Versata Software, LLC, Fka Trilogy Software, Inc., Versata Development Group, Inc.,… v. Ford Motor Company

United States Court of Appeals
for the Federal Circuit
______________________
VERSATA SOFTWARE, LLC, FKA TRILOGY
SOFTWARE, INC., VERSATA DEVELOPMENT
GROUP, INC., TRILOGY, LLC,
Plaintiffs-Appellants
v.
FORD MOTOR COMPANY,
Defendant-Cross-Appellant
______________________
2024-1140, 2024-1206, 2024-1234
______________________
Appeals from the United States District Court for the
Eastern District of Michigan in No. 2:15-cv-10628-MFL-
EAS, Judge Matthew F. Leitman.
______________________
Decided: May 22, 2026
______________________
J EFFREY A. L AMKEN, MoloLamken LLP, Washington,
DC, argued for plaintiffs-appellants. Also represented by
J ENNIFER ELIZABETH F ISCHELL , MICHAEL G REGORY
P ATTILLO, J R.; T HOMAS P. SCHUBERT , EUGENE ALEXIS
SOKOLOFF , Chicago, IL; MATTHEW R. CARTER, D AN K.
WEBB, SAMUEL ZUIDEMA, Winston & Strawn LLP, Chicago,
IL; STEVEN J. MITBY , Mitby Pacholder Johnson PLLC, Hou-
ston, TX; J AYE Q UADROZZI, I, Varnum LLP, Birmingham,
MI; SHAROON SALEEM , Jones & Spross, PLLC, Austin, TX.
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 2
J ESSICA L. ELLSWORTH , Hogan Lovells US LLP, Wash-
ington, DC, argued for defendant-cross-appellant. Also
represented by D ANA A. RAPHAEL ; WILLIAM HAVEMANN,
Milbank LLP, Washington, DC; J OHN S. L EROY , T HOMAS A.
L EWRY , CHRISTOPHER C. SMITH , Brooks Kushman PC,
Southfield, MI.
______________________
Before M OORE, Chief Judge, T ARANTO and HUGHES ,
Circuit Judges.
HUGHES , Circuit Judge.
Versata Software, LLC fka Trilogy Software, Inc.; Ver-
sata Development Group, Inc.; and Trilogy, LLC appeal a
decision of the United States District Court for the Eastern
District of Michigan on damages for trade secret misappro-
priation and breach of contract. For the reasons below, we
vacate the district court’s judgment on trade secret dam-
ages and remand for a new trial with instructions for the
district court to consider two damages models it previously
rejected. With respect to the breach of contract damages,
we reverse the district court’s judgment and reinstate the
jury award. Lastly, we affirm the district court’s denial of
Ford’s motion for judgment as a matter of law on liability
for trade secret misappropriation.
I
Ford Motor Company (Ford) hired Versata Software,
LLC, fka Trilogy Software, Inc.; Versata Development
Group, Inc.; and Trilogy, LLC (collectively, Versata) to de-
velop computer software that would allow Ford to more ef-
ficiently enable vehicle configuration. Versata created two
pieces of software: the Automotive Configuration Manager
(ACM) and the Materials Cost Analytics (MCA). In 2004,
Versata licensed its software to Ford and entered into an
agreement called the Master Subscription and Services
Agreement (MSSA). The parties also entered a separate
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 3
but related agreement for Versata to provide additional
support and services for the software. In 2014, when the
MSSA was set to expire, the parties were unable to agree
on extension terms. Instead of renewing the MSSA, Ford
released its own manufacturing configuration software,
called PDO, which Ford had developed while licensing soft-
ware from Versata.
Soon after PDO’s release, Ford sought a declaratory
judgment that it had not infringed upon Versata’s intellec-
tual property rights or misappropriated Versata’s trade se-
crets. J.A. 1012–20 ¶¶ 61–101. Versata filed counterclaims
against Ford, alleging—as relevant to this appeal—trade
secret misappropriation under both the Defend Trade Se-
crets Act (DTSA) and the Michigan Uniform Trade Secrets
Act (MUTSA), as well as a breach of contract claim under
Michigan law. J.A. 7084–104 ¶¶ 136–139, 148–156,
160–166.
In its counterclaims, Versata alleged that Ford misap-
propriated ACM, which it claimed was comprised of three
interdependent “combination” trade secrets: Grid, Builda-
bility, and Workspaces. “Grid” is responsible for ACM’s
user interface and allows users to make edits to certain au-
tomotive features and understand how the configuration
rules interact with other features of the vehicle. See
J.A. 56161, 52:14–23. “Buildability” is ACM’s “core compu-
ting brain” that generates part combinations. J.A. 56168,
79:24; see J.A. 56161, 52:24–53:5. And “Workspaces” allows
Ford employees to access the same workspace from any-
where in the world, which encourages collaboration. See
J.A. 56161, 53:6–14; J.A. 56172, 94:25–95:14. Versata also
alleged that Ford misappropriated the MCA: a piece of Ver-
sata’s software that is responsible for taking the ACM con-
figuration data and determining part costs for a particular
vehicle build. See J.A. 56161, 53:20–54:4; J.A. 56173,
101:7–18.
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 4
During pre-trial proceedings, the district court ex-
cluded the testimony of Versata’s damages expert,
Craig Elson, on trade secret damages. Ford Motor Co. v.
Versata Software, Inc., No. 15-cv-11624, 2018 WL
10733561, at *8 (E.D. Mich. July 9, 2018) (Daubert Deci-
sion). The district court excluded Mr. Elson’s testimony for
several reasons, but primarily because Mr. Elson’s pro-
posed testimony “applied a damages model that [was] not
an appropriate fit for this case.” Id. The court concluded
that Versata’s damages model was flawed because “it
measures Ford’s enrichment rather than Ford’s unjust en-
richment.” Id. The district court further held that Mr. El-
son’s damages model “would award Versata far more than
the fair price it deemed Ford should pay in exchange for
the software’s benefits” and “confer upon Versata a huge
and undeserved windfall.” Id. The district court also opined
that, even if Versata were allowed to seek unjust enrich-
ment damages, it would still exclude Mr. Elson’s report be-
cause it failed to apportion Versata’s claimed damages and
because Mr. Elson based his analysis on outdated and ir-
relevant data. Id. at *10–13. Finally, the district court also
determined that Versata’s trade secret damages “must be
measured with reference to the parties’ licensing history.”
Id. at *8 (emphasis added). Over Versata’s objection, the
district court limited Versata’s recovery of damages “to a
reasonable royalty model of damages that is based upon
the parties’ relevant business history,” and it precluded
Versata from seeking damages “based upon the alleged
value of benefits obtained by Ford through its use of the
relevant software.” Id. at *10.
Versata asked the court for leave to revise its damages
reports in light of the Daubert Decision. J.A. 26753. The
district court allowed Versata to submit a supplemental re-
port to cure other identified defects so long as Versata con-
fined itself to a reasonable-royalty model. See
J.A. 26970–75. Versata then submitted three reasonable-
royalty models based on the Georgia-Pacific factors, each
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 5
of which reflected “a hypothetical negotiation in 2011 be-
tween Ford and Versata related to Versata’s license of the
asserted trade secrets to Ford.” J.A. 28376 ¶ 190; see Geor-
gia–Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116,
1120 (S.D.N.Y. 1970). The district court admitted one of the
damages models, which calculated a royalty “based solely
on the parties’ licensing history,” but excluded the other
two models because they “included additional damages re-
lated to the value to Ford of using the trade secrets.”
J.A. 94–95.
The district court held a jury trial on Versata’s trade
secret and breach of contract claims in October 2022. The
jury found that Ford breached the MSSA and misappropri-
ated the three ACM trade secrets. J.A. 98–102. The jury
did not find that Ford misappropriated the MCA trade se-
cret. J.A. 103–04. The jury awarded Versata $22,386,000
for trade secret misappropriation based on the parties’ li-
censing history and $82,260,000 for breaching the MSSA.
See J.A. 98–99, 100–02.
Following trial, Ford moved for judgment as a matter
of law (JMOL) on liability and damages. J.A. 41946–83.
The district court upheld the jury’s verdict that Ford mis-
appropriated Versata’s trade secrets and breached the
MSSA. Versata Software, Inc. v. Ford Motor Co., No. 15-cv-
11264, 2023 WL 3175427, at *7–8, *12 (E.D. Mich. May 1,
2023) (JMOL Decision), modified, 2023 WL 8622001
(E.D. Mich. June 8, 2023).1 However, the district court re-
duced the jury’s damages award for trade secret misappro-
priation from $22,386,000 to $0 because “the jury had no
way to reliably determine how long it would have taken
Ford to develop the three (out of four) trade secrets that it
found to have been misappropriated.” Id. at *16, *19. It
also reduced the breach-of-contract damages from
1 The modification of the JMOL decision is immate-
rial to the merits of this opinion.
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 6
$82,260,000 to $3 because “the jury had no way to calculate
Versata’s claimed breach of contract damages with reason-
able certainty.” Id. at *8, *11.
Versata timely appeals, challenging the district court’s
limiting of its recovery of unjust enrichment damages, as
well as the district court’s reductions to the jury awards.
Ford timely cross-appealed, challenging the district court’s
determination on liability for trade secret misappropria-
tion. We have jurisdiction over both appeals pursuant to
28 U.S.C. §§ 1291, 1295(a)(1). Though the patent claims
were dismissed with prejudice, J.A. 41267–68, we have ju-
risdiction over the entire appeal of the final judgment. See
Raytheon Co. v. Indigo Sys. Corp., 895 F.3d 1333, 1339
(Fed. Cir. 2018).
II
For issues not unique to patent law, we apply the law
of the regional circuit. Allergan, Inc. v. Athena Cosmetics,
Inc., 738 F.3d 1350, 1354 (Fed. Cir. 2013). On appeal, Ver-
sata argues that the district court erred by (1) limiting Ver-
sata’s recovery of trade secret damages; (2) reducing the
jury’s trade-secret $22 million damages award to $0; and
(3) reducing the jury’s $82 million breach of contract dam-
ages award to $3. Ford cross appeals, challenging the dis-
trict court’s denial of its motion for JMOL on liability for
trade secret misappropriation. We address each in turn.
A
We first address Versata’s argument that the district
court abused its discretion when it precluded Versata from
seeking damages under an unjust enrichment theory. The
Sixth Circuit reviews a district court’s decision to exclude
expert testimony for an abuse of discretion. Ky. Speedway,
LLC v. Nat’l Ass’n of Stock Car Auto Racing, Inc., 588 F.3d
908, 915 (6th Cir. 2009). “A district court abuses its discre-
tion if it bases its ruling on an erroneous view of the law or
a clearly erroneous assessment of the evidence.” Newell
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 7
Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527
(6th Cir. 2012) (cleaned up). Versata argues that under
both the Defend Trade Secrets Act and Michigan Uniform
Trade Secrets Act, it is allowed to pursue unjust enrich-
ment damages as a matter of statutory right. We agree
with Versata that it was entitled to pursue unjust enrich-
ment damages; the district court legally erred when it pre-
cluded Versata from doing so.
Both the DTSA and MUTSA allow a plaintiff to seek
unjust enrichment damages. The DTSA states that a court
may award:
(i)
(I) damages for actual loss caused by the mis-
appropriation of the trade secret; and
(II) damages for any unjust enrichment caused
by the misappropriation of the trade secret that
is not addressed in computing damages for ac-
tual loss; or
(ii) in lieu of damages measured by any other meth-
ods, the damages caused by the misappropriation
measured by imposition of liability for a reasonable
royalty for the misappropriator’s unauthorized dis-
closure or use of the trade secret.
18 U.S.C. § 1836(b)(3)(B)(i)–(ii). The MUTSA states that
damages may include:
both the actual loss caused by misappropriation
and the unjust enrichment caused by misappropri-
ation that is not taken into account in computing
actual loss. In lieu of damages measured by any
other methods, the damages caused by misappro-
priation may be measured by imposition of liability
for a reasonable royalty for a misappropriator’s un-
authorized disclosure or use of a trade secret.
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 8
Mich. Comp. Laws § 445.1904 (emphasis added). Thus, the
plain language of both the DTSA and the MUTSA allow for
unjust enrichment caused by the misappropriation of the
trade secret that is not accounted for when calculating
damages for actual loss.
Further, the language of the MUTSA is nearly identi-
cal to that of the Kentucky Trade Secrets Act, under which
the Sixth Circuit already recognized the availability of un-
just enrichment damages. See Caudill Seed & Warehouse
Co. v. Jarrow Formulas, Inc., 53 F.4th 368, 392 (6th Cir.
2022) (“In trade-secrets cases, ‘[d]amages may include both
the actual loss caused by misappropriation and the unjust
enrichment caused by misappropriation that is not taken
into account in computing actual loss.’” (citing Ky. Rev.
Stat. § 365.884(1))). And others of our sister circuits have
also recognized that a plaintiff may seek unjust enrichment
damages to remedy trade secret misappropriation. In
Russo v. Ballard Medical Products, 550 F.3d 1004, 1020
(10th Cir. 2008), the Tenth Circuit rejected the appellee’s
argument that unjust enrichment damages were inappro-
priate under the Utah Trade Secrets Act when “the plain-
tiff was willing to license his or her idea.” Indeed, the Russo
court explicitly held that under the Utah Trade Secrets
Act, which includes the same language as the DTSA and
MUTSA, “a plaintiff has the express choice of seeking un-
just enrichment damages to remedy trade secret misappro-
priation.” Id. at 1021; see also Utah Code Ann. § 13-24-4(1)
(“[A] complainant is entitled to recover damages for misap-
propriation. Damages can include both the actual loss
caused by misappropriation and the unjust enrichment
caused by misappropriation that is not taken into account
in computing actual loss.”). The court further acknowl-
edged that although unjust enrichment damages “put [the
plaintiff] in a much better position than if he had entered
a licensing agreement . . . under Utah law, [defendant], as
the party that acted wrongfully, must assume the risk it
took by misappropriating rather than licensing [the trade
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 9
secret].” 550 F.3d at 1021. Similarly, when the Eleventh
Circuit analyzed the availability of unjust enrichment
damages under the Missouri Trade Secrets Act—which
also uses identical language to the DTSA and MUTSA—
the court relied upon Caudill and Russo to recognize unjust
enrichment recovery as “separate and distinct” from a jury
award for breach. Al. Aircraft Indus., Inc. v. Boeing Co.,
133 F.4th 1238, 1252–53 (11th Cir. 2025); see also Mo. Ann.
Stat. § 417.457.1 (“[A] complainant is entitled to recover
damages for misappropriation. Damages can include both
the actual loss caused by misappropriation and the unjust
enrichment caused by misappropriation that is not taken
into account in computing actual loss.”). We find these de-
cisions persuasive and conclude that Versata may seek un-
just enrichment damages under the DTSA and the MUTSA
as a matter of law.
The district court’s reliance in this case on precedent
where the parties’ licensing history was used to calculate
damages to categorically preclude recovery of unjust en-
richment damages is misplaced. As noted above, after the
district court excluded Mr. Elson’s expert testimony, it re-
quired Versata to measure damages based on the parties’
licensing history. See Daubert Decision, 2018 WL
10733561, at *8–10. The district court reasoned that “in
‘most cases,’ the ‘proper measure’ of trade secret misappro-
priation damages involves ‘calculat[ing] what the parties
would have agreed to as a fair price for . . . licensing the
defendant to put the trade secret to the use the defendant
[intended] at the time the misappropriation took place.’”
Id. at *8 (first alteration in original) (quoting Univ. Com-
puting Co. v. Lykes–Youngstown Corp., 504 F.2d 518, 539
(5th Cir.1974)). The district court then relied upon two
Sixth Circuit decisions to conclude that “the proper meas-
ure of damages in this case should be based upon the par-
ties’ licensing history.” Id. at *9 (first applying Vitro Corp.
of Am. v. Hall Chem. Co., 292 F.2d 678, 680–682 (6th Cir.
1961); and then applying Mid-Michigan Comput. Sys., Inc.
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 10
v. Marc Glassman, Inc., 416 F.3d 505, 507–510 (6th Cir.
2005)).
We disagree with the district court’s reading of Sixth
Circuit precedent. Though the Sixth Circuit did uphold
damages awards that were calculated using royalties-
based damages models in Vitro Corp. and Mid-Michigan, it
did not preclude the plaintiff from seeking unjust enrich-
ment damages altogether. In Vitro Corp., the Sixth Circuit
reviewed a district court’s award of damages based on a
special master’s determination that the proper method of
determining damages was an “established royalty” compu-
tation based on the minimum amounts that the parties had
agreed to in principle for the trade secrets. 292 F.2d at 682.
On appeal, the plaintiff argued that the district court’s de-
cision to base its award on the agreement in principle was
erroneous. Id. The Sixth Circuit disagreed, finding that
this was the “best evidence” of an equitable measure of
damages. Id. at 683. But neither the district court nor the
Sixth Circuit disallowed the plaintiff from pursuing unjust
enrichment damages as a matter of right as the district
court did here.
The Sixth Circuit’s holding in Mid-Michigan also does
not support the district court’s exclusion. In Mid-Michigan,
the plaintiff licensed software to the defendant and later
accused the defendant of reverse engineering its source
code to develop their own software. 416 F.3d at 507. The
plaintiff successfully sued for trade secret misappropria-
tion, and the jury awarded $2 million in damages based on
a reasonable royalty model partially rooted in the parties’
licensing history. Id. at 509–511. On appeal, the Sixth Cir-
cuit upheld the damages award, declining to disturb the
jury award because “the $2 million compensatory damages
award was neither clearly excessive nor conscience-shock-
ing” in light of the parties’ agreement. Id. at 512. Mid-
Michigan therefore also did not preclude the availability of
unjust enrichment damages.
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 11
Here, however, when Versata argued that damages
may be awarded based on “the value derived from the sav-
ings because of increased productivity, or the value derived
from savings in research costs,” rather than the parties’ li-
censing history, the district court concluded that alterna-
tive measurements of damages were only appropriate
when the trade secret damages are not “subject to exact
measurement.” Daubert Decision, 2018 WL 10733561,
at *9 (first citing Avery Dennison Corp. v. Four Pillars En-
ter., Co., 45 F. App’x 479, 485–86 (6th Cir. 2002); and then
citing Univ. Computing, 504 F.2d at 538–39). Not so. The
plain language of the DTSA and MUTSA expressly allows
complainants to pursue unjust enrichment damages for
trade secret misappropriation.
Ford attempts to argue that the district court did not
preclude Versata from seeking unjust enrichment damages
altogether, but instead only precluded Versata from pursu-
ing unjust enrichment damages that were speculative and
unreliable. We are unpersuaded by this characterization
for two reasons. First, the district court expressly stated
that Versata was confined to seeking damages directly tied
to the parties’ licensing history. Daubert Decision,
2018 WL 10733561, at *8 (“In order to avoid such a wind-
fall, Versata’s trade secret damages in this case must be
measured with reference to the parties’ licensing history.”).
Second, the district court excluded two of Versata’s dam-
ages models because they did not solely calculate damages
based on the parties’ licensing history. J.A. 9495. Thus, the
district court erred when it precluded Versata entirely from
pursuing unjust enrichment damages.
The district court’s preclusion of unjust enrichment
damages impacted Versata’s ability to seek damages
throughout this case, including at trial and during post-
trial proceedings. Accordingly, we partially vacate the dis-
trict court’s JMOL zeroing out the jury’s damages award
and remand for a new trial on damages for trade secret
misappropriation. We also instruct the district court to
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 12
reconsider Versata’s reasonable-royalty models it previ-
ously excluded because they were not solely based on the
parties’ licensing history.
B
We now turn to the district court’s reduction of the jury
award of breach of contract damages. In the Sixth Circuit,
decisions on motions for JMOL are reviewed de novo. See
Mosby-Meachem v. Memphis Light, Gas & Water Div.,
883 F.3d 595, 602 (6th Cir. 2018). “The motion may be
granted only if in viewing the evidence in the light most
favorable to the non-moving party, there is no genuine is-
sue of material fact for the jury, and reasonable minds
could come to but one conclusion, in favor of the moving
party.” Loesel v. City of Frankenmuth, 692 F.3d 452, 461
(6th Cir. 2012) (quoting Radvansky v. City of Olmsted
Falls, 496 F.3d 609, 614 (6th Cir. 2007)). The Sixth Cir-
cuit’s review of a jury’s damage award is “extremely defer-
ential,” and it “will not order a remittitur or new trial
unless the award is contrary to all reason.” Advance Sign
Grp., LLC v. Optec Displays, Inc., 722 F.3d 778, 787
(6th Cir. 2013) . “An award must stand unless it is: (1) be-
yond the range supportable by proof; or (2) so excessive as
to shock the conscience; or (3) the result of a mistake.” Id..
Versata argues that the district court erred in reducing
the jury award because it presented sufficient evidence for
the jury to accurately calculate damages. We agree and
conclude that the district court erred when it reduced the
jury award from $82,260,000 to $3. Accordingly, we reverse
the district court’s JMOL Decision and reinstate the jury
award for breach of contract damages.
The district court found that while Versata established
that Ford breached the MSSA, “it did not present sufficient
evidence to permit the jury to quantify those damages in
compliance with Michigan law.” JMOL Decision, 2023 WL
3175427, at *8. Under Michigan law, damages for a breach
of contract claim must be measured with “reasonable
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 13
certainty,” Doe v. Henry Ford Health Sys., 865 N.W.2d 915,
922 (Mich. App. 2014), but “mathematical certainty” is not
required, Chelsea Inv. Grp., LLC v. Chelsea, 792 N.W.2d
781, 792 (Mich. App. 2010). But the district court concluded
that Versata failed to present any evidence to aid the jury
in calculating its breach of contract damages with reason-
able certainty. See JMOL Decision, 2023 WL 3175427,
at *8. We disagree.
At trial, Versata’s counsel presented three base dam-
ages amounts based on the parties’ licensing his-
tory: $17 million, $14.95 million, and $10.95 million. The
$17 million per year figure was based on the amount Ver-
sata offered to license its software to Ford after its previous
agreement ended. The $14.95 million figure represented
the amount that Ford paid Versata in its final year of the
MSSA. J.A. 57008,126:9–126:20. Last, the $10.95 million
figure was the cost of the base license fee under the MSSA,
which allowed Ford to use the software without “support
and maintenance payments” included in the $14.95 million
figure. J.A. 57008, 126:21–127:3. Versata’s counsel in-
structed the jury to multiply any of the three figures by 7.5
years—the period from the start of Ford’s misappropriation
through trial. J.A. 57007–08, 124:4–125:21. Ultimately,
the jury awarded Versata $82,260,000, which equates to
approximately $10.97 million for each year of the 7.5 years
that Ford breached the MSSA. See J.A. 98–99. This
amount was not beyond the range supported by proof,
which ranged from $82.125 million ($10.95 million per
year x 7.5 years) to $127 million ($17 million per year x 7.5
years). Nor was the damages award so excessive as to shock
the conscience.
When the district court granted Ford’s motion for
JMOL on breach of contract damages, it rejected Versata’s
arguments that the jury award should be upheld. It re-
jected Versata’s claim that the jury awarded damages as a
reasonable royalty because “it is not clear that Michigan
recognizes a reasonable royalty theory of contract
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 14
damages” and “even if Michigan did recognize such a the-
ory of contract damages . . . Versata presented no evidence
at trial to support a reasonable royalty theory of contract
damages.” JMOL Decision, 2023 WL 3175427, at *10 (cit-
ing Innovation Ventures, LLC v. Custom Nutrition Lab’ys,
LLC, 912 F.3d 316, 347 (6th Cir. 2018)). It also rejected
Versata’s “lost profits” calculation of breach of contract
damages because Versata failed to disclose this theory dur-
ing discovery and did not present sufficient evidence at
trial. Id. at *11. Finally, the district court rejected Ver-
sata’s argument that the damages award should nonethe-
less stand, regardless of whether there is some uncertainty
as to the amount of its damages, because under Michigan
law “the risk of uncertainty is cast upon the wrongdoer, not
the injured party.” Id. Here, the district court claimed that
“Versata’s contract damages case crossed the line from un-
certainty to speculation,” and as a result ultimately va-
cated the jury award. Id.
We find that the jury calculated damages with reason-
able certainty. Because the jury award closely aligns with
the $10.95 million figure, we focus on the district court’s
analysis of that figure. The district court rejected the
$10.95 million per year calculation because Versata failed
to separate out its costs of performance associated with the
base license. Id. at *10. But Versata’s expert explained the
differences between the $10.95 million base license fee, and
the $14.95 million license fee, which included extended
support and services.2 See, e.g., J.A. 56576, 12:8–13:20 (ex-
plaining that the $10.95 million base licensing fee con-
sisted of $8.45 million for the ACM and $2.5 million for the
MCA); see also J.A. 56577, 15:1–16:8 (explaining that the
$14.95 million licensing fee included $4 million for “support
2 Mr. Elson was unavailable for trial due to a medi-
cal emergency, so Renee McMahon served as Versata’s tes-
tifying damages expert. J.A. 39921.
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 15
services” such as the “Extended Support and Maintenance
Service Agreement”). Versata also submitted two versions
of the MSSA to the jury: the original contract from 2004,
which included support and enhancement services, and the
2011 addendum, which states “Versata shall no longer pro-
vide generally available Support and Enhancements for
[ACM].” J.A. 71630–31, 71643. In addition to Versata’s ex-
pert testimony, Ford’s own damages expert acknowledged
that the $10.95 million figure was a “much more reasona-
ble starting point, because it takes out that $4 million of
other types of fees and services and support and mainte-
nance.” J.A. 56805, 96:14–97:4. And at no point did Ford
claim that there were additional costs associated with the
base license. Finally, Versata’s counsel explained to the
jury how to calculate damages during closing arguments.
See J.A. 57007–08, 124:14–127:7. We therefore conclude
that the district court erred when it determined that Ver-
sata did not present any evidence that would allow the jury
to calculate damages with reasonable certainty. Versata’s
and Ford’s expert testimony, the submission of the MSSA
and the 2011 addendum, and the jury instructions given by
Versata’s counsel during closing arguments all amount to
sufficient evidence that provided the jury with a discerni-
ble path to properly calculate damages. Accordingly, we re-
verse the district court’s reduction of breach of contract
damages and reinstate the jury award of $82,260,000 to
Versata.
III
We next turn to Ford’s cross-appeal of the district
court’s denial of JMOL on its liability for trade secret mis-
appropriation. Ford’s argument before us is narrow: it ar-
gues that Versata failed to show that at the time of
disclosure or use, Ford knew of the specific combination
trade secrets at issue. As the Sixth Circuit has explained,
a combination trade secret is “[a] new combination of
known steps or processes [that] can be entitled to trade se-
cret protection.” Caudill, 53 F.4th at 380 (cleaned up).
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 16
Here, Ford argues that “Versata offered insufficient evi-
dence that Ford had knowledge of each alleged combina-
tion trade secret.” Appellee Response Br. 24. That is, Ford
claims that Versata provided no evidence that it identified
the specific “bundles of features [Grid, Buildability, and
Workspaces of the ACM software] to Ford” but instead pro-
vided hundreds of documents to Ford containing these
trade secrets. Id. at 68; see id. at 68–72. Therefore, because
Versata failed to demonstrate that Ford had specific
knowledge of the ACM combination trade secrets, Ford ar-
gues that the district court’s judgment on trade secret lia-
bility must be reversed. Neither the DTSA nor the MUTSA,
however, requires a plaintiff to show a defendant’s
knowledge of specific elements of combination trade se-
crets. We therefore decline to require such a showing in the
instant case and affirm the district court.
We begin with the statutory language of the DTSA and
MUTSA. We recite the relevant part of the DTSA, which
defines misappropriation as:
(A) acquisition of a trade secret of another by a per-
son who knows or has reason to know that the
trade secret was acquired by improper means; or
(B) disclosure or use of a trade secret of another
without express or implied consent by a person
who—
(i) used improper means to acquire
knowledge of the trade secret;
(ii) at the time of disclosure or use, knew or
had reason to know that the knowledge of
the trade secret was—
. . . .
(II) acquired under circumstances
giving rise to a duty to maintain
the secrecy of the trade secret or
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 17
limit the use of the trade se-
cret . . . .
18 U.S.C. § 1839(5). The MUTSA has similar require-
ments:
(A) Used improper means to acquire knowledge of
the trade secret.
(B) [a]t the time of disclosure or use, knew or had
reason to know that his or her knowledge of the
trade secret was derived from or through a person
who had utilized improper means to acquire it, ac-
quired under circumstances giving rise to a duty to
maintain its secrecy or limit its use, or derived from
or through a person who owed a duty to the person
to maintain its secrecy or limit its use.
Mich. Comp. Laws § 445.1902(b)(ii)(A)–(B). Neither the
DTSA nor the MUTSA requires specific knowledge of the
combination trade secret elements. Both statutes define
misappropriation as use of a trade secret by one who ac-
quired knowledge of the trade secret by improper means or
received knowledge of the trade secret under circum-
stances giving rise to secrecy. 18 U.S.C § 1839(5)(B)(i),
(ii)(II); Mich. Comp. Laws § 445.1902(b)(ii)(A)–(B). Nothing
in the language of either statute requires the degree of spe-
cific knowledge of the exact combination of a trade secret
that Ford urges us to read in. Notably, the Sixth Circuit
rejected a similar argument for a heightened knowledge re-
quirement for combination trade secrets in Caudill.
53 F.4th at 385 (rejecting appellant’s argument that
“trade-secrets law requires showing acquisition of each
atom of a combination trade secret”). We see no reason to
insert such a requirement here under Michigan law and
decline to do so.
On Ford’s motion for JMOL, the district court found
that the evidence, taken in the light most favorable to Ver-
sata, was sufficient to support a finding that Versata
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VERSATA SOFTWARE, LLC. v. FORD MOTOR COMPANY 18
disclosed the ACM combination trade secrets to Ford.
JMOL Decision, 2023 WL 3175427, at *12. We agree. The
district court credited Versata’s technical expert, Dr. Sam-
uel Malek, finding that “[h]e repeatedly testified at trial
that Versata disclosed the trade secrets as combinations to
Ford through its user guides and presentations to Ford.”
Id. (footnote omitted). The district court also credited the
testimony of former Versata employee Seth Krauss, who
testified that Versata “disclosed [ ] all of the [combination
trade secrets] information” through various materials like
manuals, technical documents, emails, onsite discussions,
as well as the software itself. Id. (citing J.A. 56174, 104:12–
17). The district court also determined that “Versata pre-
sented evidence that its manuals and presentations were
given to Ford’s engineers and other employees with tech-
nical expertise.” Id. On these bases, we conclude that Ver-
sata presented sufficient evidence to support its claim for
trade secret misappropriation. We therefore affirm this as-
pect of the district court’s judgment.
IV
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm-in-part, vacate-and-remand-in-part, and reverse-in-
part the district court’s JMOL Decision. We further re-
mand to the district court for a new trial on damages for
trade secret misappropriation and reconsideration of the
damages models previously excluded.
AFFIRMED-IN-PART, REVERSED-IN-PART,
VACATED-IN-PART, AND REMANDED
COSTS
Costs to Appellants.
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