Fish & Richardson P.C.
`1425 K Street, N.W.
`11th Floor
`Washington, DC 20005
`202 783 5070 main
`202 783 2331 fax
`
`
`Ruffin B. Cordell
`Principal
`cordell@fr.com
`202 626 6449 direct
`
`
`
`
`
`
`November 24, 2014
`
`VIA ELECTRONIC MAIL ONLY (annmarie.wahls@lw.com)
`
`Ann Marie Wahls, Esquire
`Latham & Watkins LLP
`330 North Wabash Avenue
`Chicago, Illinois 60611
`
`Re: Paice/Ford
`
`Dear Ms. Wahls:
`
`I am writing in response to your letter of October 16 to Jim Ulwick asking Plaintiffs to limit their
`patent claims in the Maryland litigation (now stayed per Ford’s request), and offering in return to
`somehow reduce the number and complexity of the IPR proceedings Ford is pursuing.
`
`I begin with a brief review of Ford’s well-deserved reputation for maximizing burden and
`expense for use as a litigation weapon against individual inventors like Dr. Severinsky and small
`companies like Paice and The Abell Foundation. Ford’s indefensible treatment of Robert Kearns
`and his “Flash of Genius” windshield wiper invention provided an entire generation of patent
`professionals with new motivation to make our system of justice work more efficiently. Any
`rational review of that record reveals that Ford used every possible device to impose delay and
`expense upon Dr. Kearns, resulting in a decade-long litigation that ultimately proved Ford had
`indeed unlawfully taken his technology. I had the privilege of representing Dr. Kearns in one of
`his follow-on cases and know first-hand how wasteful and destructive Ford’s litigation behavior
`was in that case. Ford’s treatment of the Explorer rollover plaintiffs was in a similar vein; time
`after time, Ford pressed specious defenses against injured people long after Ford’s Explorer
`product had been established as defective. Paice and The Abell Foundation had hoped that Ford
`had perhaps abandoned these tactics, but it seems those hopes remain unfulfilled.
`
`Your proposal asking Plaintiffs to unilaterally limit their claims seems little more than another
`Ford litigation tactic for several reasons. First, you know that Plaintiffs had proposed an
`efficient schedule in the Maryland litigation under which Plaintiffs would have limited the
`number of claims at issue after fact discovery and the issuance of the Court’s claim construction
`ruling. Rather than pursue that process, which would have provided a fast and low-cost path to
`
`
`
`1
`
`PAICE 2208
`Ford Motor Co. v. PAICE LLC et al.
`IPR2014-00884
`
`

`

`
`
`Ann Marie Wahls, Esquire
`November 24, 2014
`
`limiting and resolving this case, Ford instead successfully convinced the Court to stay the entire
`Maryland case, ensuring that the time, cost and burden of this matter will be maximized. In fact,
`a significant part of Ford’s argument was that a stay was appropriate because of the large
`number of claims in the litigation. Now having achieved Ford’s chosen procedural avenue, Ford
`repudiates the basis of its stay bargain, asking that Plaintiffs unilaterally limit their claims
`without the benefit of discovery or claim construction. Tellingly, Ford makes no offer here to
`produce discovery or otherwise inform the process so that Plaintiffs could make a rational
`decision on which claims to designate.
`
`Second, your offer comes in the midst of what can only be described as a breathtaking abuse of
`the USPTO’s post-grant review processes. Ford has filed ten separate IPR petitions, often
`attacking the same patents and claims over repeated combinations in each IPR petition, and in
`successive IPR petitions. Rather than focus on the best prior art and arguments, Ford’s intention
`is to simply make the process as burdensome and expensive as possible. Again, any impartial
`observer would be convinced that Ford seeks primarily to outspend Paice and The Abell
`Foundation, as well as to needlessly tax the resources of the Patent Trial and Appeal Board.
`Ford making the suggestion that Plaintiffs should somehow sacrifice rights to minimize the
`burden Ford itself has willfully created is ironic indeed. It is true that Judge Quarles declined to
`preliminarily enjoin Ford from proceeding with its scorched-earth IPR strategy; however, Ford
`still stands in breach of the parties’ 2010 Arbitration Agreement and Plaintiffs intend to seek all
`available remedies for that breach once the stay in the Maryland litigation is lifted.
`
`Finally, Ford had the perfect opportunity to minimize the burden and cost of this case through
`the parties’ 2010 Arbitration Agreement. Recall that Ford had the unilateral right to take all of
`Plaintiffs’ claims to binding arbitration that the parties had agreed would be completed within a
`matter of months. Instead, Ford chose litigation to maximize the burden and expense of the
`matter to better enable Ford to pursue its strategy to use burden and cost as a weapon. We have
`offered several times to renew the prospect of arbitration but to date Ford has not agreed to
`arbitrate.
`
`I am happy to discuss any of this by phone if you find that more convenient.
`
`Sincerely,
`
`/s/ Ruffin B. Cordell
`
`Ruffin B. Cordell
`
`2
`
`