate of acknowledgment under the hand and official seal
of a person authorized to administer oaths within the United States, .
. . shall be prima facie evidence of the execution of an assignment, grant
or conveyance of a patent or application for patent. An assignment, grant
or conveyance shall be void as against any subsequent purchaser or mortgagee
for a valuable consideration, without notice, unless it is recorded in
the Patent and Trademark Office within three months from its date or prior
to the date of such subsequent purchase or mortgage."
It appears the University did not own the technology at the time it
executed the license with Corn Card International or at anytime prior to
the arbitration legal proceeding that commenced in February 1999, or the
March 1999 document that Don Helmuth executed giving 50 percent any royalties
to Cargill. Additional, because of the coercion, that I and the inventors
were under, when we finally execute the assignment in April 1999, I doubt
if the execution is valid because of coercion and duress.
If you request the following information from the Technology Transfer
Office you will immediately see the differences between the time of the
offer of invention and the activities of the Technology Transfer Office
. The following are five patents where I am co-inventor and two of an acquaintance
no longer at the University. Suggested information to request:
Date patent disclosure was filed
Date of receipt of patent disclosure at Technology Transfer Office
Date of notice of acceptance of patent disclosure as required by Board
of Regents Bylaws (My understanding is that this must be a written acceptance
because of the Statute of Frauds or something like that; I am making this
assumption because the cost of patenting is over $6,000 and unless the
patent was worth at least that much, there would be no purpose to filing
the patent).
Date of provisional patent application (if any)
Date of formal patent application
Date of assignment to University
Agreement on split of patent royalties between University and inventor(s)
Date patent/technology was licensed (if any license has been granted)
If licensed, who was the procuring cause for the license?
Title Inventor(s) Status
Vegetable Oil Lubricant
Hanna, et. al. At attorney,
filing being prepared
Foam Pack Material
Hanna, et. al. OTT Investigating
patentability
Loose fill packaging
Hanna, et. al. Provisional
Application filed 5/7/98
Microcrystalline Cellulose
Hanna, et. al.
Filed, waiting for PTO response
Soft Touch co-polymer
Hanna, et. al. First office
action received, responding
Biodegradable mulches
Hanna, et. al. Filed 11/17/98,
waiting for PTO response
Levulinic Acid production
Hanna, et. al. Issued 1/12/99
#5,859,263
This information should allow you to see just how intellectual property
is administered at the University in Lincoln. I have never received any
kind of written acceptance, nor received anything confirming a split on
royalties. In fact, several of these provisional patents and patents, were
submitted by the university more than 6 months after my offer. It was as
a result of the conflict with Corn Card International that I became aware
of the difference between what administrators were telling me and what
the Regents' policy stated. The people responsible for this are the ones
that should be dismissed; other University of Nebraska employees have been
dismissed for a less egregious act.
* * *
Example V
On June 3rd and June 4th 1999, Dr. Helmuth, supported
by Richard Wood, Darrell Nelson and the Director of UNL police instituted
a foray into my office, using personal from the UNL police department to
search my files and computer. This entire incident, that took place over
a two-day period, was video taped by me. The humiliation and anger I feel
prevents me from going into the sordid details of what went on, when you
watch the tape, tell me how you would feel? Oh, by the way, what they did
was in direct violation of both UNL policy and numerous state and federal
laws on privacy. This was all done under the guise of getting information
for the Corn Card arbitration. Everything copied off my computer was turned
over to the off campus counsel for UNL and NEVER given to Corn Card. Not
one part of it (Exhibit VII - Video Tape).
This was nothing more than an attempted to try and find something on
my computer that could be used to impeach or discredit me or even discover
criminal activity. You ask why, because I was the only one that had documentation
regarding the Corn Card International and University's relationship that
was willing to make an up-front initial stand. (Also, no other personal
at UNL associated with this arbitration case had their files search by
people from UNL internal audit or a computer search by the police, why
was I singled out? It was not until Turan Odabasi's deposition, when he
recanted the statements he had been making for 8 months, that someone from
the Technology Transfer Office confirm what I was saying from day one.
Up until the depositions, everyone was told that I was "the bad guy" who
responsible for the problems between the Technology Transfer Office and
Corn Card International. The people responsible for this are the ones that
should be dismissed; other University of Nebraska employees have been dismissed
for a less egregious act.
* * *
Example VI
On September 23, 1999, at about 3:00PM, Dr. Nelson served me with a
letter immediately putting me on administrative leave pending a hearing.
I protested being placed on administrative leave and protest of the violation
of the grievance policy against retribution. I asked for justification,
support and documentation for the allegations. Instead I received a copy
of Executive Memorandum 14, an copy of an email from William Brown and
little else. (The email between myself and Dr. Nelson are attached). Bruce
Currin is mentioned by Dr. Nelson as being part of this process, he was
also being sent copies of all the documents issued by the University's
Ombudsman's Office regarding my grievance against Donald Helmuth. I prepared
a 150+ pages bound volume to refute the allegations and a cover letter,
answering each allegation. I believe even at this time that reason and
truth would prevail. Yet it did not. The people responsible for this are
the ones that should be dismissed; other University of Nebraska employees
have been dismissed for a less egregious act.
* * *
Unit Background
The unit I worked for is the Industrial Agricultural Products Center.
It was created by the Board of Regents in 1988, when the state was experiencing
the same hard times in agriculture. The unit receives minimal support from
UNL, no support from the State of Nebraska or the Federal Government. It
is essentially self-support. Typically we respond to requests from business,
or proposals from organizations like the Corn Board, for specific targeted
projects that will lead to the commercialization of Nebraska grown commodities.
During the last three years developed we created a business model that
has resulted in successes. (Exhibit VIII). I believe the Industrial Agricultural
Products Center was possibly the most successful unit that UNL had on the
East Campus for innovation and commercialization of new uses for agricultural
commodities (Exhibit IX)(Exhibit X)(Exhibit XI).
As a result of the activities of Dr. Donald Helmuth, Director of the
Technology Transfer Office and others the unit has effectively been destroy
during the last 11 months. The reasons are elusive, however, I believe
that the unit was becoming too successful and was making the Technology
Transfer Office "look bad." However, there are other reason that are certainly
more specific to what has happened to the IAPC and myself during the 1999
that are evident in the information attached to and accompanying this letter.
The Issues Background
The way technology has been handled for the last 4+ years at the UNL
Technology Transfer Office, is not a new topic to UNL administrators. Our
unit, began in 1995, writing memo's and letters about problems with the
Technology Transfer Office, citing specific incidents and results. We also
wrote letters to UNL administrator when they did something "good."
There now appears to be a culture at UNL, at least in the context as
it relates to Dr. Helmuth's activities, that he can do no wrong. The cliche
is, "Don't tell me the facts, I already have my mind made up" appears to
be what is now happening.
I believed in April 1999, in a memo to my immediate supervisor, Dr.
Milford Hanna, that I would be unemployed within six months for making
waves. It is sad to be right. Yet, I cannot work in an institution where
ethics, morals and integrity are expendable.. Based upon what has happened
to people I know who have had an experience with the Technology Transfer
Office, I can only say it is being badly mismanaged to be kind.
Will writing you get my job back (I doubt it). The administration at
UNL is not going to do anything unless they are forced to act. You, the
Board of Regents, are my last aattempt doing this "quietly." I can go to
the media and with the evidence I have, the video tape and numerous audio
tapes and documents, create a very unfavorable environment for the University
and the Board of Regents. But I do not want to hurt all the fine people
that work hard at the university or soil its reputation.
It will take someone with dedication and power to effect the changes
needed to alter what I am now beginning to believe may be an administrative
culture that goes beyond the Technology Transfer Office. They know how
to the circle the wagons quickly and defend each other. Do you have the
power and resolve to deal with these areas cited in the examples?
You have a meeting scheduled on December 11th.. I would like
to hear from you and what, if anything that will be done by morning of
December 16, 1999.
Sincerely,
Gerald Biby
xc: Governor Mike Johanns
Senator Dennis
M. Byars
Deputy Ombudsman
Terry Ford
Attachments: Audio Tape, Video Tape, Documents
Grievance Against Dr. Donald Helmuth
Filed June 23, 1999
Grievance dated June 21, 1999 against Dr. Donald Helmuth
Copy of original grievance filed with
University of Nebraska Ombudsman
Attachment: Memo to Dr. Darrell
Nelson February 18, 1999
Attachment: Letter to Dr. Darrell Nelson,
June 7, 1999
|
|
