Denying apparent IP theft

Now, the first thing you have to understand is that most universities are merely companies. They are aimed at making a profit and employ personnel to do just that. They do not adhere to a greater moral awareness nor do they follow ethical standards more rigorously than corporations. Keep that in mind when continuing to read the communications I’ve had with the Universitat Pompeu Fabra (UPF) after finding out about the illegal commercialization of my PhD work. After a few emails I finally found the correct person at UPF and sent him an email asking for a clarification. This was his response:

Dear Tristan Whitmarsh

In response to questions from the mail, I communicate the following:

UPF has not sold nor has intention to sell the patent you mention. 25% is the share in inventorship acknowledged to you. According to current UPF IPrules, 50% of the total net revenue resulting from exploitation of patents will revert to inventors, according to their contribution. Thus, 12.5% of the income generated by the patent would revert to you. Up to now this patent has generated no income.

Please be aware that IP rights belong to UPF. UPF is currently studying a proposal of creation of a spin-off based on IP related to work developed within CISTIB. This project has not been approved yet. I hope to have answered your questions. For further issues please address Ana Sagardoy who is in charge of technology transfer matters.

Best regards
Josep
Josep Jofre Santamaria (Vicegerent Àrea de Recerca i Economia) 2013/4/30

He focused only on the patent, which I understand I do not own (more on this later), but did not mention anything about the use of my software or illustrations. I then contacted the Cambridge University legal department who referred me to a law firm with which I arranged a legal consult. I was explained that my work is protected by international law and, unless I signed away the rights to my software and illustrations, the copyrights belongs to me. No such document has ever been signed by me. Thus, I contacted Ana Sagardoy for further clarifications to which she responded with the following:

Just a brief note to let you know that we are looking into this matter. UPF has signed a provision of services contract with the company you mention, but no IP infringement was involved as far as we know. Nonetheless we will revise the project and will get back to you with the results.
Ana Sagardoy 2013-05-17

And after pressing further:

We are looking into this matter as I previously informed you and at this point have made some enquiries to the research group and are waiting for their feedback. According to the information we have there are no IP or copyright infringements, but we will also revise the illustrations you mention and make sure there is no problem with those either. In case there is we will urge the company to cease using them.
Ana Sagardoy 2013-05-22

At this point, together with my lawyer, we decided to write them a formal letter. Their response however did not explain much and they certainly did not acknowledge and wrongdoings. They even claimed that the illustrations might belong to the journal they were published in. I assure you that also this journal did not give them permission to commercialize my illustrations. I asked for further clarification and received the following response:

As we already informed you in our letter dated 10th 2013, and upon further conversations with the research group involved, we reiterate, quoting the research group input that “*the software developed in the context of the collaboration with DMS takes as sole input the publications about the 3D reconstruction method as published in the different papers co-authored by Tristan Whitmarsh. The software is based on a new implementation to reconstruct the femur in 3D out of 2D images, which is different from the approach taken by Tristan and therefore will result in a totally different software. This new implementation also includes a new femur statistical model together with a new pipeline for its construction”*.
Josep Jofre Santamaria 2013-08-01

So it seems they just ask the people that stole my work if they stole my work and were perfectly satisfied with their answer, despite all the evidence against it. Really? Or might they have some ulterior motives? Besides this, they added a paragraph named “Wrongful earnings”, claiming that I received more than 8.307,75 Euro that I have to return to UPF. I was quickly able to show with past emails that this was caused by members of UPF themselves and I was already in discussion with finances at UPF to resolve this issue. Most disturbingly actually is the fact that that this was mentioned in this email altogether. I responded with the following:

Dear Josep Jofre Santamaria,

Thank you very much for your help with the various copyright infringements of my illustrations. The promotional video has been removed from the DMS website and the model on the logo has been replaced. The illustrations on the 3d-dxa.com and 3d-vertex.com website have now also been replaced. However, the replacement still incorporates the models developed and constructed by me for my PhD at UPF, as the attached illustration clearly shows. I therefore ask for the immediate removal of the illustration in question from the www.3d-dxa.com and www.3d-vertex.com websites. Although my lawyer told me that there is unfortunately no law against taking credit for someone else’s work, the manner in which Ludovic Humbert (and now DMS) is, and has been, taking credit for my PhD work is despicable and UPF should be ashamed for allowing this to happen.

The issue with my grant which you refer to is due to an error by UPF and the disorder resulting from the closure of CISTIB (please read the e-mails below). This has been dealt with by Eva Martín García (in Cc) who already offered me the option of a payment plan. The timing of this claim coincided with my first copyright infringement complaints and, considering this being somewhat suspicious, I refrained from immediately agreeing to a payment plan. Now, I fail to see why the human resources department would contact the person in charge of research and economic affairs about this. Furthermore, by including this in your previous e-mail you create the suggestions that these two events are somehow connected, which indeed they might be. If this research group is offering some kind of financial compensation for the commercialization of my work I am open for this. However, this will have to go through my lawyer and in all openness. I will not be coerced in this way into signing away the rights to my software at a closed meeting with the people responsible for these infringements. Please let me know if the research group is willing to make a financial agreement and I will put them in contact with my lawyer.
Tristan Whitmarsh 2013-08-05

At this point it was clear to me and my lawyer that UPF would not come clean about their activities and we decided to send them a formal letter from my lawyer. For now I will keep this letter confidential and will provide you only with our proposal:

Our client’s proposals

Examination and comparison

Our client requests that an independent third party expert examines and compares the respective source codes of the UPF/DMS Software and the Whitmarsh Software to determine if the “UPF/DMS Software Code reproduces any part of the Whitmarsh Software code.

Such an assessment should include an examination and comparison of the source code of the software for performing the reconstructions as well as source code of the software for constructing the femur models. If you agree to this assessment, our client would be happy for you to make suggestions of independent third party experts for his consideration. Any such expert should be agreed by our client and UPF within 30 days of UPF consenting to such an examination and comparison.

Should UPF refuse to provide consent to such an examination and comparison, our client will have no option but to draw adverse inferences that the UPF/DMS Software indeed reproduces the Whitmarsh Software and will take such further legal action as he deems appropriate.

If UPF does provide this consent and the expert determines that the UPF/DMS Software does not reproduce the Whitmarsh Software, our client will not pursue this matter further. If, however, it is found that the UPF/DMS Software does reproduce the Whitmarsh Software code, then our client fully reserves all his rights to take appropriate further legal steps.

Payment in settlement

Alternatively, our client is willing to resolve this matter on the following basis (this offer may only be accepted in its entirety): UPF pay to our client £50,000 within 28 days of acceptance of this offer by way of a one off payment for a non-exclusive, perpetual, irrevocable, worldwide licence to UPF (with the right to sub-license) to use, reproduce, modify and exploit the Whitmarsh Software currently in the possession of UPF.
2014-01-27

UPF responded to my lawyer in Spanish… I don’t think there can be any doubt that this was an intentional attempt to obstruct justice and incur added financial costs to me. A translation from a sympathetic friend from UPF was sufficient. While this response mostly restated previous denials, it also had the following paragraph:

4) Independently of the foregoing, and as an act of goodwill, I communicate that, as requested by your client, the University has already conducted a comparison between the ” Whitmarsh Software” and “UPF / DMS Software” by an independent expert (Joaquim Anguas, http://www.anguas.com/), in order to ensure that there has been no infringement of the intellectual property rights of Dr. Whitmarsh, in the terms that your client has set up to date. For your information, the expert concluded that there was no coincidence that could expose any kind of profit of the software source code developed by your client (“Whitmarsh Software”).
Josep Jofre Santamaria 2014-02-25

I was never contacted by this Joaquim Anguas, I did not approve of this person to do the software comparison, and I never provided my software to this person to do the comparison with. There can be only one reason to avoid an independent software comparison like this. More to come.