[00:00:05] Speaker 03: Our next case is Berry v. Ford Motor Company, 15-1699. [00:00:57] Speaker 03: Mr. Strickland, you reserved four minutes of your time. [00:01:01] Speaker 03: I did, Your Honor. [00:01:02] Speaker 03: OK, you may proceed. [00:01:04] Speaker 03: Thank you. [00:01:06] Speaker 02: May it please the court, we're here today on a decision granting summary judgment in the Eastern District of Michigan. [00:01:14] Speaker 02: For summary judgment motion, the rules is simple and clear. [00:01:17] Speaker 02: If there's a material question of fact, it must be reversed. [00:01:22] Speaker 03: Just out of curiosity, it's not an issue that was brought up. [00:01:26] Speaker 03: Oh, why shouldn't this case be back in state court? [00:01:31] Speaker 03: How do we have jurisdiction over this case? [00:01:32] Speaker 02: It should be in state court. [00:01:34] Speaker 02: And I think it may be. [00:01:35] Speaker 02: Hopefully, it's headed there. [00:01:36] Speaker 02: It started out in state court. [00:01:37] Speaker 02: We brought it in state court. [00:01:39] Speaker 02: It was moved to federal court because of the allegations of ownership of patent rights. [00:01:48] Speaker 02: OK. [00:01:48] Speaker 02: Admittedly, there has to be more than a scintilla of evidence for a material fact. [00:01:54] Speaker 02: I think we've met that more. [00:01:56] Speaker 00: But on this jurisdictional question, you're saying that this really shouldn't be before us. [00:02:03] Speaker 00: It should be in state court, in Michigan state court. [00:02:06] Speaker 00: But you were the one that brought the inventorship claim, right? [00:02:11] Speaker 02: That's correct. [00:02:12] Speaker 00: Right. [00:02:12] Speaker 00: So you'd have to be arguing the only way that the existence of an inventorship claim wouldn't be sufficient to sustain jurisdiction here over not only that claim, but also [00:02:23] Speaker 00: the supplemental jurisdiction over the state law claims would be if the inventorship claim were frivolous. [00:02:30] Speaker 00: And you're not arguing that, I take it. [00:02:32] Speaker 02: No, we're not arguing that's frivolous. [00:02:33] Speaker 00: Well, then how do we not have jurisdiction? [00:02:36] Speaker 02: You do have jurisdiction. [00:02:37] Speaker 00: Well, I thought you said it shouldn't be here. [00:02:39] Speaker 02: I said we started off as a state court. [00:02:42] Speaker 00: Well, I thought in your first response, the judge was that this case shouldn't be in the federal courts. [00:02:50] Speaker 02: It should be. [00:02:51] Speaker 02: You have jurisdiction. [00:02:52] Speaker 02: Thank you. [00:02:53] Speaker 02: I apologize. [00:02:55] Speaker 02: Any of the underlying facts in this case are really undisputed. [00:02:59] Speaker 02: Back in 2006, Ford was having difficulties getting funding and developing a sync system. [00:03:06] Speaker 02: They couldn't get funding, so they contacted Mr. Berry for help. [00:03:10] Speaker 02: Mr. Berry came in. [00:03:11] Speaker 02: He's a telephone communication expert. [00:03:14] Speaker 02: And Mr. Berry, in the fall of 2006, redesigned the sync system [00:03:19] Speaker 03: Is it your argument that Mr. Berry provided Ford with intellectual property as opposed to just like technical information or technical advice? [00:03:29] Speaker 02: He provided technical information to Ford that enabled them to redesign the entire sink system. [00:03:35] Speaker 02: But no intellectual property? [00:03:37] Speaker 02: It may have included some intellectual property, but it included technical information that some of it clearly was not, when you say intellectual property, patentable subject matter, in my view. [00:03:48] Speaker 04: So your claim is during the fall of 2006, Mr. Berry didn't invent anything in terms of contributing to those four patents? [00:04:03] Speaker 02: Not quite. [00:04:04] Speaker 02: Mr. Berry gave a lot of technical information in the fall of 2006. [00:04:08] Speaker 02: Some of that technical information may very well be patentable subject matter, but not all of it, clearly. [00:04:17] Speaker 04: OK. [00:04:18] Speaker 04: So when did he invent all of the subject matter that relates to the four patents in question that Mr. Berry is seeking to correct the inventorship? [00:04:32] Speaker 02: I really have nothing to add to the question of the inventorship. [00:04:36] Speaker 02: My argument today really is directed to the un-Jesson Richmond. [00:04:41] Speaker 02: May I continue? [00:04:46] Speaker 02: OK. [00:04:46] Speaker 02: Mr. Barry redesigned the system, eliminated the data modem, used the smartphone of the driver instead. [00:04:54] Speaker 02: That was a cost-saving course. [00:04:56] Speaker 02: He also told Ford the technical information that they could use the voice channel to transmit data. [00:05:05] Speaker 02: Now, if he didn't invent that, in fact, that was invented by a company called Air Biquity that was currently commercializing it. [00:05:12] Speaker 02: Ford didn't know that, but that technical information was known by Barry. [00:05:15] Speaker 02: And Barry conveyed that technical information to Ford, which they adopted. [00:05:21] Speaker 02: Back in 2006, most people who had smartphones did not have a data program. [00:05:27] Speaker 03: Just to be clear, you're abandoning your inventorship claim? [00:05:32] Speaker 02: No, I just have nothing to add to it. [00:05:34] Speaker 02: I don't have enough time to honor you both. [00:05:36] Speaker 02: So I would like to concentrate on Justin Rich. [00:05:40] Speaker 04: Is there anything in the record that shows that Mr. Barry [00:05:44] Speaker 04: at the time in 2006 communicated to Ford Mr. Berry's expectation that he was going to be compensated for the activities that he was doing without any formal contract during the time of 2006? [00:06:00] Speaker 04: No, Your Honor. [00:06:07] Speaker 04: Okay. [00:06:07] Speaker 04: I'm sorry, did Ford, is there anything in the record where Ford was somehow [00:06:12] Speaker 04: Intimating, suggesting, or expressly stating that all of the technical information that was flowing to Ford from Mr. Berry during 2006, Ford was planning on paying him for all of that work and technical information during the fall of 2006? [00:06:30] Speaker 02: There's some testimony, but it's not in the record here, that there were assurances that were made, yes, by Mr. Van Dagens. [00:06:37] Speaker 02: It's also in dispute that there was no contract in the fall [00:06:41] Speaker 02: 2006. [00:06:42] Speaker 02: There is a dispute about the effect of Mr. Zuh's contract. [00:06:51] Speaker 02: Ford believed that Mr. Zuh had, in December 2006, Ford believed that Mr. Zuh had access to Mr. Berry, but there's no document to support that. [00:07:01] Speaker 02: And Mr. Berry disputes that Mr. Zuh had any... Why would Mr. Zuh be paying Mr. Berry if that was the case? [00:07:08] Speaker 02: He helped him. [00:07:09] Speaker 02: Mr. Berry helped him, no question about it. [00:07:12] Speaker 02: Mr. Zhu was unsuccessful in designing it, but Mr. Berry entered into a contract to develop the SDN in May of 2007. [00:07:20] Speaker 02: And he was paid to do that, certainly. [00:07:25] Speaker 02: Under the unjust enrichment claim, the D&B case is the controlling law in Michigan. [00:07:32] Speaker 02: That's from the Court of Appeals. [00:07:33] Speaker 02: It hasn't been reversed since recent law. [00:07:36] Speaker 02: And under the D&B case, the court had problems [00:07:41] Speaker 02: But they're headliners. [00:07:42] Speaker 02: They were wrinkled. [00:07:43] Speaker 02: And so D&B came in and said, well, put these blocks in the mold. [00:07:47] Speaker 02: And voila, it worked. [00:07:50] Speaker 02: They later brought soup. [00:07:51] Speaker 02: They collected damages. [00:07:53] Speaker 02: Well, actually collected money for that unjust enrichment. [00:07:58] Speaker 00: In this case, what is your answer to the suggestion that this was an arrangement [00:08:10] Speaker 00: in which at least implicit in the arrangement was the contemplation that after some initial period of working cooperatively without a contract and without compensation, that Mr. Barry expected that he would have a good chance of getting a lucrative contract from Ford. [00:08:31] Speaker 00: And indeed, he ultimately did. [00:08:32] Speaker 00: Why does that not undermine the argument for unjust enrichment? [00:08:38] Speaker 02: Well, there's nothing to support that from one [00:08:40] Speaker 00: Well, he did end up with a lucrative contract. [00:08:44] Speaker 02: Mr. Berry gave up a more lucrative job offer in order to do that contract. [00:08:48] Speaker 00: In that case, he made a bad deal. [00:08:49] Speaker 00: But he nonetheless got it. [00:08:52] Speaker 00: It wasn't as if Ford said, OK, now that you've given us all that you have to offer, you're out of here. [00:08:59] Speaker 00: I mean, he ended up with what most people would regard as a pretty attractive contract. [00:09:06] Speaker 02: Mr. Berry was well-paid. [00:09:08] Speaker 02: to develop the SDN as part of SYNC. [00:09:11] Speaker 02: That has nothing to do with 9-11 assist. [00:09:14] Speaker 02: The SDN has nothing to do with the data communication. [00:09:16] Speaker 02: That's the vehicle health report. [00:09:19] Speaker 02: And the SDN really has nothing to do with the conversion over to the smartphone. [00:09:29] Speaker 02: Those are all things that were separate. [00:09:31] Speaker 02: Those are things, technical information that Mr. Berry had. [00:09:35] Speaker 00: But he got his foot in the door with Ford. [00:09:38] Speaker 00: He got his foot in the door with Ford and ultimately ended up being paid pretty well for work that he did for Ford, right? [00:09:47] Speaker 02: For the SDN, but it's not like he got his foot in the door. [00:09:50] Speaker 02: Ford called him. [00:09:52] Speaker 00: Well, initially, but in other words, there are lots of instances in which people in services or selling products will offer, in effect, free samples at the outset. [00:10:03] Speaker 00: They'll say, [00:10:05] Speaker 00: Take this product, use it for a while. [00:10:07] Speaker 00: If you don't like it, send it back. [00:10:09] Speaker 00: If you like it, pay us or buy some more, whatever, or services. [00:10:15] Speaker 00: Somebody comes in and says, I'll work for you for a year for free. [00:10:19] Speaker 00: At the end of the year, you decide whether you want to hire me, and I bet you're going to want to hire me. [00:10:23] Speaker 00: That's not unjust enrichment, is it? [00:10:26] Speaker 00: If the company ultimately decides, thanks for your year, you're out of here. [00:10:31] Speaker 00: That wouldn't be unjust enrichment, right? [00:10:32] Speaker 02: I would agree that would not be unjust enrichment, but it didn't happen here. [00:10:35] Speaker 00: Okay. [00:10:36] Speaker 00: Why is that different from what happened here? [00:10:40] Speaker 02: Because he never got into the place where hire me, you know, I'll do all this work for free, and then you'll hire me. [00:10:46] Speaker 02: But companies like Ford do. [00:10:48] Speaker 03: He was working for free for a period of time. [00:10:51] Speaker 02: He was working, yes, for free for a long period of time. [00:10:55] Speaker 03: And his hope was probably or [00:10:57] Speaker 03: We can we can see that as it's hopeless. [00:10:59] Speaker 03: I'm going to work for free. [00:11:00] Speaker 03: You're going to see that I'm smart. [00:11:02] Speaker 03: I can contribute. [00:11:04] Speaker 03: I can add part to the knowledge. [00:11:08] Speaker 03: And maybe you'll hire me in the future. [00:11:11] Speaker 02: But there's nothing in the record that would even suggest that happen. [00:11:14] Speaker 02: That's the problem with that. [00:11:16] Speaker 04: But I guess also what might be a problem going the other way is that there's nothing in the record that suggests that [00:11:22] Speaker 04: Mr. Berry was expecting any kind of compensation for the time that he was working for free. [00:11:30] Speaker 02: Under Michigan law, you don't, Mr. Berry did not have to say that he expected compensation. [00:11:34] Speaker 02: Under Michigan law, under the DMV case, which controls unjust enrichment, the only question is whether or not technical information was given and whether it created a benefit. [00:11:44] Speaker 02: And in that case, that happened. [00:11:47] Speaker 02: The, before it relies upon the Preston case, [00:11:51] Speaker 04: For unjust enrichment claims, you're saying all that matters is whether a benefit was conferred? [00:12:00] Speaker 02: Well, the technical information was conveyed and used by the defendant, and whether that unjustly enriched the defendant. [00:12:15] Speaker 03: You're into your rebuttal time. [00:12:16] Speaker 03: Do you want to reserve your time? [00:12:18] Speaker 02: I've got to say a couple more things if I didn't have time. [00:12:21] Speaker 02: That's all that's required. [00:12:24] Speaker 02: There's one other element, which is the request. [00:12:27] Speaker 02: There has to be a request from the defendant. [00:12:29] Speaker 02: And in this case, it clearly was a request. [00:12:32] Speaker 02: Ford called Mr. Berry and had him come in. [00:12:35] Speaker 02: That's the law in Michigan for unjust enrichment. [00:12:38] Speaker 02: The defendant Ford relies upon the Preston case, which has nothing to do with unjust enrichment. [00:12:44] Speaker 02: The Preston case has nothing to do with ownership of intellectual property. [00:12:48] Speaker 02: Unjust enrichment deals with [00:12:50] Speaker 02: compensation for technical information. [00:12:52] Speaker 02: That's what we're talking about, compensation, not ownership of that technical information. [00:12:57] Speaker 02: Some of the technical information that Mr. Berry provided, clearly he didn't know, such as the data communication system that was created by Arabicwadi. [00:13:05] Speaker 02: He didn't develop that, but he knew about it, and that was technical information. [00:13:09] Speaker 02: He also had, he was a telephone communication expert. [00:13:13] Speaker 02: He had information how one can legally make a 911 call automatically. [00:13:18] Speaker 02: There are laws against that. [00:13:19] Speaker 02: can't do it. [00:13:20] Speaker 02: They don't want home security systems calling 911 every time it's accidentally tripped. [00:13:26] Speaker 02: But he said, yes, you can make an automated call, or what looks like an automated call, and here's how you can do it. [00:13:32] Speaker 02: He told them how to do it using the DTMF tones on the dial tone to communicate with the 911 operator. [00:13:44] Speaker 02: Compliance with federal laws concerning automated 911 calls [00:13:50] Speaker 02: I doubt that that's patentable subject matter, how you comply with the law. [00:13:55] Speaker 02: But it is technical information. [00:13:57] Speaker 02: And under D&B, he's entitled to compensation. [00:14:00] Speaker 00: Well, Mr. Berry's a sophisticated person. [00:14:03] Speaker 02: But is there two minutes? [00:14:04] Speaker 02: I won't ask, so you go ahead and finish. [00:14:08] Speaker 00: No, no, I mean, I won't. [00:14:09] Speaker 00: I'll withhold my question. [00:14:11] Speaker 00: So you go ahead and proceed as you see fit. [00:14:15] Speaker 02: Two minutes. [00:14:15] Speaker 02: OK, that's fine. [00:14:16] Speaker 03: I'll say your two minutes. [00:14:18] Speaker 03: Go ahead, Judge. [00:14:19] Speaker 00: Well, okay, since we're, thank you. [00:14:23] Speaker 00: Thanks to the judge, I will. [00:14:30] Speaker 00: Give us an idea as to what Mr. Barry's state of mind may have been. [00:14:36] Speaker 00: He's a sophisticated man. [00:14:37] Speaker 00: This is not somebody that just fell off the truck. [00:14:41] Speaker 00: So he goes into Ford and Ford says, [00:14:47] Speaker 00: If you want to come in and help us, we'll give you an office. [00:14:51] Speaker 00: We'll give you an email, so forth. [00:14:53] Speaker 00: And he agrees. [00:14:54] Speaker 00: And one thing that isn't happening, at least for a couple of months, is he's not getting a check. [00:14:59] Speaker 00: What does he think is going on? [00:15:02] Speaker 02: Do you know why he did all these things? [00:15:04] Speaker 02: I am curious. [00:15:05] Speaker 02: I will tell you why. [00:15:06] Speaker 02: He had a job paid about $500,000 a year. [00:15:08] Speaker 02: He quit in June. [00:15:10] Speaker 02: His old employer did not want him to go to work for the competitor who had a new job with. [00:15:16] Speaker 02: until the beginning of the following year. [00:15:18] Speaker 02: His former, the job that he quit, agreed to pay him through December. [00:15:24] Speaker 02: The new job started in January. [00:15:27] Speaker 02: He's free. [00:15:28] Speaker 02: He's got a lot of time on his hands. [00:15:30] Speaker 03: That doesn't help you. [00:15:31] Speaker 03: That doesn't help you. [00:15:32] Speaker 03: Yeah, it does. [00:15:32] Speaker 03: He was being compensated during, what, from September to December? [00:15:36] Speaker 02: He's being compensated by a third party, and he's bored. [00:15:39] Speaker 02: He's got friends at Ford. [00:15:41] Speaker 02: He goes in and he helps them better than sitting around the house. [00:15:44] Speaker 02: And he had every intention [00:15:46] Speaker 02: upon taking the new job in January, but the sink thing was just taking off and he had so much effort into it, he stayed. [00:15:52] Speaker 00: But he had no expectation that it was going to be compensated for the work that he did between September and November, is what you're saying, from Ford? [00:16:02] Speaker 02: He certainly had no agreement. [00:16:04] Speaker 00: He certainly had an expectation. [00:16:05] Speaker 00: You're saying he just wandered in and helped out for a while, and that was sort of recreational. [00:16:10] Speaker 02: No, I won't say he had no expectation. [00:16:11] Speaker 02: He certainly had no agreement that he would be compensated. [00:16:23] Speaker 01: May it please the court, Morgan Goodspeed on behalf of Ford Motor Company. [00:16:27] Speaker 01: Many of Your Honor's questions go to the point in this case, which is that as Mr. Berry admits, in the fall of 2006 he was bored, he had friends at Ford, he went into Ford and pitched some ideas, and those ideas landed him a series of contracts that earned him well over a million dollars. [00:16:46] Speaker 01: That's not a case where there's any unjust enrichment [00:16:50] Speaker 01: because the other component of Michigan law that Mr. Berry leaves out is the unjust part. [00:16:56] Speaker 01: It's not just that Ford needs to earn a benefit here. [00:16:59] Speaker 01: It's that it has to be unjust for some reason for Ford to be the one to keep that benefit. [00:17:04] Speaker 01: But that's not the only reason why Michigan law precludes the claim here. [00:17:09] Speaker 01: And the other reason, and really the critical one here that the district court focused on, is that under Michigan law, an express contract [00:17:18] Speaker 01: will preclude a claim for unjust enrichment. [00:17:21] Speaker 01: And here, it's undisputed that at least as of May 2007, there were contracts between Ford and Mr. Barry that said any intellectual property, any inventions or discoveries or improvements that were reduced to practice after the time those contracts began. [00:17:38] Speaker 00: Well, that's fine. [00:17:39] Speaker 00: That may cover the inventorship problem. [00:17:42] Speaker 00: But it doesn't seem to me it covers the initial period in which he was going in [00:17:47] Speaker 00: to work, in effect, for free. [00:17:49] Speaker 00: So there was no contract at that point. [00:17:51] Speaker 00: So it seems to me your contract argument really doesn't get you where you need to go with respect to the period from September to November. [00:18:02] Speaker 00: What do you say about that? [00:18:04] Speaker 01: Well, Your Honor, it does get us there for a couple of reasons. [00:18:06] Speaker 01: And the first is to the extent that time period was simply one in Mr. Barry was pitching ideas that he would later reduce to practice well at Ford. [00:18:16] Speaker 01: it would be a complete end run around the contract, which says either conception or reduction to practice is enough for Ford to own the intellectual property. [00:18:25] Speaker 01: If Mr. Berry can then go back and say, well, fine, Ford, you own the intellectual property, but I want unjust enrichment for the conception component. [00:18:34] Speaker 00: Here's why it doesn't seem to me that the contract helps you very much. [00:18:38] Speaker 00: Because had Ford decided in November [00:18:41] Speaker 00: Well, thank you very much, Mr. Barry, but we don't really need you now, and there'd been no contract. [00:18:47] Speaker 00: Would you concede that there would be unjust enrichment for the period between September and November in which he wasn't being paid, and there was no contract? [00:18:56] Speaker 01: Your Honor, we wouldn't concede that there'd be unjust enrichment for the reasons we've discussed before, which is that he was there pitching ideas. [00:19:02] Speaker 01: without an expectation to be paid. [00:19:05] Speaker 00: But that's really your argument, right? [00:19:06] Speaker 00: I mean, the contract doesn't have anything to do with that. [00:19:09] Speaker 01: No, Your Honor. [00:19:10] Speaker 01: Again, these are alternative arguments. [00:19:14] Speaker 01: But the reason why the contracts matter here is precisely because that's what Mr. Berry was seeking compensation for in his complaint. [00:19:22] Speaker 01: He talks a lot today about technical information. [00:19:25] Speaker 01: But if you actually take a look at his complaint at page 215 in your appendix, [00:19:30] Speaker 01: At paragraph 11, he lays out what his unjust enrichments suit was for. [00:19:35] Speaker 01: And this is his fourth amended complaint, by the way. [00:19:38] Speaker 01: And he says in that paragraph that he's seeking compensation for novel approaches and improvements that he shared with Ford in these early months, that he'll call those his inventions, and that those inventions are all found in the patents and patent applications here. [00:19:56] Speaker 01: So this technical information theory is not even one that lines up with his complaint. [00:20:01] Speaker 01: And that's why the existence of an express contract. [00:20:05] Speaker 03: Your opponent said that one of the reasons why Mr. Berry was not being compensated in that September to November period was because he was being compensated by somebody else. [00:20:17] Speaker 03: I don't believe that issue was briefed or anything, but was Ford aware of that? [00:20:21] Speaker 01: It was not being briefed. [00:20:23] Speaker 01: I believe if Ford was not aware of it, it has come up in discovery that Mr. Berry was being paid by another company, Tela Atlas. [00:20:32] Speaker 01: It's in the record, though not in your appendix. [00:20:35] Speaker 01: And it's understandable then, I think, that if Ford was interested in having his services, that the wheels moved a little bit more slowly there in light of the fact that he was compensated by another company. [00:20:47] Speaker 01: But again, going back briefly, [00:20:50] Speaker 01: to my response to you, Judge Bryson. [00:20:53] Speaker 01: Under the theory that is pleaded in Mr. Berry's complaint, the ownership of these inventions is actually the critical thing, and that ownership is governed by the contracts. [00:21:04] Speaker 01: Again, that's simply an alternative to the argument that there's no unjust enrichment here under Michigan law because there is no unjust component. [00:21:14] Speaker 04: I guess, theoretically, why couldn't there be an unjust component? [00:21:18] Speaker 04: just for the period where there was no contract, in the sense that there was services being rendered, there was labor being done, and there was some value arguably being extracted by Ford, and there was no compensation during that time frame. [00:21:40] Speaker 04: So why do we have to conclude that there's no genuine issue of material fact that [00:21:48] Speaker 04: all those facts line up to a potential unjust enrichment theory. [00:21:53] Speaker 04: Regardless of whether whatever was conceived during that time frame down the road was reduced to practice and led to patents, what's more important is just that critical time frame, just isolating that and looking at that. [00:22:07] Speaker 04: Why can't there be an unjust enrichment theory on that? [00:22:10] Speaker 01: Sure. [00:22:11] Speaker 01: Well, Your Honor, Mr. Ferry has never pointed to any case in which what essentially mattered to someone's pitch [00:22:18] Speaker 01: would then earn him a benefit as it did here. [00:22:22] Speaker 01: Undisputably, he received over a million dollars. [00:22:25] Speaker 01: So it's not accurate to say that Ford received a benefit. [00:22:28] Speaker 04: I guess my concern, slight concern, is that there isn't something in the record, there isn't any statement in the record that demonstrates that that is what was going on in the fall of 2006, that this was an attempted [00:22:44] Speaker 04: pitch to induce Ford to offer a contract down the road. [00:22:48] Speaker 04: Now the facts bear out that that's ultimately what happened, but in terms of the party's intentions in the fall, it's less clear. [00:22:56] Speaker 04: We have to make an inference based on how everything transpired over the next two years that, in fact, what could have been happening in the fall was an attempt by Mr. Berry to get Ford to hire him on with lucrative contracts. [00:23:13] Speaker 01: Well, what we do have in the record is Mr. Berry's statements 269 and 271 in the appendix that he never actually sought an agreement to compensation. [00:23:22] Speaker 01: So we know that, and we know that even if there's some concern under this aspect of Michigan law, we know that based on the theory in Mr. Berry's complaint, all of the intellectual property here is owned by Ford. [00:23:38] Speaker 01: and that there's no theory of unjust enrichment where Ford could be unjustly enriched by using the inventions that it owns. [00:23:47] Speaker 01: And again, the other reason why this doesn't work is for one thing that you alluded to here, and that's that Mr. Berry hasn't come into court and said, you know, I was effectively an employee for a couple months. [00:24:00] Speaker 01: You should pay me my salary for a couple more months for services rendered. [00:24:04] Speaker 01: What he's argued instead is that [00:24:07] Speaker 01: he should be compensated based on Ford's use of the SYNC system for information that he shared by his own admission without any secrecy or confidentiality. [00:24:19] Speaker 01: And if that's the argument that he's making, then that's barred as well under this court's decision and ultra-precision, which would say that a claim like that is preempted under federal patent law, a claim that all the plaintiff offered [00:24:34] Speaker 01: was technical information outside the patent system, offered that without any sort of secrecy, and is now seeking damages based on the use of that information. [00:24:44] Speaker 01: That's squarely what ultra-precision says cannot be brought under a state law claim. [00:24:51] Speaker 01: Now, I just want to reiterate then that these are all multiple alternatives. [00:24:57] Speaker 00: He does, in his complaint, you did point to a [00:25:01] Speaker 00: clause in the complaint in which he itemizes the invention-related damages that he asserts. [00:25:09] Speaker 00: But his complaint also has a general request for damages sufficient to alleviate any unjust enrichment. [00:25:15] Speaker 00: So it would be broad enough, I would think, to include something along the line of Judge Chen's question about whether he would be entitled or should be entitled as a matter of unjust enrichment to some kind of [00:25:27] Speaker 00: quantum arrow at payment for the period that he worked as an uncompensated employee, in effect, before. [00:25:33] Speaker 00: Why? [00:25:34] Speaker 00: What is there about Michigan law that says he's not entitled to that? [00:25:39] Speaker 01: Well, Your Honor, again, I don't think that is the theory that's found anywhere in his complaint. [00:25:43] Speaker 01: It's very clear that the theory he was alleging is that he was the owner of this intellectual property, both paragraph 11, where he defines his invention, and paragraph 13, where he says, [00:25:55] Speaker 01: I conceived of these inventions and reduced them to practice. [00:26:00] Speaker 00: Let's assume you're right for a moment and just be hypothetical about this. [00:26:03] Speaker 00: Let's assume that he did say, implicitly or otherwise, in his complaint that he wanted compensation for the work that he did between September and November. [00:26:19] Speaker 00: And let's further assume that [00:26:22] Speaker 00: he would make that claim whether he got the later contract or not. [00:26:26] Speaker 00: What's your answer under Michigan law as to whether he's entitled to unjust enrichment for that work? [00:26:31] Speaker 01: Our answer is twofold. [00:26:33] Speaker 01: First, under Michigan law itself, there is no case that Mr. Berry has cited anywhere that someone who was ultimately paid [00:26:41] Speaker 01: as a result of an interim pre-contractual. [00:26:43] Speaker 00: Okay, now let's take the ultimate payment. [00:26:45] Speaker 00: Let's suppose that, I'm really trying to get a sense of whether someone who walks in the door, works for a while, and then is shown the door, they don't get an ultimate contract under Michigan law, whether that person would be entitled to unjust enrichment. [00:26:59] Speaker 00: Because your opposing counsel is saying absolutely they are under Michigan law and sites of Michigan Court of Appeals case. [00:27:06] Speaker 01: Sure, he's citing V&M Die, which is a case in which there was, again, no subsequent contract paid. [00:27:12] Speaker 01: But even then, the question has to be whether, in light of the circumstances, there was a reasonable expectation. [00:27:19] Speaker 01: And here, there's no reasonable expectation of payment when Mr. Berry essentially volunteered his services. [00:27:27] Speaker 01: Upon request. [00:27:29] Speaker 01: Upon request that he come give a pitch, just like a law firm might. [00:27:33] Speaker 03: But he was given an office, right? [00:27:36] Speaker 01: The record isn't entirely clear on the extent of his relationship with the court, but yes, I think so. [00:27:42] Speaker 01: I do want to be clear here, even if this court goes down this route, which at this point we've sloughed off multiple of the facts that were in place here, but even if the court does, B&M die and the circumstances there could be preempted by this court's decision in ultra-precision. [00:28:00] Speaker 01: And the claim that Mr. Berry makes here is not for services rendered over the course of a couple months. [00:28:06] Speaker 01: It's for Ford's use of patented information. [00:28:09] Speaker 01: And he claims that he shared technical information without secrecy or without a confidentiality agreement. [00:28:15] Speaker 03: So that's probably why they're not addressing the IP aspect of the case. [00:28:22] Speaker 03: Bell Owl Grill Corporation versus City of Detroit says that a contract will be implied only if there's no express contract covering the same subject matter. [00:28:32] Speaker 03: And here, [00:28:34] Speaker 03: The subsequent contract would cover the same subject matter if we're talking about the IP intellectual property matters, but probably not if it's technical information. [00:28:48] Speaker 01: Sure. [00:28:49] Speaker 01: Your Honor, maybe I've been unclear here. [00:28:50] Speaker 01: Let me lay it out this way. [00:28:52] Speaker 01: Mr. Berry is trying to have it both ways. [00:28:55] Speaker 01: At the motion to dismiss stage, Ford said, you are seeking compensation for technical information, and so you are [00:29:03] Speaker 01: doing exactly what this court has said and ultra-precision cannot be done and your claim is preempted. [00:29:10] Speaker 01: And Mr. Berry said, no, because actually I'm seeking information related to the patents themselves. [00:29:17] Speaker 01: I am the owner of the patents. [00:29:19] Speaker 01: And that allowed him to survive his motion to dismiss. [00:29:22] Speaker 01: So he ran from ultra-precision and now he runs directly into Preston, which says, okay, if what we're talking about is the intellectual property here, [00:29:31] Speaker 01: not some sort of technical information, then, in fact, Ford owns that intellectual property. [00:29:37] Speaker 01: And it can't be faulted for failing to pay you for using the intellectual property that it owns. [00:29:44] Speaker 01: So Mr. Berry's theory has shifted here. [00:29:47] Speaker 01: On one end, it's covered by ultra-precision. [00:29:50] Speaker 01: On the other end, it's covered by Preston. [00:29:52] Speaker 01: And that's even putting aside any concerns the court may have about Michigan law here. [00:29:58] Speaker 01: I just want to, with my remaining time, I want to briefly address jurisdiction. [00:30:03] Speaker 01: Because Ford does not, in fact, believe Mr. Berry has standing to bring his inventorship claim. [00:30:08] Speaker 01: But jurisdiction in this case lie not because of the inventorship claim, but because the state law claims, as originally pleaded, necessarily raised a substantial question of federal patent law. [00:30:22] Speaker 01: And that's because, as originally pleaded, under the theory that Mr. Berry originally had [00:30:28] Speaker 01: He had to demonstrate both for his unjust enrichment claim and for a fraudulent inducement claim that is no longer at issue. [00:30:36] Speaker 01: He had to demonstrate that he was, in fact, the sole inventor of the patents. [00:30:41] Speaker 01: And so the state law claims themselves raised a question of inventorship. [00:30:48] Speaker 01: That's just like this court has said in cases like HIF Bio, in cases like Shum. [00:30:54] Speaker 01: If the theory in the complaint necessarily requires [00:30:58] Speaker 01: a determination of inventorship, then that's enough for jurisdiction. [00:31:04] Speaker 04: Do you think there's an alternative theory for affirming the district court, that there is just a lack of evidentiary proof that an actual benefit was conferred during the fall of 2006? [00:31:15] Speaker 01: Your Honor, I think that is a reasonable theory for this court to affirm on. [00:31:22] Speaker 01: Again, it in some ways depends on which of Mr. Barry's theories the court wishes to credit. [00:31:28] Speaker 01: but to the extent it is crediting his technical information theory, then that would be available. [00:31:34] Speaker 03: OK. [00:31:35] Speaker 03: Thank you very much. [00:31:35] Speaker 03: Thank you. [00:31:41] Speaker 03: Mr. Sprinkle, I'm going to extend your time back to three minutes. [00:31:46] Speaker 02: Thank you, Your Honor. [00:31:47] Speaker 02: I'm going to just address some of the things that the council addressed. [00:31:52] Speaker 02: First, the preemption argument has been raised. [00:31:55] Speaker 02: And this is a violation of the patent law. [00:31:57] Speaker 02: and so forth. [00:31:59] Speaker 02: It hasn't been raised before, but it fails. [00:32:02] Speaker 02: As counsel pointed out in their briefing, unjust enrichment has another element. [00:32:07] Speaker 02: Another element is there must be a request. [00:32:09] Speaker 02: One cannot burst into the Fort headquarters and say, I've got a great idea, and have there be unjust enrichment. [00:32:15] Speaker 02: In this case, they requested that Mr. Berry came in. [00:32:18] Speaker 02: They requested that he come in, and they told him the problem, and he provides some solutions. [00:32:23] Speaker 02: That's a little different than pitching your own idea. [00:32:25] Speaker 03: Another requirement for unjust enrichment is that the retention of the benefit had to have been unjust. [00:32:37] Speaker 02: The unjust is that they made a lot of money off of the technical information that he provided. [00:32:44] Speaker 02: And that benefit, the money that they made from it, is sufficient to be unjust. [00:32:51] Speaker 02: But on the preemption argument, [00:32:52] Speaker 02: The request, that's the additional element. [00:32:59] Speaker 04: The confusion for me about the argument that they made a lot of money off of the benefit is that whatever he provided in the fall of 2006, it wasn't siloed off from everything else that he did under the contracts for the following few years. [00:33:19] Speaker 04: I mean, it was all connected together. [00:33:22] Speaker 04: These were projects that he started thinking about and tinkering with in the fall. [00:33:27] Speaker 04: And then they continued on under the contracts that now he was getting paid. [00:33:33] Speaker 02: I don't think that's an accurate statement, to be honest. [00:33:36] Speaker 02: What he did is he designed the architecture. [00:33:39] Speaker 02: And he was called the chief architect by independent witnesses. [00:33:44] Speaker 02: But he designed the architecture for the overall sync system. [00:33:47] Speaker 02: And then it had to be built. [00:33:50] Speaker 02: He built one component of that, which is CSDM. [00:33:53] Speaker 02: There's one other thing I do want to address, and that's the only one. [00:33:55] Speaker 04: And where's the evidence in the record of what he did beyond what he said, what he testified to what he did? [00:34:05] Speaker 02: Well, he certainly testified of what he did. [00:34:06] Speaker 02: Yes, I understand that. [00:34:08] Speaker 02: And we certainly have testimony from Mark Scalf and Mr. Nixon, who were independent. [00:34:13] Speaker 04: But none of those refer back to what he did in 2006. [00:34:17] Speaker 02: Yes, they said that he designed, he was the architect for the SYNC system in 2006. [00:34:23] Speaker 04: Oh, where does it say that in 2006, that he did this particular work in 2006? [00:34:32] Speaker 02: Because the architecture had to be designed before it got funded by the PPC in November 2006. [00:34:37] Speaker 02: Can I say one thing about the ultra-precision case? [00:34:41] Speaker 02: Yes. [00:34:42] Speaker 02: Thank you. [00:34:43] Speaker 02: The ultra-precision case really doesn't have much effect here either. [00:34:47] Speaker 02: It's really, they have a pleading problem. [00:34:50] Speaker 02: They pled that they wanted a royalty, just like a patent royalty. [00:34:54] Speaker 02: They said, you can't do that. [00:34:55] Speaker 02: Federal law preempts that. [00:34:57] Speaker 02: And the judge said, why don't you go back in a minute to just say unjust enrichment? [00:35:02] Speaker 02: The benefit. [00:35:03] Speaker 02: And they declined to amend the complaint to plead unjust enrichment. [00:35:08] Speaker 02: So they lost. [00:35:09] Speaker 02: But that was really the ultimate precision case was really just a pleading problem. [00:35:14] Speaker 00: Thank you very much.