Affidavit Of Gerald Biby Corncard Incident University of Nebraska Nelson Helmuth

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

GERALD BIBY, ) Case No. 4:03 CV 3206.

)

Plaintiff, )

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vs. ) AFFIDAVIT OF GERALD BIBY

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BOARD OF REGENTS OF THE )

UNIVERSITY OF NEBRASKA AT )

LINCOLN, DARRELL W. NELSON, )

DONALD HELMUTH, and JOHN DOES )

1-10 in their Individual and Official )

Capacities, )

)

Defendants. )

STATE OF NEBRASKA )

) ss.

COUNTY OF LANCASTER )

Gerald Biby, being first duly sworn upon oath, deposes and states as follows:

1. I am the Plaintiff named in the above-entitled matter and I am aware that this Affidavit will be used in support my opposition to Defendants’ Motion For Summary Judgment.

2. I was hired by the University of Nebraska on October 1,1993, as a Technical Assistant’s Coordinator for the Industrial Agricultural Products Center (hereinafter “IAPC” or “Center”). I maintained an office on the University’s premises and did not share my office, computer or filing space with any other University employee. I maintained a key to my office.

3. The University of Nebraska’s Board of Regents approved the IAPC on May 6, 1998. The IAPC was established because of strong encouragement and support from several commodity groups and industry and government leaders. One of the primary program components for the IAPC was the Technology and Information Transfer Program. The Program was established to transfer the Center’s product ideas and practices into the private sector. The Program was to serve as an information clearinghouse on new agricultural product development. Another primary program component was a marketing analysis program established to decide market potential and develop marketing strategies for new products and processes.

4. The Director of the Center, Milford Hanna, was my direct supervisor. The Center also had an advisory board consisting of representatives from the public and private sector, both in and out of the University system.

5. Upon my hire in October 1993, the mandate from Dr. Hanna was for me to do commercialization and transfer of technology to business and industry. This mandate had been continuously and consistently reinforced by the actions of the University from the time I was employed through January 1999. My duties consisted of acting as an interface between companies and the IAPC in identifying applied research opportunities and the preliminary negotiating the aspects of accomplishing the marketing of new products, I carried out these duties until January 1999.

6. After beginning my employment at the University several events relating to the University of Nebraska-Lincoln Office of Technology Transfer happened. In approximately January 1994 Donald Helmuth was hired as Director and I believe held the official title or Associate Vice Chancellor for Research. At the time he was hired, to the best of my knowledge the Technology Transfer Office had no support employees. I believe the first employees hired were in 1997. One of these employees was Turan Odabasi hired as the Patent Attorney in the Office of Technology Transfer. An announcement about his hiring was posted on the University’s research website and is identified as Exhibit 2. I believe that Walter O’Farrell was hired around July 1, 1998. According to the research website, on May 5, 1999, the following people were listed as employees of Donald Helmuth at the Office of Technology Transfer: Turan Odabasi, Walter O’Farrell, Ronald Veys, Stephen Frayser and Matt Catlett an intern. (Exhibit 3). Throughout the relevant time period, Turan Odabasi (Odabasi), was the Technology Transfer Offices in-house attorney. Odabasi was the IAPC contact with the Technology Transfer Office. Odabasi was my contact in regard to all commercialization and technology transfer projects, including the development of the Corn Card project. Odabasi reported directly to Donald Helmuth.

7. The procedure for offering Intellectual Property, in accordance with University policies and by-laws at the time period relevant to this lawsuit, was that once technology was developed to a level of satisfaction by its developers, the discovery or invention was to be “offered to the University in writing”. “If the University accepts the offer within six months, it shall pursue the patent application with the help of the inventor at no cost to the latter”. (Defendants’ Exhibit 2.1, Patent Policy)

8. While I was employed at the IAPC, I was involved in a number of research projects that resulted in offers of Intellectual Property and/or technology licensing agreements that had the potential of generating income to the IAPC. The income was a necessary and integral part of the continuation of the center because it is not a part of the University line-item budget and was mostly dependent on money earned from contracts, grants and profits of marketed products.

9. One project I was engaged in at the IAPC, was horticultural applications for polylactic acid (hereinafter “PLA”). I worked with Milford Hanna and Qi Fang on the PLA project. In 1996, a gentleman named Bill Brown contacted the IAPC. Mr. Brown was the principal stockholder and agent of Corn Card International. Mr. Brown was interested in talking to us about his concept of biodegradable printable plastics, specifically, creating a biodegradable phone card made from corn-based products and utilizing the PLA technology. This concept was pursued with the full knowledge of Donald Helmuth (Helmuth), Darrell Nelson (Nelson) and the Nebraska Corn Utilization and Marketing Board (Corn Board).

10. An offer of invention for Soft Touch II technology, utilizing the PLA research, was made to the University on March 7, 1997. A true and correct copy of that document is attached as Exhibit 10. The Corn Card project was fast moving, and we (Biby, Hanna and Fang) were concerned for the loss of patent protection for the intellectual property, so I wrote the offer of invention and a provisional patent disclosure and Turan Odabasi arranged for it to be filed. As inventors, we (Hanna, Biby and Fang) executed an affidavit, under an oath that we were hiring Shook, Hardy and Bacon L.L.P. as our patent attorney. We received the acknowledgment receipt from the Patent and Trademark Office specifically identifying the Hanna, Biby and Fang as the owners of the nonprovisional patent. A true and correct copy of the filing receipt is identified as Exhibit 5. I have never seen anything that I can construe as an acceptance by the University of the offer of invention pursuant to the University’s patent policies (Defendants’ Exhibit 2.1) and I notified Dr. Nelson of that fact by memo dated February 18, 1999. A true and correct copy of that memo is identified as Exhibit 6.

11. Two years later, around the middle of April 1999, long after it was apparent the University intended to break its agreement with Corn Card, Dr. Hanna informed me we had been instructed to immediately execute and assign the Soft Touch II patent and all other patents to the University. Because of the intimidation and coercion exercised over the past four months, we signed the documents to assign ownership to the University on the Soft Touch II and other patents. Prior to this time, the University did not timely elect to accept any of our offers of inventions in accordance with its policies, and there had never appeared to be any consideration of a patent assignment to the University.

12. On July 28, 1997, a Technology Licensing Agreement was entered into between the University of Nebraska and Corn Card International. The Technology Licensing Agreement encompassed the use of the technology developed and offered by myself, Dr. Hanna and Mr. Fang to the University. In March 1997, the licensing agreement allowed Corn Card to utilize and market the technology relating to the production of certain biodegradable polymers as developed by myself, Dr. Hanna and Mr. Fang. In the Technology Licensing Agreement (Defendants’ Exhibit 1.2), the University represented that it owned this technology, and was therefore free to enter into the agreement with Corn Card International. At the time the agreement was entered into, myself, Hanna and Fang were the registered legal owners at the U.S. Patent and Trademark Office . I never saw the actual Technology Licensing Agreement until approximately September or October of 1997. Based on what I knew, the University’s representation that it owned the technology was false.

13. My understanding of the agreement was that we were to provide Corn Card with recommendations on biodegradable materials that could be used for printable plastics, including the combination of PLA and Soft Touch II resin. We were to provide Corn Card with access to the Soft Touch II technology, as well as continue to monitor what other degradable materials might be available. Those of us involved in this project at the IAPC worked with Mr. Brown and Corn Card representatives in this capacity until approximately January 1999, which included the negotiation of the assignment of rights outside of North America.

14. On April 17, 1998, Milford Hanna sent a letter with an attachment to the Department of Human Resources for the University in regard to a reclassification of my job position. A true and correct copy of that memo and the attachment is identified as Exhibit 7. Attached to the cover memo is Dr. Hanna’s outline of what has taken place at the IAPC and its succession to the creation of this entity. Dr. Hanna’s attachment appropriately outlines what I had accomplished in my individual capacity at the IAPC since the time of my hire. The reclassification was approved by Putney, Senior Human Resources Facilitator with copies to Alan Moeller, Vice Chancellor Institute of Agriculture & Natural Resources (Darrell Nelson’s unit supervisor) by University Human Resources on June 18, 1998 and date stamped June 30, 1998. My position title in the Putney letter also was changed to Technical Transfer Coordinator, title coded 96040. My reclassification was signed off by Darrell Nelson, Milford Hanna and Alan Moeller. Throughout all of the projects set forth in Dr. Hanna’s justification for request of reclassification, I had continuous and consistently been an integral part of negotiating the terms and conditions for the agreement of the marketed technology set forth therein. At no time since my hire at the University had my role as a negotiator of marketing ever been questioned. Not only did I develop technology but I was an integral part of making these marketable products came to their fruition.

15. During the development of the Soft Touch II technology, the IAPC had received funding from both the Corn Board, and later received $25,000.00 from the National Corn Growers Association to prove the concept that you can make plastic products out of PLA with our technology and additive. From there, we worked very closely with Corn Card in developing a marketable technology. In the fall of 1997, I went to Miami, Florida to a major phone card trade show and Corn Card had an exhibit. I was not part of the exhibit process with them, however they paid the expenses for the trip so I could do a presentation of the use of degradable polymers in the card industry. During 1998, I was in contact with Corn Card at least once a day via phone, e-mail, or perhaps in person. The Miami, Florida trade show led to an article that I wrote that was published by the International Card Manufacturers Association in their January/February 1998 Card Manufacturing magazine. This pushed degradable polymers as a phone card or credit/smart card-printing medium into the international spotlight. An e-mail from Bill Brown of February 24, 1998, inquired about and made reference to an Italian company that manufactured 200 million cards a years that was interested in the Corn Card biodegradable cards. A true and correct copy of that e-mail is identified as Exhibit 8.

16. As a result of the interest generated at the phone card conference expressed by card manufacturers, Corn Card initiate with me discussions to expand its territory beyond North America. In early January 1998, this information was shared with Turan Odabasi and I was told by him that the University would extend Corn Card’s license on a country-by-country basis. Based on the representations made to me by the Office of Technology Transfer, a letter was sent to Corn Card on January 16, 1998, telling Bill Brown of the decision. A true and correct copy of that letter is identified as Exhibit 9.

17. At some point in mid-1998, discussions arose between Corn Card and a company called Gemplus. Gemplus is one of the largest manufacturers of card for the use by the card industry in the world.

18. In August 1998, Turan Odabasi, Walter O’Farrell and I had a meeting in regard to Gemplus becoming a part of the Corn Card project. I stated it would be profitable for Corn Card to sell its rights to Gemplus to broaden the commercial use and marketing of the technology. There was no opposition or concern expressed about this plan by Mr. O’Farrell or Mr. Odabasi. As a result of that meeting, Dr. Hanna had me follow our usual protocol and sent information to Gemplus regarding their questions about the specific aspects of the technology.

19. On October 15, 1998, Gemplus and Corn Card issued a joint news release regarding the demonstration of biodegradable cards at the International Card Manufacturers Association meeting in San Francisco. It stated that Corn Card had signed a letter of intent with Gemplus to allow them the exclusive distribution of biodegradable cards in North America and possibly, worldwide.

20. Between October 17 and 21, 1998, the IAPC sent Qui Fang and I to San Francisco to attend the International Card Manufacturing annual meeting. At the meeting Corn Card, and Digicard of Vienna, Austria, submitted a sample biodegradable smart card made from our (Biby, Hanna, Fang) pending patent to the association annual technical merit award program. While we were there, Gemplus flew in people to meet with myself, Mr. Fang and Bill Brown to discuss the rights to use the resin polymers developed at the IAPC. A memorandum was drafted by the Gemplus attorney outlining the necessary steps to accomplish prior to Gemplus acquiring a portion of Corn Card’s license. This memorandum was forwarded by me upon my return to Nebraska on October 27, 1998 to Turan Odabasi. (Exhibit 10).

21. In early December 1998, Bill Brown requested a formal assignment of the card portion of his rights under the Technology Licensing Agreement to Gemplus, and to expand the marketing territory worldwide. I contacted Donald Helmuth by telephone and email regarding the need for finalization of Corn Card’s request to the assignment with an explanation that it was necessary to more forward. Donald Helmuth had no problem with the assignment or the expansion but wanted Gemplus to sign its own Technology Research Agreement.

22. On December 16, 1998. Donald Helmuth said in a phone call to me that he would not move forward until he saw and signed the Gemplus agreement. Accordingly on December 16, 1998, I sent him a memo with the information he requested. (Exhibit 11). Next, I sent an email to Bill Brown and it stated: “Helmuth does not want to sign your agreement until Gemplus has signed R & D agreement with us.” The statement by Helmuth, said directly to me in a telephone conversation, meant that the University would do the license transfer, subject to Gemplus doing a research agreement. Gemplus had previously agreed to a research agreement, so I told Gemplus that the University was moving forward and that the IAPC would continue to honor its commitments.

23. On January 11, 1999, I sent a memo to Donald Helmuth requesting that he review and approve the Gemplus and Corn Card agreements. Included in the memo was information clarifying that fact that the Odabasi, Vanderholm and Omtvedt had knowledge of the IAPC work with Gemplus and Corn Card on or before October 15, 1998, and that since his office did not contact me or the IAPC regarding becoming involved that we continued to work on this project the same way that had occurred throughout my tenure of employment. (Exhibit 12).

24. In early January 1999, I e-mailed Turan Odabasi a proposed research agreement for Gemplus. Up to this point, there had been no indication whatsoever from Donald Helmuth, Darrell Nelson, Turan Odabasi, or anyone else to myself, Hanna or Corn Card that there were any problems or resistance to Gemplus being assigned a portion of Corn Card’s rights’ to the technology or to Corn Card expanding its territory beyond North America. Odabasi’s response was that since the “trouble” in December of 1998 that he would not move on the Gemplus agreement until Helmuth, Nelson or someone in a position of authority told him to do so. I was completely unaware of what “trouble” Mr. Odabasi was referring to.

25. As a result of my concern about the contradictory communications I had become aware of, in January of 1999, I began recording most meetings with Helmuth and Nelson. In mid-January 1999, I recorded a meeting involving Darrell Nelson, Donald Helmuth, Milford Hanna, Turan Odabasi, Walter O’Farrell, myself and others in which Mr. O’Farrell stated that he wanted to give the card manufacturing to First Data Resources in Omaha. Mr. O’Farrell stated that they were willing to print 50,000 cards. This proposal was not worth consideration since Gemplus already had been contacted by one of its customers, Deutsche Telecom, with a request to print between 100,000 and 1,000,000 cards (a copy of this information had been forwarded to Turan Odabasi on January 8, 1999). It was extremely apparent that the Gemplus’ offer would have been far more lucrative and sensible for the University. Suddenly, Turan Odabasi and Donald Helmuth claimed that they had never spoken to me or anyone else regarding the Gemplus licensing or the expansion of territory by Corn Card to include areas beyond North America, and that they were going to cancel Corn Card’s agreement for breach of contract. From this moment on it was my belief that the University, acting through Donald Helmuth, Darrell Nelson, Turan Odabasi, and Walter O’Farrell, intended to breach the licensing agreement with Corn Card and would lie about their involvement in the project. The position that these individuals held in the past had completely reversed, and they began to deny having made previous commitments to Corn Card, and disavowed the commercialization and technology transfer protocol that the IAPC had been using for the past five years as being “not authorized.” I openly expressed my concern about Dr. Helmuth's position and reiterated that there had been both frequent and repeated contact with Turan Odabasi dating back to January 1998 regarding the expansion of the territory and the pending assignment to Gemplus in September 1998.

26. From this point on, the work environment for Milford Hanna and me became increasingly hostile. I believe this hostility was a direct result of Dr. Helmuth and Dr. Nelson’s realization that I was not going to support their position regarding the breach of the agreement with Corn Card. During and after the January 1999 meeting, it was becoming apparent that instead of looking at the information Dr. Hanna and I had, in the form of memos, e-mails, etc., Dr. Helmuth and Dr. Nelson began attacking my commercialization and technology transfer mandate, motives, credibility, professional competence and virtually anything else that could cloud the issues I raised at meetings.

27. In approximately August 1999, during their depositions, Donald Helmuth and Turan Odabasi recanted all of their denials that were made so vehemently in January - July 1999, and agreed that Corn Card did in fact have discussions about expanding the licenses that dated back to January 1998. Further, they admitted knowledge of Gemplus’ request for an assignment of a portion of the Corn Card license. In short, everything that was being denied for the previous ten months by Dr. Helmuth and Dr. Nelson, Dr. Helmuth and Turan Odabasi was finally admitted. All of the admissions were consistent with my statements as to what actually took place. Eventually, the lawsuit brought by Corn Card settled.

28. On January 20, 1999, Bill Brown telephoned me regarding a conversation with Dr. Helmuth that Brown had tape-recorded the previous day. (Exhibit 13). Several days later a taped copy of that conversation was sent by Brown to my home in Beatrice, NE. I have listened to the tape and I recognize the voices of Bill Brown and Dr. Helmuth as those engaged in the conversation contained on the tape. (Exhibit 14). During this conversation, Dr. Helmuth repeatedly made statements that were false. First, Dr. Helmuth related that the ownership of the patent technology belonged to the University. At that time the ownership of the patent technology was still held by myself, Dr. Hann and Mr. Fang. Secondly, Dr. Helmuth repeatedly misrepresented the position with Cargill as to complications caused by their providing the polymer-based resin that allowed us to develop the technology which was the basis for the Technology Licensing Agreement with Corn Card International. Third, Dr. Helmuth repeatedly made false statements in regard to his lack of knowledge as to the negotiations taking place with Gemplus for the manufacturing of Smart Cards worldwide. Dr. Helmuth and the Technology Transfer Office had been constantly and consistently provided with information as to the negotiations involving Gemplus and the marketing of the cards at issue. Fourth, Dr. Helmuth drastically over-stated any complication that may have been caused by Cargill’s position. We had been receiving resin from other sources and I had told Dr. Helmuth this in person on more than one occasion. Fifth, Dr. Helmuth’s use of Dr. Hanna and myself as a scapegoat for the Cargill issue was an apparent attempt to provide reasoning to Mr. Brown for the University’s breach of the Technology Licensing Agreement. Sixth, in Exhibit 14, Dr. Helmuth specifically represented that Walter O’Farrell was a biotechnologist who was qualified to engage in the negotiations with Cargill Industries in regard to the issue that had arisen about providing the resin which was the basis for the PLA technology. Mr. O’Farrell is not a biotechnologist. Seventh, during the conversation set forth in Exhibit 14, Dr. Helmuth affirmatively represented to Bill Brown that no legal representation had been retained to determine whether the University could somehow not honor its Technology Licensing Agreement with Corn Card International. It was then that I begin to have greatly increased concerns about the integrity and ethics of Dr. Helmuth.

29. On or about February 2, 1999, I was cc’d a copy of a letter sent to Donald Helmuth by Jefferson Downing, an attorney hired by Corn Card to represent them regarding Corn Card’s pending legal action against the University for breach of contract. (Exhibit 15). The IAPC was instructed to turn over all documents regarding Corn Card for the University’s legal counsel to review. Dr. Hanna and I complied with this request and turned over 900+ pages of information in mid March of 1999. On March 5, 1999, Donald Helmuth sent a memo stating, “Attached is all the information regarding Corn Card, Gemplus and card related work that we have found at this time. A total of 975 pages have been copied and are included.” (Exhibit 16).

30. On February 18, 1999, I sent a memo to Darrell Nelson stating I believed that there was evidence of gross mismanagement in the conduct of the Technology Transfer Office at the University of Nebraska and its failure to follow Nebraska Board of Regent Policies regarding the timely acceptance of the invention licenses to Corn Card. (Exhibit 6). In that memo to Darrell Nelson, I requested a meeting without Dr. Helmuth to discuss the potential problems with the ownership of the technology. No meeting was ever scheduled by Dr. Nelson and nothing happened. The memo to Dr. Nelson on February 18, 1999, stated my concerns over the Corn Card contract. The memo also stated that the mission and purpose of the IAPC was to do commercialization and technology transfers and included a listing of more than six current IAPC negotiated agreements, all accepted and signed by Donald Helmuth. I never signed agreements for the University as alleged, I negotiated and then sent them to Turan Odabasi. Dr. Helmuth and Mr. Odabasi then finalized the agreements, made changes in verbiage or royalty rates and then Dr. Helmuth signed and returned them via Mr. Odabasi to the client, or back to me to return to the client.

31. On April 23, 1999, a meeting was held between Darrell Nelson, Dr. Vanderholm, Milford Hanna and me. In essence, the meeting consisted of Darrell Nelson’s denial of knowledge or contact in regard to the negotiations for Corn Card to expand its market internationally and to work through Gemplus. I confronted Dr. Nelson about his statements, telling him that they were lies. Milford Hanna reminded Dr. Nelson that it was common practice and routine for us at the IAPC to conduct negotiations on marketing of our technical inventions. Further, I reminded Dr. Nelson repeatedly that I had documentation and other forms of verification that all of this information had been provided to Mr. Odabasi on a regular and routine basis. I also reminded Dr. Nelson that I provided Dr. Helmuth with a mass of information about the project.

32. On April 29, 1999, I e-mailed Mike McKnight, investigative reporter with WOWT in Omaha. This was a follow-up to a telephone call that I initiated as a result of the April 23, 1999 meeting. In the e-mail I outline what is going on with the intellectual property at the University. Ultimately Mr. McKnight wanted to do a television interview but being concerned about retaliation I declined and the matter was dropped by him.

33. On June 2, 1999, Donald Helmuth telephoned my office and told me that he was sending a computer person over to look through my files. He told me that, per University policy, I needed to sign a consent to search my files and computer in the presence of an officer. He kept assuring me this was routine and merely policy. I asked him to fax me that policy. At 7:30 a.m. the next morning, he sent me a five-page fax of Executive Memoranda No.19 regarding Technology and Networks. There was nothing there about signing a consent in front of an officer but it did set forth the privacy policy that I relied upon in making my decision not to consent to a search. (Exhibit 17). Later in the morning on June the 3, 1999, my office was entered by two members of the University Police Department and an Operation’s Analyst to search my paper files and computer records. I declined to sign the authorization to allow the search. By this point in time there was no doubt in my mind that Dr. Helmuth, Dr. Nelson and probably others were on a “fishing trip” hoping to find something major to discredit me or just fire me for disobeying a direct order. I videotaped the entire sequence of events on June 3, 1999, and a portion of it on June 4, 1999, until the tape ran out. (Defendants’ Exhibit 5.1). On June 4, 1999, University employees returned and searched my computer stating that they did not need a sign authorization because it was university property.

34. The privacy policy offered by Defendants as Exhibit 2.1 is a document I have never seen until my attorney presented it to me as part of the Defendants’ Motion For Summary Judgment.

35. In the afternoon of June 3, 1999, after I declined to consent to a search, I was called into a meeting with Darrell Nelson, Donald Helmuth and Milford Hanna. Dr. Nelson was extremely angry about my having denied access to my computer. At that time, I expressed that I wanted assurance that the search of my computer would be limited to files relevant to Corn Card. I was assured that no police personnel would return. Dr. Nelson gave me a letter directing me to allow the search. A true and correct copy of that letter is identified as Exhibit 18.

36. However, on June 4, 1999, the one of the same people came back to my office and was accompanied by a uniformed, armed officer I was told he had been instructed that no authorization to search my computer was needed and that the parameters of the search were unbridled. At this point, I felt I no longer had a choice about the search taking place. I never consented to the search but I was aware and concerned that the University would simply terminate me on the spot if I did not provide access to my computer. Also, I had been falsely accused of wrongdoing and criminal behavior at the April 23, 1999 meeting. Therefore, I entered my password into the computer allowing the University police officer to gain access. The University officer used an extremely broad search method in gathering information. He e-mailed everything he brought up to an outside address, including my personal e-mails and other electronic documents, even those between my parents and me. He copied most, if not all my e-mail. My software automatically saved a copy of all mail sent, and at my discretion, e-mail received. He copied and sent all my e-mail to his e-mail address. I estimated that it was approximately 1.7 megabytes (approximately 1,500 pages) of e-mail. A brief summary is attached as Exhibit 19. This meant that he copied the e-mail from almost everyone that I have received e-mail from or sent e-mail to regarding the IAPC during the past 18 months to his computer, and it included confidential information about both our research with individuals and companies that have executed non-disclosure/confidentiality agreements with us. He was intent on copying it and not selecting out Corn Card International related information.

37. After the tape ran out but while the search was still going on, I asked the University police technician who else’s computer was being searched? He told me mine was the only one. This increased my concerns about retaliation greatly. During the computer search, as a result of the increasing apparent deceit on the part of the University, as well as the assorted accusations that had been made against me, I began to feel physically ill. I left and went outside to get some fresh air. I was accompanied by the uniformed, armed officer. After a time, I returned to my office where the plain-clothes officer was still conducting the search. If I made the statement “take it all” as stated by Officer Spulak in his Affidavit, it was made in a sense of frustration and defeat. At the time the search was being conducted, I was worried I would be terminated and escorted off the property immediately. I left the University before the search was completed and while driving home I became physically ill and vomited twice.

38. On June 7, 1999, I wrote a five-page letter to Dr. Nelson protesting the computer search and the pernicious assault against me. I believe the search was done by Dr. Helmuth to protect himself from the discovery of the consent his office gave to allow Corn Card International to amend its contract so it could be assigned to Gemplus, and to enter into a 2-phase research contract with Gemplus. Also included was an expression of my emotional and physical stress that this treatment was placing on me. I true and correct copy of that letter is identified as Exhibit 20.

39. I filed a grievance in accordance with the University’s Grievance Procedure regarding the unauthorized search of my computer. My grievance covered the following areas:

a. Violation of Privacy Policy in Executive Memorandum No.16

b. Inappropriate handling or release of confidential or other information not authorized for release including, but not limited to client information and personnel information improperly copied from my computer

c. Threats or acts that affect or are perceived to affect the safety, health, or well-being of another person

d. Failure to maintain satisfactory working relationships with students, the public, other employees, or supervisors

e. Behavior not in the best interest of the University

f. Violations of other policies, procedures, memorandums that I am unaware of at this time.

In the grievance I stated that my understanding of the privacy policy was that the University cannot search or monitor individual’s generated electronic information with out probable cause or without a written authorization. A true and correct copy of that grievance is identified as Exhibit 21.

40. After thinking about the incidents that had taken place over the last 6 months or so, I believed that Dr. Helmuth had targeted me because I possessed information regarding the activities between Corn Card and the University and that what I knew and the information I possessed would demonstrate that Dr. Helmuth’s Research and Technology Transfer Office failed to honor statements made to me, Corn Card and possibly others. The grievance committee supported my belief and determined that the University’s actions violated the University’s policy and procedure and my grievance was valid.

41. Also as a result of my concerns about the University’s deceit and possible unlawful actions in regard to the litigation with Corn Card, I wrote letters to Terry Ford at the Nebraska State Ombudsman’s Office and later Senator Dennis Byars’ office of the Nebraska Unicameral regarding the computer search and the break down in the University policy on Intellectual Property Ownership.

42. In July or August 1999, during the litigation with Corn Card, I became aware of the fact that tape-recorded information I had provided to the University that was relevant to the Corn Card litigation had not in fact been provided to Corn Card. I communicated with Jack McConnaha, a Corn Card stockholder that I would like to meet with him; at the meeting I provided copies of six tape recordings that I had previously provided to the University that I believed were relevant to the Corn Card litigation that had never been provided to Corn Card by the University. Previously, I was assured that they would be provided, once the University had an opportunity to listen to the tape recordings. None of the recordings involved communication with legal counsel. Additionally, as provided for under the University Grievance policy, I exercised my right to remove the Donald Helmuth grievance from its confidentiality limitation because it was now apparent to me that the veil of confidentiality was not being observed by the University based on the number of University administrators that were routinely being sent copies of my grievance activity against Donald Helmuth. A copy of the grievance, excluding support documents and information was provided to Mr. McConnaha.

43. On August 26, 1999, I sent an e-mail to Unicameral Senator Dennis Byars requesting him to initiate an investigation on the handing of intellectual property at the University of Nebraska. The e-mail specially requested that my e-mail be keep confidential to “avoid additional retribution against me here at the university.

44. In August or September 1999, the litigation with Corn Card resulted in a settlement with the University. On September 23, 1999, a letter was hand delivered to me by Darrell Nelson placing me on administrative leave. In it he said he was considering corrective action “up to and including dismissal" and that he had scheduled a meeting on October 1, 1999, at 2:00 p.m. to accomplish this objective.

45. I e-mailed and hand delivered a letter to Dr. Nelson requesting documentation supporting his accusations against me. On September 27, 1999, I received an e-mail from Darrell Nelson stating that “we will provide the documents that you requested” and that they would not be available until after October 4, 1999. He further stated that after providing me with the documents, “you will have at least 7 days to prepare a response to my letter.” A true and correct copy of that e-mail is identified as Exhibit 22. Unfortunately, no documents or information to support the accusations were ever provided to me by either Darrell Nelson or anyone else. Evidently the University can unilaterally decide not to observe its own criteria for the hearing and not provide anything but a “bare accusation” to alleged charges. It seemed to me that as a managerial professional employee at a state agency I should be entitled to have them follow the process that they defined. The decision to single me out for a “corrective action hearing, seemed arbitrary to me.

46. My performance evaluation for the time period prior to my termination ranked me Excellent or Outstanding, including the one in March of 1999. A true and correct copy of that evaluation is identified as Exhibit 23. I believe I was fired for being a “whistle blower.”

47. The corrective action hearing was scheduled by Dr. Nelson for October 12, 1999, at 9:00 a.m. I was told by Dr. Nelson that I could not have anyone at the meeting to represent me. Once the meeting began, Currin told me that I could not tape record the meeting. The corrective action hearing began though they never provided any documents or policies regarding the accusations made in Darrell Nelson’s Corrective Action Letter of September 23, 1999. I provided them a typed statement. I outlined what had happened during the proceeding 10 months and my belief that the tactics used by the University were untruthful.

48. On October 12, 1999, to document the meeting, I sent an e-mail to Jeff Downing, Corn Card’s attorney, and the Nebraska State Ombudsman’s Office regarding the contents of the meeting, including telling that I informed Dr. Nelson that on October 6, 1999, I had a meeting with the Nebraska State Ombudsman’s office and provided them with a copy of almost all of my information and requested their intervention.

49. On November 9, 1999, I again contact Unicameral Senator Dennis Byars regarding my concerns over the way intellectual property was being handled by Donald Helmuth at the Technology Transfer Office.

50. On approximately November 12, 1999, I received a letter from Darrell Nelson stating that I was being dismissed for cause. A true and correct copy of that letter is identified as Exhibit 24. The cause of the termination was representing myself without authorization to third parties as having the authority to contractually obligate the University and failure to comply with a lawful and reasonable directive from the University. (Exhibit 24). I did the preliminary negotiations and every company or client I worked with was aware that the Technology Transfer Office needed to sign the contract. I never signed any contracts. Donald Helmuth signed all contracts for commercialization and technology transfer. I never signed a contract with Corn Card, I only negotiated the preliminary terms. This is the same thing I did with Gemplus and every other company or client I worked with while at the IAPC.

51. On November 18, 1999, I sent to a letter to Governor Mike Johanns, along with a significant number of documents and videotape.

52. On November 22, 1999, I sent a seven-page letter and approximately 170 pages of documentation to the Nebraska Board of Regents asking for their intervention in the way intellectual property was being handled at the University, and the selective enforcement of Regent Policies and University Policies.

53. On December 16, 1999, I filed a grievance with Suzanne Drew at the University against Darrell Nelson and others with copies to: Deputy Nebraska State Ombudsman Terry Ford, Unicameral Senator Dennis Byars, and my previous immediate supervisor Dr. Milford A. Hanna. The grievance alleged:

a. Violation of the University Grievance policy (retaliation).

b. Violation of Due Process in the hearing process (failure to provide

documentation, requested by me prior to the hearing, that Dr. Nelson

agreed to provide (in writing) so I could prepare a rebuttal (defense)

of the alleged accusations.

c. Violations of the First Amendment, Fourth Amendment and Fourteen

Amendment of the Constitution of the United States of American and

similar protections afforded citizens of the state of Nebraska.

d. Violation of Privacy Policy in Executive Memorandum No 16 (by being

a party to the unauthorized search of my computer on June 4, 1999).

e. Inappropriate handling or release of confidential or other information

not authorized for release including, but not limited to client information

and personnel information improperly copied from my computer (by being

a party to the unauthorized search of my computer on June 4, 1999).

f. The failure of Dr. Nelson to recognizes that he and senior University

officials signed the authorization for my reclassification to the position of

Technology Transfer Coordinator and that it was approved and that is my

title and I have the power and authority as included in the job description.

g. Threats or acts that affect or are perceived to affect the safety, health, or

well being of another person (the use of intimidation, coercion and other

defamatory activities between January 18, 1999 and to the present).

h. Failure to maintain satisfactory working relationships with students, the

public, other employees, or supervisors (the use of intimidation, coercion

and other defamatory activities, including a failure to acknowledge the

rights of inventors under the Board of Regents Bylaws regarding the

University’s need to accept an offer of invention within 6 months).

i. Behavior not in the best interest of the University.

j. Violations of other policies, procedures, memorandums that I am unaware

of at this time.

In the grievance I stated that within a few weeks after that, I was placed on administrative leave by Dr. Nelson with promise of a hearing. Dr. Nelson promised in writing that the hearing would not be scheduled until he had provided me with the documents he was relying upon for my “corrective action hearing.” Dr. Nelson never provided any of the documents, would not allow me to be represented by an attorney and prohibited me from recording the hearing. Immediately after the meeting I wrote a narrative of it, kept a copy and e-mailed one to Jeff Downing. Shortly after the hearing, I was fired from my position at IAPC. I firmly believe that I was terminated because I refused to engage in the deceitful and possibly unlawful activities that Dr. Helmuth, Dr. Nelson, Mr. O’Farrell and others at the University were engaging in, and because I confronted University officials about their deceit and unlawful actions, and because I confronted them about the Technology Transfer Office’s failure to follow the Board of Regents by-law, and because I reported these concerns to outside sources.

54. Ultimately, a significant amount of information was provided to Dr. Nelson’s grievance committee, including a duplicate videotape that was provided to Dr. Helmuth grievance committee that the University had “lost.” In the end, the grievance committee recommended that nothing be done regarding my grievance against Dr. Nelson.

Further Affiant sayeth naught.

__________________________________

Gerald Biby

SUBSCRIBED AND SWORN to before me on this __day of December, 2003.

__________________________________

Notary Public

[Plantiff's Brief December 2003] [Affidavit December 2003]
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