United States District Court, E.D. Michigan, Southern Division
ORDER REFERRING CLAIM CONSTRUCTION DISPUTE TO SPECIAL
MASTER LAWRENCE GRAHAM
MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE
action, Plaintiff Ford Motor Company and Defendants Versata
Software, Inc., Versata Development Group, Inc., and Trilogy,
Inc. (collectively, “Versata”) dispute whether
Ford infringed Versata's software patents and
misappropriated Versata's trade secrets. The intellectual
property in question relates to computer software used in
March 31, 2016, the Court, with the consent of the parties,
entered an order appointing attorney Larry Graham as a
special master to oversee the patent claim construction
portion of this action. (See ECF #101.) The parties
jointly selected Mr. Graham for this role. (See Id.
at Pg. ID 3093.) As the Court explained in its March 31
order, Mr. Graham has extensive experience in patent law.
order appointing Mr. Graham as Special Master, the Court
authorized him “to hold a claim construction hearing,
to receive evidence on claim construction issues consistent
with the evidence the parties submitted […], and to
file a Rule 53 report and recommendation with the Court on
the correct construction and/or definiteness of the patent
terms at issue in this case.” (Id. at Pg. ID
3093-94.) Mr. Graham thereafter issued a report and
recommendation on claim construction (see ECF #181),
and the parties stipulated to the entry of an order adopting
Mr. Graham's proposed constructions. (See ECF
#317.) The Court also referred the patent portions of the
parties' summary judgment motions to Mr. Graham.
(See ECF #509.) Mr. Graham then held an in-person
hearing and issued a report and recommendation on those
portions of the summary judgment motions. (See ECF
parties have now raised an issue with the Court that arises
out of Mr. Graham's previous rulings on claim
construction and summary judgment. More specifically, Ford
asserts that during the summary judgment proceedings in front
of Mr. Graham, a dispute arose regarding the construction of
two claim limitations in United States Patent Number 7, 739,
080 (the “‘080 Patent”): the
“extending” and “removing”
limitations. Ford insists that the Court “must
resolve” this claim construction dispute “in
advance of trial.” (Ford 7/7/2019 Letter, ECF #677-3 at
Pg. ID 52124.) Versata disagrees that there is a live
claim-construction dispute with respect to the ‘080
Patent. Versata says that Mr. Graham resolved that dispute in
his initial claim construction report and recommendation and
that “[n]othing justifies new claim construction
briefing at this late stage of the case.” (Versata
7/7/2019 Letter, ECF #677-2 at Pg. ID 52121.)
Court concludes that because this issue arises out of Mr.
Graham's previous rulings and hearings in this action, he
is in the best position to efficiently address both the
procedural and substantive components of this dispute.
Accordingly, the Court refers the following questions to Mr.
Graham for a report and recommendation as set forth in this
(1) Is there a claim construction dispute between the parties
that the Court should resolve at this point in the
proceedings, or do Mr. Graham's previous claim
construction and summary judgment recommendations, as adopted
(or adopted in part) by the Court already resolve the
allegedly-live claim construction dispute described above?;
(2) What is the proper construction for the
“extending” and “removing”
limitations of the ‘080 Patent? The Court asks Mr.
Graham to answer this second question no matter how he
answers first question.
Graham is best positioned to “effectively and
timely address” the patent portions of the
motions. See Fed.R.Civ.P. 53(a)(1)(C) (emphasis
added) (authorizing district court to refer any pretrial
matter to a special master where the matter “cannot be
effectively and timely handled by an available district judge
or magistrate judge of the district”). Mr. Graham's
extensive familiarity with the claim construction and summary
judgment arguments related to the ‘080 Patent, his
technical background, and his patent law experience will
enable him to analyze and recommend a disposition of current
dispute on an efficient basis. Finally, the Court's staff
has spoken with Mr. Graham and confirmed that he is available
to resolve this dispute in a timely manner. For all of these
reasons, the Court exercises its discretion to refer this
claim construction dispute to Mr. Graham for a report and
IT IS HEREBY ORDERED that the parties'
claim construction dispute as described above and as
described in the parties' July 7, 2019, letters to the
Court (see ECF ## 677-2 and 677-3) is
REFERRED to Mr. Graham for a report and
recommendation as set forth in this order.
IS FURTHER ORDERED as follows:
1. The parties shall jointly contact Mr. Graham at their
earliest convenience to make all necessary and
appropriate arrangements for his immediate consideration of
2. Mr. Graham shall confer with the parties to arrange a
schedule for any briefing necessary to resolve this dispute.
3. Mr. Graham may, at his discretion, hold a hearing where he
may hear oral argument with respect to the parties'
current claim construction dispute. Mr. Graham shall
determine the procedure (i.e., hearing format)
employed at the hearing at his discretion. At any such
hearing, a court reporter shall be engaged so that an
adequate record can be generated. Mr. Graham shall conduct
the hearing in Flint, Michigan, ...