UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

Ford Motor Company,

Plaintiff/

Counter-Defendant,

v.

Versata Software, Inc., f/k/a Trilogy 

Software, Inc., Trilogy Development 

Group, Inc. and Trilogy, Inc., 

Defendants/

Counter-Plaintiffs.

Case No. 15-10628-MFL-EAS 

(consolidated with Case No. 15-cv-11624)

Hon. Matthew F. Leitman

JURY TRIAL DEMANDED

FORD’S SECOND AMENDED COMPLAINT

FOR DECLARATORY JUDGMENT

Pursuant to the Declaratory Judgment Act, 28 U.S.C. §2201 and the Court’s 

Order (Dkt. #215), Plaintiff Ford Motor Company (“Ford”) requests a Declaratory 

Judgment as follows:

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I. THE PARTIES

1. Ford is a Delaware corporation with its principal place of business at 

One American Road, Dearborn, Michigan.

2. On information and belief, Versata Software, Inc., f/k/a Trilogy 

Software, Inc. is a Delaware corporation having its principal place of business in

Austin, TX.

3. On information and belief, Trilogy Development Group, Inc. (“Trilogy

Development”) is a California corporation having its principal place of business in 

Austin, TX.

4. On information and belief, Versata became a wholly-owned subsidiary 

of Trilogy Development in 2006, and Trilogy Development is the parent company 

of Versata and its subsidiaries.

5. On information and belief, Trilogy, Inc. is a Delaware corporation 

having its principal place of business in Austin, TX. The Defendants are referred to 

collectively in this document as “Versata.”

II. JURISDICTION AND VENUE

6. Ford incorporates the allegations of paragraphs 1-5. 

7. This Court has jurisdiction over these claims pursuant to 28 U.S.C. 

§§1331, 1338, and 2201.

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8. As detailed below, an actual case and controversy exists concerning the 

alleged infringement of one or more of Defendants’ patents, the alleged

misappropriation of Defendants’ purported trade secrets, and Ford’s obligations 

pursuant to a 2004 agreement with Defendants.

9. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b).

III. BACKGROUND FACTS

10. Ford incorporates the allegations of paragraphs 1-9.

Ford’s Early Vehicle Configuration Software

11. Ford is an Original Equipment Manufacturer (“OEM”) of automobiles.

12. Ford sells a wide range of vehicle lines in different vehicle categories, 

such as compact cars, SUVs, sedans and pick-up trucks. Each vehicle line in each 

category has many different configurations and options. For example, most vehicles 

are offered with more than one engine choice, more than one transmission choice, 

more than one wheel choice and several other configurations and options.

13. Not all vehicle components are compatible with one another. For 

example, a particular engine may not be compatible with a particular transmission. 

A particular transmission, however, may be compatible with several different (but 

not all) available engine selections.

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14. Given the complexity and options available on a particular vehicle, 

millions of configurations are possible for each vehicle line. 

15. Beginning in the 1990s, Ford developed the Marketing Feature 

Availability List (“MFAL”) and the “Product Feature Database” (“PFDB”) software 

to help Ford define and manage valid vehicle configurations within Ford.

Defendants’ Configuration Software

16. In October 1998, Ford licensed “SC Config” software from Defendants. 

The SC Config software proved incapable of handling the complexity and volume 

of data required to support Ford’s needs. 

17. Thus, at the same time Ford licensed SC Config, Ford and Defendants 

entered into in a Contract Services Agreement (“CSA”) governing the development 

of customized software for Ford.

18. The CSA states that Ford either owns, or has a royalty-free license to 

reproduce the software deliverables and customizations for the SC Config software.

19. Between 1999 and 2004, Defendants and Ford jointly developed the 

“Automotive Configuration Manager” (“ACM”) pursuant to the CSA.

20. The ACM was an adaptation of SC Config for use within Ford. This 

was required due to the high levels of data volumes and the complexity of Ford’s 

vehicle offerings.

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21. Ford paid Defendants tens of millions of dollars for the ACM 

development services pursuant to the CSA.

22. In December 2004, Ford and Defendants entered into a Master 

Subscription and Services Agreement (“MSSA”), governing the licensing of, inter 

alia, the ACM software.

23. Similar to the CSA, the MSSA included provisions establishing Ford’s 

ownership, or license to reproduce, deliverables created under the MSSA.

Defendants Unilaterally Declares The ACM Software “Obsolete” And Terminate

Ford’s Maintenance & Support For The ACM Software

24. In November 2010, Defendants informed Ford that the ACM software 

was “obsolete,” and that Ford was required to license Defendants’ new “cloudbased” computing platform going forward. For security reasons, Ford was not 

willing to move its proprietary vehicle configuration data off-premises to the 

“cloud,” i.e., the Internet.

25. Prior to these discussions, Defendants threatened Ford with termination 

of the license for the original ACM software if Ford refused to move to the “cloudbased” platform. 

26. During subsequent discussions with Ford, however, Defendants later 

permitted Ford to continue using the “obsolete” ACM software at an annual license 

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fee of several million dollars, but without Defendants’ maintenance or support

services.

27. Because Ford needed maintenance and support for the ACM software, 

and because Defendants had previously threatened to terminate its license for the 

original ACM software, Ford entered into an addendum to the original ACM 

software licensee.

28. In the addendum, Ford paid Defendants a substantial additional fee for 

an “Extended Support Term” for the original ACM software and for Defendants to 

waive their right to terminate the ACM license for convenience during the Extended 

Support Term.

Defendants Terminated Ford’s ACM License, And Described Their Exorbitant 

Licensing Fees As “Extortion”

29. Defendants notified Ford on October 7, 2014 that they were terminating 

Ford’s ACM license, effective January 1, 2015. Defendants’ letter stated that Ford 

was to cease using the ACM software by January 1, 2015.

30. On November 13, 2014, Defendants extended the termination date to 

January 15, 2015 and again stated that Ford was to cease using the ACM software 

by the extended date.

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31. However, Versata’s demands were in direct violation to the terms of a 

2011addendum. In this addendum, Versata waived its right to terminate Ford’s right 

to sustained use through the end of 2015 in exchange for a fee.

32. In parallel with these termination notices, Defendants presented Ford 

with unreasonable license terms for Defendants’ “obsolete” ACM software Ford had 

been using since 2005.

33. Defendants’ new licensing proposal was 5 years at a dollar amount that 

is incrementally greater than the amount Ford would have paid for the exact same 

“obsolete” ACM software previously licensed to Ford on an annual basis.

34. During a conference call regarding Defendants’ new licensing 

proposal, a Defendant representative stated to Ford representatives that “we could 

have extorted a lot more money out of you three years ago.”

35. Ford did not accept Defendants’ unreasonable license proposal. On 

December 19, 2014, Ford notified Defendants that Ford would no longer be using 

the ACM software. 

Ford Research Engineers Invented, Developed And Patented Their Own 

Configuration Software; Defendants Forced Ford To Changeover

36. Beginning in 2010, engineers from Ford’s Research and Advanced 

Engineering department were working to develop software that Ford might use in 

the future to determine which vehicle configurations sell the best.

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37. The objective of the new software was to determine, of the millions of 

possible vehicle configurations, which configurations were likely to sell the quickest

to minimize the amount of time the vehicles sit in dealer inventory, referred to as 

“days on lot.”

38. To accomplish this objective, the engineers needed to swiftly define 

and analyze millions of possible vehicle configurations, all in an attempt to narrow 

the universe of possible configurations to those buildable configurations relevant to 

an individual dealer and further constrained to avoid combinations of options likely 

to lengthen the “days on lot.” 

39. These research engineers ultimately invented software that managed 

the millions of possible vehicle configurations very reliably, and in a very efficient 

manner. The engineers referred to their invention as the “super configurator.”

40. In parallel with Ford’s efforts in research, Ford Product Definition

engineers were trying to better understand vehicle complexity so that they could

reduce number of manufactured configurations and ultimately reduce cost. These 

efforts utilized the output of the Feature Query Validation (FQV) Service and data 

from ACM rule reports. The efforts yielded some basic tools to assess complexity 

and some proofs-of-concept, but proved to be of limited broader use due to the 

computing power required. Analyzing moderately complex programs required a 

supercomputer to run for days and complex programs failed to complete processing.

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41. In 2011, Ford’s Product Definition engineers and Research engineers 

recognized that the super configurator technology developed in Ford’s research 

department was orders of magnitude more powerful than the approaches developed 

using FQV or ACM. The super configurator was able to work successfully with 

vehicle programs of great complexity. Also, with the greater processing power, the 

super configurator technology could enable many uses beyond the simple 

complexity assessments that were initially targeted by the Product Definition 

engineers. The new technology could be used as the basis for a replacement for the 

ACM software – software that Defendants had declared “obsolete” and threatened 

to terminate.

42. The two teams joined forces and, under the heading of Total 

Configuration Management (TCM), continued to improve the performance and 

extend the capabilities of the super configuration technology.

43. Ford filed a patent application on its super configurator software in 

October 2011, and received a patent covering its invention in August 2014, U.S. 

Patent No. 8,812,375 (the ‘375 patent).

44. As explained in the ‘375 Patent, Ford’s invention approaches vehicle 

configuration very differently, and more efficiently, than Defendants do. 

45. Ford disclosed Defendants’ configuration patents to the U.S. Patent & 

Trademark Office (“PTO”) during examination of the ‘375 Patent. The PTO 

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allowed Ford’s ‘375 patent over Defendants’ patents because Ford’s software 

operates fundamentally differently.

46. From 2011 to 2014, Ford developed the “PDO” vehicle configuration 

software to replace the obsolete ACM software. Ford’s PDO software was 

constructed using Ford’s patented super configurator invention, and provides several 

significant technical advantages over the ACM software.

47. For example, the patented configuration engine used in Ford’s PDO

software is more accurate than the ACM software, providing Ford with higher data 

integrity than the ACM software.

48. In addition, Ford’s PDO software provides a foundation that is capable 

of managing in a coherent manner a broad range of related data including integrating

data representing vehicle volumes, configuration mix and weight – something the 

ACM software cannot do. The PDO software also provides the potential for 

extended analytic capabilities over the ACM software.

49. Another significant advantage of Ford’s PDO software over the ACM 

software is that PDO has been architected to support future extensions planned to 

enable Ford’s business people to easily define vehicle configurations themselves, 

without requiring the expert configuration codification analysts that the ACM 

software required. This will dramatically increase the efficiency and utility of the 

configuration software within Ford.

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50. Ford’s PDO software also allows Ford to develop and deploy reusable 

powerful global data services. ACM was geared to support a small group of core 

codification analysts and was not capable of handling high volumes of complex realtime data requests. PDO is architected to support hundreds of users interacting with 

PDO data services on a daily basis.

51. From the hardware perspective, Ford’s PDO software runs on a modern 

computing platform, which is more closely aligned with Ford’s computing 

infrastructure strategy.

52. Ford’s PDO software is also scalable to meet Ford’s global needs 

without a significant upgrade, unlike the ACM software.

53. Driven by the technical drawbacks of the ACM software, Defendants’

repeated termination notices, and their unreasonable unilateral escalation of license 

fees (which Defendants referred to as “extortion”), Ford was forced to incur costs to 

prepare and deploy the patented PDO software into production prior to January 1, 

2015.

Defendants Threatened Ford With Patent Infringement, Copyright Infringement,

And Misappropriation of Trade Secrets, and Demanded an Audit of Ford’s PDO 

Software and Ford’s PDO Developers

54. In its termination letter sent October 7, 2014, Defendants attached a list 

of 86 U.S. patents and stated that Ford “has no right nor license to use any such 

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claimed inventions outside of its now expiring licensed use of [Defendants’]

Software.”

55. At a meeting in Dearborn, MI on December 19, 2014 between counsel 

and client representatives for Defendants and Ford, Ford notified Defendants of 

Ford’s intention to switch to Ford’s patented configuration software. A

representative of Defendants responded stating that Ford’s replacement 

configuration software must infringe Defendants’ intellectual property, including its 

patents, copyrights and trade secrets.

56. On December 23, 2014, Defendants notified Ford of their “inten[t] to 

exercise its on-premises audit rights pursuant to Section 3.5 of the [MSSA].” In 

particular, Defendants demanded an audit of “the development of an internal (or 

third party) Ford solution to replace [Defendants’] Software.”

57. Defendants’ audit notice also requested interviews of “Ford personnel 

who at any time worked with any of [Defendants’] Software, Materials, Confidential 

Information and/or Intellectual Property and also who at any time worked on the 

development of a Ford internal (or third party) solution to replace [Defendants’]

Software.”

58. According to Defendants’ website, the following three patents cover 

their Automotive Configuration software: U.S. Patent No. 5,825,651 (the ‘561 

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Patent), U.S. Patent No. 6,405,308 (the ‘308 Patent), and U.S. Patent No. 6,675,294

(the ‘294 Patent).

59. These patents were included in the list of 86 patents that Defendants

sent to Ford in its October 7, 2014 termination letter. The ‘651 Patent was the first 

patent on the list.

60. According to assignment records archived at the U.S. Patent & 

Trademark Office, these patents are currently assigned to Defendants.

COUNT #1:

DECLARATORY JUDGMENT THAT FORD DOES NOT 

INFRINGE THE ‘651 PATENT

61. Ford incorporates the allegations of paragraphs 1-60.

62. As a result of threats Defendants made to Ford concerning Defendants’

configuration patents, including the ‘651 Patent, and Defendants’ demand to audit 

Ford’s PDO code and interview Ford’s PDO developers, an actual case or 

controversy exists with respect to the ‘651 Patent.

63. Ford’s PDO software does not directly or indirectly infringe the ‘651 

patent.

64. Ford is entitled to a declaratory judgment that it has not infringed and 

is not infringing the ‘651 patent.

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COUNT #2:

DECLARATORY JUDGMENT THAT FORD DOES NOT 

INFRINGE THE ‘308 PATENT

65. Ford incorporates the allegations of paragraphs 1-64.

66. As a result of threats Defendants made to Ford concerning Defendants’

configuration patents, including the ‘308 Patent, and Defendants’ demand to audit 

Ford’s PDO code and interview Ford’s PDO developers, an actual case or 

controversy exists with respect to the ‘308 Patent.

67. Ford’s PDO software does not directly or indirectly infringe the ‘308 

patent.

68. Ford is entitled to a declaratory judgment that it has not infringed and 

is not infringing the ‘308 patent.

COUNT #3:

DECLARATORY JUDGMENT THAT FORD DOES NOT 

INFRINGE THE ‘294 PATENT

69. Ford incorporates the allegations of paragraphs 1-68.

70. As a result of threats Defendants made to Ford concerning Defendants’

configuration patents, including the ‘294 Patent, and Defendants’ demand to audit 

Ford’s PDO code and interview Ford’s PDO developers, an actual case or 

controversy exists with respect to the ‘294 Patent.

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71. Ford’s PDO software does not directly or indirectly infringe the ‘294 

patent.

72. Ford is entitled to a declaratory judgment that it has not infringed and 

is not infringing the ‘294 patent.

COUNT #4:

DECLARATORY JUDGMENT THAT FORD OWNS, OR 

IS LICENSED TO REPRODUCE, SOFTWARE TRILOGY

DEVELOPED PURSUANT TO THE 1998 CONTRACT 

SERVICES AGREEMENT

73. Ford incorporates the allegations of paragraphs 1-72.

74. As a result of threats Defendants made to Ford concerning infringement 

or misappropriation of Defendants’ alleged intellectual property, and Defendants’

demand to audit Ford’s PDO code and interview Ford’s PDO developers, an actual 

case or controversy exists with respect to ownership of any intellectual property 

associated with the ACM software.

75. In October 1998, Ford and Trilogy entered into the CSA governing, 

inter alia, title to Trilogy-developed software.

76. Between 1999 and 2004, Ford paid Defendants tens of millions of 

dollars pursuant to the CSA to develop the ACM software.

77. Ford is entitled to a declaratory judgment that, pursuant to the CSA, 

Ford either owns, or has the right to reproduce without accounting to Trilogy, all 

software and intellectual property developed for the ACM.

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78. To the extent Defendants own patents, trade secrets or copyrights 

covering functionality developed for the ACM under the CSA, Ford is entitled to a 

declaratory judgment that the CSA provides Ford at least a royalty-free license to 

practice and reproduce that intellectual property. 

COUNT #5:

DECLARATORY JUDGMENT THAT FORD OWNS, OR 

IS LICENSED TO REPRODUCE, SOFTWARE TRILOGY

DEVELOPED PURSUANT TO THE 2004 MASTER 

SUBSCRIPTION AND SERVICES AGREEMENT

79. Ford incorporates the allegations of paragraphs 1-78.

80. As a result of threats Defendants made to Ford concerning infringement 

or misappropriation of Defendants’ alleged intellectual property, and Defendants’

demand to audit Ford’s PDO code and interview Ford’s PDO developers, an actual 

case or controversy exists with respect to ownership of any intellectual property 

associated with the ACM software.

81. In December 2004, Ford and Trilogy entered into the MSSA governing, 

inter alia, licensing and title to Trilogy-developed software deliverables.

82. The MSSA states that Ford is either the owner of the software 

deliverables, or is licensed to reproduce, use and exploit the deliverables on a 

“royalty free” basis.

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83. Ford is entitled to a declaratory judgment that, pursuant to the MSSA, 

Ford either owns, or has the right to reproduce without accounting to Trilogy, 

deliverables for the ACM.

84. To the extent Defendants own patents, trade secrets or copyrights 

covering deliverables developed under the MSSA, Ford is entitled to a declaratory 

judgment that the MSSA provides Ford at least a royalty-free license to practice and 

reproduce that intellectual property. 

COUNT #6:

DECLARATORY JUDGMENT THAT FORD DID NOT 

MISAPPROPRIATE DEFENDANTS’ TRADE SECRETS

85. Ford incorporates it allegations in paragraphs 1-84.

86. As a result of threats Defendants made to Ford concerning 

misappropriation of Defendants’ alleged trade secrets in connection with Ford’s 

development of the PDO software, and Defendants’ demand to audit Ford’s PDO 

code and interview Ford’s PDO developers, an actual case or controversy exists with 

respect to Defendants’ alleged trade secrets.

87. At no time did Defendants provide Ford with the source code for the 

SC Config or ACM software.

88. The software customizations for the SC Config or ACM software were 

either Ford specified, or jointly developed by Ford and Defendants for configuring 

vehicles within Ford and consistent with Ford’s business practices.

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89. Pursuant to the CSA and MSSA, Ford either owns, or has a royalty-free 

license to reproduce the software deliverables and customizations for the SC Config 

and ACM software.

90. Ford is entitled to a declaratory judgment that Ford did not 

misappropriate Defendants trade secrets to develop Ford’s PDO software. 

COUNT #7:

DECLARATORY JUDGMENT THAT DEFENDANTS ARE 

NOT PERMITTED TO INSPECT FORD’S PDO 

SOFTWARE OR INTERVIEW FORD’S PDO 

DEVELOPERS PURSUANT TO THE AUDIT 

PROVISIONS OF THE 2004 MSSA

91. Ford incorporates the allegations of paragraphs 1-90.

92. On December 23, 2014, Defendants notified Ford of Defendants’

“inten[t] to exercise its on-premises audit rights pursuant to Section 3.5 of the 

[MSSA].” In particular, Defendants demanded an audit of “the development of an 

internal (or third party) Ford solution to replace [Defendants’] Software.”

93. Defendants’ audit notice also requested interviews of “Ford personnel 

who at any time worked with any of Defendants’ Software, Materials, Confidential 

Information and/or Intellectual Property and also who at any time worked on the 

development of a Ford internal (or third party) solution to replace Defendants’

Software.”

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94. The MSSA does not permit Defendants to inspect Ford’s PDO 

software, or interview Ford’s PDO developers. The MSSA simply requires Ford to 

provide access to the licensed software and records. 

95. Ford’s PDO software was developed by Ford independent of 

Defendants’ ACM software. Thus, Ford has no obligation to permit Defendants to 

inspect Ford’s PDO software, or interview Ford’s PDO developers. 

96. To fulfill its obligations under the MSSA, Ford has agreed to provide 

Defendants with an inspection of Ford’s records pertaining to the licensed ACM 

software. Ford has informed Defendants, however, that it will not permit Defendants

to audit Ford’s PDO software, or interview Ford’s PDO developers.

97. Because Ford contends that the requested audit of Ford’s PDO software 

and developers is not permitted under the MSSA, and Defendants contend that such 

an audit is permitted, an actual case or controversy exists with respect to the MSSA, 

and Ford’s obligations thereunder.

98. While the parties’ dispute arises from a contract provision concerning 

the scope of Defendants’ audit rights under the MSSA, the underlying case or 

controversy between the parties involves a substantive matter of patent law. As 

explained in detail above, Defendants’ October 7, 2014 termination letter attached a 

list of 86 U.S. patents which Defendants stated Ford “has no right nor license to use 

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any such claimed inventions outside of its now expiring licensed use of 

[Defendants’] Software.”

99. At a meeting in Dearborn, MI on December 19, 2014 between counsel 

and client representatives for Defendants and Ford, a Defendant representative stated 

that Ford’s replacement configuration software must infringe Defendants’

intellectual property, including its patents.

100. Four days later, on December 23, 2014, Defendants demanded an audit 

of “the development of an internal (or third party) Ford solution to replace 

Defendants’ Software” and interviews of “Ford personnel who at any time worked 

with any of Defendants’ Software, Materials, Confidential Information and/or 

Intellectual Property and also who at any time worked on the development of a Ford 

internal (or third party) solution to replace [Defendants’] Software.”

101. Defendants’ allegations and demands to Ford reveal a present case or 

controversy between the parties concerning the extent to which Ford’s PDO software 

practices Defendants’ patents and other intellectual property. That is the reason 

Defendants expressed for requesting the audit in the first place.

COUNT #8:

BREACH OF CONTRACT

102. Ford incorporates the allegations of paragraphs 1-101.

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103. Ford and Versata entered into an enforceable contract granting Ford the 

right to use Versata’s ACM software in exchange for a fee.

104. Pursuant to a 2011 addendum to the MSSA, Versata waived its right to 

terminate the contract for convenience before January 15, 2015 in exchange for a 

fee.

105. Ford paid the fee specified in the 2011 addendum and therefore satisfied 

all conditions precedent.

106. Pursuant to a 2011 addendum to the MSSA, Versata waived its right to 

terminate our right to sustained use through the end of 2015 in exchange for a fee. 

Versata’s termination notices were in direct violation to the 2011 addendum, and 

prohibited Ford from exercising its option to continue use of the ACM software 

through December 31, 2015.

107. Due to the termination notices, Ford was also forced to incur costs to 

complete and deploy the alternate PDO software prior to January 1, 2015.

108. Versata’s conduct constituted a breach of the MSSA.

109. As a direct and proximate cause of Versata’s breach of the MSSA, Ford 

has suffered damages including, but not limited to, the fees Ford paid to Versata for 

the waiver and the costs Ford wrongfully incurred to prepare and deploy the PDO 

software prior to January 1, 2015.

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COUNT #9:

DECLARATORY JUDGMENT OF INVALIDITY 

OF U.S. PATENT NO. 5,825,651

110. Ford incorporates the allegations of paragraphs 1-109.

111. All claims of the ‘651 patent are unpatentable and invalid under 35 

U.S.C. §§ 101, 102, 103, and 112 as set forth more fully in Ford’s invalidity 

contentions, which may be amended as permitted by the Court’s Scheduling Oder. 

COUNT #10:

DECLARATORY JUDGMENT OF INVALIDITY 

OF U.S. PATENT NO. 6,405,308 

112. Ford incorporates the allegations of paragraphs 1-111.

113. All claims of the ‘308 patent are unpatentable and invalid under 35 

U.S.C. §§ 101, 102, 103, and 112 as set forth more fully in Ford’s invalidity 

contentions, which may be amended as permitted by the Court’s Scheduling Oder.

COUNT #11:

DECLARATORY JUDGMENT OF INVALIDITY 

OF U.S. PATENT NO. 6,675,294 

114. Ford incorporates the allegations of paragraphs 1-113.

115. All claims of the ‘294 patent are unpatentable and invalid under 35 

U.S.C. §§ 101, 102, 103, and 112 as set forth more fully in Ford’s invalidity 

contentions, which may be amended as permitted by the Court’s Scheduling Oder.

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COUNT #12:

DECLARATORY JUDGMENT OF INVALIDITY 

OF U.S. PATENT NO. 8,805,825 

116. Ford incorporates the allegations of paragraphs 1-115.

117. All claims of the ‘825 patent are unpatentable and invalid under 35 

U.S.C. §§ 101, 102, 103, and 112 as set forth more fully in Ford’s invalidity 

contentions, which may be amended as permitted by the Court’s Scheduling Oder.

COUNT #13:

DECLARATORY JUDGMENT OF INVALIDITY 

OF U.S. PATENT NO. 7,200,582 

118. Ford incorporates the allegations of paragraphs 1-117.

119. All claims of the ‘582 patent are unpatentable and invalid under 35 

U.S.C. §§ 101, 102, 103, and 112 as set forth more fully in Ford’s invalidity 

contentions, which may be amended as permitted by the Court’s Scheduling Oder.

COUNT #14:

DECLARATORY JUDGMENT OF INVALIDITY 

OF U.S. PATENT NO. 7,739,080

120. Ford incorporates the allegations of paragraphs 1-119.

121. All claims of the ‘080 patent are unpatentable and invalid under 35 

U.S.C. §§ 101, 102, 103, and 112 as set forth more fully in Ford’s invalidity 

contentions, which may be amended as permitted by the Court’s Scheduling Oder.

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COUNT #15:

DECLARATORY JUDGMENT OF INVALIDITY 

OF U.S. PATENT NO. 7,464,064 

122. Ford incorporates the allegations of paragraphs 1-121.

123. All claims of the ‘064 patent are unpatentable and invalid under 35 

U.S.C. §§ 101, 102, 103, and 112 as set forth more fully in Ford’s invalidity 

contentions, which may be amended as permitted by the Court’s Scheduling Oder.

COUNT #16:

DECLARATORY JUDGMENT OF INVALIDITY 

OF U.S. PATENT NO. 7,882,057 

124. Ford incorporates the allegations of paragraphs 1-123.

125. All claims of the ‘057 patent are unpatentable and invalid under 35 

U.S.C. §§ 101, 102, 103, and 112 as set forth more fully in Ford’s invalidity 

contentions, which may be amended as permitted by the Court’s Scheduling Oder.

COUNT #17:

BREACH OF CONTRACT

126. Ford incorporates the allegations of paragraphs 1-125.

127. Ford and Versata entered into a contract entitled “Software 

Subscription Amendment #1” (“the SSA”) with an effective date of January 1, 2002.

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128. Subsequently in December 2004, Ford and Versata entered into the 

Master Subscription and Services Agreement (“MSSA”) which, by its express terms 

superceded the SSA. 

129. Ford asserts that the SSA is no longer enforceable. Versata, however, 

denies that the MSSA completely superceded the SSA, and asserts claims against 

Ford based on certain terms of that agreement. 

130. To the extent the SSA was not completely superceded by the MSSA as 

Versata claims, Versata has breached provisions of the SSA to Ford’s detriment.

131. Versata agreed in paragraph 2(E) that, beginning in 2005, Ford would 

receive a refund equal to 25% of all ACM subscription fees paid by other OEMs, up 

to $2,750,000 per year.

132. Ford has not received the annual refund of ACM subscription fees as 

required under the SSA. Upon information and belief, at least one non-Ford OEM 

is currently paying Versata license fees for ACM. In breach of provision 2(E), 

Versata has failed to pay Ford 25% of the ACM subscription fees Versata has 

received.

133. As a direct and proximate cause of Versata’s breach of the SSA, Ford 

has suffered damages including, but not limited to, the refunds Ford was and is 

entitled to receive pursuant to paragraph 2(E) of the SSA.

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COUNT #18:

INEQUITABLE CONDUCT 

134. Ford incorporates the allegations of paragraphs 1-133.

135. Versata’s ‘651, ‘308 and ‘294 patents are unenforceable as a result of 

Versata’s inequitable conduct before the U.S. Patent & Trademark Office 

(“USPTO”) in connection with the ‘651 patent. As explained in detail below, and 

subject to further evidentiary support after reasonable opportunity for further 

investigation and discovery, at least J.D. Harriman II, Ajay Agarwal and Dr. David 

Franke acted with a specific intent to deceive the USPTO when they knowingly and 

intentionally failed to disclose material prior art to the USPTO during examination 

of the ‘651 patent. But for their failure to disclose this material prior art information, 

one or more claims of the ‘651 patents would not have issued. As a result of the

inequitable conduct with respect to the ‘651 “parent” patent, the “child” patents in 

the ‘651 patent family (the ‘308 and ‘294 patents) are unenforceable as well.

136. The ‘651 patent describes a problem that Versata was attempting to 

solve in September 1996 when the application for the ‘651 patent was filed:

Computer systems have been developed to assist one in configuring a 

system. However, these systems use a configuration language to define 

a system. Like a programming language, a configuration language uses 

a syntax that must be understood by a user who is maintaining the data 

(i.e., a data maintainer). To use one of these configuration systems, it is 

necessary for a data maintainer to understand the configuration 

language. This limits the number of users who are able to use the 

configuration systems. That is, the level of sophistication needed to 

communicate with the configuration system (through a configuration 

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language) results in less sophisticated users being unable to use the 

system.

137. According to the “Summary of the Invention,” the ‘651 patent purports

to solve this “sophistication” problem with a “maintenance system” having a 

“graphical user interface”:

Using the maintenance system, a product can be defined using the 

product classifications and the part relationships. A graphical user 

interface (GUI) is used to allow the user to interactively generate a 

definition. Instead of configuration languages, GUI operations such as 

drag and drop and selection operations can be used to specify a 

definition. The notions of included, optional and required choice are 

easily comprehensible to a user. Further, the idea that parts have 

interrelationships is also easily understood. Thus, a product can be 

defined without having to learn a complicated configuration language.

138. The patent explains that the “definition” generated by the “maintenance 

system” is used during a “configuration session” to validate user selections.

139. For several years before the application for the ‘651 patent was filed,

however, Versata had been selling and offering for sale its “SalesBUILDER” 

configuration software having a “Maintenance System” with a graphical user 

interface that enabled users to more easily define relationships for products. Joe 

Liemandt, Versata’s president and founder, has testified that SalesBUILDER was 

Trilogy’s “flagship” configuration software that Trilogy (now Versata) began selling 

in 1991 – five years before the application for the ‘651 patent was filed.

140. A 1993 Trilogy marketing brochure shows the “Maintenance System” 

graphical user interface for the “SalesBUILDER” configuration software. 

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141. Versata’s marketing brochure states:

The Maintenance System provides a graphical interface that visually 

describes component relationships and provides easy navigation 

through the configuration database.

As a result, a wide variety of people in your organization can maintain 

sales configuration information.

142. As shown in the “Maintenance System” user interface above, a 

“Product Editor” enables a user to “visually describes component relationships” 

including “required” elements and “Options” – what the ‘651 patent purports to have 

invented years later. The SalesBUILDER product performed additional aspects of 

the ‘651 patent, including “validating” user input based on the product definition.

143. The following graphic from Versata’s 1993 marketing brochure shows 

the SalesBUILDER “Maintenance System” in relation to the other elements of 

SalesBUILDER, including the “Configuration Engine.”

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144. This graphic is similar, in substance, to the “Summary of the Invention” 

of the ‘651 patent, and Figure 2, which describe a “Maintenance System” (202) 

providing input to a “Configuration System” (212).

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145. Versata’s SalesBUILDER configuration software, including the 

“Maintenance System” shown above, is prior art to the ‘651 patent under 35 U.S.C. 

§102(b) because it was on sale in this country by 1993, more than one year prior to 

the filing date of the ‘651 patent (September 3, 1996).

146. The graphical “Maintenance System” of Versata’s prior art 

SalesBUILDER software is not cumulative to prior art considered by the USPTO 

during examination of the ‘651 patent. For example, Versata’s patent counsel (J.D. 

Harriman II) asserted during examination of the ‘651 patent that the prior art under 

consideration at the USPTO lacked the claimed “includes classification” associated 

with a “product relationship.” (May 6, 1998 Amendment at 34-36.) As shown 

above, however, the prior art SalesBUILDER Maintenance System user interface 

depicts a “requires” (a/k/a “includes”) “component relationship” between “Vmail 

program tape” and “blank_tape.” Thus, the SalesBUILDER Maintenance System 

disclosed the claimed feature that Versata’s patent counsel asserted was missing in 

the prior art. This “includes” relationship limitation is recited in several claims of 

the ‘651 patent including but not limited to claims 1-15, 20-34, 44, 46, 50, 64 and 

77. A similar “automatically included” limitation is recited in claims 16-19 and 35-

38.

147. In another example, Versata’s counsel asserted that the prior art under 

consideration at the USPTO failed to disclose “configuring a system.” Versata’s 

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prior art SalesBUILDER software, however, was specifically designed for 

“configuring a system.” Versata’s marketing literature states: “SalesBUILDER

automates the product configuration and sales quotation process as never before” 

and “SalesBUILDER is orders of magnitude easier to maintain than traditional 

configuration methods.” Joe Liemandt, Versata’s president and founder, has 

testified that SalesBUILDER was Trilogy’s “flagship” “configuration” software.

148. Other prior art materials describing the SalesBUILDER software 

confirm that SalesBUILDER practiced all limitations of several claims of the ‘651 

patent. For example, and without limitation, SalesBUILDER practiced every 

limitation of independent claims 1 and 60. 

149. Claims 1 and 60 recite a method of “configuring a system.” The 1993 

brochure states that “SalesBUILDER automates the product configuration

. . . process.” Likewise, a 1992 article titled “Automating and Integrating the Sales 

Function: How to Profit from Complexity and Customization” states that 

SalesBUILDER was an “automated tool[] for configuring . . . preparation.” 

150. Claims 1 and 60 also recite “generating a definition” that contains “one 

or more elements” being graphically conveyed using “a set of product relationships.”

The 1992 article states that a “non-programmer” can use a “graphical interface” to 

add or modify “new products.” The 1992 article states that “simple diagrams 

represent the relationship between components.” SalesBUILDER discloses 

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components/elements that are conveyed graphically using a product relationship as 

claimed. A graphical user interface showing these relationships is also provided in

the 1993 brochure.

151. Claim 1 recites that the “product relationships” at least comprise an 

“includes classification.” As explained above, SalesBUILDER discloses an 

“includes classification” for “product relationships.”

152. Claims 1 and 60 recite “generating part relationships” between the 

elements and conveying the “part relationships” graphically. The 1992 article 

confirms that SalesBUILDER graphically depicts part relationships in which 

product components have further relationships to “dependent components.” 

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153. Claim 60 further recites “receiving input from a configuration user” and 

validating the input based on the “definition,” “product relationship,” “part 

relationship,” and current “configuration state.” The 1992 article states that 

SalesBUILDER includes a GUI that receives input from a configuration user and 

based on the input received will generate a series of output windows or prompts. The 

1992 article states that one prompt includes notifying a user of any configuration 

mistakes based on a current selection. SalesBUILDER therefore validates the user 

input based on the “definition,” “product relationship,” “part relationship,” and 

current “configuration state.”

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154. Claim 60 recites “identifying a set of valid configuration options based 

on the “definition,” “product relationship,” “part relationship,” and current 

“configuration state.” As shown below, SalesBUILDER validates a current user 

selection. If a user selection will make the configuration invalid, SalesBUILDER 

prompts the user and identifies a set of valid configuration choices.

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155. SalesBUILDER therefore discloses each limitation of claims 1 and 60. 

But for the failure to disclose SalesBUILDER to the USPTO, these claims would 

not have issued.

156. During examination of the ‘651 patent, Versata’s patent counsel 

identified only a single piece of prior art (U.S. Patent No. 4,796,194). This was not 

a Versata patent, and had nothing to do with SalesBUILDER. Versata, the ‘651 

inventors, and their patent counsel never informed the USPTO or the examiner of its 

“flagship” prior art SalesBUILDER configuration software, or the fact that 

SalesBUILDER practiced the feature that Versata’s patent counsel argued was 

missing in the prior art.

157. Versata has contended that Versata’s U.S. Patent Nos. 5,515,524 (the 

‘524 patent) and 5,708,798 (the ‘798 patent) disclose aspects of the prior art

SalesBUILDER software. But Versata, the inventors, and their patent counsel never 

disclosed the ‘524 or ‘798 patents to the USPTO during examination of the ‘651 

patent – despite the fact that the ‘524 and ‘798 patents had each issued before the 

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‘651 patent. Versata disclosed the ‘524 and ‘798 patents to the USPTO for the first 

time on October 25, 2000 – more than four years after the ‘651 patent had issued. 

Versata disclosed these prior art patents during examination of the ‘308 patent, a 

“continuation” or “child” of the ‘651 patent. Versata, the inventors, and their patent 

counsel could have disclosed the ‘524 and ‘798 patents during examination of the 

‘651 patent, but did not do so.

158. 37 C.F.R. 1.56 states in part:

1.56 DUTY TO DISCLOSE INFORMATION MATERIAL TO 

PATENTABILITY.

(a) A patent by its very nature is affected with a public interest. The 

public interest is best served, and the most effective patent examination 

occurs when, at the time an application is being examined, the Office is 

aware of and evaluates the teachings of all information material to 

patentability. Each individual associated with the filing and 

prosecution of a patent application has a duty of candor and good 

faith in dealing with the Office, which includes a duty to disclose to 

the Office all information known to that individual to be material to 

patentability as defined in this section. The duty to disclose 

information exists with respect to each pending claim until the claim is 

cancelled or withdrawn from consideration, or the application becomes 

abandoned. (Emphasis added.)

159. At least J.D. Harriman II, Ajay Agarwal and Dr. David Franke were 

“individuals associated with the filing and prosecution” of the application for the 

‘651 patent, were aware of Versata’s “flagship” SalesBUILDER configuration 

software during the examination of the application for the ‘651 patent, and failed to 

disclose SalesBUILDER to the USPTO and the examiner.

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160. J.D. Harriman II is the patent attorney who prosecuted the application 

for the ‘651 patent before the USPTO. Mr. Harriman also prosecuted the 

applications for the ‘524 and ‘798 patents, which issued before the ‘651 patent and 

which Versata contends correspond to Versata’s the SalesBUILDER software. On 

information and belief, Mr. Harriman was familiar with the existence and operation 

of Versata’s “flagship” SalesBUILDER software during the examination of the

application for the ‘651 patent.

161. Ajay Agarwal is an inventor of the ‘651 patent. Mr. Agarwal was a 

Senior Vice President of Sales and Marketing at Trilogy beginning in 1995, before 

the application for the ‘651 patent was filed. On information and belief, Mr. Agarwal 

was familiar with the existence and operation of Versata’s “flagship” 

SalesBUILDER software throughout the examination of the application for the ‘651 

patent.

162. Dr. David Franke, while an employee of Versata, managed Versata’s 

intellectual property, including evaluating internally developed technology for 

patent potential and coordinating interaction with patent attorneys in developing 

patent disclosures, during the time when application for the ‘651 patent was pending 

in the USPTO. Dr. Franke began working at Trilogy in 1992. Dr. Franke helped in 

the development and design of the SalesBUILDER software. Dr. Franke is a coinventor of the prior art ‘524 and ‘798 patents which Versata contends disclose 

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aspects of the SalesBUILDER software. On information and belief, Mr. Franke was 

familiar with the existence and operation of Versata’s “flagship” SalesBUILDER 

software throughout the examination of the application for the ‘651 patent. 

163. Each of these individuals were associated with the filing and 

prosecution of the ‘651 patent. Each of these individuals thus had a duty of candor 

and good faith in dealing with the USPTO, which included the duty to disclose all 

information known to these individuals to be material to patentability of the 

application for the ‘651 patent. Yet, none of these individuals made any mention of 

Versata’s “flagship” prior art SalesBUILDER configuration software to the USPTO 

during examination of the application for the ‘651 patent, let alone disclose to the 

USPTO that SalesBUILDER practiced the feature Mr. Harriman asserted to the 

USPTO was missing in the prior art. (May 6, 1998 Amendment at 34-36.) On 

information and belief, likely to have evidentiary support after a reasonable 

opportunity for further investigation or discovery, these individuals intentionally 

withheld from the USPTO at least the material information about SalesBUILDER

identified in the preceding paragraphs. But for their intentional withholding of that 

information, the ‘651 patent would not have issued.

164. The ‘651 patent is unenforceable as a result of this inequitable conduct. 

As a result of this inequitable conduct with respect to the application for the ‘651 

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“parent” patent, the “child” patents in the ‘651 patent family (the ‘308 and ‘294 

patents) are unenforceable as well.

IV. RELIEF REQUESTED

Ford requests a trial by jury on any and all issues so triable, and an order 

declaring that:

A. FORD does not infringe and has not infringed the ‘651 patent;

B. Ford does not infringe and has not infringed the ‘308 patent;

C. Ford does not infringe and has not infringed the ‘294 patent;

D. Ford owns or has the royalty-free right to right to reproduce software that 

Trilogy developed pursuant to the 1998 Contract Services Agreement;

E. Ford owns or has the royalty-free right to right to reproduce software that 

Defendants developed pursuant to the 2004 Master Subscription and 

Services Agreement;

F. Ford has not misappropriated Defendants’ trade secrets; 

G. Section 3.5 of the 2004 Master Subscription and Services Agreement does 

not authorize Defendants to inspect Ford’s PDO source code or interview 

Ford’s PDO developers;

H. Versata has breached the MSSA contract and Ford is entitled to damages 

suffered as a result of this breach;

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I. Versata’s asserted patents are invalid;

J. Versata’s ‘651, ‘308 and ‘294 patents are unenforceable due to inequitable 

conduct;

K. Ford is entitled to costs and attorney fees; and

L. All other relief to which Ford is entitled.

JURY TRIAL DEMAND

Pursuant to Fed. R. Civ. P. 38(b) and 5(d), Plaintiff demands a jury trial of all 

issues triable by jury.

Respectfully submitted, 

Dated: January 20, 2017 /s/ John S. LeRoy 

John S. LeRoy (P61964)

Thomas A. Lewry (P36399)

Frank A. Angileri (P45611)

Chanille Carswell (P53754)

John P. Rondini (P72254)

Jonathan D. Nikkila (P75666)

BROOKS KUSHMAN P.C.

1000 Town Center, 22nd Floor

Southfield, MI 48075

Tel.: 248-358-4400 / Fax: 248-358-3351

jleroy@brookskushman.com

tlewry@brookskushman.com

fangileri@brookskushman.com

ccarswell@brookskushman.com

jrondini@brookskushman.com

jnikkila@brookskushman.com

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41

James P. Feeney (P13335)

DYKEMA GOSSETT PLLC

39577 Woodward Ave, Suite 300

Bloomfield Hills, MI 48304

Ph: 248-203-0841

jfeeney@dykema.com

Attorneys for Plaintiff, Ford Motor 

Company

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CERTIFICATE OF ELECTRONIC SERVICE

I hereby certify that on January 20, 2017 , I electronically filed the foregoing 

FORD’S SECOND AMENDED COMPLAINT FOR DECLARATORY 

JUDGMENT with the Clerk of the Court for the Eastern District of Michigan using 

the ECF System which will send notification to the following registered participants 

of the ECF System as listed on the Court's Notice of Electronic Filing: Rodger D. 

Young at efiling@youngpc.com; James P. Feeney at jfeeney@dykema.com, 

srobb@dykema.com & docket@dykema.com; Steven Mitby at 

smitby@azalaw.com; Martha J. Olijnyk at mjo@millerlawpc.com & 

aad@millerlawpc.com; Lanny J. Davis at ldavis@lannyjdavis.com; Stephen W. 

King at sking@kingandmurray.com; Iftikhar Ahmed at IftiAhmed@azalaw.com; 

Sharoon Saleem - sharoon.saleem@jonesspross.com. 

I also certify that I have mailed by United States Postal Service the paper to 

the following non-participants in the ECF System: NONE.

 /s/ John S. LeRoy 

John S. LeRoy (P61964)

Thomas A. Lewry (P36399)

Frank A. Angileri (P45611)

Chanille Carswell (P53754)

John P. Rondini (P72254)

Jonathan D. Nikkila (P75666)

BROOKS KUSHMAN P.C.

Attorneys for Plaintiff

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