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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 1 of 22

The Honorable Benjamin H. Settle

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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF WASHINGTON AT TACOMA

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EAGLE HARBOR HOLDINGS, LLC, and


MEDIUSTECH, LLC,

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Plaintiffs,
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Case No. 3:11-cv-05503-BHS


FORD MOTOR COMPANYS
MOTION FOR JUDGMENT AS A
MATTER OF LAW

v.
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FORD MOTOR COMPANY,

NOTE ON MOTION CALENDAR:


March 17, 2015

Defendant.

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Pursuant to Fed. R. Civ. P. 50(a), Defendant Ford Motor Company (Ford)

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respectfully submits the following Motion For Judgment As A Matter Of Law (JMOL).

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JMOL is appropriate when, viewing the evidence in a light most favorable to the non-moving

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party, reasonable minds could come to but one conclusion in favor of the moving party. Behne

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v. 3M Microtouch Sys., Inc., 11 F. Appx 856, 858-59 (9th Cir. 2001) (judgment as a matter of

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law is proper if the evidence, construed in the light most favorable to the non-moving party,

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allows only one reasonable conclusion).

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Here, JMOL should enter that:

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1. Ford has not infringed U.S. Patent No. 6,615,137 (the 137 patent).

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2. Ford has not infringed U.S. Patent No. 7,146,260 (the 260 patent).

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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 1
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 2 of 22

3. Ford has not infringed U.S. Patent No. 7,778,739 (the 739 patent).

4. Ford has not infringed U.S. Patent No. 8,006,119 (the 119 patent).

5. Eagle Harbors evidence is insufficient to support its claim for a reasonable

royalty.

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6. Eagle Harbors claim for damages is excessive.


I.

FORD IS ENTITLED TO JUDGMENT OF NON-INFRINGEMENT OF THE


137 PATENT
Asserted claim 29 of the 137 patent is a method claim. Plaintiffs allege that Ford is

liable for inducing infringement of the 137 patent under 35 U.S.C. 271 by users of its vehicles
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by making, selling, and/or offering for sale vehicles equipped with Active Park Assist (APA).
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(Dkt. 61 [2d Amended Compl.] 20.) To prevail on its claim, Plaintiffs must prove (1) that
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Fords APA system directly infringes the 137 patent, either literally or under the doctrine of
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equivalents, (2) that a third party actually uses the APA system in a manner that infringes claim
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29, and (3) that Ford specifically intended its customers to infringe the 137 patent. See 35
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U.S.C. 271(b); Vita-Mix Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1328 (Fed. Cir. 2009).
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Plaintiffs have been fully heard on these issues, and no reasonable jury could have a legally
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sufficient evidentiary basis to find for Plaintiffs.


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A.

No Reasonable Jury Could Find That Plaintiffs Have Met Their Burden to Prove
Direct Infringement
Plaintiffs have failed to prove direct infringement either literally or under the doctrine

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of equivalents. Plaintiffs presented one witnessDr. Paul Minto testify regarding Fords

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alleged infringement of claim 29. Dr. Min, however, failed to demonstrate that Fords APA

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system meets either the steering queue limitation or the identifying limitation of the claim.

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First, claim 29 of the 137 patent requires a steering queue. (137 patent, claim 29,

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generating a steering queue that provides a direction for the local vehicle to move to avoid the

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identified object.) The Court has construed the term steering queue to mean a steering

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signal and has determined that the step of generating a steering queue that provides a

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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 2
No. 3:11-cv-05503-BHS

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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 3 of 22

direction for the local vehicle to move to avoid the identified object must occur after the step

in which the comparison indicates a possible collision condition exists between the identified

object and the local vehicle. (Dkt. 165 [Order of Special Master] at 18; Dkt. 184 [Order

Adopting Special Masters Claim Constructions].)

At trial, Dr. Min testified that APA provides two different so-called steering queues,

but neither satisfies this claim limitation as construed by the Court. Dr. Mins first theory,

which was presented for the first time at trial, asserts that the steering queue limitation is

satisfied by the steering signals sent by APA to correct the APAs parking trajectory during a

parking maneuver. (3/11 Tr. at 218:19-219:11.) Dr. Mins second theory asserts that the

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steering queue limitation is satisfied by the pull forward prompt (together with automatic

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steering), which is issued to the driver when the system has determined that the vehicle needs

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to move forward to complete a parallel parking maneuver. (3/11 Tr. at 219:12-17.) Neither of

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these alleged steering queues satisfies this limitation as construed by this Court.

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With respect to the first alleged steering queuesignals to correct the parking

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trajectorythere is no evidence that (a) such a correction is generated after a warning

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indication as required by claim 29, or (b) such a correction to the parking trajectory is

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calculated to avoid [an] identified object. Dr. Min failed to identify any alleged warning

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indication related to his first steering queue theory. The only alleged warning indication that

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Dr. Min identified is the one APA gives when the driver is backing up and nearing the object

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behind it.

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Q.

The next step is generating a warning indication when the comparison indicates
a possible collision condition between the identified object and the local vehicle.
How is that satisfied by APA?

A.

. . . So the comparison continues to determine whether or not the vehicle is


following the trajectory, then reaches the end of the trajectory. At that point
the APA system would warn the driver to stop and pull forward, otherwise it
will collide with a vehicle thats parked in the back.

Q.

So if you turn to page 33 of Exhibit 112. What is shown there with respect to
warnings that are generated when a possible collision condition exists?

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FORDS MOTION FOR JUDGMENT


AS A MATTER OF LAW - 3
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 4 of 22

A.

. . . So it says, end of the rear move, the message the warning indication
would be given to the driver saying: Stop and put in drive going forward.
Otherwise youll collide.

(3/11 Tr. at 217:15-218:18.) Thus, the first alleged steering queue comes before any
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warning indication, contrary to the claim requirements. In addition, there is no evidence that
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any correction to the parking trajectory (initial rearward move) is to avoid an identified
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object. Dr. Mins testimony on this requirement is conclusory and unsupported by


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documentary evidence. Indeed, the only document Dr. Min references in support of this
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infringement theory is a Ford press release summarizing how APA works. This document does
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not address any supposed correction to the parking trajectory, let alone confirm that its
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purpose is to avoid an identified object. (3/11 Tr. at 205:22-207:11 (testifying about


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PX1892).) To the contrary, the APA system keeps the vehicle on the calculated path to
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maneuver it into the parking space.


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Dr. Mins second steering queue theorythe forward promptsimilarly fails. There
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is no evidence that the prompt is generated in order to avoid that collision as the claim requires.
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Indeed, Dr. Min conceded that there is no collision condition at the time the forward prompt is
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issued because the vehicle has stopped:


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Q.

. . . Now, at the time the driver stops, there is no collision condition, correct?

A.

Yes. If the vehicle has stopped, there is no collision condition . . .

Q.

And we both can agree that in APAyou have APA in mind, correct?

A.

Yes.

Q.

The forward prompt, the move forward, occurs only after the driver has
stopped the car, correct?

A.

Yes, thats right.

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(3/12 Tr. at 43:9-44:7; see also id.at 47:23-15.) In sum, Dr. Min failed to provide any
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competent evidence that the use of APA meets the steering queue limitation of claim 29.
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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 4
No. 3:11-cv-05503-BHS

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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 5 of 22

Second, claim 29 of the 137 patent requires identifying an object in the sensor data.

(137 patent, claim 29.) Plaintiffs, however, have failed to meet their burden of demonstrating

that Fords APA system identifies objects.


Dr. Mins contention that the APA system can identify what the obstacles surrounding a

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parking space are is entirely conclusory. His testimony is based on one document, PX-444,

which describes how to set up or arrange vehicles to test the APA system. The document does

not address whether APA can identify the surrounding obstacles. To the contrary, the

document confirms that APA cannot identify surrounding objects. APA can only measure

distance to detect where objects are present in relation to the drivers vehicle, not what any

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object is. In other words, the APA system cannot identify whether an object surrounding the

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vehicle is a tree, a dumpster, a motorcycle, or a car. The APA system cannot even determine

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whether the object detected by the system is one large object or several smaller objects. Dr.

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Min appeared to concede this when he testified that the ultrasonic sensors in the APA system

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measure empty space. (3/11 Tr. at 206:13-21 (Activate ultrasonic sensors to measure and

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identify a feasible parallel parking space. And you do this by having the vehicle drive slowly

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along the side to park the vehicle. And youll see that the sensor, the blue wiggly form, is

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transmitting to the side identifying, at this point, there is an empty space there, and made a

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determination that that spot is large enough for the red vehicle that is performing the parallel

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parking, to safely maneuver into that space.).) As a result, no reasonable jury could find

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infringement of the claim.


Further, Plaintiffs offered no proof in support of infringement under the doctrine of

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equivalents at trial. Accordingly, Ford is entitled to judgment as a matter of law on this issue.

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B.

No Reasonable Jury Could Find that Plaintiffs Have Met Their Burden to Prove
Infringement By a Third Party

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A claim for inducement requires proof that a third party directly infringed the claim.
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Plaintiffs, however, have failed to prove any use of the APA system in a manner that infringes
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claim 29. Dr. Min and Mr. Wagner failed to identify any individuals who have actually used
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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 5
No. 3:11-cv-05503-BHS

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the APA system in a manner that would infringe the 137 patent. The Court has already

deemed insufficient Plaintiffs theory that the APA system infringes whenever the driver uses

the system for its intended purpose to prove actual use. (Dkt. 597 [Order Denying Plaintiffs

Motion for Reconsideration].) This Court has also rejected Plaintiffs argument that any Ford

customer who elects to pay over $300 for the APA system can be assumed to have actually

used the system. Because of Plaintiffs complete failure of proof on this point, judgment as a

matter of law is appropriate. Lucent Techs. Inc. v. Gateway, Inc., 580 F.3d 1301, 1334-35 (Fed.

Cir. 2009) (vacating the damages portion of the verdict because, beyond the circumstantial

evidence of at least one infringing use, all the jury had was speculation . . . there was an

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absence of evidence describing how many Microsoft Outlook users had ever performed the

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patented method or how many times).

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C.

No Reasonable Jury Could Find that Plaintiffs Have Met Their Burden to Prove
Specific Intent

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A claim for inducement requires proof that Ford affirmatively intends for its APA
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customers to infringe the 137 patent. See, e.g., DSU Med. Corp. v. JMS Co. Ltd., 471 F.3d
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1293, 1305-06 (Fed. Cir. 2006) (Beyond that threshold knowledge, the inducer must have an
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affirmative intent to cause direct infringement. Accordingly, inducement requires evidence


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of culpable conduct, directed to encouraging anothers infringement, not merely that the
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inducer had knowledge of the direct infringers activities.). Plaintiffs, however, have provided
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no evidence that Ford specifically intended its customers to directly infringe the 137 patent.
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Plaintiffs presented one witness by deposition, Michelle Moody, purportedly to


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establish specific intent. But all Ms. Moody testified was that Ford provides instructions and
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may provide how-to videos regarding the use of APA. (3/13 Tr. at 167:13-169:16.) This
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evidence is not enough. It is well-settled that merely instructing users how to use a product,
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without more, is insufficient to establish affirmative intent. See Vita-Mix Corp., 581 F.3d at
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1329 n.2 (evidence that a user following the instructions may end up using the device in an
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infringing way is insufficient to state a claim for inducement); Unisone Strategic IP, Inc. v.
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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 6
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 7 of 22

Life Tech. Corp., No. 3:13-CV-1278, 2013 WL 5729487, at *3 (S.D. Cal. Oct. 22, 2013)

(allegation that Defendant provides instruction, technical support, and training for use of its

product insufficient to establish affirmative intent to induce infringement); Straight Path IP

Grp., Inc. v. Vonage Holdings Corp., No. 14-502, 2014 WL 3345618, at *2 (D.N.J. July 7,

2014) (allegations that the defendants induced customers by instructing them how to use the

accused products insufficient to establish that Defendants specifically intended for the induced

acts to infringe) (emphasis in original); Intellectual Ventures I LLC v. Bank of Am., Corp., No.

3:13-CV-358, 2014 WL 868713, at *2 (W.D.N.C. Mar. 5, 2014) (To survive a motion to

dismiss for an induced infringement claim, Plaintiffs complaint should have alleged facts that

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plausibly demonstrated that Ford not only intended its customers to infringe the 137 patent,

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but also knew that the customers acts constituted infringement.


Instead, Plaintiffs merely argued that Ford advertised the accused products on its

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website. This argument fails to mention any facts that demonstrate that Ford specifically

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intended for its customers to infringe the asserted patent. Additionally, Plaintiffs do not point

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to specific portions of Fords website establishing that Ford knew its customers used APA in an

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infringing manner. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 937

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(2005) (ordinary acts incident to product distribution, such as offering customers technical

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support or product updates would not support liability for inducement in and of themselves).

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In short, there is no evidence of the specific intent necessary to prove inducement. Judgment as

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a matter of law on inducement is appropriate.

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II.

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FORD IS ENTITLED TO JUDGMENT OF NON-INFRINGEMENT OF THE


PROCESSOR PATENTS
Ford respectfully requests judgment as a matter of law of noninfringement of the 260,

739, and 119 patents. Plaintiffs have failed to meet their burden of demonstrating that the
accused SYNC system infringes any of the asserted claims of the Processor Patents literally or
under the doctrine of equivalents.

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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 7
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 8 of 22

Plaintiffs presented only Dr. Paul Min to testify regarding Fords alleged infringement.

(3/11 Tr. at 104:10-13; 3/12 Tr. at 15:15-21.) But Dr. Min failed to demonstrate that Fords

SYNC system meets the limitations of claim 9 of the 260 patent; claims 1 and 3 of the 739

patent; or claim 1 of the 119 patent, for the reasons that follow.

A.

Plaintiffs have failed to present sufficient evidence to prove that SYNC meets
multiple limitations of claim 9 of the 260 patent

1. Plaintiffs have failed to present sufficient evidence to prove that SYNC includes the
required configuration manager of claim 9 of the 260 patent

Claim 9 of the 260 patent requires multiple processors that include a configuration

manager that will reconfigure[] the multiprocessor system to run the real-time car

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applications on different ones of the multiple on-board processors. The claim thus requires:

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(1) multiple processors that each run a dynamic configuration system including a

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configuration manager, and (2) the configuration manager must reconfigure[] the

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multiprocessor systemi.e., change the systems current configurationso that the real-time

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car applications run on different processors in the system.

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Dr. Min admitted during cross examination, however, that he had not identified any

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applications in SYNC that are run on one processor, then reconfigured to run on a different

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processor. (3/12 Tr. at 60:6-11 (Q. [Y]ou have in mind Claim 9, correct? A, Yes. Q, Im

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going to ask you a question about the SYNC system. True or false. You have not identified

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any applications in SYNC that are run on one processor, then reconfigured to run on a

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different processor, correct? A. Thats right. Thats what I said then, and thats what I just

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told you.).) In addition, Dr. Min has not identified any configuration manager in the ACM

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that reconfigures the multiprocessor system. Indeed, Dr. Min has not identified any software

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module that he contends is the claimed configuration manager. (3/12 Tr. at 61-25-62:24.)

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Because Plaintiffs have provided no competent evidence that Fords SYNC system

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includes the required configuration manager of 260 patent, claim 9, no reasonable juror

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could find that SYNC infringes this claim, and Ford is entitled to judgment as a matter of law.

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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 8
No. 3:11-cv-05503-BHS

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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 9 of 22

2. Plaintiffs have failed to present sufficient evidence to prove that SYNC includes the
required device manager of claim 9 of the 260 patent

Dr. Min has not identified a device manager for automatically detecting and adding
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new hardware devices to the on-board multiprocessor system that runs on multiple different
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ones of the multiple on-board processors, as required by claim 9 of the 260 patent. Dr. Min
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does not point to anything on the ACM that automatically detect[s] and add[s] new hardware
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devices to the SYNC system. Instead, Dr. Min says only that a message from the APIM is
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communicated to the ACM. (3/11 Tr. at 161:2-22.) Nowhere does Dr. Min say a device
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manager within the ACM itself includes the claimed device manager.
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3. Plaintiffs have failed to present sufficient evidence to prove that SYNC includes the
different communication links recited in claim 9 of the 260 patent

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Claim 9 of the 260 patent requires different communication links coupling the

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multiple processors together. Dr. Min has not, however, identified the required different

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communications links. Dr. Min instead points to a single linkthe MS_CAN Network. (3/11

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Tr. at 159:2-14.) Dr. Min argues that this single MSCAN link has multiple wires where the

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data channels are redundant or complementary to each other. Id. However, the CAN bus

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is a single link as that term has been construed by the Court (a data communications

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channel, which can be wired or wireless, connecting two points or entities); see also PX-70 at

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19.

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4. Plaintiffs have failed to present sufficient evidence to prove that SYNC is a


distributed processing system under the Courts construction, as required by claim
1 of the 119 patent

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Claim 1 of the 119 patent requires a distributed processing system. The Court

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adopted the Special Masters construction of distributed processing systemi.e., a

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multiprocessor system in which processing tasks for applications can be distributed among

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multiple processors. (Dkt. 165 at 45; Dkt. 184 at 2-3, 11.) Consistent with the specifications

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and the alleged novelty of the Processor Patents, this claim construction requires that the

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claimed system be capable of moving or re-allocating processing tasks for applications between

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processors. It is undisputed, however, that all SYNC software runs on predetermined,


FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 9
No. 3:11-cv-05503-BHS

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dedicated processors, and no task for an application is ever moved from one processor to

another. Under the Courts claim construction, therefore, SYNC is not a distributed

processing system.

Dr. Mins trial testimony does not prove otherwise. Instead, Dr. Min interprets the

Courts construction to require only that the multiple processors work[] together. (3/11 Tr. at

190:13-14.) Dr. Min testified that SYNC meets the distributed processing system limitation

because the processors in the APIM and ACM work together when receiving a phone call.

(3/11 Tr. at 190:23-193:1.) Dr. Min failed to identify any application or task in the SYNC

system that can move from one processor to another processor or be distributed among multiple

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processors. Faced with this absence of evidence, no reasonable juror could find that SYNC is a

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distributed processing system as required by claim 1 of the 119 patent, and SYNC does not

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infringe.

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5. Plaintiffs have failed to present sufficient evidence to prove that SYNC


download[s] or move[s] an application from memory as required by claims 1
and 3 of the 739 patent and claim 1 of the 119 patent, as the Court has construed
those terms
Claims 1 and 3 of the 739 patent require that the claimed system automatically move

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the second software application from the memory to a particular processor after the
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connection of a new device. Claim 1 of the 119 patent includes a similar limitation, requiring
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that the system download the stored application from memory into the processing system
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after connecting a new device.


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Dr. Min identified an alleged phone book application that he contended is the second
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software application of claims 1 and 3 of the 739 patent. He testified that the system has no
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reason to have a phone book application running on the SYNC system before a phone is
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connected, and will copy the portion of the software to the memory location so that the
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CCPU can actually run the software. (3/11 Tr. [Min] at 181:13-182:6.) Dr. Min makes an
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even more conclusory argument with respect to claim 1 of the 119 patent, citing absolutely no
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evidence of the alleged application. (3/11 Tr. [Min] at 197:19-23 (If it is phone book data,
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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 10
No. 3:11-cv-05503-BHS

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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 11 of 22

phone book application here. If you say music, music application here, so forth. And then

after that the application gets downloaded into the memory.).) There are three problems with

Dr. Mins testimony on these claim terms.

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a. The thread Dr. Min identifies is not an application.


First, the only evidence of a phone book application that Dr. Min cites is a single

reference in a log file that refers to an UpdatePhoneBookGrammarThread. Dr. Min conceded

that while the patent uses both the terms application and thread, the claim uses only the

word application and a [t]hread is not part of the claim term. 3/12 Tr. at 65:17-66:3; see

also id. at 66:15-17, 68:21-25 ([Q.] Again, what you highlighted yesterday was a thread,

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correct? A. Yes. Its identified as a TID.). Indeed, even the Special Masterwhose

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constructions the Court adopted and found that he had provided a thorough explanation for his

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constructions (Dkt. 345 at 6)expressly stated that [i]n every case, the claims expressly

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require downloading or moving an application, not instructions threads, or some other

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indicator of a subset of an application (Dkt. 333 at 18-19). The Court recognized that in light

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of this statement, this issue may be subject to determination as a matter of law. (Dkt. 530 at

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12 n. 4.) Further, Dr. Min conceded that he identified only a portion of software or page

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that is copied to a memory location (3/11 Tr. at 181:23-24, 183:9-11), and he never made any

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attempt to establish how many instructions are actually downloaded under his theory. (See

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Dkt. 530 at 13 (Once Dr. Mins terminology is further clarified as to how many instructions

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are actually downloaded, Ford may move for judgment as a matter of law that either the term

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application can not be construed to meet this minimal amount of code or no reasonable juror

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could ever find that this amount of code infringes the relevant patents.).)

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As mentioned above, with respect to claim 1 of the 119 patent Dr. Min simply refers

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back to his earlier scenario and otherwise provides completely unsupported testimony. (See

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3/11 Tr. [Min] at 197:19-23.)

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b. Dr. Min has not shown that the thread he contends is the application is
downloaded or moved in response to connecting a new device to the system
FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 11
No. 3:11-cv-05503-BHS

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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 12 of 22

Second, even putting aside whether a thread may be considered an application or how

much of an application must be downloaded, Dr. Min has failed to establish when the software

he identifies is allegedly downloaded. It is undisputed that claim 1 of the 739 patent and

claim 1 of the 119 patent require an application to be moved/downloaded before a phone is

connected. (3/11 Tr. at 175:25-176:2 (Theres no reason for SYNC system to run phone book

when the phone is not connected. So when the phone gets connected, now this time it needs to

run that.).) However, Dr. Min only speculates the system has no reason to have a phone

book application running on the SYNC system before the phone gets connected. (3/11 Tr.

at 181:15-19.) Dr. Min cites no concrete evidence demonstrating that phone book

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applicationwhich, to be clear, does not exist and is not referenced in any evidenceis

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move[d] as the Court has construed that term in response to a phone being connected.

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Furthermore, because the UpdatePhoneBookGrammarThreadwhich Dr. Min says is a phone

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book applicationis actually part of the PhoneApp (as shown in Dr. Mins demonstrative at

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slide 61 (PhoneApp|UpdatePhoneBookGrammarThread), it is indisputably are downloaded

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or moved before any phone is connected to the system, and cannot meet these limitations.

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c. Dr. Min points to separate software to meet the same second application

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Finally, Dr. Min appears to identify different applications for different claim

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limitations, when those limitations refer to the same application. For example, with respect to

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the limitation identify a second software application, Dr. Min identifies only a media

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player. 3/11 tr. [Min] at 174:23-175:2 (And the second software application, the media

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player, as a part of SYNC system, is identified and clearly that application is in a memory

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within the SYNC system. . . .). However, when Dr. Min provides his opinion regarding the

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limitation that requires the system to automatically move the second software application, Dr.

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Min identifies the alleged phone book application. 3/11 Tr. [Min] at 181:2-6, 15-19.

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The Special Master made clear that [i]n every case, the claims expressly require
downloading or moving an application, not instructions threads, or some other indicator of a

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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 12
No. 3:11-cv-05503-BHS

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subset of an application. (Dkt. 333 at 18-19.) The Court recognized that this issue may be

subject to determination as a matter of law. (Dkt. 530 at 12 n. 4.) Plaintiffs also have failed to

show that any purported application is made available in an address space after a new device is

connected.

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6
7

6. Plaintiffs have failed to present sufficient evidence to prove that SYNC selects a
particular processor to which to download or move applications, as required by
claims 1 and 3 of the 739 patent
Claims 1 and 3 of the 739 patent require that the claimed multiprocessor system select

a particular one of the on-board processors for operating the application that is being

downloaded or moved in order to process data from a new device.

10

Although the Special Master concluded that the select a processor limitation need not

11

be construed, he explained that the parties agreed that select and choose are synonymous,

12

and that the claim language plainly refers to multiple processors. (Dkt. 165 at 51-52.) Thus,

13

under the Special Masters analysis, the select a processor limitation requires that the system

14

can choose a processor from among multiple processors to operate the second software

15

application.

16

In SYNC, however, each application runs on a specific, predetermined processor, and

17

the system therefore never selects a processor on which an application should run. In SYNC,

18

there is no choice.

19

Faced with these facts, Dr. Min presented a theory directly contrary to the Special

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Masters reasoning. Dr. Min instead argued that SYNC infringes because, for example, the

21

CCPU processor allegedly selects itself to run one of its own predetermined applications.

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(3/12 Tr. at 179:21-180:8 (the CCPU has a corresponding software, so it [the CCPU] selects

23

itself to run the program.).) This argument is nonsensical; where a processor is indisputably

24

the only processor capable of running an application, there is no choice, and thus, no selection.

25

Similarly, Dr. Min argues only that the CCPU let[s the] ACM know that it needs to run its

26

own application. . . . (3/12 Tr. at 180:9-14.)

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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 13
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 14 of 22

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No reasonable juror could find that SYNC meets the select a processor limitations of
the asserted claims. SYNC therefore does not infringe claims 1 and 3 of the 739 patent.
7. Plaintiffs have failed to present sufficient evidence that SYNC meets the claimed
security limitations of claim 1 of the 119 patent
Claim 1 of the 119 patent includes two limitations regarding security: the first requires

the system to identify a security attribute; and the second requires the system to use the
6

identified security attribute to prevent an unauthorized application or unauthorized data from


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being processed by the system. Dr. Mins testimony regarding how SYNC allegedly meets the
8

security limitations of the 119 patent is insufficient to demonstrate infringement.


9

Dr. Min testified that both a link key and Bluetooth profiles are required to meet the
10

identify a security attribute limitation, but referred to only the link key with respect to
11

the use the identified security attribute limitation (3/11 Tr. at 196:13-24). This is fatal to Dr.
12

Mins analysis because claim 1 of the 119 patent requires the same security attribute to be
13

identified and used. (PX-4 [119 patent] at claim 1 (identify a security attribute. . . . use
14

the identified security attribute. . . .).) Moreover, Dr. Min never explained how a Bluetooth
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profile provides any form of security in SYNC. Indeed, Dr. Min identified the Bluetooth
16

profiles as a communications protocola separate limitation that was construed by the


17

Court. (3/11 Tr. at 193:18-21.)


18

For at least these reasons, no reasonable juror could find that SYNC meets the security
19

limitations of claim 1 of the 119 patent, and there, SYNC does not infringe the 119 patent.
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8. Plaintiffs have failed to present sufficient evidence to prove that SYNC takes over
control and operation of a mobile device, as required by claims 1 and 3 of the 739
patent
Claims 1 and 3 of the 739 patent require that the claimed multiprocessor system take

23

over control and operation of a connected device. The Special Master concluded that the
24

take over control limitation requires the system to take over control and operation of the
25

device such that the new device cannot be controlled and operated directly, outside the
26

multiprocessor system. (Dkt. 165 at 71.) Indeed, Dr. Min dodged Plaintiffs own questions
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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 14
No. 3:11-cv-05503-BHS

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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 15 of 22

on direct when asked whether SYNC prevent[s] a user from using the phone outside the

context of the multiprocessor system (3/11 Tr. at 184:9-10), as required under the plain

meaning articulated by the Speecial Master, answering only that the phone must operate

within the context of the SYNC system (id. at 184:11-12).

SYNC does not take over control and operation of any device. Although mobile

devices can connect to and communicate with SYNC, a device connected to the SYNC system

continues to be controllable and operable directly, outside the SYNC system, and Dr. Min

provided no evidence to the contrary.

Dr. Mins testimony, while conclusory, nevertheless fails to even contend that a phone

10

connected to SYNC cannot be controlled and operated directly, outside the multiprocessor

11

system. (See Dkt. 165 at 71; 3/12 Tr. [Min] at 183:2-22 ([W]hen a new phone gets

12

connected, it is really no longer a phone as it existed on this phone. It is now a part of the

13

SYNC system. So even if you press the same button on the same phone before it was

14

connected, it would not be the same way after it is connected.).) Dr. Min never addresses

15

Fords argument that a user can continue to control and operate their devices directly using the

16

devices interface even when the devices are connected to SYNC, a fact which Dr. Min

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admitted during his deposition. See Dkt. 377, Ex. 12 [Min Dep. (Vol. II)] at 699:10-22 (Q.

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Now, Dr. Min, have you ever tested whether a person can continue to control and operate a

19

device directly through that devices user interface while its connected to SYNC? A. Yeah,

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you can still use the control on the device. But it still acts, behave as a part of the SYNC

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system, not independent anymore. The behavior has certainly changed by being connected to

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the SYNC system, even after even if the device can use its own panel to control.)

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In sum, Dr. Min, the only one of Plaintiffs witnesses to testify regarding Fords alleged

24

infringement, failed to provide competent evidence that SYNC takes over control and

25

operation of a new device, as required by claims 1 and 3 of the 739 patent. As such, no

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reasonable juror could find that Ford infringes these claims.

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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 15
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 16 of 22

1
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9. Plaintiffs have failed to prove that SYNC configure[s] the particular one of the onboard processors to run the second software application moved from the memory
as required by the 739 patent, claims 1and 3

Claims 1 and 3 of the 739 patent require that the claimed system configure the

particular one of the on-board processors to run the second software application moved from

the memory. Plaintiffs have offered no evidence that SYNC meets this element, and indeed,

Dr. Min failed to address this element when testifying regarding claim 1 of the 739 patent. See

3/11 Tr. [Min] at 180:20-183:16 (skipping from automatically move the second software

application from the memory in the multiprocessor network to the particular one of the on-

board processors selected by the data manager limitation (180:20-23) to wherein running the

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second software application causes the particular one of the on-board processors to take over

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control and operation of the new device limitation (183:15-19) with no discussion of the

12

intervening limitation (configure[s] the particular one of the on-board processors to run the

13

second software application moved from the memory)).


Because Plaintiffs have presented no evidence that Ford satisfies the configure the

14
15

particular one of the on-board processors limitation, they have not carried their burden of

16

proof to show that SYNC meets each and every element of the asserted claims. As a result, no

17

reasonable juror could find that SYNC infringes claims 1 or 3 of the 739 patent, and a

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judgment of noninfringement in Fords favor is warranted.

19

B.

Ford is Entitled to Judgment of No Infringement of the 260 Patent, 739 Patent,


and 119 Patent Under the Doctrine of Equivalents

20

Plaintiffs offered no proof of infringement under the doctrine of equivalents at trial.


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Specifically, Dr. MinPlaintiffs only witness regarding infringementdid not provide any
22

testimony or evidence regarding the doctrine of equivalents at trial. Accordingly, Ford is


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entitled to judgment as a matter of law on this issue.


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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 16
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 17 of 22

III.

DAMAGES

A.

Eagle Harbor Has Failed To Prove A Reasonable Royalty For The 137 Patent
Mr. Wagner provided insufficient evidence with respect to a reasonable royalty on APA

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for at least two reasons.


First, Plaintiffs are asserting a single method claim against Fords APA system. The

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Federal Circuit requires that damages for alleged infringement of a method claim be tied to

evidence of use. Lucent Technologies, Inc. v. Gateway, Inc., 580 F.3d 1301, 1334 (Fed. Cir.

2009) (rejecting damages award for infringement of patented method where the evidence of

record is conspicuously devoid of any data about how often consumers use the patented

10

invention). Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 576 F.3d 1348, 1359 (Fed. Cir.

11

2009) ([Plaintiff] can only receive infringement damages on those devices that actually

12

performed the patented method during the relevant infringement period.). This principle was

13

confirmed by the Federal Circuit in Mirror Worlds, LLC v. Apple Inc., 692 F.3d 1361 (Fed. Cir.

14

2012). In Mirrorworlds, the Federal Circuit found no indirect infringement, and therefore no

15

damages, where the plaintiff failed to offer any evidence that the patented method at issue in

16

that case was actually used. The Court held that capability of infringement, without evidence of

17

actual use is not sufficient to find inducement of infringement of a method patent. Id.

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Instead, the Federal Circuit held that [e]vidence of actual use of each limitation is required.

19

Id.

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Neither Mr. Wagner nor Dr. Min, on whom Mr. Wagner relies for his opinions related

21

to APA and the 137 patent, have offered any evidence at trial regarding evidence of actual use

22

of each limitation in Claim 29 of the 137 patent. (Trial Day 3; Trial Day 5.) The Court

23

correctly excluded Mr. Wagners ultimate conclusion of APA damages as a result of his failure

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to cite any evidence of actual use of the patented method in his expert reports. (Dkt. No. 575 at

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5.) Because Eagle Harbor has offered no evidence at trial that the asserted method in the 137

26

patent is actually used, the Court should grant judgment as a matter of law that Plaintiffs have

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failed to prove damages or a reasonable royalty for the 137 patent.


FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 17
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 18 of 22

Second, Mr. Wagner failed to apportion patented features from non-patented features in

the APA system. Mr. Wagner testified that APA includes features, such as automated steering,

that are not alleged to infringe the 137 patent. (Trial Day 5.) Mr. Wagner also testified that he

included in his damages calculation a number of other hardware components of APA, including

the APA ultrasonic sensors, steering angle sensors, and other wiring components, that Plaintiffs

did not invent. (Id.) Accordingly, Ford is entitled to judgment as a matter of law that Mr.

Wagner has failed to prove damages or a reasonable royalty related the 137 patent for this

additional reason.

B.

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Eagle Harbors Failure Of Proof As To A Reasonable Royalty With Respect To


The 260, 739 And 119 Patents
Judgment as a matter of law on Eagle Harbors $246.5 million damages claim related to

11

SYNC damages related to SYNC is appropriate because Eagle Harbor has failed to provide a
12

sufficient legal or evidentiary basis for its damages claim.


13

In calculating damages for a multi-component product like SYNC, the Federal Circuit
14

has held that the governing rule is that the ultimate combination of royalty base and royalty
15

rate must reflect the value attributable to the infringing features of the product, and no more.
16

Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1226 (Fed. Cir. 2014).

Here, both sides

17

agree that that the alleged patented technology does not drive demand for Fords vehicles.
18

(Trial Day 5.) As a result, Federal Circuit precedent requires Mr. Wagner to identify the
19

smallest salable patent practicing unit, and then apportion the SSPPU to reflect the value of the
20

claimed technology. LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51, 67 (Fed. Cir.
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2012) (We reaffirm that in any case involving multi-component products, patentees may not
22

calculate damages based on sales of the entire product, as opposed to the smallest salable
23

patent-practicing unit); VirnetX v. Cisco Sys., Inc., 767 F.3d 1308, 1329 (Fed. Cir. 2014)
24

(The law requires patentees to apportion the royalty down to a reasonable estimate of the
25

value of its claimed technology, or else establish that its patented technology drove demand for
26

the entire product.). Eagle Harbor has failed to meet this burden as a matter of law.
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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 18
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 19 of 22

First, Mr. Wagner conceded in his testimony at trial that he did not perform any

analysis to determine the SSPPU for SYNC. (Trial Day 5.) As a result, his conclusions do not

comply with the fundamental rule of identifying the SSPPU and apportioning the SSPPU to

reflect only the value of the patented features. While Mr. Wagner purported to rely on Dr. Min

to supply his conclusion that the SYNC system is the SSPPU, (id.) Dr. Min did not address this

issue in his trial testimony (id.). Accordingly, Mr. Wagner and Eagle Harbor have failed to

establish the SSPPU as a matter of law. See e.g., Tokio Marine & Fire Ins. Co. v. Norfolk &

Western Ry.Co., 172 F.3d 44, 199 WL 12931 at *4 (4th Cir. 1999) (one expert may not give

the opinion of another expert who does not testify).

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Second, Mr. Wagner failed to apportion damages as required by Federal Circuit law.

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Ericsson, 773 F.3d at 1233 (patentee should only be compensated for the benefit derived from

12

his invention and nothing more). SYNC is a system comprised of both hardware and software

13

components. (Trial Day 5.) Mr. Wagner testified that his damages opinion is based on his

14

calculation of incremental profits for the entire SYNC system, including hardware components.

15

(Id.) Yet, he admitted that Plaintiffs did not invent any of the hardware, including the

16

processors and other hardware modules, that make up the SYNC system. (Id.) Mr. Wagners

17

failure to exclude these hardware components renders his royalty conclusion unsupportable as a

18

matter of law. VirnetX, 767 F.3d at 1328 (vacating damages award where expert failed to

19

apportion various features indisputably not claimed by [Plaintiff], e.g., touchscreen, camera,

20

processor, speaker, and microphone, to name but a few).

21

Third, Mr. Wagners royalty conclusions for SYNCwhich are not based on any

22

calculation and rest on Mr. Wagners professional judgment are insufficient to prove

23

damages as a matter of law. (Trial Day 5.) In General Elec. Co. v. Joiner, the Supreme Court

24

held that nothing in either Daubert or the Federal Rules of Evidence requires a district court to

25

admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.

26

522 U.S. 136, 146 (1997). But ipse dixit is all Mr. Wagner has offered here, and his damages

27
FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 19
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


1425 Fourth Avenue Suite 800
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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 20 of 22

opinions are therefore legally insufficient. See GPNE Corp. v. Apple, Inc 12-cv-02885, 2014

WL 1494247, at *4-*5 (N.D. Cal. Apr. 16, 2014) (Mr. Danskys analysis is an impermissible

black box without sound economic and factual predicates. Mr. Danskys 30 years of

experience does not constitute sufficient facts or data, or reliable principles and methods.).

C.

Eagle Harbors Claim For Damages Is Excessive


Eagle Harbor seeks $24 per SYNC unit totaling more than $246 million in damages

for alleged infringement of the 260, 739 and 119 patents by the SYNC system. If awarded,

such a verdict would far exceed the real-world value of Eagle Harbors patents. For example,

Mr. Wagner testified that his $24 per unit royalty for the 260, 739 and 119 patents is more

10

than 100 times greater than the royalty rates set forth in Fords license agreement with Richard

11

Himmelstein. (Trial Day 5.) Mr. Wagner similarly testified that his $246 million damages

12

claim is twenty-times greater than the $12 million price that Eagle Harbor paid to Medius, Inc.

13

for the Medius patent portfolio in an arms-length transaction, and nearly fifty times greater than

14

the next highest offer to purchase the Medius patent portfolio. (Id.) In addition, while it has

15

been precluded from presenting a damages number with respect to APA, Eagle Harbor has

16

requested a rate of $70 per unit 14 times the royalty in Fords license with Continental Teves,

17

which Dr. Min admits is marginally technically comparable to the 137 patent. (Id.) A

18

damages award consistent with Mr. Wagners opinions would be excessive because it exceeds

19

the maximum amount that a reasonable jury could find to be compensatory. See Atlas-Pac.

20

Engg Co. v. Geo. W. Ashlock Co., 339 F.2d 288, 289-90 (9th Cir. 1964) (finding that

21

reasonable royalty damages based on Defendants total income from rental of the infringing

22

machines was excessive and clearly erroneous).

23

IV.

24

DROPPED CLAIMS
In addition to the foregoing, Ford also seeks a judgment of noninfringement with

25

respect to the previously-asserted patent claims that Plaintiffs have dropped during the course

26

of the litigation. Ford intends to file a supplemental brief with respect to this issue, and will

27

provide the Court with a list of the previously-asserted claims at that time.
FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 20
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


1425 Fourth Avenue Suite 800
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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 21 of 22

DATED: March 17, 2015

2
3

By:

SAVITT BRUCE & WILLEY LLP


Duncan E. Manville, WSBA #30304
Tel.: (206) 749-0500
Fax: (206) 749-0600
Email: dmanville@sbwllp.com

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/s/ Michael J. Summersgill

WILMER CUTLER PICKERING HALE AND DORR LLP


Michael J. Summersgill (pro hac vice)
Sarah Beigbeder Petty (pro hac vice)
60 State Street
Boston, Massachusetts 02109
Tel.: (617) 526-6000
Fax: (617) 526-5000
Email: michael.summersgill@wilmerhale.com
sarah.petty@wilmerhale.com

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WILMER CUTLER PICKERING HALE AND DORR LLP


Todd C. Zubler (pro hac vice)
Grant K. Rowan (pro hac vice)
Nina S. Tallon (pro hac vice)
1875 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Tel.: (202) 663-6636
Fax: (202) 663-6363
Email: todd.zubler@wilmerhale.com
grant.rowan@wilmerhale.com

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BROOKS KUSHMAN P.C.


Frank A. Angileri (pro hac vice)
John S. Le Roy (pro hac vice)
1000 Town Center, 22nd Floor
Southfield, Michigan 48075
Tel.: (248) 358-4400
Fax: (248) 358-3351
Email: fangileri@brookskushman.com
jleroy@brookskushman.com

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Attorneys for Defendant Ford Motor Company

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FORDS MOTION FOR JUDGMENT
AS A MATTER OF LAW - 21
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


1425 Fourth Avenue Suite 800
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Case 3:11-cv-05503-BHS Document 611 Filed 03/17/15 Page 22 of 22

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CERTIFICATE OF SERVICE
I certify that a copy of the foregoing document was filed electronically with the Court
and thus served simultaneously upon all counsel of record, this 17th day of March, 2015.

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/s/ Rebecca Izzo


Rebecca Izzo

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CERTIFICATE OF SERVICE
No. 3:11-cv-05503-BHS

SAVITT BRUCE & WILLEY LLP


1425 Fourth Avenue Suite 800
Seattle, Washington 98101-2272
(206) 749-0500