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November 22, 1999

Gerald Biby
509 Shugart Street
Beatrice, NE 68310
Phone: (402) 223-0100

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:

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.


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