IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Karen A. Norris, Ph.D.

7080 Bennington Woods Drive Pittsburgh, PA 15237 and Heather Kling, Ph.D. 2127 Columbia Ave. Pittsburgh, PA 15218 Petitioners, vs. University of Pittsburgh Office of General Counsel 1710 Cathedral of Learning Pittsburgh, PA 15260 LSU Health Sciences Center-New Orleans Office of the Chancellor LSU Health Sciences Center-New Orleans 433 Bolivar Street New Orleans, LA 70112 Board of Supervisors of LSU and Agricultural and Mechanical College LSU Health Sciences Center-New Orleans 433 Bolivar Street New Orleans, LA 70112 Jay K. Kolls, M.D. Richard King Mellon Foundation Institute for Pediatric Research Children's Hospital of Pittsburgh of UPMC 8130 Rangos Research Center, One Children's Hospital Drive 4401 Penn Avenue Pittsburgh, PA 15224 Mingquan Zheng, M.D. Richard King Mellon Foundation Institute for Pediatric Research Children's Hospital of Pittsburgh of UPMC Rangos Research Center, 8th Floor One Children's Hospital Drive 4401 Penn Avenue Pittsburgh, PA 15224

NO.:

PLAINTIFFS COMPLAINT JURY TRIAL DEMANDED

Minivax Corporation 1441 Canal Street, Suite 314 New Orleans, LA 70112 Respondents. INTRODUCTION 1. Pneumocystis jirovecii is a ubiquitous fungus that infects virtually

everyone when they are young. When a person has a weakened immune system such as if they are undergoing cancer treatment, if they are receiving an organ transplant, if they have HIV/AIDS, or if they have used certain medications Pneumocystis can cause a deadly pneumonia. Plaintiffs Karen Norris, Ph.D. (Dr. Norris), a tenured Professor of Immunology at the University of Pittsburgh, and Heather Kling, Ph.D. (Dr. Kling), an immunologist working in Dr. Norris laboratory, together conceived and reduced to practice a vaccine for Pneumocystis. The vaccine works by raising immune response to an amino acid segment of kexin, a protein found on Pneumocystis. The vaccine has considerable public health utility and substantial commercial value. 2. Unfortunately, due to the theft and fraud described herein, there is a

substantial likelihood that this revolutionary vaccine will never be patented, and a critical deadline in the USPTO less than two months away will be missed. 3. In March 2014, a response to the fraudulent patent filing is due or the

filings will go abandoned; in spite of the plaintiffs attempts, the defendants have failed to remove the fraudulent data and the improperly named inventors, defendants Kolls and Zheng. 4. Plaintiffs now bring this suit seeking a declaratory judgment, injunctive

relief, and other remedies to correct the fraudulent patent filings and to restore ownership to the rightful owners. 2

5.

Defendants Jay Kolls, M.D. (Dr. Kolls) and Mingquan Zheng, M.D. (Dr.

Zheng), are also immunologists, formerly of Defendant Louisiana State University (LSU) and now of Defendant University of Pittsburgh. 6. These Defendants were part of a continuing and deliberate scheme to steal

the Plaintiffs data as their own, thereby enabling them to falsely claim entitlement to this unprecedented and lucrative vaccine. Specifically, Dr. Kolls and Dr. Zheng, by way of and with the assistance of LSU, filed U.S. Provisional Patent Appl. No 61/294,252 (the 252 Application), U.S. Patent Application No. 13/521,6211 (the 621 application, which was titled Kexin-Derived Vaccines To Prevent Or Treat Fungal Infections,) and PCT application 2 PCT/US2011/020170 (the PCT application), which is also WIPO publication number WO 2011087934 A2. 7. The 252 application, the PCT application, and the 621 application are not

based upon genuine inventions conceived by Dr. Kolls or Dr. Zheng. Indeed, Dr. Kolls own laboratory notebooks only made available to Dr. Norris in November, 2012 confirm that his work completely failed to produce the claimed invention and the useful data referenced in the applications is all from Plaintiffs proprietary work. 8. Dr. Kolls and Dr. Zheng abused their positions of trust to steal research

data from Dr. Norris and Dr. Kling. Dr. Kolls and Dr. Zheng then used the purloined data to file fraudulent patent applications that listed themselves as the sole inventors and commingling Dr. Norris and Dr. Klings legitimate data with data Dr. Kolls and Dr. Zheng fabricated to create the appearance of independent, successful work.
1

Kolls and Zheng have attempted to claim priority in the 621 application. PCT stands for Patent Cooperation Treaty. The PCT process allows an applicant to file a single patent application that will be acknowledged as a proper filing in all PCT treaty nations selected by the application.

9.

As alleged more fully below, Dr. Kolls was a professor on Heather Klings

Ph.D. thesis committee, which position he misused to steal Plaintiffs proprietary data, which he then incorporated into the 252 application, the PCT application, and the 621 application. Dr. Kolls further solicited Dr. Norris to become a co-grantee on an NIH grant (P01 HL076100-07), so that he could access more proprietary data, and then use that to obtain a $597,426.00 NIH-funded Small Business Technology Transfer (STTR) Grant for Defendant MiniVax a company in which he and Dr. Zheng have an interest to perform further lead optimization and investigate immunogenicity of mini-Kexin in SIV-infected macaques, 3 or, in other words, Plaintiffs research. 10. Once Dr. Norris learned of Drs. Kolls and Zhengs actions with her data,

she immediately attempted to pursue administrative remedies, and requested that the University of Pittsburgh conduct an investigation into academic misconduct involving Kolls P01, Project 2, Kolls STTR grant, and PCT/US11/20170, and ultimately (after Kolls and Zheng filed the fraudulent patent filings) sought a correction of the patent filings to reflect the proper inventors. 11. On November 17, 2011, Arthur Levine, M.D. (Dr. Levine), Dean and Senior

Vice Chancellor of the School of Medicine at the University of Pittsburgh concluded that Dr. Norris was indeed correct, and that Dr. Kolls engaged in research misconduct, removed him from participation in various research projects, and instructed him to make a good faith effort to correct the patent inventorship. See exhibit A, University of Pittsburghs Research Integrity Officer Jerome L. Rosenberg, Ph.D.s letter to Dr. Norris.

< http://www.sbir.gov/sbirsearch/detail/369980 >

12.

From then until the present, Dr. Kolls and Dr. Zhengs stories have

understandably changed more than once in primitive and desperate efforts to hide and cover up their illegal conduct and to mask their co-conspirators. They initially denied their patent bore any relation to Dr. Norris and Dr. Klings work, then falsely claimed they were collaborating with Dr. Norris and Dr. Kling. Neither claim was true. As shown below, Dr. Kolls and Dr. Zhengs own records reveal that their own attempts to create a working vaccine have failed, that they successfully utilized Plaintiffs data, and that the only useful parts of the patent application itself reflects the Plaintiffs data. 13. Even though Defendant University of Pittsburgh (Pitt) knew and was

aware of this research misconduct, and that Plaintiffs were the rightful sole inventors of the Pneumocystis vaccine, Pitt, in a brazen display of intellectual dishonesty, made a Faustian bargain: because it had received a substantial Mellon Grant when Dr. Kolls returned to Pitt, and to avoid public embarrassment, Pitt knowingly misrepresented to the plaintiffs that it was going to correct the filings to identify the rightful inventors and remove the improper ones. 14. This outrageous scheme to whitewash the situation became apparent in

July 2013, when Pitt concluded that Dr. Kolls had only engaged in the lesser offense of research improprieties, and deemed the Kolls laboratory and Norris laboratory collaborators in spite of the statements from all involved including Kolls and Zheng that there was no collaboration, and in utter disregard for the notebooks. 15. It was this July 2013 conclusion that first revealed to the plaintiffs that the

administrative remedies they sought were preordained, that Pitt was conspiring with Kolls, and that the plaintiffs were going to incur substantial damages due to the 5

defendants collective misrepresentations, inducing Norris and Kling to rely on their assertions that they would fully and properly correct the defendants' false and fraudulent claims described herein. 16. As a half-measure, and only after Dr. Norris persistent demands, Pitt filed

an application in the USPTO, 13/959,691 (the 691 application) on 5 August 2013, which finally included Drs. Norris and Kling, but again wrongly identified its coconspirators Drs. Kolls and Zheng as inventors. 691 Application attached as exhibit B. 17. Rather than correct the record, Pitt and LSU very recently negotiated an

assignment with Drs. Kolls and Zheng, in an attempt for Pitt and LSU to now own all rights to the patent rights that should belong wholly to the Plaintiffs. 18. Dr. Norris has been unsuccessful in her attempts to have the defendants

correct the identities of the inventors in the USPTO and the WIPO 4 for the improper Invention Disclosure filed by Kolls as a basis for his earlier, fraudulent patent applications (the IDS 2828). 19. As the restriction requirement for 691 soon expires, and to extricate

themselves from association with knowingly false data in violation of federal regulations and basic standards of academic integrity, and only after Dr. Norris multiple attempts to resolve this outrageous set of events and ensure that the proper data, with the proper inventors, was identified to the USPTO, have Plaintiffs come to file their continuation and begin this litigation.

This is a listing of what the plaintiffs understand the defendants have presently filed; this complaint seeks a remedy for all improper patent filings and claims made by the defendants, even if not cited herein.
4

JURISDICTION AND VENUE 20. The Court has diversity jurisdiction over this action pursuant to 28 U.S.C.

1332, as well as subject matter jurisdiction over this declaratory judgment action under the Declaratory Judgment Act, 28 U.S.C. 2201 (DJA). This Court also has pendent jurisdiction for the common law claims. 21. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b)(2), because a

substantial part of the events or omissions giving rise to the dispute between the parties occurred and continue to occur in this judicial district. 22. An actual controversy exists regarding the theft of the data from Drs.

Norris and Kling, the fraudulent patent filings, and the intellectual property rights arising from the Pneumocystis vaccine. 23. The Plaintiffs assert a legal relation, status, right, or privilege that is

denied by Defendantsprimarily, that these defendants, individually and collectively, have deprived and continue to deprive the plaintiffs of their right, title and ownership of the intellectual property at issue in this lawsuit. PARTIES 24. Karen Norris, Ph.D., is a tenured Professor of Immunology at the

University of Pittsburgh, citizen of the Commonwealth of Pennsylvania, and the inventor of the Pneumocystis vaccine. 25. Heather Kling, Ph.D. is an immunologist working in Dr. Norris laboratory

at the University of Pittsburgh, a citizen of the Commonwealth of Pennsylvania, and is an inventor of the Pneumocystis vaccine.

26.

The University of Pittsburgh is an educational institution and the entity

presently responsible for managing the intellectual property issues identified in this complaint. 27. The Board of Supervisors of Louisiana State University and Agricultural

and Mechanical College, and the LSU Health Sciences Center, collectively referred to here as Louisiana State University (LSU), are the academic institutions with which Drs. Kolls and Zheng were affiliated at the time the fraudulent patent filings were made. LSU has the address identified in the caption. 28. Jay Kolls, M.D. is the Director of the Richard King Mellon Foundation

Institute for Pediatric Research and Professor of Pediatrics at the University of Pittsburgh School of Medicine. 29. 30. Dr. Kolls employment history is as follows: July 1, 1993 - August 14, 2003: LSU August 15, 1993 - December 31, 2008: University of Pittsburgh Jan. 1, 2009 - August 21, 2011: LSU September 1, 2011 - Present: University of Pittsburgh Mingquan Zheng, M.D. is an associate professor at the University of

Pittsburgh School of Medicine and collaborator of Dr. Kolls. 31. Minivax is a Louisiana based company with the above listed address

started by Dr. Kolls to promote, inter alia, the Pneumocystis vaccine discussed in this Complaint; this company still claims use of the data in this Complaint in its business dealings.

FACTS It Starts with Monkeys 32. In 2003, Dr. Norris presented her data at a research meeting in Hawaii

attended by Dr. Kolls and continued to develop the Norris monkey Kexin (Norris monkey Kex1). 33. Dr. Kolls received the Norris monkey Kex1 plasmid and recombinant

protein and peptide set in 2004 from Karen Norris. A member of Dr. Kolls laboratory then requested the monkey Kex1 plasmid and protein purification scheme again in 2007, and it was given to the Kolls laboratory. An additional request was made by Dr. Kolls for, the monkey recombinant protein in 2010 and this request was denied by Dr. Norris. Yet, Dr. Kolls found other ways to access this vital research data, and more. 34. Dr. Kolls was a member of Heather Klings dissertation committee.

Beginning no later than April 2006, Dr. Kolls was aware of her hypothesis and her data that the monkey 100mer (Norris monkey Kex1) was a potential vaccine candidate, and he continued to sit on Klings committee, and to meet with her for her doctoral thesis defense, throughout 2007, 2008, 2009, and 2010. 35. Kolls subsequently stated in interviews relating to Dr. Norris complaints

that he never received these materials from the Norris laboratory in contradiction to his claim in the P01 that he received these materials from the Dr. Norris. He later changed his position, and claimed in the Pitt Inquiry investigation that he did receive these materials as part of a collaboration with the Norris laboratory. 36. There was never a collaboration between the Kolls laboratory and the

Norris laboratory.

37.

In May 2009, Dr. Kolls while at LSU, filed a sham Invention Disclosure for

the minikexin, naming only himself and Dr. Zheng as inventors. As described below, though Pitt and LSU have long been aware of this scheme, they have chosen to see and to hear no evil. The Patents 38. On Jan 12, 2010, U.S. Provisional Patent Appl. No 61/294,252 (252

Application) filed by LSU on behalf of Kolls and Zheng. Neither Norris nor Kling were identified in any way in this filing, nor were they informed that the patent application had been prepared or filed. The 252 application is attached as exhibit C. 39. On January 5, 2011, application PCT/US11/20170 (PCT) was filed

claiming priority to US Provisional Patent Appl. No 61/294,252. 40. 41. 42. Kolls added no new data to the PCT at time of conversion. The PCT application was published on July 12, 2011. On July 11, 2012, U.S. Patent Appl. No. 13/521,621 (621 Application) was

filed by Kolls and Zheng, claiming priority back Jan. 12, 2010. The 621 Application is attached as exhibit D. 43. Kolls added no new data to the 621 application at nationalization. The NIH Grants 44. The National Institutes of Health supports medical research through a

variety of means, including P01 grants, in which several independent, but related, projects are funded together. 45. Dr. Kolls had been a Principal Investigator for NIH Research Program

Project Grant P01- HL076100. Funding stopped at the end of 2008.

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46.

In April 2010, Dr. Kolls learned that the renewal application of P01-

HL076100 grant would not be funded because it had monkey data that is, Dr. Kolls had input the Plaintiffs data into his renewal application but no Principal Investigators that did monkey studies. 47. In the fall of 2010, before Plaintiffs were aware of the misuse, Dr. Kolls

and others at LSU solicited Dr. Norris to serve as a Principal Investigator for part of the next grant application resubmission, the P01 HL076100-A1. Joint applications with multiple Principal Investigators performing distinct, but related, studies are common and expected for P01 grants; such does not entitle any of the Principal Investigators to claim interests in, or property rights to, the other Principal Investigators research. 48. While that P01 grant was pending review (Fall 2010 through Spring 2011),

Dr. Kolls wrote and submitted the NIH STTR grant application without Plaintiffs knowledge, but with the primate data and method of use vaccination strategy that Dr. Norris had in her P01 project application. The Principal Investigators for that STTR grant were A. Ray Chaudhuri, a co-founder and Director of MiniVax and Dr. Kolls. 49. The P01 application was funded in 2011, as was the STTR grant. Dr. Kolls

was compelled to leave the P01 grant as a result of his research misconduct, but the STTR grant remains outstanding, to the benefit of the Defendants, including MiniVax and LSU. Defendants Dr. Kolls and Dr. Zhengs Own Research Notebooks Reveal They Did Not Invent The Vaccine 50. The investigation into Drs. Kolls and Zhengs research misconduct

included interviews of (among others) Drs. Kolls and Zheng. During those interviews,

11

Drs. Kolls and Zheng falsely claimed that they conceived of and reduced to practice the invention from Jan. 1, 2009-May 2009. 51. Based on the Kolls notebooks, the 2010 P01-HL076100, the inventorship

interviews from July 2012, and the materials arising in the inventorship and misconduct investigations, Dr. Kolls and Dr. Zheng neither conceived nor reduced to practice any element relating to a minikexin vaccine. 52. Dr. Norris began to suspect that her and Dr. Klings confidential research

data and methods were being used by Dr. Kolls. 53. Dr. Norris brought her concerns to officials at Pitt, including her

Departmental Chairman, the Office of Research Integrity, the Office of Technology Management, the Office of General Counsel, and Dean Arthur Levine. Pitt representatives attempted to dissuade Dr. Norris from pursuing a formal complaint. She persisted and filed a complaint with the Pitt ORI September 2011. Rather than initiate a proper investigation, as outlined in the Pitt Faculty Handbook, Pitt concocted a plan to keep the vaccine and its financial promise for itself. 54. As Pitts Guidelines on Research Data Management note, The retention

of accurately recorded and retrievable research data is of utmost importance for the progress of scientific integrity. The experimental notebook is the most common medium for documentation of experiment, and its proper maintenance is of utmost importance. 5 Notebooks are as crucial to scientific integrity as DNA samples are to criminal guilt; they can single-handedly exonerate or incriminate. 6

< http://www.provost.pitt.edu/documents/RDM_Guidelines.pdf > To this day, Louis Pasteurs 102 laboratory notebooks from more than a century ago remain so thorough, and so well-preserved, that inaccuracies and discrepancies can be found in his work. See, e.g., The

12

55.

In September 2011, Dr. Norris formally requested that Dr. Kolls

notebooks be sequestered, knowing that the notebooks could not confirm his alleged work. However, the notebooks were not sequestered. She also requested that the investigation include Dr. Zheng, Dr. Chaudhuri of Minivax and LSU, and this was not done either. 56. In spite of the finding that Dr. Kolls had engaged in research misconduct,

see exhibit A, the Kolls laboratory notebooks were still not sequestered. 57. In July 2012, the University of Pittsburgh finally requested all notebooks

related to the mini-kexin be turned over, from both Dr. Norris and Dr. Kolls laboratories. 58. 59. Pitt received Dr. Norris notebooks 3 days after requested. Pitt received Dr. Kolls notebooks four months later, in October 2012

after multiple requests. These notebooks were represented as the entirety of the Kolls laboratory notebooks on the mini-kexin. 60. In the February, 2013 time period, Dr. Kolls for the first time and

contrary to his representations in October 2012 remarkably identified new notebooks on this topic, a year and a half after the investigation began. 61. Contrary to the successful macaque mini-kexin, the mouse mini-kexin was

never reduced to practice, even according to Dr. Kolls notebooks. Thus, despite having a year and a half to cook up his notebooks and generate results for this mouse minikexin, Dr. Kolls still struck out.

Doctors World: Revisionist History Sees Pasteur As Liar Who Stole Rival's Ideas, The New York Times, May 16, 1995, reviewing Geison, Gerald L., The Private Science of Louis Pasteur (1995).

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62.

According to the Kolls notebooks, in the 2005-2010 time period, Kolls

laboratory apparently made several unsuccessful attempts to clone the Kolls mouse mini-kexin. 63. Yet, there is no evidence presented in the notebooks to validate that Kolls

ever cloned the Kolls mouse mini-kexin gene. 64. At no point did Dr. Kolls, Dr. Zheng, LSU, or MiniVax have their

own monkey kexin materials or data, nor authorization to use Plaintiffs monkey kexin materials and data in their research. 65. In July 2012, Drs. Kolls and Zheng denied during the patent inventorship

investigation that they used reagents from Norris for any quantitative assays, and denied that the peptides they received from Norris were covering the mini-kexin region. 66. In the January 2005 through July 2005 series of attempts to clone the

Kolls mouse mini-kexin, the notebooks state that monkey kexin was used to test kexin serum a fact denied by Dr. Kolls on the patent investigation tapes. 67. nothing. 68. According to the Kolls notebooks, between April 2007 and 2010, the Kolls In the September 5, 2006 notebook, the final entry is 3) mini-kexin:

laboratory made numerous repeated unsuccessful attempts to clone mouse mini-kexin. The notebooks contain numerous references to monkey kexin, and there are undated experiments on the kexin peptide, including a specific listing of the Norris monkey kexin. 69. Kolls and Zhengs patent filing data, including the figures in the

Applications, do not match the data in the P01 or the notebooks. 14

70.

Rather, the data in the notebooks is altered in the patent application from

the notebook graphs; for example, Fig. 1 and P01 Fig. 2 appears to be altered from data in notebook (IgG1 graph): nave sera and control values are different; Patent Fig. 2, (IgG2a) lanes: sK-co and K-co do not correspond to the values in notebook figure; Patent Fig. 3-4 correlates with no data in notebooks; Patent Fig. 5 IgG BAL fails to correlate with the IgG BAL data in the notebook; Patent Fig. 6. IgA BAL fails to correlate with IgA BAL data in the notebook. 71. The data in patent Figures 1-2, 5-6, and 8 does not come from the Kolls

notebook or their P01; it comes from Plaintiffs monkey KEX1 peptides. 72. In 2008, Kolls had wild type mouse mini-kexin commercially synthesized,

yet there is no evidence in the Kolls laboratory notebooks to support that the commercially synthesized Kolls mouse mini-kexin gene was ever successfully shuttled into an AAV 7 vector and viral production confirmed. 73. There is no evidence in the Kolls laboratory notebooks to support that the

commercially synthesized Kolls mouse mini-kexin gene was ever successfully shuttled into a bacterial expression vector. 74. There is no evidence that the Kolls mouse mini-kexin protein was ever

expressed and purified. 75. There is no data that mouse mini-kexin wild type or codon optimized with

the leader sequence was cloned or commercially synthesized.

Adeno-associated virus vector.

15

76.

There is no data that either mouse mini-kexin sequence was expressed as a

virus or as a recombinant protein. Examples of False and Fraudulent Claims In The Kolls/Zheng Patent Applications 77. By way of example of the need for declaratory relief, and to their

entitlement to injunctive, compensable, and equitable relief, Plaintiffs recite the following false and fraudulent claims, without limitation to the development of further claims. The fraudulent data pervades all of the filings made by the defendants; what follows is an analysis of many of the fraudulent claims in the 252 application: a. Section [0025] claims We have improved the Kex1 8 DNA vaccine by defining and isolating a smaller antigen, which we have named mini-kexin. b. Contrary to the claims in section [0025], there is no data that Kolls mouse mini-kexin sequence was ever produced as a DNA vaccine. c. Section [0026] claims: . In SIV-infected macaques we have examined both anti-Kex1 titers and the rate of PC lung infection, the latter as determined by nested PCR in BAL fluid. d. Contrary to the claims in section [0026], the Kolls notebooks reflect no cohort of 12 monkeys with 9 of 12 becoming PCP positive; no mean serum anti-Kex1 Ab levels that were at least 10-fold greater than those in PCP-positive monkeys, and ELISA tests were never done at 1:64 dilution. e. Section [0028] claims: These results showed 70% of antibody response was directed against a region of the PC kexin that is highly conserved region across mouse, rat monkey and human Pneumocystis spp.. Section [0028] further claims: The second strategy was to perform mucosal boosting. f. The data claimed as Kolls and Zhengs in section [0028], which was related to the mucosal boosting, was not in the public domain and was neither conceived of by Kolls and Zheng nor reduced to practice by them. Rather, this data was taken from Heather Klings thesis defense committee meeting, which demonstrated the importance of mucosal immunity (IgA). This data was
8

In this case, Kex1 is referring to the full length Pneumocystis kexin gene.

16

ultimately published by Dr. Kling in 2010, after Kolls wrongfully incorporated this data into the PCT filing. g. Section [0028] further claims: In preliminary studies, we found that mucosal boosting with a recombinant adenovirus encoding mini Kexin afforded significant greater protection against PC challenge as compared to systemic boosting. h. Contrary to these claims in Section [0028], there is no evidence that these experiments were ever performed by the Kolls laboratory. i. Section [0040] claim: Alternatively, the vaccine may comprise a protein vaccine, that is, the mini-Kexin polypeptide itself or a portion thereof, in a delivery system including a carrier or an adjuvant. j. Contrary to the claims in Section [0040], this is the work of Dr. Norris, first described in the beginning of 2003 and in confidential data shared with Kolls in May 2010 as part of the P01 application. k. In Section [0079] it is claimed: Protein Vaccine. Another aspect of the invention pertains to a vaccine composition comprising the mini-Kexin polypeptide, or an immunogenic portion thereof, or a fusion polypeptide thereof. It is preferred that the vaccine additionally comprise an immunologically and pharmaceutically acceptable carrier, vehicle or adjuvant. l. Contrary to the claims in Section [0079], this is the work of the Norris laboratory, described in the beginning of 2003 and in confidential data shared with Kolls in May 2010 as part of the P01 application. m. In Section [0095] it is claimed: CD4lND pathogen-specific immune responses against Pneumocystis kexin are generated in an SIV model of immunodeficiency in macaques. We expect that the mini-kexin constructs will produce vaccine-induced immune responses in SIV-infected, CD4 deficient macaques. Control or SIV infected macaques will undergo DNA priming, followed by mucosal boosting 4 weeks after mock or live SIV infection. Outcome measures will include humoral responses to the vaccine, and the prevention of Pneumocystis colonization as determined by PCR of BAL fluid. Preliminary studies suggest that Pneumocystis colonization occurs in up to 80% of SIV infected macaques, compared to 0% in non-SlV infected monkeys. We will also challenge SlV-infected monkeys with live Pneumocystis, and demonstrate vaccine efficacy in the challenge model. n. Contrary to the claims in Section [0095], these studies were created and performed by Drs. Norris and Kling and were only revealed to the defendants during Dr. Klings confidential Ph.D. thesis committee meetings between 2006 and 2010. 17

o. In Section [0100] it is claimed: Expressing peptides from this region of Kex1 recombinant E. coli, we demonstrated that antibodies recognizing epitopes in this region account for a significant amount of the opsonic killing of PC. p. Contrary to the claims in Section [0100], this is a false statement, and in conflict with Kolls statements in P01 that claims these experiments were done with monkey-derived KEX1 (100 mer) supplied by and in collaboration with Karen Norris. q. In Section [0100] of the Kolls and Zheng patent application at issue, the same experiments exclude Norris contribution and imply these were done with the mouse mini-kexin. r. Nowhere in Dr. Kolls notebooks is there data to validate the claims in Section [0100]. s. In Section [0100] it is claimed: PC organisms were opsonized with naive serum (control), or with serum from mice vaccinated with full length kexinlCD40L, and then incubated with peritoneal macrophages to assess opsonic killing in vitro. To assess viability of PC organisms 24 hours later, we measured the integrity of the PC mitochondrial large subunit mRNA by real time PCR. Opsonization of PC with serum from Kexinl CD40L-vaccinated mice markedly increased PC killing in vitro. Absorption of the serum against Kexin peptides or against miniKexin markedly decreased opsonic phagocytosis, suggesting that recognition of epitopes in this 100 aa stretch of Kexin is important to activity. t. There is no data in the Kolls laboratory notebooks that supports the claims in section [0100]. u. There is also no data in the Kolls laboratory notebooks for the claims made in sections [0103], [0104] and [0105]. v. In section [0108] it is claimed: CD4IND, pathogen-specific immune responses against Pneumocystis kexin are produced in an SIlV model of immunodeficiency in macaques. We have assessed spontaneous PC infection in macaques infected with SIV/Delta B670. CD4 counts below 500 cells/uL have been strongly associated with an increase in PC colonization in the lung, as assessed by nested PCR in BAL fluid. Five of five SIV-infected monkeys developed detectable PC colonization, as assayed by nested PCR. Interestingly, several monkeys had an initial increase in anti-Kexin antibody titers, followed by a fall in titers prior to the development of a positive PCR response for Pc. In a second cohort of animals, preliminary studies suggested that SlV-infected monkeys with high baseline anti-Kex1 titers were protected against PC infection, as measured by PCR in BAL. We will determine the rate of PC infection at necropsy in 25 SlV-infected and 25 non-SlV-infected macaques. For these studies we will assess PC colonization by nested PCR, and real-time PCR on lung tissue 18

and BAL. These data will also be compared to standard histological detection of PC by GMS staining of lung tissue. w. The experiments referenced in section [0108] were done by Kling/Norris with the Norris monkey Kex1. x. Further, the general concept identified in section [0108] was lifted from confidential preliminary studies presented by Kling to dissertation committee during the 2007 and 2008 thesis meetings using Norris monkey Kex1. y. In section [0154] it is claimed: Testing in vivo, CD4IND, pathogenspecific immune responses against Pneumocystis kexin are generated in an SIV model of immunodeficiency in macaques. We will confirm that the mini-kexin constructs produce vaccine-induced immune responses in SIV-infected, CD4deficient macaques. Control or SIV-infected macaques will undergo DNA priming followed by mucosal boosting 4 weeks after mock or live SIV infection. Outcome measures will include humoral responses to the vaccine and the prevention of Pneumocystis colonization as determined by PCR in BAL fluid. Preliminary studies suggest that Pneumocystis colonization occurs in up to 80% of SIVinfected (untreated) z. The claims made in section [0154] were Norris Kling confidential data, improperly obtained during Klings thesis committee documents created between 2006 and 2010. aa. In section [0175] it is claimed: As a demonstration in a mouse model, we performed DNA plasmid mini -Kexin prime-boost vaccination in wild type mice, and then depleted CD4+ T-cells. Depletion of CD4+ T-cells makes unvaccinated mice susceptible to PCP. Female 6- to 8-week-old C57BLl6 and BALB/c wild type (wt) mice were immunized intramuscularly with a mini Kexinencoded, pBUD plasmid vector twice, two-weeks apart. The four mini Kexin vectors encoded secreted (s) or non-secreted versions of mini kexin, either codon-optimized (co) or wild type (wt). Two weeks after the second plasmid DNA prime vaccination, the mice were intranasally boosted with recombinant adenovirus encoding the same type of mini-Kexin as had been used in the prime vaccination. Because the vaccinated mice initially had normal levels of CD4+ Tcells, we did not include CD40L in either the priming or boosting vector. To artificially induce an immunosuppressed state, the mice were then depleted ofCD4+ T cells by administration of monoclonal antibody GKl.5, repeated weekly, starting two weeks after the boost. After one week of CD4+ depletion, the mice were challenged intratracheally with 2x10(5) PC organisms per mouse. Four weeks later the mice were euthanized, and lung tissues were collected for PC organism burden (assayed by real-time PCR). bb. There is no data in the Kolls laboratory notebooks to support the claims in section [0175].

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cc. In section [0176] it is claimed: As shown in FIG. 9, all four miniKexin plasmid vaccines provided significant protection against PC infection, as compared to Rag2/gamma chain double-knockout mice, which lack B, T, and NK cells (n=5-6 per group, * denotes P<0.05, Student's-t-test as compared to RAG2/gamma CKO). dd. There is no data in the Kolls laboratory notebooks to support the claims in section [0176]. The Current Status 78. The sole genuine invention contained in the patent applications is the

work of the Plaintiffs. Yet, the viability of the patent is uncertain, as Pitt and LSU both still claim ownership interests, the patent still wrongly includes fabricated data from Dr. Kolls and Dr. Zheng, and the patent still wrongly lists Dr. Kolls and Dr. Zheng as inventors. 79. Pitt has taken the self-contradictory position that it has an entitlement to

Plaintiffs property rights in the patent, even as Pitt thwarts those rights and asserts that it will neither assist nor indemnify Plaintiffs for steps they take to protect their rights. 80. 81. LSU and Minivax continue to use and to profit from Plaintiffs research. Plaintiffs have filed a patent application, 14/088,250, without any

fraudulent data, seeking to restore themselves as the true inventors. COUNT I: PENNSYLVANIA UNIFORM TRADE SECRETS ACT Plaintiffs vs. All Defendants 82. As alleged in this Complaint, Plaintiffs, through their efforts as

researchers, conceived, developed, reduced to practice, tested, and collected extensive and highly valuable data, processes, techniques, and methodologies relating to the Pneumocystis vaccine.

20

83.

This information and data constituted a trade secret within the meaning of

12 Pa. Cons. Stat. 5302. This information and data was not known outside of Plaintiffs business, Plaintiffs undertook efforts to guard the secrecy of the information, it had considerable value to Plaintiffs and their competitors, it required considerable effort and sums to develop, and it could not be acquired or duplicated legitimately by others without extraordinary efforts. 84. Dr. Kolls acquired Plaintiffs information and data by way of a position of

trust at all relevant times a thesis advisor to Dr. Kling, and at relevant times a fellow member of the Pitt faculty giving rise to a duty to maintain its confidentiality. 85. Rather than maintain the confidentiality expected of him, Dr. Kolls shared

the information and data with Dr. Zheng, LSU, and MiniVax, all of whom were aware of its unlawful and illegitimate origin. Dr. Kolls, Dr. Zheng, LSU, and MiniVax then wrongfully utilized the information and data for their own purposes and economic gain, including by way of their fraudulent patent filings. 86. For example, Defendants LSU, Dr. Kolls, and Dr. Zheng have been the

beneficiary of an NIH-funded Small Business Technology Transfer (STTR) Grant awarded on the basis of Plaintiffs proprietary and confidential data that the Defendants wrongfully obtained and utilized. 87. All Defendants named in this count are either directly liable for the

tortious conduct identified herein, or are subject to liability under Section 876 of the Restatement (Second) of Torts (Persons Acting In Concert) because they acted in concert with the other or pursuant to a common design, they knew the others conduct constituted a breach of duty and gave substantial assistance or encouragement to the other so to conduct himself, or, they gave substantial assistance to the other in 21

accomplishing a tortious result and their own conduct, separately considered, constituted a breach of duty to the Plaintiffs. WHEREFORE, Plaintiffs request this Court enter a judgment substantially in excess of this Honorable Courts jurisdictional limits to guarantee a jury trial against all defendants, for compensation of the direct and consequential economic and noneconomic damages they have suffered, plus punitive damages, as well as injunctive and equitable relief as this Court deems appropriate. COUNT II: COMMON LAW MISAPPROPRIATION OF TRADE SECRETS Plaintiffs vs. All Defendants 88. As described in this Complaint, Plaintiffs, through their efforts as

researchers, conceived, developed, reduced to practice, tested, and collected extensive and highly valuable data, processes, techniques, and methodologies relating to the Pneumocystis vaccine. 89. This information and data constituted a trade secret within the meaning of

Pennsylvania common law. 90. Dr. Kolls acquired Plaintiffs information and data by way of a confidential

relationship at all relevant times a thesis advisor to Dr. Kling, and at relevant times a fellow member of the Pitt faculty giving rise to a duty to maintain its confidentiality. 91. Rather than maintain the confidentiality expected of him, Dr. Kolls shared

the information and data with Dr. Zheng, LSU, and MiniVax, all of whom were aware of its unlawful and illegitimate origin. Dr. Kolls, Dr. Zheng, LSU, and MiniVax then wrongfully utilized the information and data for their own purposes and economic gain, including by way of their fraudulent patent filings.

22

92.

For example, Defendants LSU, Dr. Kolls, and Dr. Zheng have been the

beneficiary of an NIH-funded Small Business Technology Transfer (STTR) Grant awarded on the basis of Plaintiffs proprietary and confidential data that the Defendants wrongfully obtained and utilized. 93. All Defendants named in this count are either directly liable for the

tortious conduct identified herein, or are subject to liability under Section 876 of the Restatement (Second) of Torts (Persons Acting In Concert) because they acted in concert with the other or pursuant to a common design, they knew the others conduct constituted a breach of duty and gave substantial assistance or encouragement to the other so to conduct himself, or, they gave substantial assistance to the other in accomplishing a tortious result and their own conduct, separately considered, constituted a breach of duty to the Plaintiffs. WHEREFORE, Plaintiffs request this Court enter a judgment substantially in excess of this Honorable Courts jurisdictional limits to guarantee a jury trial against all defendants, for compensation of the direct and consequential economic and noneconomic damages they have suffered, plus punitive damages, as well as injunctive and equitable relief as this Court deems appropriate. COUNT III: BREACH OF FIDUCIARY DUTY Plaintiffs vs. University of Pittsburgh 94. As alleged in this Complaint, Plaintiffs, through their efforts as

researchers, conceived, developed, reduced to practice, tested, and collected extensive and highly valuable data, processes, techniques, and methodologies relating to the Pneumocystis vaccine.

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95.

The University of Pittsburgh had no contractual entitlement to any part of

Plaintiffs invention. Nonetheless, the University of Pittsburgh asserted, and continues to assert, an ownership interest in Plaintiffs invention, and has used its position, and its relationship with Dr. Kolls and Dr. Zheng, to direct activities relating to the prosecution of the patents. 96. The University of Pittsburgh, having chosen to undertake activities related

to securing the rights to the intellectual property, including by way of control of the prosecution of the patent, is under a duty to do so with reasonable care. 97. The University of Pittsburgh has breached its duty, allowing the

intellectual property to become compromised, to be subject to doubt and to delays, to allow erroneous and fraudulent filings to be made and to persist, all to the detriment of the Plaintiffs, who have already suffered considerable losses and may suffer more in the future. WHEREFORE, Plaintiffs request this Court enter a judgment substantially in excess of this Honorable Courts jurisdictional limits to guarantee a jury trial against all defendants, for compensation of the direct and consequential economic and noneconomic damages they have suffered, plus punitive damages, as well as injunctive and equitable relief as this Court deems appropriate. COUNT IV: BREACH OF FIDUCIARY DUTY Dr. Kling vs. Dr. Kolls 98. As alleged in this Complaint, Dr. Kling was, at the relevant times for this

count, a graduate student at the University of Pittsburgh; as part of her obligations as a graduate student, she was obliged to present her original research data to a thesis committee. 24

99. 100.

Defendant Kolls was a member of Dr. Klings thesis committee. Dr. Kolls did the unspeakable he maliciously misused his position of

power and trust over the student Heather Kling for his own personal greed by stealing her confidential data, presented to him as part of her thesis defense, and then purloined this data for his fraudulent patent filings. 101. It was Heather Kling, along with Dr. Norris and not Drs. Kolls & Zheng

that researched, developed and invented the extensive and highly valuable Pneumocystis data stolen by defendant Kolls and distributed to the co-defendants for their collective material greed. 102. Defendant Kolls had no right, duty or title to the data he learned during

Heather Klings thesis defense materials; nonetheless, he has asserted, and continues to assert, an ownership interest in Plaintiffs invention. 103. Defendant Kolls has breached his duty, allowing the intellectual property

to become compromised, to be subject to doubt and to delays, to allow erroneous and fraudulent filings to be made and to persist, all to the detriment of the Plaintiffs, who have already suffered considerable losses and may suffer more in the future. WHEREFORE, Plaintiff request this Court enter a judgment substantially in excess of this Honorable Courts jurisdictional limits to guarantee a jury trial against defendant Kolls, for compensation of the direct and consequential economic and noneconomic damages they have suffered, plus punitive damages, as well as injunctive and equitable relief as this Court deems appropriate. COUNT V: DECLARATORY JUDGMENT Plaintiffs vs. All Defendants

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104.

There is a substantial controversy, between parties having adverse legal

interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. 105. As alleged in this Complaint, Plaintiffs are the true and sole inventors of

the Pneumocystis vaccine. 106. As alleged in this Complaint, all Defendants have either asserted a

property interest in the Pneumocystis vaccine invented by the Plaintiffs, or have failed to disclaim such property interest. 107. Dr. Kolls and Dr. Zheng did not invent the Pneumocystis vaccine. They

have no property interest in it, nor any rights as a patent holder. 108. Dr. Kolls and Dr. Zheng did not invent the Pneumocystis vaccine at the

heart of their patent applications, their inventor disclosure to Louisiana State University, and their relationship with Minivax. 109. Louisiana State Universitys and Minivaxs claimed property rights to the

Pneumocystis vaccine are wholly derivative of Dr. Kolls and Dr. Zheng and their fabricated invention, and thus those entities have no have no property interest in it, nor any rights as a patent holder. 110. University of Pittsburgh has no agreement with Plaintiffs that would

satisfy the dictates of Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc., 131 S. Ct. 2188 (2011) (Stanford v. Roche) to grant them a property interest in the Pneumocystis vaccine, nor any rights as a patent holder. 111. Plaintiffs file this action under the Declaratory Judgment Act, 28 U.S.C.

2201 seeking the following declarations:

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a. That the invention described in this Complaint is the sole property of Plaintiffs; b. That the Pneumocystis vaccine components contained in Norris monkey Kex1, and all vaccines derived therefrom, are the sole property of Plaintiffs; c. That the Invention disclosure 2828 be modified to reflect Drs. Norris and Kling as the inventors and remove Drs. Kolls and Zheng as inventors; d. That Drs. Kolls and Zheng have no property interest or other rights in the Plaintiffs invention; e. That the University of Pittsburgh has no property interest or other rights in the Plaintiffs invention; f. That Louisiana State University has no property interest or other rights in the Plaintiffs invention; g. That Minivax has no property interest or other rights in the Plaintiffs invention. WHEREFORE, Plaintiffs request this Court enter a judgment against all Defendants including the above declaratory relief, as well as injunctive and equitable relief as this Court deems appropriate. COUNT VI: DECLARATORY JUDGMENT Plaintiffs vs. All Defendants 112. There is a substantial controversy, between parties having adverse legal

interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. 113. Plaintiffs are the true and sole inventors of an invention that is the subject

of multiple patent applications. Those patent applications, however, have been fraudulently filed naming Defendants Dr. Kolls and Dr. Zheng as the inventors of the patentable invention described therein. 114. Defendants Pitt and LSU are the assignees of all of Dr. Kolls and Dr.

Zhengs rights in the patent, and have wrongfully continued pursuit of those patents, despite knowing the patents are based upon Plaintiffs intellectual property.

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115.

Defendants Dr. Kolls and Dr. Zheng engaged in fraud or inequitable

conduct in procuring the patent within the meaning of 35 U.S.C. 285, entitling Plaintiffs to an award of reasonable attorney fees. 116. Defendants Pitt and LSU, the assignees of all of Dr. Kolls and Dr. Zhengs

claimed rights in the patent, engaged in fraud or inequitable conduct in continuing to pursue the patent within the meaning of 35 U.S.C. 285, entitling Plaintiffs to an award of reasonable attorney fees. 117. Plaintiffs by counsel, file this action under the Declaratory Judgment Act,

28 U.S.C. 2201 seeking the following declarations: a. That the Petitioners are the sole inventors for U.S. Patent Application No. 13/521,621 and those over which 621 claims priority; b. That neither Dr. Kolls, nor Dr. Zheng, are rightfully identified as inventors for U.S. Patent Application No. 13/521,621 and those over which 621 claims priority; c. That the Petitioners are the sole inventors for U.S. Patent Application No. 13/959,691 and those over which 691 claims priority; d. That neither Dr. Kolls nor Dr. Zheng are rightfully identified as inventors for U.S. Patent Application No. 13/959,691 and those over which 691 claims priority; e. That Petitioners are the sole inventors for the WIPO filing, publication number WO 2011087934 A2 and application number PCT/US2011/020170; f. That neither Dr. Kolls nor Dr. Zheng are rightfully identified as inventors for the WIPO filing, publication number WO 2011087934 A2 and application number PCT/US2011/020170; g. That the Petitioners properly filed U.S. Patent Application No. 14/088,250 in an attempt to correct the knowingly false claims and incorrect inventorship conclusions in the 621 and 691 applications. WHEREFORE, Plaintiffs request this Court enter a judgment against all defendants including the above declaratory relief, as well as injunctive and equitable

28

relief as this Court deems appropriate, and damages including the award of reasonable attorney fees. COUNT VII: PRELIMINARY INJUNCTIVE RELIEF Plaintiffs vs. All Defendants 118. Plaintiffs allege multiple claims warranting injunctive relief, and here

reiterate those requests and ask this Court in equity to enter a preliminary injunction establishing that the Defendants may not use, in any fashion, the Pneumocystis vaccine components contained in Kex1, including but not limited to continued pursuit of any patent applications involving those components, continued research efforts involving those components, or the negotiation, licensing, or transfer of any intellectual property rights arising from those components. WHEREFORE, Plaintiffs request this Court enter a preliminary injunction in the form described above, as well as injunctive and equitable relief as this Court deems appropriate. COUNT VIII: ACCOUNTING Plaintiffs vs. All Defendants 119. Plaintiffs incorporate each and every allegation set forth herein as though

fully set forth in length. 120. As set forth above, these Defendants have engaged in a scheme to steal

ownership of a vaccine developed and invented by the Plaintiffs. 121. As part of this scheme, the Defendants have even filed numerous patent

applications in an effort to confirm their alleged, but wrongful, ownership interests. 122. As part of the scheme identified more fully herein, and in particular not

limited to the various patent applications, the Defendants, in whole or in part, have 29

both paid and obtained money in support of the overall scheme, and the patent applications in particular. 123. The Plaintiffs seek an accounting from August 2011 to the present of any

monies that the Defendants have received and/or paid relating to or concerning the vaccine and/or the patent applications. The Defendants must be ordered to provide a detailed accounting listing all of the sums they have paid and/or received by virtue of the scheme, vaccine and patent applications set forth above, including: (a) (b) (c) (d) (e) (f) (g) All monies received in support of any patent application; All monies received in support of any additional research for any of the patent applications; All monies received for any testing, marketing or advertising of the vaccine; All monies received in an effort to protect and promote the Defendants patent applications; All monies received for any further research regarding the vaccine; All monies received from the sale of the vaccine; All monies received for the use of the Plaintiffs data.

WHEREFORE, it is respectfully requested that, in addition to all of the other relief requested by the Plaintiffs, this Honorable Court enter an Order compelling the Defendants to provide an accounting for the above-referenced items, together with any further relief which this Court deems just and appropriate under the circumstances. COUNT IX: CONVERSION Plaintiffs vs. All Defendants 124. As alleged in this Complaint, Plaintiffs, through their efforts as

researchers, conceived, developed, reduced to practice, tested, and collected extensive

30

and highly valuable data, processes, techniques, and methodologies relating to the Pneumocystis vaccine. 125. This information and data was merged with, or identified with,

documents, as that term is used in Pennsylvania law relating to the tort of conversion. 126. By surreptitiously taking the Plaintiffs research, and by filing fabricated

patent applications, Defendants Dr. Kolls, Dr. Zheng, and MiniVax have deprived Plaintiffs of their right of property in, or use or possession of, chattels, without Plaintiffs consent and without legal justification. 127. Dr. Kolls and Dr. Zheng did not invent the Pneumocystis vaccine at the

heart of their patent applications, their inventor disclosure to Louisiana State University, and their relationship with Minivax. Louisiana State Universitys and Minivaxs claimed property rights to the Pneumocystis vaccine are wholly derivative of Dr. Kolls and Dr. Zheng and their fabricated invention, and thus those entities have no have no property interest in it, nor any rights as a patent holder. 128. University of Pittsburgh has no agreement with Plaintiffs that would

satisfy the dictates of Stanford v. Roche to grant them a property interest in the Pneumocystis vaccine, nor any rights as a patent holder. 129. Plaintiffs have been damaged significantly by the deprivation, including,

but not limited to, the loss of rightful revenue and profits from the use of these chattels, as well as the need to expend great efforts and sums to obtain back use of the chattels, including this litigation and its costs and expenses. 130. All Defendants named in this count are either directly liable for the

tortious conduct identified herein, or are subject to liability under Section 876 of the Restatement (Second) of Torts (Persons Acting In Concert) because they acted in 31

concert with the other or pursuant to a common design, they knew the others conduct constituted a breach of duty and gave substantial assistance or encouragement to the other so to conduct himself, or, they gave substantial assistance to the other in accomplishing a tortious result and their own conduct, separately considered, constituted a breach of duty to the Plaintiffs. WHEREFORE, Plaintiffs request this Court enter a judgment substantially in excess of this Honorable Courts jurisdictional limits to guarantee a jury trial against all defendants, for compensation of the direct and consequential economic and noneconomic damages they have suffered, plus punitive damages, as well as injunctive and equitable relief as this Court deems appropriate. COUNT X: TRESPASS TO CHATTELS Plaintiffs vs. All Defendants 131. As alleged in this Complaint, Plaintiffs, through their efforts as

researchers, conceived, developed, reduced to practice, tested, and collected extensive and highly valuable data, processes, techniques, and methodologies relating to the Pneumocystis vaccine. 132. This information and data was merged with, or identified with,

documents, as that term is used in Pennsylvania law relating to the tort of conversion. 133. By surreptitiously taking the Plaintiffs research, and by filing fabricated

patent applications, Defendants Dr. Kolls, Dr. Zheng, and MiniVax have dispossessed Plaintiffs of, and have used and intermeddled with, Plaintiffs right of property in, or use or possession of, chattels, without Plaintiffs consent and without legal justification.

32

134.

Dr. Kolls and Dr. Zheng did not invent the Pneumocystis vaccine at the

heart of their patent applications, their inventor disclosure to Louisiana State University, and their relationship with Minivax. Louisiana State Universitys and Minivaxs claimed property rights to the Pneumocystis vaccine are wholly derivative of Dr. Kolls and Dr. Zheng and their fabricated invention, and thus those entities have no have no property interest in it, nor any rights as a patent holder. 135. University of Pittsburgh has no agreement with Plaintiffs that would

satisfy the dictates of Stanford v. Roche to grant them a property interest in the Pneumocystis vaccine, nor any rights as a patent holder. 136. Plaintiffs have been damaged significantly by the dispossession, use and

intermeddling of their chattel, including, but not limited to, the loss of rightful revenue and profits from the use of these chattels, as well as the need to expend great efforts and sums to obtain back use of the chattels, including this litigation and its costs and expenses. 137. All Defendants named in this count are either directly liable for the

tortious conduct identified herein, or are subject to liability under Section 876 of the Restatement (Second) of Torts (Persons Acting In Concert) because they acted in concert with the other or pursuant to a common design, they knew the others conduct constituted a breach of duty and gave substantial assistance or encouragement to the other so to conduct himself, or, they gave substantial assistance to the other in accomplishing a tortious result and their own conduct, separately considered, constituted a breach of duty to the Plaintiffs. WHEREFORE, Plaintiffs request this Court enter a judgment substantially in excess of this Honorable Courts jurisdictional limits to guarantee a jury trial against all 33

defendants, for compensation of the direct and consequential economic and noneconomic damages they have suffered, plus punitive damages, as well as injunctive and equitable relief as this Court deems appropriate. COUNT XI: UNJUST ENRICHMENT Plaintiffs vs. All Defendants 138. As alleged in this Complaint, Plaintiffs, through their efforts as

researchers, conceived, developed, reduced to practice, tested, and collected extensive and highly valuable data, processes, techniques, and methodologies relating to the Pneumocystis vaccine. 139. As alleged in this Complaint, all Defendants have either asserted a

property interest in the Pneumocystis vaccine invented by the Plaintiffs, or have failed to disclaim such property interest. 140. As alleged in this Complaint, all Defendants have either wrongfully

secured or passively received a benefit from the Pneumocystis vaccine that would be unconscionable for that Defendant to retain without compensating the Plaintiffs. 141. For example, Defendants LSU, Dr. Kolls, and Dr. Zheng have been the

beneficiary of an NIH-funded Small Business Technology Transfer (STTR) Grant awarded on the basis of Plaintiffs proprietary and confidential data that the Defendants wrongfully obtained and utilized. 142. Further, because Defendants continue their wrongful claims and efforts to

enforce those wrongful claims, such benefits are now appreciating and will continue to appreciate until a judgment is entered halting such wrongful conduct.

34

WHEREFORE, Plaintiffs request this Court enter a judgment substantially in excess of this Honorable Courts jurisdictional limits to guarantee a jury trial against all defendants, for compensation of the direct and consequential economic and noneconomic damages they have suffered, plus punitive damages, as well as injunctive and equitable relief as this Court deems appropriate. COUNT XII: CONSPIRACY Plaintiffs vs. All Defendants 143. As described in this Complaint, Plaintiffs, through their efforts as

researchers, conceived, developed, reduced to practice, tested, and collected extensive and highly valuable data, processes, techniques, and methodologies relating to the Pneumocystis vaccine. 144. As described in this Complaint, all Defendants have either asserted a

property interest in the Pneumocystis vaccine invented by the Plaintiffs, or have failed to disclaim such property interest. 145. As described in this Complaint, all Defendants have either wrongfully

secured or passively received a benefit from the Pneumocystis vaccine that would be unconscionable for that Defendant to retain without compensating the Plaintiffs. Further, because Defendants continue their wrongful claims and efforts to enforce those wrongful claims, such benefits are now appreciating and will continue to appreciate until a judgment is entered halting such wrongful conduct. 146. All Defendants named in this count are either directly liable for the

tortious conduct identified herein, or are subject to liability under Section 876 of the Restatement (Second) of Torts (Persons Acting In Concert) because they acted in concert with the other or pursuant to a common design, they knew the others conduct 35

constituted a breach of duty and gave substantial assistance or encouragement to the other so to conduct himself, or, they gave substantial assistance to the other in accomplishing a tortious result and their own conduct, separately considered, constituted a breach of duty to the Plaintiffs. WHEREFORE, Plaintiffs request this Court enter a judgment substantially in excess of this Honorable Courts jurisdictional limits to guarantee a jury trial against all defendants, for compensation of the direct and consequential economic and noneconomic damages they have suffered, plus punitive damages, as well as injunctive and equitable relief as this Court deems appropriate. COUNT XIII: TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS Plaintiffs vs. All Defendants 147. As alleged in this Complaint, Plaintiffs, through their efforts as

researchers, conceived, developed, reduced to practice, tested, and collected extensive and highly valuable data, processes, techniques, and methodologies relating to the Pneumocystis vaccine. 148. As alleged in this Complaint, Dr. Norris and Dr. Kling have agreements

with the University of Pittsburgh that, per Stanford v. Roche, entitle to Dr. Norris and Dr. Kling to the full rights arising from the Pneumocystis vaccine. 149. Despite the aforementioned facts, Dr. Kolls and Dr. Zheng have wrongly

induced the University of Pittsburgh (by way of, inter alia, using the Mellon Center as leverage) to frustrate Plaintiffs efforts to secure and use their rights and to clarify publicly the true inventorship of the Pneumocystis vaccine.

36

150.

Despite their own finding of research misconduct by Dr. Kolls and Dr.

Zheng, and their own contractual agreements with the Plaintiffs, the University of Pittsburgh has failed to take appropriate steps to remedy the wrongful behavior by Dr. Kolls and Dr. Zheng, and to this day has failed to demand either correct their filings with the USPTO, correct their misstatements as to the origin of the Pneumocystis vaccine, and to allow Plaintiffs sole ownership of the Pneumocystis vaccine. 151. All Defendants named in this count are either directly liable for the

tortious conduct identified herein, or are subject to liability under Section 876 of the Restatement (Second) of Torts (Persons Acting In Concert) because they acted in concert with the other or pursuant to a common design, they knew the others conduct constituted a breach of duty and gave substantial assistance or encouragement to the other so to conduct himself, or, they gave substantial assistance to the other in accomplishing a tortious result and their own conduct, separately considered, constituted a breach of duty to the Plaintiffs. WHEREFORE, Plaintiffs request this Court enter a judgment substantially in excess of this Honorable Courts jurisdictional limits to guarantee a jury trial against all defendants, for compensation of the direct and consequential economic and noneconomic damages they have suffered, plus punitive damages, as well as injunctive and equitable relief as this Court deems appropriate. COUNT XIV: NEGLIGENCE Plaintiffs vs. University of Pittsburgh 152. As alleged in this Complaint, Plaintiffs, through their efforts as

researchers, conceived, developed, reduced to practice, tested, and collected extensive

37

and highly valuable data, processes, techniques, and methodologies relating to the Pneumocystis vaccine. 153. The University of Pittsburgh had no contractual entitlement to any part of

Plaintiffs invention. Nonetheless, the University of Pittsburgh asserted, and continues to assert, an ownership interest in of Plaintiffs invention, and has used its position, and its relationship with Dr. Kolls and Dr. Zheng, to direct activities relating to the prosecution of the patents. 154. The University of Pittsburgh, having chosen to undertake activities related

to securing the rights to the intellectual property, including by way of control the prosecution of the patent, is under a duty to do so with reasonable care. 155. The University of Pittsburgh has breached its duty, allowing the

intellectual property to become compromised, to be subject to doubt and to delays, to allow erroneous and fraudulent filings to be made and to persist, all to the detriment of the Plaintiffs, who have already suffered considerable losses and may suffer more in the future. WHEREFORE, Plaintiffs request this Court enter a judgment substantially in excess of this Honorable Courts jurisdictional limits to guarantee a jury trial against all defendants, for compensation of the direct and consequential economic and noneconomic damages they have suffered, plus punitive damages, as well as injunctive and equitable relief as this Court deems appropriate.

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NOTICE OF PRESERVATION OF EVIDENCE PLAINTIFFS HEREBY DEMAND AND REQUEST THAT DEFENDANTS TAKE NECESSARY ACTION TO ENSURE THE PRESERVATION OF ALL DOCUMENTS, COMMUNICATIONS, WHETHER ELECTRONIC OR OTHERWISE, ITEMS AND THINGS IN THE POSSESSION OR CONTROL OF ANY PARTY TO THIS ACTION, OR ANY ENTITY OVER WHICH ANY PARTY TO THIS ACTION HAS CONTROL, OR FROM WHOM ANY PARTY TO THIS ACTION HAS ACCESS TO, ANY DOCUMENTS, ITEMS, OR THINGS WHICH MAY IN ANY MANNER BE RELEVANT TO OR RELATE TO THE SUBJECT MATTER OF THE CAUSES OF ACTION AND/OR THE ALLEGATIONS OF THIS COMPLAINT. DEMAND FOR JURY TRIAL Plaintiffs demand a jury trial on all issues triable before a jury. THE BEASLEY FIRM, LLC BY: /s/ James E. Beasley, Jr. JAMES E. BEASLEY, JR. DION G. RASSIAS MAXWELL S. KENNERLY THE BEASLEY BUILDING 1125 Walnut Street Philadelphia, PA 19107 Attorneys for Plaintiffs

Dated: 27 January 2014

39