UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

FORD MOTOR COMPANY, CASE NO. 15-10628-MFL-EAS 

Plaintiff/Counter-Defendant, (Consolidated with 

Case No. 15-11624-MFL-EAS) 

v. Hon. Matthew F. Leitman 

VERSATA SOFTWARE, INC., F/K/A 

TRILOGY SOFTWARE, INC., TRILOGY 

DEVELOPMENT GROUP, INC. AND 

TRILOGY, INC., 

 

Defendants/Counter-Plaintiffs. 

___________________________________  

VERSATA DEFENDANTS’ RESPONSE TO FORD’S MOTION TO 

STRIKE REPLY REPORT OF DR. MALEK (DKT. 328) 

 

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CONCISE STATEMENT OF ISSUES PRESENTED 

1. Should the Court allow Dr. Malek to testify about his findings related Ford’s 

use of Versata code when the code is subject to enforceable Versata copyrights 

and Ford admits that the code that the code at issue was taken from Versata’s 

copyrighted software? 

Versata answers: Yes. 

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CONTROLLING AUTHORITY 

Doe v. Claiborne Cnty., 103 F.3d 495 (6th Cir. 1996) 

Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131 (5th Cir. 2004) 

Kohus v. Mariol, 328 F.3d 848 (6th Cir. 2003) 

R.W. Beck, Inc. v. E3 Consulting, LLC, 577 F.3d 1133 (10th Cir. 2009)

Streetwise Maps, Inc. v. VanDam, Inc., 159 F.3d 739 (2d Cir. 1998)

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TABLE OF CONTENTS 

I. INTRODUCTION ............................................................................................... 1 

II. Factual Background ............................................................................................. 3 

1. Ford copied ACM jar files into the PDO development environment. ................ 3 

2. Dr. Sam Malek is a highly qualified software expert. ......................................... 5 

III. Legal Analysis .................................................................................................. 7 

1. Versata can enforce its copyrights in the software versions used by Ford ......... 7 

2. Dr. Malek’s opinions properly relate to direct copying rather than substantial 

similarity. ................................................................................................................... 9 

3. The “substantial similarity test” is a guide for the court, not a Daubert standard

 10 

4. Dr. Malek properly determined that the ACM jar files Ford copied were 

substantially similar to the ones Versata copyrighted. ............................................ 12 

IV. Conclusion ...................................................................................................... 13 

 

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I. INTRODUCTION 

Ford admits that it took Versata code, known as “jar” files, from ACM, MCA, 

and ACS, and placed them into its PDO development environment. However, 

although Ford admits that it took these files from Versata’s copyrighted software, 

Ford now argues that the Court should strike Dr. Malek’s copyright testimony 

because he does not do a sufficient analysis to show that these jar files from ACM, 

MCA, and ACS are “substantially similar” to jar files from ACM, MCA, and ACS. 

As the Sixth Circuit has said numerous times, there is no need to perform a 

substantial similarity analysis when there is evidence, as here, of direct copying. To 

be clear, Ford does not dispute that the jar files in its PDO environment came from 

ACM, MCA, and ACS. (Ex. 1, Myers TS Rebuttal at ¶¶ 706-710; Ex. 2 

Decommission Doc). 

It is well established that Versata’s copyright registrations cover not only the 

versions named on the copyright registration, but also earlier versions of the same 

program. Because Ford was admittedly using files from these earlier programs, there 

is no need for further analysis. Regardless, Dr. Malek’s analysis is reliable, 

thorough, and accurate. Dr. Malek determined that Ford directly copied ACM code 

files based his review of PDO source code, as well as interviews with Seth Krauss, 

a key ACM architect.1

 Dr. Malek also determined that the ACM version from which 

                                                            

1 See Ex. 3, Malek Report at ¶¶ 69-70, 425-429. 

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Ford copied these files is substantially similar to the version Versata registered with 

the Copyright Office. Dr. Malek spent at least 124 hours reviewing source code in 

this case and amply documented his findings.2

 Thus, there is no basis to exclude his 

opinions. 

Furthermore, despite reviewing the same source code and other evidence, 

Ford’s own experts do not dispute Dr. Malek’s conclusions on these two issues. If 

Ford wants to challenge Dr. Malek’s testimony, the proper means is “vigorous crossexamination, presentation of contrary evidence, and careful instruction on the burden 

of proof” not exclusion. Doe v. Claiborne Cnty., 103 F.3d 495, 515 (6th Cir. 1996) 

(quoting Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993)) .Incredibly, 

Ford seeks to exclude opinions by Dr. Malek that its own experts had ample 

opportunity to – but, in fact, did not – dispute. Ford’s Daubert challenge to Dr. 

Malek is without merit and should be denied. 

 

                                                            

2 Ex. 5, Malek Declaration at ¶4.

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II. Factual Background 

1. Ford copied ACM jar files into the PDO development environment.

Versata has registered copyrights on three software programs: ACM, MCA, 

and ACS the (“Registered Works”).3

 These certificates were filed within five years 

of first publication and are presumed valid under the U.S. Code.

4

 

Dr. Malek has done approximately 124 hours of code review in connection 

with this litigation. When reviewing Ford’s PDO source code, Dr. Malek found 

transactions showing that Ford had been loading jar files5

 from ACM, MCA, and 

ACS into its PDO development environment from 2012 through at least 2014, and 

maintained those jar files in its PDO environment until at least 2015.6

 Dr. Malek 

noted that these jar files, which are normally not human-readable, would become 

human readable in Ford’s PDO Development environment.7

 Furthermore, placing 

these Versata files in the PDO Development environment would make the jar files 

accessible to all PDO developers.8

 Dr. Malek further noted evidence that Ford had 

                                                            

3

 Ex. 6, Certificates of Registration. The versions used for registration are ACM 

v.4.23.13.01, ACM v.1.0, MCA v.2.2.14.01, and ACS v.2.26_01. 

4 Id.; 17 U.S.C. § 410 

5

 A jar file is a type of object code, or executable code, written in the Java 

programming language. See Dkt. 354 at 29 n.16. 

6

 Ex. 3, Malek Report at ¶¶ 70, 428 (citing to Ford source code); Ex. 4, Malek Reply 

at ¶¶304-314. 

7

 Ex. 3, Malek Report at ¶427. 

8

 Ex. 3, Malek Report at ¶72 

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used these jar files for testing PDO.9 These jar files were in Ford’s PDO 

development environment until at least February 2015, after Ford’s licenses to 

ACM, MCA, and ACS had expired.10 Dr. Malek noted that at least 33 PDO 

developers had Versata jar files on their workstations at Ford based on Ford 

documentation.11 

Because Ford had deleted these files prior to Dr. Malek’s review, he could not 

do a side-by-side comparison, but noted in documentation and testimony that Ford 

acknowledged these jar files came from ACM, MCA, and ACS.12 Dr. Malek did an 

analysis to determine that these .jar files likely came from ACM v. 4.23.13, MCA 

v.2.2, and ACS v.2.2.13 Dr. Malek noted that based on his visual inspection, standard

software versioning conventions, and interviews with ACM architect Seth Krauss, 

these versions of Versata software were substantially similar to the versions 

registered by Versata, and that the registered versions were derivative of Ford’s 

versions.14 Dr. Malek further reviewed the code deposited with the Copyright Office 

to confirm that the code came from the registered versions.15 

                                                            

9

 Ex. 3, Malek Report at ¶71. 

10 Ex. 3, Malek Report at ¶72 (citing to Ford source code); Ex. 4, Malek Reply at 

¶304-312 

11 Ex. 3, Malek Report at ¶429, 432 

12 Ex. 3, Malek Report at ¶¶432, 433 ; Ex. 2, Decommission Doc. 

13 Ex. 3, Malek Report at ¶423-24, 

14 Ex. 3, Malek Report at ¶423, Ex. 4, Malek reply at ¶298. 

15 Ex. 7, Malek Deposition (day 1) at 143:6-159:15. 

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Additionally, Dr. Malek noted that the ACM, MCA, and ACS source code 

contain numerous notations of Versata ownership and handwritten comments, and 

further noted that the works were functionally and aesthetically different than any of 

which he was aware and concluded that these computer programs were original.16 

In rebuttal, Ford’s expert does not dispute that these files came from Versata’s 

software. In fact, Ford admitted that Versata’s jar files were used to perform “side 

by side comparisons” between ACM outputs and PDO outputs.17 Instead of denying 

that it copied the Versata jar files, Ford argued that its use of the jar files was within 

the scope of its license (a position which Versata vigorously disputes). Nowhere in 

rebuttal did Ford challenge the validity of Versata’s copyrights in the ACM, MCA, 

and ACS software. 

2. Dr. Sam Malek is a highly qualified software expert. 

 Dr. Sam Malek is a professor of computer science at the University of 

California Irvine and is an expert in Java programming and configuration software.18 

Dr. Malek has testified as an expert in numerous software cases and has never been 

struck or limited due to his qualifications, analysis, or methodology.19 Dr. Malek 

has opined on a number of trade secret, patent, and copyright issues in this case and 

                                                            

16 Ex. 3, Malek Report at ¶425. 

17 Ex. 1, Myers Report ¶¶706-710 

18 Ex. 8, Malek CV. Exhibit A to Malek report. 

19 Ex. 5, Malek Declaration at ¶5 

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his reports total more than 600 pages in length. The only opinion of Dr. Malek that 

Ford challenges under Daubert is his copyright opinion. 

 In its Daubert motion, Ford does not dispute that the ACM jar files are original 

or that Ford employees copied those jar files. Instead, Ford faults Dr. Malek for 

failing to perform a wholly irrelevant analysis – namely, a “substantial similarity” 

analysis of whether the copied jar files are “substantially similar” to the originals. 

Although this analysis would be important if there were differences between the 

original and copied works (such as when an author paraphrases instead of directly 

copying passages from a book), it is irrelevant to cases of direct copying. Here, Dr. 

Malek has established – and Ford does not deny – that Ford directly copied ACM 

jar files into the PDO development environment. 

 Dr. Malek has also opined that the files Ford copied are from a version of 

ACM that is substantially similar to the one Versata registered with the Copyright 

Office. This involved a comparison of two closely-related versions of ACM – 

version 4.23.13.01 (the version Versata registered) and 4.23.13 (the one from which 

Ford copied). Dr. Malek performed this comparison based on his review of ACM 

source code and software industry protocols and Ford’s experts – who reviewed the 

same source code – do not dispute his conclusions. 

 

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III. Legal Analysis 

As a threshold matter, Ford misstates the elements of copyright infringement. 

A claim for copyright infringement does not necessarily require a substantial 

similarity analysis as Ford contends. Rather, as the Sixth Circuit said in Kohus v. 

Mariol (the case cited by Ford), a copyright plaintiff “must establish that he or she 

owns the copyrighted creation, and that the defendant copied it.” 328 F.3d 848, 853 

(6th Cir. 2003). 

Using the Sixth Circuit’s recitation of the elements of copyright infringement, 

Dr. Malek’s testimony will “assist the trier of fact to understand or determine a fact 

at issue” – namely, whether Ford copied ACM jar files into a PDO development 

environment. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). 

Ford does not dispute that Dr. Malek is eminently qualified based on his education, 

professional background, and experience to opine on these issues. 

1. Versata can enforce its copyrights in the software versions used by 

Ford 

Versata has registered copyrights in ACM 4.23.13.01, MCA 2.2.14.01, and 

ACS 2.26_01. It is well settled that Versata’s copyright registration not only covers 

those versions of these programs, but the earlier works they derive from. See, e.g., 

R.W. Beck, Inc. v. E3 Consulting, LLC, 577 F.3d 1133, 1143 (10th Cir. 2009) (“[I]f 

the same party owns a copyright in both a derivative work ... and the underlying 

work that is incorporated in the derivative work, registration of a copyright in the 

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derivative work is sufficient to permit an infringement action on [ ] the preexisting [ 

] material.”); Streetwise Maps, Inc. v. VanDam, Inc., 159 F.3d 739, 747 (2d Cir. 

1998) (“the registration certificate relating to the derivative work in this 

circumstance will suffice to permit [plaintiff] to maintain an action for infringement 

based on defendants' infringement of the pre-existing work.”) see also Murray Hill 

Publ'ns, Inc. v. ABC Commc'ns, Inc., 264 F.3d 622, 631 (6th Cir.2001), abrogated 

on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166, 130 S.Ct. 

1237, 176 L.Ed.2d 18 (2010) (acknowledging “cases that permit infringement suits 

to proceed on registered derivative works even though some of the underlying 

foundational works were not formally registered”).20 

 Dr. Malek analyzed the timing of Ford’s use of the .jar files and noted that the 

.jar files likely came from ACM 4.23.13, MCA 2.2, and ACS 2.2. He compared the 

code of the relevant versions, interviewed a key ACM architect, and noted that under 

standard software versioning conventions and his visual review of the different 

source code versions, the registered versions were derivative of the versions from 

which Ford extracted the jar files.21 Because Versata is entitled through its 

registrations to enforce the copyrights of its preexisting software, Versata is not 

required to show that there was substantial similarity between the registered version 

                                                            

20 At least five circuits have recognized this doctrine. See Aspen Tech., Inc. v. M3 

Tech., Inc., 569 F. App’x 259, 268-69 & n.28 (5th Cir. 2014) (citing cases). 

21 Ex. 3, Malek Report at ¶423-24; Ex. 4, Malek Reply at ¶ 298. 

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and the infringed version. Versata can enforce the copyrights from those infringed 

versions directly. 

2. Dr. Malek’s opinions properly relate to direct copying rather than 

substantial similarity. 

There are two ways to prove copyright infringement. The plaintiff can either 

rely on evidence of direct copying or perform a substantial similarity analysis to 

show that the defendant’s work is substantially similar to the copyrighted work. See 

Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 534 (6th Cir. 

2004) (“If no direct evidence of copying is available, a claimant may establish this 

element by showing that the defendant had access to the copyrighted work and that 

the copyrighted work and the allegedly copied work are substantially similar.”) 

(citing Kohus, 328 F.3d at 853-54 (6th Cir. 2003)); see also see also Norse v. Henry 

Holt & Co., 991 F.2d 563, 566 (9th Cir. 1993) (noting “the substantial similarity 

analysis is inapposite to the copying issue because appellees admit that they in fact 

copied phrases from Norse's letters.”).22 

                                                            

22 Indeed, numerous cases cited by Ford acknowledge that a substantial similarity 

analysis is not required in cases of direct infringement. See R.C. Olmstead, Inc. v. 

CU Interface, LLC, 606 F.3d 262, 274 (6th Cir. 2010) (“A plaintiff can show copying 

in two ways, either through direct evidence of copying, or by indirect evidence.”), 

R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp.2d 878, 893 (N.D. Ohio 

2009) (“Where there is not sufficient direct evidence of copying, a plaintiff may 

indirectly establish copying by showing (1) access to the original work, and (2) 

substantial similarity between the original work and the allegedly infringing 

work.”), Auto Inspection Servs., Inc., v. Flint Auto Auction, Inc., 2006 WL 3500868, 

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Here, Versata is able to demonstrate that Ford directly copied jar files from 

ACM, MCA, and ACS. There is no need for Versata to undertake a substantial 

similarity analysis of files that Ford directly copied. Such an analysis would be 

entirely superfluous, given that the copied files are identical – not merely similar – 

to the originals. Dr. Malek properly establishes the identity of the original and 

copied files based on the fact that they have the same file names and based on Ford’s 

admissions that it copied ACM jar files for the purpose of performing a “side by side 

comparison” between ACM and PDO.23

Furthermore, by its own admission, Ford deleted the actual jar files from the 

PDO development environment, making it impossible for Dr. Malek to open up 

individual code files and analyze their contents in detail.24 Ford’s objection that Dr. 

Malek should have performed an impossible and unnecessary “substantial 

similarity” analysis is unfounded 

3. The “substantial similarity test” is a guide for the court, not a Daubert 

standard 

Even if a substantial similarity test were applicable, the test is one for the 

Court rather than a standard by which to exclude experts. See Kohus, 328 F.3d at 

855 (noting that the substantial similarity test is “a methodological tool courts can 

                                                            

at *5 (E.D. Mich. Dec. 4, 2006) (“the plaintiff can either present direct evidence that 

the defendant copied or circumstantial evidence.”). 

23 Ex. 1, Myers TS Rebuttal at ¶¶707-710. 

24 Ex. 7, Malek Depo at 146:21-148:14 

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use . . .”); id. at 858 (holding that “the court’s substantial similarity determination is 

invalid.”); see also R.C. Olmstead v. CU Interface, LLC, 606 F.3d 262, 274 (6th Cir. 

2010) (“In Kohus, this court applied a two-step approach for determining whether 

substantial similarity exists[.]”). Indeed, Ford fails to point to a single case in which 

an expert is excluded for failure to perform a substantial similarity analysis. 

The Court can consider all evidence, not just the testimony of Dr. Malek, in 

determining whether Ford has infringed Versata’s copyrights. Notably, Ford did not 

move for summary judgment on whether the jar files in its PDO system are 

substantially similar to Versata’s jar files. They undisputedly are, because they are 

Versata’s jar files. Instead, Ford asks the Court to prevent Versata’s expert from 

being able to discuss to the jury about how he found the jar files, the significance of 

Versata’s jar files being found in Ford’s PDO development environment, and the 

significance of Ford’s admitted testing using Versata’s .jar files. This is precisely 

the type of testimony that should be subject to “rigorous cross-examination” rather 

than excluded. Whether Versata met its burden to prove infringement is not for the 

Court to decide in this Daubert challenge. Here, Ford admits it copied Versata’s .jar 

files into its source code environment. Ford’s only argument in defense has been 

that its use of Versata’s .jar files fell within the scope of its license;25 Ford has not 

disputed the validity of Versata’s presumptively valid copyrights. See Goldman v. 

                                                            

25 Ex. 1, Myers Report at ¶¶ 711-17. 

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Healthcare Management Sys., Inc., 628 F. Supp. 2d 748, 754 (W.D. Mich 2008) 

(“The defendant, rather than the plaintiff, bears the burden of establishing, at trial, 

the application of the [merger and scenes á faire] doctrines.”); see also Dahlen v. 

Michigan Licensed Beverage Ass’n, 132 F. Supp.2d 574, 582 n.7 (noting that 

“Defendant has not shown” that the merger doctrine is applicable). 

4. Dr. Malek properly determined that the ACM jar files Ford copied 

were substantially similar to the ones Versata copyrighted. 

 This case is far different from R.C. Olmstead, where the expert only claimed 

unidentified “key elements” were copied.26 Dr. Malek has identified numerous 

specific jar files that Ford placed in is PDO Development environment outside of 

the scope of its license.27 Ford suggests that Dr. Malek was required to compare the 

.jar files to source code, but this is wrong as a matter of law. Although the copyright 

office requires source code for deposit, the registration extends copyright protection 

to source code and object code, as well as non-literal elements.

28 

                                                            

26 657 F. Supp.2d at 893. 

27See Ex. 3, Malek Report ¶¶432-433. 

28 See, e.g., Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 142 (5th Cir. 2004) 

(noting that copyright protection “extends not only to the ‘literal’ elements of 

computer software—the source code and object code—but also to a program's 

nonliteral elements, including its structure, sequence, organization, user interface, 

screen displays, and menu structures.”); Consul Tec, Inc. v. Interface Sys., Inc., No. 

90-V-70757-DT, 1991 WL 427891, at *1 (E.D. Mich. Oct. 31, 1991) (“copyright 

protection encompasses literal as well as non-literal aspects [of computer 

programs]”). 

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Finally, the copyright-registered version of ACM is version 4.23.13.01, while 

the version of ACM from which Ford copied jar files was version 4.23.13. As the 

version numbers indicate, these versions of the software are closely related. Dr. 

Malek personally reviewed the source code and determined that the two versions are 

nearly identity copied jar files are substantially similar – and indeed, virtually 

identical – to the ones in the registered work. Dr. Malek spent at least 124 hours on 

source code review in this case, demonstrating the thoroughness and care of his 

analysis. 

Furthermore, Ford’s experts have had access to and reviewed exactly the same 

source code. Yet Ford’s experts do not dispute the fact that the ACM jar files Ford 

copied are substantially identical to the ones found in the registered works. Once 

again, Ford seeks to exclude an opinion that its own experts do not challenge. 

IV. Conclusion 

Ford seeks to strike Versata’s expert of copyright on the premise that 

Versata’s jar files are not necessarily “substantially similar” to themselves, but this 

is for the Court, not Dr. Malek, to ultimately determine after hearing all of the facts. 

Dr. Malek’s testimony will undoubtedly help the Court in making this determination. 

For the foregoing reasons, the Court should deny Ford’s Motion to Exclude Dr. 

Malek’s Opinions Regarding Copyright Infringement. 

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    Date: March 08, 2018 Respectfully submitted, 

 /s/ Steven J. Mitby

AHMAD, ZAVITSANOS, ANAIPAKOS, 

ALAVI & MENSING, P.C. 

Steven J. Mitby 

Texas State Bar No. 24037123 

smitby@azalaw.com 

Iftikhar Ahmed 

Texas State Bar No. 24064795 

 iftiahmed@azalaw.com 

Reed N. Smith 

Texas State Bar No. 24067875 

rsmith@azalaw.com 

Kyril Talanov 

Texas State Bar No. 24075139 

ktalanov@azalaw.com 

Matthew Caldwell 

Michigan State Bar No. P79462 

mcaldwell@azalaw.com 

1221 McKinney, Suite 2500 

Houston, Texas 77010 

(713) 655-1101 (Phone) 

(713) 655-0062 (Fax) 

Rodger D. Young 

Jaye Quadrozzi 

YOUNG & ASSOCIATES 

27725 Stansbury Blvd., Suite 125 

Farmington Hills, MI 48334 

248.353.8620 

efiling@youngpc.com 

P22652 

ATTORNEYS FOR DEFENDANTS 

VERSATA SOFTWARE, INC., F/K/A 

TRILOGY DEVELOPMENT GROUP, 

INC., AND TRILOGY, INC.

 

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

FORD MOTOR COMPANY, CASE NO. 15-10628-MFL-EAS 

Plaintiff/Counter-Defendant, (Consolidated with 

Case No. 15-11624-MFL-EAS) 

v. Hon. Matthew F. Leitman 

VERSATA SOFTWARE, INC., F/K/A 

TRILOGY SOFTWARE, INC., TRILOGY 

DEVELOPMENT GROUP, INC. AND 

TRILOGY, INC., 

Defendants/Counter-Plaintiffs. 

__________________________________________________________________ 

PROOF OF SERVICE 

Steven J. Mitby certifies that on March 8, 2018, he served the Versata’s 

Response to Ford’s Motion to Strike Reply Report of Dr. Malek and this Proof of 

Service 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/ Steven J. Mitby

AHMAD, ZAVITSANOS, ANAIPAKOS, 

ALAVI & MENSING, P.C. 

Steven J. Mitby 

1221 McKinney, Suite 2500 

Houston, Texas 77010 

(713) 655-1101 (Phone) 

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