UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Versata Software, Inc. f/k/a Trilogy 

Software, Inc., Versata Development 

Group, Inc., and Trilogy, Inc., 

Plaintiffs/

Counter-Defendants,

v.

Ford Motor Company, 

Defendants/

Counter-Plaintiffs.

Case No. 15-10628-MFL-EAS 

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

Hon. Matthew F. Leitman

JURY TRIAL DEMANDED

VERSATA’S ANTICIPATORY RESPONSE 

TO FORD’S MOTION FOR JUDGMENT AS A MATTER OF LAW

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TABLE OF CONTENTS

Page

CONCISE STATEMENT OF ISSUES PRESENTED .............................................1

INTRODUCTION .....................................................................................................2

ARGUMENT.............................................................................................................4

I. Ford is not entitled to JMOL on Versata’s trade secret claims.............4

A. The evidence presented supports a finding that Versata 

owns four valid combination trade secrets. ................................5

B. The evidence presented supports a finding that Ford 

misappropriated each component of each combination 

trade secret. ...............................................................................11

C. The evidence presented supports a finding that Versata 

suffered damages from Ford’s misappropriation......................17

D. The result is the same under the DTSA and MUTSA. .............20

II. Ford is not entitled to JMOL on Versata’s contract claims. ...............21

A. The evidence presented supports a finding that Ford 

breached the MSSA. .................................................................21

B. The evidence presented supports a finding that Versata 

suffered damages resulting from Ford’s MSSA breach. ..........24

III. Ford is not entitled to JMOL on its own contract claim. ....................28

CONCLUSION........................................................................................................29

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TABLE OF AUTHORITIES

 Page(s) 

Cases

B&P Littleford, LLC v. Prescott Mach., LLC, 

2021 U.S. App. LEXIS 25590 (6th Cir. Aug. 24, 2021)....................................11

Caldwell v. Fox, 

394 Mich. 401 (1975) ...............................................................................4, 21, 25

Celeritas Techs., Ltd. v. Rockwell Int’l Corp., 

150 F.3d 1354 (Fed. Cir. 1998) ....................................................................26, 27

Eagle Harbor Holdings, Inc. v. Ford Motor Co., 

2015 U.S. Dist. LEXIS 17478 (W.D. Wash. Feb. 11, 2015)..............................10

Ford Motor Co. v. InterMotive, Inc., 

2019 U.S. Dist. LEXIS 168197 (E.D. Mich. Sep. 30, 2019)..............................10

Ghaleb v. Am. S.S. Co., 

684 F. App’x 545 (6th Cir. 2017).......................................................................29

Hanover Am. Ins. Co. v. Tattooed Millionaire Entm’t, LLC, 

974 F.3d 767 (6th Cir. 2020) ................................................................................3

Hayes-Albion v. Kuberski, 

421 Mich. 170 (1984) ...........................................................................................7

Innovation Ventures, Ltd. Liab. Co. v. Custom Nutrition Labs, Ltd. 

Liab. Co., 

912 F.3d 316 (6th Cir. 2018) ..............................................................................27

K & T Enters. v. Zurich Ins. Co., 

97 F.3d 171 (6th Cir. 1996) ..................................................................................4

Kasuri v. St. Elizabeth Hosp. Med. Ctr., 

897 F.2d 845 (6th Cir. 1990) ................................................................................3

Mosby-Meacham v. Memphis Light, Gas & Water Div., 

883 F.3d 595 (6th Cir. 2018) ................................................................2, 3, 19, 20

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Oakwood Labs. LLC v. Thanoo,

999 F.3d 892 (3d Cir. 2021) ...............................................................................15

Stratienko v. Cordis Corp.,

429 F.3d 592 (6th Cir. 2005) ..............................................................................14

UniRAM Tech., Inc. v. Taiwan Semiconductor Mfg. Co.,

617 F. Supp. 2d 938 (N.D. Cal. 2007)................................................................16

Veritas Operating Corp. v. Microsoft Corp.,

2008 U.S. Dist. LEXIS 112135 (W.D. Wash. Feb. 26, 2008)......................26, 27

Statutes

18 U.S.C. § 1839............................................................................................5, 11, 16

Other Authorities

Federal Rule of Civil Procedure 50 ...........................................................................3

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CONCISE STATEMENT OF ISSUES PRESENTED

Is Ford entitled to judgment as a matter of law on any claim in this case? 

Versata answers: No. 

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INTRODUCTION

The jury has now received testimonial and documentary evidence supporting 

each element of Versata’s claims: (1) misappropriation of trade secrets under the 

Defend Trade Secrets Act (“DTSA”) and the Michigan Uniform Trade Secrets Act 

(“MUTSA”); and (2) breach of the parties’ Master Subscription and Services 

Agreement (“MSSA”). The jury has also received testimonial and documentary 

evidence showing that Ford’s claim for breach of contract is unfounded. This 

evidence is more than sufficient to support a jury verdict in Versata’s favor on all 

counts. As a result, Ford is not entitled to a judgment as a matter of law (“JMOL”). 

Judgment as a matter of law is appropriate “only if reasonable minds could 

not come to a conclusion other than one favoring the movant.” Mosby-Meacham v. 

Memphis Light, Gas & Water Div., 883 F.3d 595, 602 (6th Cir. 2018) (affirming

JMOL denial). Versata has presented ample evidence to support its claims, which 

should now proceed to jury deliberations and verdict. This Court should deny Ford’s 

motion.1

1 By filing this brief now, Versata is anticipating the arguments Ford is likely to 

raise. To the extent Ford raises additional arguments or challenges in its JMOL 

motion, Versata respectfully requests the opportunity to brief those issues and/or 

address them in open court. 

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LEGAL STANDARD

Federal Rule of Civil Procedure 50(a) provides that if a “party has been fully 

heard on an issue during a jury trial and the court finds that a reasonable jury would 

not have a legally sufficient evidentiary basis to find for the party on that issue, the

court may: (A) resolve the issue against the party; and (B) grant a motion for 

judgment as a matter of law against the party on a claim.” Fed. R. Civ. P. 50(a)(1).2

Judgment as a matter of law is an extreme remedy. In evaluating such a 

request, the court “should not weigh the evidence, evaluate the credibility of the 

witnesses, or substitute its judgment for that of the jury.” Mosby-Meachem, 883 F.3d 

at 602 (citations omitted). Instead, the court must “view the evidence in the light 

most favorable to the nonmovant, granting all reasonable inferences in their favor.” 

Id. The court may grant judgment as a matter of law “only if reasonable minds could 

not come to a conclusion other than one favoring the movant.” Id. (citation omitted).

The same standard applies under Michigan law, too—Versata’s MUTSA and 

breach of contract claims are before the court on pendent jurisdiction; thus, Michigan 

law applies in evaluating Ford’s request for a directed verdict there too. See Kasuri 

2 “The term ‘motion for judgment as a matter of law’ under Federal Rule of Civil 

Procedure 50 amalgamates the old terms ‘directed verdict’ and ‘verdict JNOV.’” 

Hanover Am. Ins. Co. v. Tattooed Millionaire Entm’t, LLC, 974 F.3d 767, 779 (6th 

Cir. 2020) (citation omitted). 

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v. St. Elizabeth Hosp. Med. Ctr., 897 F.2d 845, 851 (6th Cir. 1990).3 Specifically,

under Michigan law, “the trial judge must accord to the non-moving party the benefit 

of viewing the testimony and all legitimate inferences that may be drawn therefrom 

in a light most favorable to the non-moving party. If the evidence, when viewed in 

this manner, establishes a prima facie case, the motion for a directed verdict must be 

denied.” Caldwell v. Fox, 394 Mich. 401, 407 (1975). 

Here, the trial evidence presented to date is more than sufficient to support 

Versata’s claims and defenses and to defeat Ford’s claim for breach of contract. 

ARGUMENT

I. Ford is not entitled to JMOL on Versata’s trade secret claims. 

To prove its misappropriation claim under the DTSA/MUTSA with respect to 

any one of the four combination trade secrets asserted, Versata must prove by a 

preponderance of the evidence that: (1) Versata owns a valid trade secret; and (2) 

Ford misappropriated the trade secret. See Dkt. 941, Agreed Proposed Jury 

Instruction No. 29 (part 2). There is ample evidence to support this claim for each 

combination trade secret. 

3 But federal law applies to the evaluation of Ford’s request for a directed verdict on 

Versata’s DTSA claim, as well as any request for a directed verdict on purely legal 

grounds. See K & T Enters. v. Zurich Ins. Co., 97 F.3d 171, 175–76 (6th Cir. 1996) 

(“Legal determinations, whether made in a diversity case or in a federal 

question case, will always be reviewed de novo.”).

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A. The evidence presented supports a finding that Versata owns four 

valid combination trade secrets. 

First, the evidence presented supports a finding that Versata owns four valid 

combination trade secrets. 

The DTSA defines “trade secret” by reference to two elements: reasonable 

measures to maintain secrecy, and independent economic value deriving from that 

secrecy. See 18 U.S.C. § 1839(3) (imposing those two requirements). The jury will 

be instructed that a “trade secret may take many forms, including (but not limited 

to) all forms and types of financial, business, scientific, technical, economic, or 

engineering information. A trade secret may include (but is not limited to) patterns, 

plans, compilations, program devices, formulas, designs, prototypes, methods, 

techniques, processes, procedures, programs, or codes.” Dkt. 941, Agreed Proposed 

Jury Instruction No. 29 (part 2).

The jury will also be instructed that in a combination trade secret case like 

this, “even if some or all of the individual characteristics, components, or features 

are in the public domain or well known to others, so long as the unified process or 

design is not generally known to the public or to people who could obtain value from 

knowing it and affords an actual or potential competitive advantage to persons 

possessing the information[,]” that combination qualifies as a combination trade 

secret. Dkt. 941, Agreed Proposed Jury Instruction No. 31. 

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The trial record shows that (i) Versata identified for the jury the information 

that it contends constitutes four combination trade secrets (the Grid, Buildability, 

Workspaces, and MCA), including the 17 sub-components thereof; (ii) Versata took 

reasonable measures to keep that information secret at the time of disclosure to Ford; 

and (iii) each combination derives “independent economic value” from that secrecy. 

Thus, each combination qualifies as a trade secret. Supporting evidence includes 

(among other things) the following: 

Contract Protections / Confidentiality Practices. Multiple Versata witnesses 

testified to Versata’s contractual protections and confidentiality practices, including 

Kenneth Ratton and Danielle Royston.

4 As Versata’s trade secret expert, Dr. Sam 

Malek, summed up: 

Based on my own experiences both as a software engineer at companies 

but also as a professor . . . some of the things that [Versata] did that I 

found to be relevant is the fact that they ask all their employees and 

contractors to sign confidentiality agreements . . . [and] in the contract 

with Ford, they had confidentiality clauses which required Ford to 

maintain the secrecy and confidentiality of that information. Versata [] 

continually told Ford and others that its information is confidential, and 

-- and this is evident in all of the documents that I’ve reviewed. They 

have the confidentiality markings on them. So they clearly did all they 

could, in my opinion, to keep this -- these trade secrets confidential.

4 Dkt. 953, Vol. 2-B Trial Tr. at 108:11–25, (Ratton); Dkt. 956, Vol. 3-A Trial Tr. at 

105:11–109:23 (Ratton); Dkt. 961, Vol. 4-A Trial Tr. at 103:8–122:12 (Royston 

testimony walking through Versata’s confidentiality practices). 

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Dkt. 967, Vol. 6-B Trial Tr. at 52:23–54:2. The record supports a finding that Versata 

took reasonable measures to keep its information secret at the time of disclosure to 

Ford. 

License Payments / Value Admissions. On the “independent economic value” 

side of the equation, the evidence is undisputed: Ford paid Versata millions of dollars 

each year for software containing Versata’s ACM/MCA trade secrets in the context 

of the parties’ confidential relationship. Dkt. 953, Vol. 2-B Trial Tr. at 41:19–25 

(testimony from Mr. Price confirming that Ford paid “over $150 million” to license 

ACM and MCA from 2000 – 2014). Multiple trial exhibits confirm the value that 

Ford received from those products licensed under a confidential relationship (e.g., 

PX-568, PX-437, PX-576, PX-781), giving Ford a competitive advantage in the 

marketplace.5 This is more than sufficient to permit a finding that Versata’s trade 

secret information derived independent economic value from its secrecy. See, e.g., 

5 Any quibbling about temporary performance issues does not controvert this proof, 

much less show that Ford is entitled to JMOL. See Dkt. 961, Vol. 4-A Trial Tr. at 

89:18–90:13 (Nichols testimony that Versata implemented a fix “[e]very single time. 

We delivered performance, we delivered improvements, we add[ed] innovations all 

delivered to Ford . . . Ford continually, during my time Trilogy, increased the 

demand and usage of ACM”); Dkt. 956, Vol. 3-A Trial Tr. at 42:13–43:20 (Ratton 

testimony that these were common issues experienced when a new software is rolled 

out to a major enterprise; that Versata worked to solve them; that none impacted the 

overall benefit that ACM and MCA provided to Ford; and that he was confident the 

issues “did not affect the end value” because Versata “successfully made it through 

all of those issues, as you can see, by the success calls and things like that, later” and 

Ford “continue[d] to expand usage.”). 

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Hayes-Albion v. Kuberski, 421 Mich. 170, 182–83 (1984) (affirming trade secret 

status when the plaintiff “expended time, money and effort to develop the processes 

and equipment” and the processes and equipment gave the party a “competitive 

edge”). 

Ford’s anticipated “contribution” or “ownership” arguments miss the mark. 

Ford has previously suggested, for example, that Versata cannot establish ownership 

of a trade secret because (according to Ford) certain concepts underlying and/or 

reflected in combinations like the Grid or Buildability were Ford’s ideas; therefore, 

Versata does not “own” those combination trade secrets. That is factually wrong, as 

multiple witnesses (including Ford witnesses) have testified: 

• Mr. Krauss: “As I said before ... [Ford] had no contribution to the design 

and development of the trade secret elements; excuse me, of the combination 

elements.” Dkt. 966, Vol. 5-B Trial Tr. at 23:7–10; see also Dkt. 968, Vol. 5-

A Trial Tr. at 73:4–6 (“Q. And how can you be so sure that Ford didn’t 

contribute to this functionality known as the Grid? A. Because I was a key 

member of the team developing it.”). 

• Mr. Nichols: “The how, of how we designed and innovated, created 

inventions to solve those problems, the implementation of the technology, all 

of that was done by Trilogy . . . For the decisions of what goes into the Trilogy 

Software, Trilogy makes those decisions, and my team, ultimately, was 

responsible for deciding what went into the product and what did not go in the 

product . . . It was not a Ford decision.” Dkt. 961, Vol. 4-A Trial Tr. at 20:7–

21:2. 

• Mr. Little: “But as far as specific solutions, no, that was done by our 

development team back in Austin because we’re talking about configuration

problems and you needed deep expertise in configuration to know how to 

solve these problems.” Dkt. 962, Vol. 4-B Trial Tr. at 40:12–20; see also Dkt. 

961, Vol. 4-A Trial Tr. at 128:7–19 (“I would take that understanding [from 

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Ford] and bring it back to Trilogy, where I work with our software developers 

and our designers, and, you know, our job was to bring our expertise that 

would produce a product that would help the customer with the problems that 

they presented to us.”). 

• Mr. Ratton: “Q. Are you personally aware of suggestions, solutions, 

improvements, corrections and other contributions that Ford made to 

Versata’s ACM or MCA software? A. No.” Dkt. 956, Vol. 3-A Trial Tr. at

105:7–10. See also id. at 104:9–13 (“Q. Mr. Ratton, did anyone at Ford ever 

tell you that what I am providing to you at Versata is a suggestion, solution, 

improvement, correction, or other contribution to Versata’s ACM/MCA 

software? A. No.”).

• Yakov Fradkin (Ford): “Q. Can you name one specific feature of ACM that 

Ford developed? A. I don’t have this knowledge.” Designated Dep. Testimony 

of Y. Fradkin, Tr. 223:12–16; see also id. at 224:6–10 (“Q. Okay. Can you 

think of any part of ACM that Ford developed or jointly developed? A. I don’t 

have either examples. I don’t know.”). 

Equally important, Ford’s position on this issue is legally irrelevant. Even if 

Ford had made “contributions” at the component level within the meaning of MSSA 

§ 7.6, that does not mean that Ford owns the entire combination trade secret, 

particularly given the overriding catch-all language in § 7.4 (“Nothing in this 

Agreement shall be construed to convey any title or ownership rights to the Software 

or other Trilogy Confidential Information to Ford or to any patent, copyright, 

trademark, or trade secret embodied therein”). Indeed, after testifying that he was 

not aware of any Ford “contributions” under § 7.6, Mr. Ratton—who negotiated the 

MSSA with Ford—testified that § 7.4 was an important ownership provision and 

was “the catchall [provision] that kind of protects the crown jewels, if you will.” 

Dkt. 956, Vol. 3-A Trial Tr. at 106:1–5. As he explained, this provision “effectively 

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says, across this entire agreement, you can’t, no matter what the words are, construe 

the conveyance of ownership.” Id. at 106:6–10.

Furthermore, even if certain concepts (like a trie or a DAG) were academic 

concepts and/or were disclosed in public patents, the combination functionality 

claimed by Versata was not. See, e.g., Dkt. 968, Vol. 5-A Trial Tr. at 77:20–21 (Mr. 

Krauss: “Q. Did Trilogy disclose the Grid in any of its patents? A. No, Trilogy did 

not.”); Dkt. 966 Vol. 5-B Trial Tr. at 84:21–25 (Mr. Krauss: “Q. Well, okay. [The 

patent] acknowledges the use of a trie in the context of buildability, correct? A. No. 

It acknowledges a data structure called a buildability trie but not the use of that trie 

to solve buildability operations.”). And in any event, a “trade secrets plaintiff need 

not prove that every element of an information compilation is unavailable 

elsewhere.” Eagle Harbor Holdings, Inc. v. Ford Motor Co., 2015 U.S. Dist. LEXIS 

17478, at *11 (W.D. Wash. Feb. 11, 2015); see also Ford Motor Co. v. InterMotive, 

Inc., 2019 U.S. Dist. LEXIS 168197, at *53 (E.D. Mich. Sep. 30, 2019) (“It is widely 

accepted that a trade secret can exist in a combination of characteristics each of 

which, by itself, is in the public domain.”) (citation omitted). 

Finally, Ford has suggested that Versata’s combination trade secrets are a 

“made-for-litigation” variety. For example, Ford has tried to elicit testimony that “if 

you take one component out of the combination, it’s no longer the same 

combination.” E.g., Dkt. 972, Vol. 7-B Trial Tr. at 27:1–28:18 (Dr. Malek crossCase 2:15-cv-10628-MFL-EAS ECF No. 983, PageID.64236 Filed 10/18/22 Page 14 of 35
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examination). It is unclear what Ford is getting at, but this type of admission (even 

if made) does not defeat Versata’s claim to ownership over four combination trade 

secrets. See, e.g., B&P Littleford, LLC v. Prescott Mach., LLC, 2021 U.S. App. 

LEXIS 25590, at *20 (6th Cir. Aug. 24, 2021) (“the determination of whether 

disclosed information is a trade secret is a fact-specific inquiry”). 

B. The evidence presented supports a finding that Ford

misappropriated each component of each combination trade 

secret. 

As explained above, the evidence presented supports a finding that Versata 

owned four combination trade secrets. The record also supports a finding that Ford 

misappropriated each component of each combination trade secret.6

The DTSA defines misappropriation to mean the “disclosure or use of a trade 

secret of another without express or implied consent by a person who . . . at the time 

of disclosure or use, knew or had reason to know that the knowledge of the trade 

secret was . . . acquired under circumstances giving rise to a duty to maintain the 

secrecy of the trade secret or limit the use of the trade secret.” 18 U.S.C. § 1839(5) 

(emphases added); see also Dkt. 941, Agreed Proposed Jury Instruction No. 34. The 

evidence presented to date supports the following findings on the misappropriation 

standard: 

6 Versata reiterates that the law does not require a jury to find misappropriation of 

every component of a combination trade secret, but we recognize that such an 

instruction is compelled by the Court’s prior estoppel order. 

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First, Versata provided Ford with confidential information that Ford was 

obligated to keep confidential and use only within the scope of its license. See PX100 (MSSA).7 That confidential information included, among other things, manuals, 

user guides, presentations, other technical documentation, and (according to the 

contract) “trade secrets.” See id. §§ 7.1.1, 7.1 (“Nothing in this Agreement shall be 

construed to convey any title or ownership rights to the Software or other Trilogy 

Confidential Information to Ford or to any . . . trade secret embodied therein.”). This 

means that Ford, the alleged misappropriator, had actual or constructive notice that 

the knowledge embodied in the trade secret was acquired under circumstances 

giving rise to a duty of secrecy or limited use. This meets the “knowledge of a duty” 

standard under the DTSA. 

Second, testimony and documents confirm that each component of each trade 

secret was disclosed to Ford in these confidential materials. As Versata’s witness 

Mr. Seth Krauss testified: 

Q. [D]id Versata disclose the elements of the Grid, the elements of 

Buildability, the elements of Workspaces, and the elements of MCA to 

Ford? 

A. Yes.

... 

Q. Now, how did Versata disclose all of these combination trade secrets, 

including all of their elements, to Ford?

7 Sections 1.5 (“Use”), 1.6 (“Authorized Users”), 1.7 (“Additional Restrictions”), 

3.3 (“Marking”), 7 (“Confidentiality”), 7.2 (“Marking”), 7.5 (“Non-Disclosure”).

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A. We disclosed the -- all of the information in manuals, in technical 

documentation, our functional walkthroughs, launch acceptance 

documents, system requirement specifications, presentations such 

as the ones that we previously reviewed, e-mails that we sent, 

discussions that we had onsite and the software, itself.

Q. Did you help me prepare a demonstrative that shows the written

documentation in which you disclose the four combination trade secrets 

and all of their elements?

A. I did.

Dkt. 968, Vol. 5-A Trial Tr. at 103:23–104:21; see also id. at 113:21–24 (“Q. So are 

you absolutely certain that all the elements of the four Versata combinations were 

disclosed to Ford in the documents that you identified for the jury? A. Yes, I am.”).

Versata’s technical trade secret expert Dr. Malek likewise reviewed (and testified 

to) the component-by-component disclosures in the user guides, technical 

documents, education sessions, .jar files, and release notes. Dkt. 967, Vol. 6-B Trial 

Tr. at 54:3–16.8

Third, Dr. Malek’s expert testimony confirmed that each component of each 

trade secret was “misappropriated”—that is, improperly disclosed or used—within 

Ford. For one, he explained, multiple Ford PDO developers had improper access to 

ACM/MCA materials, had ACM code on their computers, or actually used ACM 

8 See also Dkt. 961, Vol. 4-A Trial Tr. at 59:12–19, 93:11–21 (Mr. Nichols testifying 

to ACM disclosures); Dkt. 962, Vol. 4-B Trial Tr. at 62:2–9 (Mr. Little testifying to 

MCA disclosures). 

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code to develop PDO. See Dkt. 967, Vol. 6-B Trial Tr. at 54:17–96:9 (“That, my 

understanding, is a classical example of reverse engineering.”). The testimony of 

Ford’s own developers supports this. See, e.g., Designated Dep. Testimony of Y. 

Fradkin, Tr. 88:05–08 (testifying that he had access to ACM manuals while 

developing PDO); id. at 95:22–25 (testifying that he was unaware of any attempt to 

keep Ford ACM users off the PDO team); id. at 95:08–11 (stating that he was never 

instructed he could not use information that he learned about ACM in the course of 

his work on PDO); id. at 95:15–20 (stating he was never told not to use Versata’s 

information while working on PDO). 

The record reveals that Versata’s technical trade secret expert Dr. Malek 

walked the jury through evidence of Ford’s misappropriation on a component-bycomponent basis, for each of the 17 components. Dkt. 974, Vol. 7-A Trial Tr. at 

14:16–111:15. This testimony (among other evidence) is more than sufficient to 

permit a finding that Ford misappropriated Versata’s combination trade secrets, as a 

whole and on a component-by-component basis. This is particularly true considering 

that the jury may infer misappropriation on the basis of circumstantial evidence. See, 

e.g., Stratienko v. Cordis Corp., 429 F.3d 592, 600 (6th Cir. 2005) (“courts may 

properly consider circumstantial evidence concerning similarity of design plus 

access to the design to imply use by a defendant of a trade secret.”) (collecting cases).

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The Court should reject any argument that Ford can escape liability by 

pointing out negligible differences between its PDO product and Versata’s software. 

First, as Dr. Malek testified, PDO is remarkably similar to Versata’s software, with 

derivations (if not exact copies) of each of the 17 ACM/MCA components found in 

PDO. Dkt. 974, Vol. 7-A Trial Tr. at 14:16–111:15. Second, Ford mistakenly 

assumes that there is only one way to “misappropriate” a trade secret component: by 

practicing it, without even the slightest modification, in a competing product like 

PDO. That is not the law. 

Misappropriation by “use” includes any unauthorized exploitation of a trade 

secret component, including its use as a starting point or guide in developing a 

process. See e.g., Oakwood Labs. LLC v. Thanoo, 999 F.3d 892, 910 (3d Cir. 2021) 

(courts give “use” an “expansive interpretation” under the DTSA and state 

analogues); see also id. at 909 n.18 (citing cases on this point, including Stratienko 

v. Cordis Corp., 429 F.3d 592, 600 (6th Cir. 2005)). As the trial record reflects, Ford 

improperly used or disclosed each component of Versata’s combination trade secrets 

in its development of PDO. Ford cannot secure JMOL by using an extreme view of 

“misappropriation” that has no basis in the law. 

Nor can Ford secure JMOL by arguing that the evidence does not establish 

that Versata told Ford the precise contours of each combination trade secret in a 

single communication, and thus, Ford did not have “knowledge of the trade secret” 

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under 18 U.S.C. § 1839(5). This, too, is a misreading of the law, as explained in 

Versata’s trial brief regarding trade secret disclosure. Dkt. 963. “[I]t is not true as a 

matter of law that [a plaintiff’s] claim will survive only if it disclosed to [the 

defendant] the exact combinations that make up its trade secrets.” UniRAM Tech.,

Inc. v. Taiwan Semiconductor Mfg. Co., 617 F. Supp. 2d 938, 942 (N.D. Cal. 2007). 

And “[i]nsisting on a unified description in a single integrated document,” as Ford 

does, “is unnecessary.” Id. at 943. Furthermore, even if Ford is right on the law (it is 

not), the evidence supports a finding that Versata disclosed each combination trade 

secret (including their components) on a single occasion or in single documents. See, 

e.g., Dkt. 961, Vol. 4-A Trial Tr. at 93:22–94:14 (Nichols testimony about 

Workspaces disclosure “on one occasion”); Dkt. 962, Vol. 4-B Trial Tr. at 25:3–

27:3 (Little testimony about MCA disclosure in one document, PX-4882); Dkt. 969, 

Vol. 6-A Trial Tr. at 54:25–55:14 (Krauss testimony about disclosing all of Versata’s 

combination trade secrets in two documents: the engineering manual from 2009 and 

the Trie presentation). Ford’s arguments on this point are unavailing. 

Ford has similarly suggested during trial that it cannot be liable because 

Versata’s contemporaneous written disclosures to Ford were not all identical to each 

other, or those documents sometimes discussed software functionalities or details

beyond the 17 components identified now, during litigation. Wrong. Black-letter law

provides that a party can refine its trade secret identification through litigation. See 

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id. at 3, 9, 13, 20–21 (citing cases). And in any event, the trial record shows that 

these 17 components are the key features driving the success of ACM and MCA. 

See, e.g., Dkt. 962, Vol. 4-B Trial Tr. at 14:4–15 (testimony from Mr. Little 

identifying the three “key pieces of the MCA product that allowed [Versata] to 

deliver the business value” to Ford); Dkt. 968 Vol. 5-A Trial Tr. at 114:24–117:13 

(Krauss testimony apportioning the amount of value each of those key features 

provided relative to the overall ACM and MCA products). 

The trial evidence shows that Ford acquired trade secret information under 

statutorily specified circumstances, and Ford misused that information. The liability 

question should go to the jury. 

C. The evidence presented supports a finding that Versata suffered 

damages from Ford’s misappropriation. 

To the extent that Ford challenges the sufficiency of evidence to support a 

damages claim under DTSA/MUTSA, the Court should reject it. Versata’s damages 

expert (Renee McMahon) has testified that Versata’s trade secret damages are 

$59.927 million based on a reasonable royalty damages methodology. That opinion 

draws from Ms. McMahon’s expert analysis, is grounded in the evidence, and 

applies Mr. Krauss’s reasonable apportionment methodology as well as Dr. Malek’s 

“design-around period” conclusion. Ms. McMahon also testified to two alternative 

conclusions, using two different royalty bases supported by the record (amounting 

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to $52.772 million and $38.486 million, respectively). There is ample evidence to 

support Versata’s trade secret damages case. 

Ford has signaled an intent to move for JMOL on the basis that (according to 

Ford) no evidence supports the $17 million annual base figure supporting Ms. 

McMahon’s first conclusion ($59.927 million). That is not true. The trial record 

shows at least three things: 

1. Versata offered Ford a proposal on September 2, 2014 through which Ford 

could license Versata’s software for $17 million each year for five years, with 

an evergreen period after that. PX-0537. That offer was not immediately 

rejected. PX-1792 (Oct. 29, 2014 email from Ford asking questions about 

Versata’s proposal).

2. Versata was not willing to accept anything less than $17 million each year.

Dkt. 975, Vol. 8-A Trial Tr. at 78:2–16 (Richards testimony); Dkt. 969, Vol. 

6-A Trial Tr. at 135:14–17 (Mr. Baxter: “Q. Versata had told you they wanted 

$17 million per year, that’s what they told you; is that correct? A. Yes.”); see 

also id. at 136:7–10 (Mr. Baxter: “Q. And so Versata had just notified you 

that they’re not interested in a one-year renewal; is that correct? That’s what 

the termination notice told you? A. Yes.”). 

3. Ford needed ACM and could not afford for Versata to walk away. Dkt. 969, 

Vol. 6-A Trial Tr. at 122:20–21 (Mr. Baxter: “In my [negotiating] role, I knew 

that we needed the ACM software.”); id. at 125:22–126:6 (testifying that Ford 

“needed a solution” and if it didn’t “get PDO developed on time, [it] couldn’t 

afford to have Versata walk away.”). Other Ford exhibits confirm as much. 

See, e.g., PX-822 (Oct. 2012 email noting that Ford has “no alternative” and 

stating that “Versata’s GPD/ACM application is essentially the ‘engine’ that 

provides all of the feature content mapping . . . If GPD/ACM were to go down, 

these systems would essentially come to a grinding halt.”). 

On this record, it is more than reasonable for the jury to infer that Ford would 

have had to accept Versata’s final $17 million-per-year offer had Ford not 

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improperly developed PDO by misappropriating Versata’s trade secret information 

and breaching the MSSA. This $17 million per year figure is supported.9 And in any 

event, as noted above, Ms. McMahon presented multiple damages scenarios to be 

weighed by the jury (each of which has support in the trial record).

10 Any nitpicking 

around these numbers is a jury issue. See e.g., Mosby-Meachem, 883 F.3d at 602 (in 

reviewing a request for JMOL, a court “ should not weigh the evidence, evaluate the 

credibility of the witnesses, or substitute its judgment for that of the jury.”). 

Similarly, the record supports a finding of willfulness (and thus an award of 

exemplary damages). Versata has presented evidence that (among other things) Ford 

knowingly shared confidential ACM/MCA materials with their PDO developers as 

they built their replacement product (Designated Dep. Testimony of M. Sullivan, Tr. 

72:2–7; Designated Dep. Testimony of Y. Fradkin, Tr. 88:05–08); Ford misled 

9 Although she has not given trial testimony yet, Ford’s own damages expert Julie 

Davis also uses the $17 million per year figure as the upper boundary of her damages 

model. Internal Ford documents support this number, too. See PX-0412 (valuing 

PDO at $17 million per year in future license avoidance fees). 

10 The second scenario assumes a $14.95 million royalty base (Ford’s 2014 payment 

to Versata for the ACM/MCA product suite; supported by the parties’ contracts, 

invoices, and related documentation). See PX-142 (Subscription Schedule 4); PX107 (Addendum #1 to SS4); PX-2617 (Versata’s November 8, 2012 Invoice to 

Ford), PX-3974 (Versata’s 2013 and 2014 sales invoices to Ford); PX-800 (Ford’s 

revenue spreadsheet from 1999 to 2016). The third scenario assumes a $10.95 

million royalty base (base license fees for ACM and MCA, as evidenced by Ford’s 

unsolicited check, PX-4746, and by the parties’ contracts, PX-142, PX-103 

(Subscription Schedule #121031)). 

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Versata into thinking that Ford had implemented policies to guard against the 

misappropriation of Versata’s trade secret information (e.g., Dkt. 975, Vol. 8-A Trial 

Tr. at 73:5–18 (Richards discussing the “Chinese wall” during the December 2014 

meeting)); Ford deliberately concealed its competing development plans from 

Versata for years (e.g., Dkt. 969, Vol. 6-A Trial Tr. 118:12–19 (Baxter stating that 

Ford saw no advantage in disclosing the project)); and Ford surreptitiously mailed a 

check to Versata to dupe it into another year of license renewal until Ford’s 

infringing product actually worked (e.g. Dkt. 975, Vol. 8-A Trial Tr. at 58:22–59:19 

(Richards discussing Versata’s receipt of Ford’s “suspicious” $8.45 million check)).

Viewed in the light most favorable to Versata, with all reasonable inferences drawn 

in its favor, see Mosby-Meachem, 883 F.3d at 602, this evidence (and more) supports 

a finding of willfulness. 

Damages evaluation is quintessentially a jury function. The Court should deny 

any JMOL request directed to it. 

D. The result is the same under the DTSA and MUTSA. 

Ford has conceded that the elements for trade secret misappropriation under 

MUTSA are the same as under DTSA. Dkt. 941, Agreed Proposed Jury Instruction 

No. 29 (part 1) at 16 (Ford’s objection to separate DTSA/MUTSA instructions: “The 

test for the existence of a trade secret and for misappropriation are identical for the 

two statutes.”). And because the JMOL standard is the same under Michigan law as 

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under federal law, see Caldwell, 394 Mich. at 407, Ford’s motion fails as to both 

trade secret claims. 

II. Ford is not entitled to JMOL on Versata’s contract claims. 

To prevail on its breach of contract claim, Versata must prove that: (1) Ford 

breached the contract; and (2) Versata suffered damages as a result of the breach.

See Dkt. 941, Agreed Proposed Jury Instruction No. 21.11 Ample evidence supports 

Versata’s contract claim. 

A. The evidence presented supports a finding that Ford breached the 

MSSA. 

First, the evidence supports a liability finding. Versata brought one count for 

breach of contract. Versata has always pursued three breach theories (Dkt. 67 (Am. 

Answer & Counterclaims ¶¶ 127–29)), and it continues to pursue three breach 

theories today. Those are as follows. 

First, Ford breached the MSSA by reverse engineering and/or copying 

Versata’s licensed software in violation of MSSA § 1.7 (PX-100). As discussed 

above, Dr. Malek’s trial testimony squarely supports a finding that Ford breached 

this provision. 

Second, Ford breached the MSSA by distributing “Confidential Information” 

outside the bounds permitted by the MSSA. See MSSA § 7.4 (the parties “shall not 

11 There is no dispute that the MSSA is a valid, enforceable contract. 

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copy, reproduce, or distribute the Confidential Information except as expressly 

permitted in this Agreement”); id. at § 7.5 (“Each party agrees at all times to use 

Reasonable Care in preventing the disclosure of Confidential Information belonging 

to the other party. Each party agrees to restrict access to the other party’s 

Confidential Information only to those employees . . . who (i) require access in the 

course of their assigned duties and responsibilities and (ii) have agreed in writing to 

be bound”). It is beyond dispute that Ford received confidential ACM/MCA 

information over the course of the parties’ relationship. The misappropriation 

evidence cited above supports a finding that Ford breached this provision through 

its improper disclosures and misuse of that information.12

Third, Ford breached the MSSA by failing to return or destroy all Confidential 

Information to Versata on contract termination and by failing to allow the agreedupon audit and inspection process. See MSSA §§ 11.4, 3.5, 12.2. The testimony of 

Versata’s witnesses Michael Richards and Kenneth Ratton (among others) supports 

a finding that Ford breached these provisions. Dkt. 956, Vol. 3-A Trial Tr. at 101:24–

112:25, 114:22–119:14 (Ratton); Dkt. 975, Vol. 8-A Trial Tr. at 77:8–11 (Richards). 

12 Ford might argue that its confidentiality obligations do not extend to “material or 

information” that is “independently developed” by it. MSSA § 7.3(ii). That argument 

does not help Ford for multiple reasons. For one, by its plain terms, Section 7.3(ii) 

only protects Ford if its “independent development” is done “without using 

[Versata’s] Confidential Information.” Id. The trial record establishes that Ford’s 

development was tied to Versata’s confidential information.

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As Mr. Ratton explained, there is an “interplay” between these provisions in 

the software licensing industry for a reason: an audit/inspection process is the “only 

way to verify” that the customer has complied with its termination obligations. Dkt. 

956, Vol. 3-A Trial Tr. at 118:21–119:14. And in fact, the three sets of contractual 

protections (as a whole) interrelate, forming “most critical, if you will, part of 

protecting the software and the intellectual property of the company selling it. So... 

those all kind of play together. You can’t reverse engineer and then you need to be 

able to inspect if the contract is terminated.” Id. at 119:15–25. As the trial record 

shows, Ford did not abide by those termination-related obligations, and thus Versata 

continues to suffer from the misuse of its property—even today. See, e.g., Dkt. 969, 

Vol. 6-A Trial Tr. at 153:7–17 (testimony from Mr. Baxter (Ford) acknowledging 

that Ford did not permit Versata to audit PDO). 

As set out in this response, the trial record more than supports a finding that 

Ford breached the MSSA. If Ford believes that its conduct was justified under 

different provisions of the MSSA, the jury can receive and weigh that evidence. But 

for now, the Court should deny any request for JMOL on contract liability. 

In fact, JMOL on contract liability is particularly inappropriate because both 

parties have argued that damages are not an essential element of a breach of contract 

claim; a party can recover nominal damages if a breach is proven but the jury 

determines that damages are not measurable. See Dkt. 423 (Ford arguing at summary 

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judgment that it could recover “‘nominal damages’ for breach of contract [u]nder 

Michigan law”); Dkt. 712 at 16 (Versata arguing at summary judgment that it “can 

still prove liability for breach and recover at least nominal damages”). This Court 

has agreed more than once. Dkt. 534 at 14 (“[E]ven if Ford did not suffer actual 

damages from Versata’s [alleged breach], [Ford] is still entitled to seek ‘nominal 

damages’ for breach of contract under Michigan law.”); Dkt. 723 at 96 (The Court: 

“And now you [Ford] want summary judgment on the ground that they can’t seek 

nominal damages. In the words of Keyshawn Johnson, C’mon Man!”). And both 

parties proposed a jury instruction related to nominal damages, further 

demonstrating that JMOL is unwarranted.13 Ford is not entitled to judgment as a 

matter of law on the issue of contract liability. 

B. The evidence presented supports a finding that Versata suffered 

damages resulting from Ford’s MSSA breach. 

The Court should likewise deny any request for JMOL on contract damages.

Versata is entitled to receive the “benefit-of-the-bargain” had Ford paid Versata for 

its continuing use of Versata’s confidential information: specifically, damages of at 

13 See Dkt. 941, Agreed Proposed Jury Instruction No. X (“You would award 

nominal damages if you conclude that there was a breach but that the breach did not 

result in any financial damage. You may also award nominal damages if, upon 

finding that some injury resulted from a breach, you find that you are unable to 

compute monetary damages except by engaging in pure speculation and guessing.”).

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least $17 million per year from January 15, 2015 through trial. There is ample 

evidentiary support for this claim. 

First, the plain text of the MSSA reveals that there are no temporal limits on 

Ford’s contractual obligations. See MSSA (PX-100) § 13.5 (noting that several 

provisions “shall survive termination or expiration of this Agreement and any 

applicable license hereunder,” including Section 7 (“Confidentiality”), Section 3.5 

(“Verification”), and Section 11.4 (“Termination of Licenses”)). And even for the 

provisions not captured by the “Survival” provision (e.g., Section 1.7’s prohibition 

on “reverse engineering”), Versata continues to suffer commercial injury resulting 

from Ford’s breach. 

Second, Versata’s presentation of a $17 million per year figure is supported 

by the evidence, as discussed in detail above. That damages figure is also causallylinked to Ford’s breaching conduct. “But for” Ford’s breaching conduct (reverseengineering Versata’s software; improperly disclosing confidential information to 

PDO developers; failing to return the trade secrets embedded within Ford’s copycat 

software), Ford would have renewed the MSSA at a rate of at least $17 million per 

year. Ford may dispute its ultimate willingness to pay that number, but that dispute 

does not entitle it to JMOL. In fact, it only shows that this issue is ripe for jury 

resolution. See Caldwell, 394 Mich. at 407 (“The jury, not the trial judge, is the trier 

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of fact. Whenever a fact question exists, upon which reasonable persons may differ, 

the trial judge may not direct a verdict.”). 

Third, there is no rule of law that precludes a party from using a “reasonable 

royalty” methodology as a measure of contract damages. In fact, some courts have 

endorsed it in cases involving trade secret and contract issues, like this one. See, e.g., 

Celeritas Techs., Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354, 1359 (Fed. Cir. 1998) 

(“After [plaintiff] disclosed its proprietary technology to [defendant], [defendant] 

was faced with two legitimate choices: it could have used the technology and entered 

into a licensing agreement with [plaintiff] or it could have refrained from using 

technology. It chose instead to use the technology without compensating [plaintiff]. 

To compensate [plaintiff] for the breach, the jury properly determined the license 

fee [defendant] would have paid had it not breached the agreement.”). The Celeritas 

court further observed that while trade secret damages may be limited to the “head 

start” period, “liability for breach of contract is not so limited.” Id. at 1359–60. And 

in that case, as here, “the jury did not know what licensing arrangement might have 

been worked out [in the future], but such uncertainty does not bar contract recovery.” 

Id. at 1360. 

Other courts are in accord with the use of a reasonable royalty methodology 

to determine contract damages. See, e.g., Veritas Operating Corp. v. Microsoft 

Corp., 2008 U.S. Dist. LEXIS 112135, at *15 (W.D. Wash. Feb. 26, 2008) (“If 

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Microsoft did breach the Agreement, Veritas has the reasonable expectation of being 

compensated for Microsoft’s use of Veritas’ confidential information. Microsoft 

points to no authority disallowing testimony regarding the use of a reasonably 

royalty measurement to show what a fair compensation might be for unauthorized 

use.”). Cases like Celeritas and Veritas confirm that Versata is entitled to present

the jury with contract damages numbers based on hypothetical license fees.

14

At minimum, cases like Celeritas and Veritas make clear that JMOL is 

inappropriate. Ultimately, the jury may award whatever damages it determines were 

“naturally arising from the breach.” Dkt. 941, Agreed Proposed Jury Instruction No. 

26 (“Benefit of the Bargain” instruction citing Michigan Model Civil Jury 

Instructions § 142.31). Ford is not entitled to the extreme remedy of JMOL with 

respect to Versata’s contract damages. 

14 The Sixth Circuit has not “reach[ed] the issue of whether a jury can base its 

[contract] damages calculation on a reasonable royalty” under Michigan law. See 

Innovation Ventures, Ltd. Liab. Co. v. Custom Nutrition Labs, Ltd. Liab. Co., 912 

F.3d 316, 345–47 & n.4 (6th Cir. 2018) (making a case-specific determination that 

reasonable royalties were unavailable in that case, when there was no pairing with 

trade secret or patent claims and no licensing history to examine). But Innovation 

Ventures does not preclude the use of such a methodology here. 

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III. Ford is not entitled to JMOL on its own contract claim. 

Finally, to the extent that Ford is asking for judgment as a matter of law on its 

own affirmative claim for breach of contract, the Court should deny that request.

According to Ford, Versata agreed not to terminate Ford’s ACM license 

before December 31, 2015 but breached this agreement when it required Ford to 

cease using the ACM software after January 14, 2015. The trial evidence presented 

to date defeats this claim. 

The trial record shows that Versata’s two 2014 termination letters (PX-094; 

PX-537) were valid and consistent with the contracts. Specifically, Versata’s 

October 7 letter was timely and terminated the next Annual Renewal Period, which 

began on January 1, 2015. PX-094; PX-100, MSSA at §11.2. Because of the 

Addendum #1 to Subscription Schedule #4, however, Ford was guaranteed use of 

the software through January 14, 2015, in exchange for $3 million. PX-107. Thus, 

Versata’s November 13 letter incorporated the Annual Renewal Period termination 

in the October 7 letter and terminated Ford’s use of the software on January 15, 2015.

PX-537. The trial testimony of Price (among others) walks through this and shows 

that Versata’s conduct was proper and entirely consistent with the contracts. See Dkt. 

953, Vol. 2-B Trial Tr. at 42:1–51:4 (Price testimony).

Given this testimony and the plain language of the contracts, Ford cannot 

show that the evidence in its favor “is so powerful that no reasonable jury would be 

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free to disbelieve it.” Ghaleb v. Am. S.S. Co., 684 F. App’x 545, 547–48 (6th Cir. 

2017); see also id. (“It is rarely appropriate to grant a directed verdict or judgment 

n.o.v. in favor of the party having the burden of proof”) (collecting cases). Ford’s 

JMOL request on its affirmative breach claim (to the extent it makes one) should be 

denied. 

CONCLUSION

There is ample evidence to support a liability and damages finding on each of 

Versata’s claims and to defeat Ford’s singular breach of contract claim. The Court 

should deny Ford’s motion for judgment as a matter of law in its entirety. 

Dated: October 17, 2022 Respectfully submitted,

/s/ Matthew R. Carter

Dan K. Webb 

DWebb@winston.com

Matthew R. Carter 

MCarter@winston.com 

WINSTON & STRAWN LLP 

35 W. Wacker Drive 

Chicago, IL 60601 

Telephone: (312) 558-5600

Steven J. Mitby 

smitby@mitbylaw.com 

Timothy Johnson

tjohnson@mitbylaw.com

MITBY PACHOLDER JOHNSON PLLC 

Telephone: (713) 234-1446

Case 2:15-cv-10628-MFL-EAS ECF No. 983, PageID.64255 Filed 10/18/22 Page 33 of 35
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Jaye Quadrozzi 

quadrozzi@youngpc.com

YOUNG, GARCIA & QUADROZZI, PC 

27725 Stansbury Blvd., Suite 125 

Farmington Hills, MI 48334 

Telephone: (248) 353-8620 

Sharoon Saleem 

Sharoon.saleem@jonesspross.com 

JONES & SPROSS, PLLC 

1605 Lakecliff Hills Ln., Suite 100 

Austin, TX 78732-2437 

ATTORNEYS FOR PLAINTIFFS 

VERSATA SOFTWARE, INC. f/k/a 

TRILOGY SOFTWARE, INC., 

VERSATA DEVELOPMENT GROUP, 

INC., AND TRILOGY, INC.

Case 2:15-cv-10628-MFL-EAS ECF No. 983, PageID.64256 Filed 10/18/22 Page 34 of 35
PROOF OF SERVICE

Samuel M. Zuidema certifies that on October 17, 2022, he served Versata’s 

Anticipatory Response to Ford’s Motion for Judgment as a Matter of Law upon all 

counsel of record via electronic filing.

I declare under the penalty of perjury that the statements made above are true 

to the best of my knowledge, information, and belief.

/s/ Samuel M. Zuidema 

SZuidema@winston.com 

WINSTON & STRAWN LLP

35 W. Wacker Drive 

Chicago, IL 60601 

Telephone: (312) 558-5600

Case 2:15-cv-10628-MFL-EAS ECF No. 983, PageID.64257 Filed 10/18/22 Page 35 of 35