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2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 1 of 20 Pg ID 9460
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`Ford Motor Company,
`
`
`
`
`
`
`
`
`
`Case No. 15-10628-MFL-EAS
`(consolidated with Case No. 15-cv-11624)
`
`Hon. Matthew F. Leitman
`
`JURY TRIAL DEMANDED
`
`
`
`
`Plaintiff/
`Counter-Defendant,
`
`
`v.
`
`Versata Software, Inc., et al.,
`
`
`
`
`Defendants/
`Counter-Plaintiffs.
`
`
`
`
`
`
`FORD MOTOR COMPANY’S MOTION TO
`ADOPT IN PART THE REPORT AND
`RECOMMENDATION OF THE SPECIAL
`MASTER REGARDING CLAIM
`CONSTRUCTION (Dkt. #181)
`
`Ford moves to adopt Sections 1-14 of the Special Master’s Report and
`
`Recommendation of the Special Master Regarding Claim Construction (Dkt. #181).
`
`Versata does not oppose the motion to adopt.
`
`Ford objects to Section 15 of the Report and Recommendation because the
`
`Special Master’s recommendation that claims 2, 10, and 16 of U.S Patent No.
`
`7,739,080 are not indefinite was incorrect, as explained in the Brief below. Versata
`
`opposes this objection.
`
`Versata 2012
`Ford Motor v. Versata
`CBM2016-00101
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 2 of 20 Pg ID 9461
`
`BRIEF IN SUPPORT OF FORD’S OBJECTION
`
`
`
`CONCISE STATEMENT OF ISSUE PRESENTED
`
`
`
`
`
`Where the scope of dependent claims 2, 10, and 16 of U.S. Patent No.
`
`7,739,080 is not reasonably certain to a person of ordinary skill in the art because,
`
`as the Special Master found, those claims are inconsistent with the patent’s written
`
`description, was the Special Master’s wrong to recommend that those claims are not
`
`
`
`indefinite?
`
`
`
`
`
`i
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 3 of 20 Pg ID 9462
`
`TABLE OF CONTENTS
`
`
`
`
`
`BRIEF IN SUPPORT OF FORD’S OBJECTION .................................................... i
`
`CONCISE STATEMENT OF ISSUE PRESENTED ................................................ i
`
`TABLE OF AUTHORITIES ................................................................................... iii
`
`I.
`
`INTRODUCTION ........................................................................................... 1
`
`II.
`
`SUMMARY OF THE ‘080 PATENT ............................................................. 2
`
`III. APPLICABLE LAW ....................................................................................... 7
`
`IV. ARGUMENT .................................................................................................10
`
`V.
`
`CONCLUSION ..............................................................................................14
`
`
`
`ii
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 4 of 20 Pg ID 9463
`
`
`
`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Allen Eng’g Corp. v. Bartell Indus.,
`
`299 F.3d 1336 (Fed. Cir. 2002) .................................................................9, 10
`
`Exxon Research & Eng’g Co. v. U.S.,
`
`265 F.3d 1371 (Fed. Cir. 2001) ....................................................................... 8
`
`In re Cohn,
`
`438 F.2d 989 (CCPA 1971) .......................................................................9, 10
`
`In re Moore,
`
`439 F.2d 1232 (CCPA 1971) .....................................................................9, 10
`
`Microsoft Corp. v. i4i Ltd. P’ship,
`
`564 U.S. 91 (2011)........................................................................................... 8
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`
`134 S.Ct. 2120 (2013) ...................................................................................... 8
`
`Solomon v. Kimberly-Clark Corp.,
`
`216 F.3d 1372 (Fed. Cir. 2000) ....................................................................... 7
`
`South Corp. v. U.S.,
`690 F.2d 1368 (Fed. Cir. 1982) (en banc) ....................................................... 9
`
`
`Statutes
`
`35 U.S.C. § 112 ............................................................................................... 2, 7, 10
`
`Rules
`
`37 C.F.R. § 1.75 ......................................................................................................... 8
`
`iii
`
`
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 5 of 20 Pg ID 9464
`
`
`
`I.
`
`INTRODUCTION
`
`Ford objects to Section 15, “Detecting any inconsistencies,” of the Special
`
`Master’s Report and Recommendation regarding Claim Construction (Dkt. #181,
`
`“R&R”). In that Section, the Special Master addressed Ford’s argument that
`
`dependent claims 2, 10, and 16 of U.S. Patent No. 7,739,080 (“the ‘080 patent”) are
`
`indefinite. (R&R, pp. 62-69.) Like all the Versata patents in this lawsuit, the ‘080
`
`patent relates to computer software for defining product configuration “models”
`
`used to build products, such as automobiles. Because configuration models can be
`
`complex, large models are sometimes broken into smaller models, which are later
`
`combined before the model is used to answer “configuration questions” concerning
`
`whether a particular product configuration is actually buildable.
`
`The ‘080 patent explains that “conventional” methods of combining models
`
`could result in conflicting rules, with the result that the consolidated model would
`
`be unusable to answer configuration questions. The patented method solves that
`
`problem by automating the process of identifying rule conflicts and attempting to
`
`resolve them. If all conflicts can be resolved, the process produces a consolidated
`
`model that can be used to answer configuration questions. On the other hand, if the
`
`conflicts cannot be automatically resolved, no consolidated model is created.
`
`The independent claims of the ‘080 patent describe the automated process of
`
`identify and resolving rule conflicts that can result when combining multiple
`
`1
`
`

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`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 6 of 20 Pg ID 9465
`
`
`
`configuration models. The final step of those claims is the creation of a
`
`“consolidated model . . . for use in answering configuration questions related to the
`
`product.”
`
`As the patent specification makes clear, a “consolidated model” has no
`
`conflicting rules if it can “answer[] configuration questions.” The dependent claims
`
`at issue, claims 2, 10, and 16, start with this “consolidated model” and require further
`
`identification and attempted resolution of rule conflicts in the consolidated model.
`
`Yet, the patent explains that there are no conflicts to identify or resolve at that point
`
`of the process. Thus, the scope of the dependent claims is uncertain, making them
`
`indefinite under 35 U.S.C. § 112, ¶ 2.
`
`Because dependent claims 2, 10, and 16 are inconsistent with the independent
`
`claims and the patent specification, they are indefinite.
`
`II.
`
`SUMMARY OF THE ‘080 PATENT
`
`The Special Master’s R&R provides a comprehensive summary of the ‘080
`
`patent and the issues surrounding claims 2, 10, and 16 (the “dependent claims”).
`
`Because Versata has already indicated that it does not disagree with the Special
`
`Master’s R&R by moving to adopt the R&R in its entirety (Dkt. #187), Ford excerpts
`
`relevant parts of the R&R to provide the background necessary to resolve Ford’s
`
`objection.
`
`2
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 7 of 20 Pg ID 9466
`
`
`
`The ’080 patent is entitled “Consolidation of Product Data
`
`Models,” and generally relates to the combining of multiple
`configuration models into a single unified configuration model, with
`the resulting unified configuration model containing the union of the
`allowable combinations from each of the models being combined.
`
`(R&R at 57.)
`
`A “configuration model” is a collection of rules that define the buildable
`
`configurations of one or more products. (Dkt. #163-11, ‘080 patent at 2:57-58.) An
`
`important purpose of a configuration model is to answer questions about whether a
`
`particular combination of features is “buildable,” i.e., whether it can be made into an
`
`actual product. Thus, it is essential that the configuration model be accurate so it
`
`can correctly answer configuration questions.
`
`The patent explains that “[d]efining and maintaining the configuration space
`
`for a large product can often be difficult to do in a single configuration model.” (Id.
`
`at 3:12-14.) To solve that problem, it is common to use multiple smaller
`
`configuration models that, when “stitched” or “combined” together, replicate the
`
`large configuration space. (Id. at 3:14-16.) As the Special Master explained:
`
`The process of combining multiple models is sometimes referred to as
`a “stitching” process, as in stitching the models together, and the unified
`set of rules may be called “stitched” rules. Id., at 3:48-62.
`
`(R&R at 57.)
`
`The patent says that “conventional” stitching processes were flawed because
`
`“they can sometimes create configurations in the consolidated model that are not
`
`3
`
`

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`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 8 of 20 Pg ID 9467
`
`
`
`actually buildable, and the conventional processes ‘do not automatically detect
`
`unspecified configuration buildables and correct them.’ [‘080 patent] at 3:64 - 4:10.”
`
`(R&R at 57.) This was a serious problem because, if a consolidated model contained
`
`“unspecified configuration buildables,” it could not answer configuration questions
`
`reliably. An unreliable model is an unusable model.
`
`The purpose of the ‘080 patent is to create a process for detecting “any
`
`incompatibilities or contradictions between models” and “automatically resolv[ing]
`
`them where possible.” (‘080 patent at 7:10-14.)1 In the ‘080 patent, the terms
`
`“incompatibilities,” “contradictions,” and “conflicts,” and “inconsistencies” are
`
`used interchangeably and refer to conflicts between rules in the models. (R&R at
`
`64-65, 67.)
`
`But not all rule conflicts can be resolved automatically. The patent states:
`
`“[i]f an incompatibility is detected that cannot be automatically resolved, then the
`
`configuration models should not be combined.” (‘080 patent at 7:14-16.)2 Thus, if
`
`rule conflicts cannot be resolved automatically, the patented process does not create
`
`a consolidated model. Instead, the process “produce[s] a description of the problem
`
`
`1 The quotations cited in this and the following paragraph appear three times
`in the ‘080 patent: in the Abstract, in the Summary of the Invention (7:10-20), and
`in the Detailed Description (8:45-55).
`
`2 Throughout this Brief, emphasis is added unless otherwise noted.
`
`4
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 9 of 20 Pg ID 9468
`
`
`
`encountered and report[s] the problem along with the necessary information required
`
`for a human to solve it.” (Id. at 8:51-55.)
`
`Independent claim 1, which is representative of all the independent claims in
`
`the ‘080 patent, describes the automated process of identifying and resolving rule
`
`conflicts that arise when combining multiple configuration models into a single
`
`“consolidated model.” Most significantly, claim 1 states that the “consolidated
`
`model” is useable to answer configuration questions, meaning that it has no rule
`
`conflicts. Claim 1 is reproduced below (paragraph labels added):
`
`1. A method of using a computer system to consolidate multiple
`configuration models of a product, the method comprising:
`
`
`performing with the computer system:
`
`
`
`[a] identifying a conflict between at least two of the
`configuration models, wherein the configuration models are
`organized in accordance with respective directed acyclic
`graphs, each configuration model includes at least one
`ancestor configuration model family space and a child
`configuration model family space below the ancestor
`configuration model family space, a first of the conflicting
`configuration models comprises an ancestor configuration
`model family space that is different than an ancestor
`configuration model family space of a second of the
`conflicting
`configuration model,
`and
`each
`child
`configuration model family space constrains the ancestor
`configuration model family space above the child in
`accordance with configuration rules of the configuration
`model to which the child belongs;
`
`
`[b] extending at least one of the ancestor configuration model
`family spaces of the conflicting configuration models so that
`the ancestor configuration model family spaces of the first
`
`5
`
`

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`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 10 of 20 Pg ID 9469
`
`
`
`and second conflicting configuration models represent the
`same ancestor configuration model family space;
`
`
`[c] removing from the child configuration model family space
`any configuration space extended in the ancestor of the child
`configuration family space; and
`
`
`[d] combining the first and second configuration models into a
`single, consolidated model that maintains a non-cyclic chain
`of dependencies among families and features of families for
`use in answering configuration questions related to the
`product.
`
`
`Claim 1 (i) identifies conflicting rules between the multiple configuration
`
`models (step [a]), (ii) resolves those rule conflicts (steps [b] and [c]) before (iii)
`
`creating a consolidated model “for use in answering configuration questions related
`
`to the product” (step [d]). Because the independent claims require that the
`
`consolidated model is useable to answer configuration questions, all rule conflicts
`
`have necessarily been “detected and automatically resolved.” (‘080 patent at 8:48.)
`
`Otherwise, “the configuration models [w]ould not be combined” into a consolidated
`
`model. (‘080 patent at 8:50-51.)
`
`Turning now to the dependent claims at issue in the Report and
`
`Recommendation (claims 2, 10, and 16), claim 2 is representative:
`
`2. The method of claim 1 further comprising:
`
`
`detecting any inconsistencies between rules included in the
`consolidated model; and
`
`
`attempting to resolve any detected inconsistencies.
`
`6
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 11 of 20 Pg ID 9470
`
`
`
`A dependent claim contains all the limitations of the independent claim from
`
`which it depends and adds further limitations. 35 U.S.C. § 112, ¶ 4 (“A claim in
`
`dependent form shall be construed to incorporate by reference all the limitations of
`
`the claim to which it refers.”) In other words, claim 2 is effectively step [e] of claim
`
`1 because it begins with the “consolidated model” created in step [d]. Claim 2 looks
`
`for “inconsistencies” (i.e., conflicts) between rules in the “consolidated model,”
`
`created in step [d] of claim 1. But as explained above, the patent states that no such
`
`rule conflicts can exist in the consolidated model. The dependent claims thus have
`
`no function. They are inconsistent with the independent claims and with the patent
`
`specification.
`
`III. APPLICABLE LAW
`
`The Patent Statute requires that every patent end with one or more claims that
`
`“particularly point[] out and distinctly claim[] the subject matter which the applicant
`
`regards as his invention.” 35 U.S.C. § 112, ¶ 2 (2012). This paragraph contains two
`
`requirements: “first, [the claim] must set forth what ‘the applicant regards as his
`
`invention,’ and second, it must do so with sufficient particularity and distinctness,
`
`i.e., the claim must be sufficiently ‘definite.’” Solomon v. Kimberly-Clark Corp.,
`
`216 F.3d 1372, 1377 (Fed. Cir. 2000). Patent claims are indefinite if, “read in light
`
`of the specification delineating the patent, and the prosecution history, [the claims]
`
`fail to inform, with reasonable certainty, those skilled in the art about the scope of
`
`7
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 12 of 20 Pg ID 9471
`
`
`
`the invention.” Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120, 2124
`
`(2013). Indefiniteness is a “legal conclusion that is drawn from the court’s
`
`performance of its duty as the construer of patent claims.” Exxon Research & Eng’g
`
`Co. v. U.S., 265 F.3d 1371, 1376 (Fed. Cir. 2001) (citation omitted). Ford has the
`
`burden to prove indefiniteness by clear and convincing evidence. Microsoft Corp.
`
`v. i4i Ltd. P’ship, 564 U.S. 91, 95 (2011).
`
`Federal regulations require that “the terms and phrases used in the claims must
`
`find clear support or antecedent basis in the [patent’s written] description so that the
`
`meaning of the terms in the claims may be ascertainable by reference to the
`
`description.” 37 C.F.R. § 1.75(d)(1). A claim, although clear on its face, is
`
`nonetheless indefinite if it conflicts with the patent specification because, then, it
`
`does not claim “what the applicant regards as his invention,” making the claim’s
`
`scope uncertain:
`
`It is important here to understand that under this analysis claims which
`on first reading — in a vacuum, if you will — appear indefinite may
`upon a reading of the specification disclosure or prior art teachings
`become quite definite. It may be less obvious that this rule also applies
`in the reverse, making an otherwise definite claim take on an
`unreasonable degree of uncertainty.
`
`In re Moore, 439 F.2d 1232, 1235, n.2 (CCPA 1971) (citations omitted).3
`
`
`3 The Court of Customs and Patent Appeals (“CCPA”) is the predecessor to
`the Federal Circuit Court of Appeals, and the Federal Circuit adopted the CCPA’s
`case law as precedent. South Corp. v. U.S., 690 F.2d 1368, 1370 (Fed. Cir. 1982) (en
`banc).
`
`8
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 13 of 20 Pg ID 9472
`
`
`
`It is a longstanding requirement that patent claims must be consistent with the
`
`patent’s specification. In re Cohn, 438 F.2d 989, 993 (CCPA 1971) (claims held
`
`indefinite because the specification and claim “are inherently inconsistent”). In
`
`Cohn, a claim was directed to a process of treating an aluminum surface with an
`
`alkali silicate solution and included a further limitation that the surface has an
`
`“opaque” appearance. Cohn, 438 F.2d at 993. Inconsistently, the specification
`
`associated the use of an alkali silicate with a glazed or porcelain-like finish, which
`
`the specification distinguished from an opaque finish. Id. The court held that the
`
`claim was inconsistent, and therefore indefinite, based on the description,
`
`definitions, and examples set forth in the specification relating to the appearance of
`
`the surface after treatment. Id.
`
`The Federal Circuit continues to apply this rule. Allen Eng’g Corp. v. Bartell
`
`Indus., 299 F.3d 1336, 1349 (Fed. Cir. 2002). In Allen, the claims required that the
`
`patented gearbox pivot “only in a plane perpendicular to said biaxial plane.” Id.
`
`(emphasis in original). On their face, the claims were clear and definite.
`
`Inconsistently, however, the patent specification stated that the gearbox “cannot
`
`pivot in a plane perpendicular to the biaxial plane.” Id. (emphasis in original). The
`
`Federal Circuit held the claims indefinite: “it is of no moment that the contradiction
`
`is obvious: semantic indefiniteness of claims is not rendered unobjectionable merely
`
`9
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 14 of 20 Pg ID 9473
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`
`
`because it could have been corrected.” Id. (citation and internal quotation marks
`
`omitted).
`
`IV. ARGUMENT
`
`The Special Master concluded that dependent claims 2, 10, and 16 are definite
`
`because the term “inconsistencies between rules” used in the dependent claims
`
`means “conflicts between rules,” ignoring that, based on that meaning, the claims
`
`conflict with the patent’s specification, and therefore are indefinite. (R&R, p. 69.)
`
`The Special Master recognized the conflict with the specification, but stated that the
`
`flaw was a written description problem (under § 112, ¶ 1), not indefiniteness, and
`
`beyond the scope of the Court’s referral. (Id.)
`
`As discussed in the Applicable Law section, above, although a claim may be
`
`clear on its face, it is indefinite when it conflicts with the written description of the
`
`patent. Allen Eng’g, 299 F.3d at 1349; In re Moore, 439 F.2d at 1235, n. 2; In re
`
`Cohn, 438 F.2d at 993. The Special Master described precisely that situation:
`
`Ford’s argument is effectively that this scenario [where a conflict
`
`remains in the consolidated model] is inconsistent with, or unsupported
`by, the written description, or perhaps that it is not enabled, because the
`written description states that the consolidated model should not be
`formed at all if an incompatibility is detected that cannot be
`automatically resolved. Ford emphatically argues that there can be no
`errors in the consolidated model, because they are all resolved as part
`of creating the consolidated model in the first place. That appears to be
`an accurate account of the written description, but the question of
`whether the claims at issue are supported by the written description is
`beyond the scope of the present inquiry.
`
`10
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 15 of 20 Pg ID 9474
`
`
`
`(R&R, p. 69.)
`
`Claim 1, step [d], requires creation of a “consolidated model . . . for use in
`
`answering configuration questions.” Neither the Special Master nor Versata cited
`
`any example in the ‘080 patent in which rule conflicts are detected and resolved after
`
`creating a consolidated model usable for answering questions, as recited in claim 2.
`
`(R&R at 68.) On the contrary, Versata admitted that, according to the patent’s
`
`specification, a “consolidated model” has only buildable configurations (i.e., it can
`
`be used to answer configuration questions):
`
`Prior art consolidation techniques merely “stitched” together
`
`rules resulting in “unspecified configuration buildables” (errors) in the
`consolidated model, i.e., buildables not defined in any of the models
`being consolidated. Id. [‘080 patent at] 3:48-4:10. . . . The ’080 patent
`invention solves
`that problem by consolidating only
`those
`combinations that are buildable. Id. 7:6-20.
`
`(Dkt. #140 at 54.)
`
`Likewise, the Special Master confirmed that, according to the patent
`
`specification, all inconsistencies must be detected resolved before the consolidated
`
`model is usable to answer configuration questions, as recited in step [d] of claim 1.
`
`(R&R at 69, stating that Ford’s description “appears to be an accurate account of the
`
`written description.”) As detailed above and in the Special Master’s R&R, “[i]f an
`
`incompatibility [in the rules] is detected that cannot be automatically resolved, then
`
`the configuration models should not be combined.” (‘080 patent at Abstract, 7:14-
`
`16, 8:49-51, emphasis added.) When rule conflicts exist that cannot be automatically
`
`11
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 16 of 20 Pg ID 9475
`
`
`
`resolved, the process of claim 1 generates an error message “with the necessary
`
`information required for a human to resolve it.” (Id. at Abstract, 7:16-20, 8:51-55.)
`
`“[I]n such cases the consolidated model is not created without the prerequisite
`
`human intervention.” (R&R at 68.) Thus, according to the Abstract, the Summary
`
`of the Invention, and the Detailed Description, if the process of claim 1 has created
`
`a consolidated model for answering configuration questions, all rule conflicts have
`
`been resolved. This is consistent with the specification’s discussion, in the
`
`Background, of the problems with “conventional” consolidation processes, namely,
`
`that they can create consolidated models with conflicting rules that can “produce
`
`unspecified configuration buildables.” (Id. at 3:48 - 4:10.)
`
`The starting point for the dependent claims is “the consolidated model”
`
`created in step 1[d]. Nothing in the patent specification teaches what claim 2
`
`requires, namely detecting and attempting to resolve conflicts between rules that
`
`cannot exist in the consolidated model. The dependent claims conflict with the
`
`patent specification and are indefinite.
`
`The patent’s claims, as originally filed, did not have this defect. Indeed,
`
`claim 2, today, is identical to claim 2 as filed. But claim 1 was amended several
`
`times without corresponding amendments to claim 2.
`
`12
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 17 of 20 Pg ID 9476
`
`
`
`As originally filed, independent claim 1 included only step [d] – combining
`
`models into a consolidated model – whereas claim 2 broadly covered conflict the
`
`detection and resolution process now contained in steps [a], [b], and [c] of claim 1:4
`
`1. A method of consolidating multiple models, wherein each model
`comprises only rules that define a non-cyclic chain of dependencies
`among families and features and include at least one rule having a
`constraint that references a nonancestral family to the constraint, the
`method comprising:
`
`
`[d] combining the models into a single, consolidated model that
`maintains the non-cyclic chain of dependencies among families
`and features of families.
`
`
`2. The method of claim 1 further comprising:
`
`
`[a] detecting any inconsistencies between rules included in the
`consolidated model; and
`
`
`[b], [c] attempting to resolve any detected inconsistencies.
`
`As the Special Master explained:
`
`During prosecution of the application, claim 1 was extensively
`
`amended from the original version, including by adding the limitation
`directed to determining if a conflict exists. See Exhibit 18, at 82. The
`accompanying argument offered little clarification other than asserting
`that the prior art did not teach the limitations added by amendment.
`
`(R&R at 66.)
`
`Because of the amendments to claim 1, claim 2 became inconsistent with the
`
`patent’s written description. The Special Master acknowledged this problem with
`
`
`4 See Special Master’s analysis of the prosecution history at R&R, pp. 65-66.
`
`13
`
`

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`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 18 of 20 Pg ID 9477
`
`
`
`claim 2, but did not recommend that the dependent claims are indefinite because he
`
`believed it was a written description problem not referred to him. (R&R at 69.)
`
`Under the well-settled law, however, the conflict between dependent claims 2, 10,
`
`and 16 and the patent specification render the claims indefinite.
`
`V. CONCLUSION
`
`For the reasons set forth above, the Court should adopt the Special Master
`
`R&R except for Section 15. With respect to Section 15, the Court should hold that
`
`claims 2, 10, and 16 of the ‘080 patent are indefinite.
`
`
`
`Dated: December 8, 2016
`
`Respectfully submitted,
`
`
`
`
`
` /s/ John S. LeRoy
`John S. LeRoy (P61964)
`Thomas A. Lewry (P36399)
`Chanille Carswell (P53754)
`John P. Rondini (P72254)
`Amy C. Leshan (P69328)
`BROOKS KUSHMAN P.C.
`1000 Town Center, 22nd Floor
`Southfield, MI 48075
`Tel.: 248-358-4400 / Fax: 248-358-3351
`fangileri@brookskushman.com
`jleroy@brookskushman.com
`ccarswell@brookskushman.com
`jrondini@brookskushman.com
`aleshan@brookskushman.com
`
`James P. Feeney (P13335)
`DYKEMA GOSSETT PLLC
`39577 Woodward Ave, Suite 300
`Bloomfield Hills, MI 48304
`Ph: 248-203-0841
`
`14
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 19 of 20 Pg ID 9478
`
`jfeeney@dykema.com
`
`Attorneys for Plaintiff, Ford Motor
`Company
`
`
`
`
`
`15
`
`

`
`2:15-cv-10628-MFL-EAS Doc # 194 Filed 12/08/16 Pg 20 of 20 Pg ID 9479
`
`
`
`CERTIFICATE OF ELECTRONIC SERVICE
`
`
`
`I hereby certify that on December 8, 2016 , I electronically filed the foregoing
`FORD MOTOR COMPANY’S MOTION TO ADOPT IN PART THE REPORT
`AND RECOMMENDATION OF THE SPECIAL MASTER REGARDING
`CLAIM CONSTRUCTION (Dkt. #181) 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; 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)
`Chanille Carswell (P53754)
`John P. Rondini (P72254)
`Amy C. Leshan (P69328)
`BROOKS KUSHMAN P.C.
`
`Attorneys for Plaintiff
`
`16

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