Case 6:17-cv-01217-EFM-ADM Document 106 Filed 01/19/21 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`LOGANTREE LP,
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` vs.
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`GARMIN INTERNATIONAL, INC. and
`GARMIN USA, INC.,
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`Plaintiff,
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`Defendants.
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` Case No. 17-1217-EFM-ADM
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`MEMORANDUM AND ORDER
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`Plaintiff LoganTree LP is the owner of U.S. Patent No. 6,059,576, entitled “Training and
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`Safety Device, System and Method to Aid in Proper Movement During Physical Activity” (the
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`“Patent”). The Patent claims an electronic device, system, and method that monitors the movement
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`of an individual’s body parts during physical activity. LoganTree filed this lawsuit against Garmin
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`International, Inc., and Garmin USA, Inc. (“Garmin”) alleging that Garmin’s accelerometer-based
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`activity trackers infringe the Patent.
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`This matter comes before the Court on the parties’ request that the Court construe certain
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`terms in the Patent’s claims as a matter of law pursuant to Markman v. Westview Instruments, Inc.1
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`The Court has thoroughly considered the information submitted in the parties’ briefs as well as the
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`152 F.3d 967 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996).
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`Case 6:17-cv-01217-EFM-ADM Document 106 Filed 01/19/21 Page 2 of 13
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`oral arguments presented at the Markman hearing on December 18, 2020, and construes the
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`disputed terms as set forth below.
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`I.
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`Legal Standard
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`The first step in a patent infringement action is to determine the meaning and scope of the
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`asserted patent’s claims.2 Claim construction is an issue of law for the Court to decide.3 Only
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`after the Court has properly construed a patent’s claims may it determine whether the accused
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`method or product infringes the claim as properly construed.4
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`The Federal Circuit Court of Appeals set forth a comprehensive guide for claim
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`construction in Phillips v. AWH Corp.5 In Phillips, the Federal Circuit reiterated that the claims
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`of the patent define the patentee’s invention, and to that end, claim construction begins with the
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`claim language itself.6 “The words of a claim are generally given their ordinary and customary
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`meaning.”7 The “ordinary and customary meaning” is “the meaning that the term would have to
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`a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective
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`filing date of the application.”8 “[T]he claims themselves provide substantial guidance as to the
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`meaning of particular claim terms.”9 Both “the context in which a term is used in the asserted
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`2 Id.
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`3 Id. at 979.
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`4 Id. at 976.
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`5 415 F.3d 1303 (Fed. Cir. 2005) (en banc).
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`6 Id. at 1312.
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`7 Id. (citation and quotation marks omitted).
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`8 Id. at 1313 (citations omitted).
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`9 Id. at 1314.
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`Case 6:17-cv-01217-EFM-ADM Document 106 Filed 01/19/21 Page 3 of 13
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`claim” and the “[o]ther claims of the patent in question” are helpful for understanding the ordinary
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`meaning of a term.10
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`“The claims . . . do not stand alone, [and] they are part of ‘a fully integrated written
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`instrument.’ ”11 Therefore, “they ‘must be read in view of the specification, of which they are a
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`part.’ ”12 The specification “is always highly relevant to the claim construction analysis. Usually,
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`it is dispositive; it is the single best guide to the meaning of a disputed term.”13 The specification
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`may reveal a special definition that a patentee has given a claim term that is different from the
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`meaning the term would otherwise possess.14 In that instance, the patentee’s definition controls.
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`Or, the specification may reveal “an intentional disclaimer, or disavowal, of claim scope” by the
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`patentee.15 In that instance as well, the patentee’s intention, as expressed in the specification, is
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`dispositive.16 The fact, however, that the specification includes preferred embodiments or specific
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`examples is not enough to define a term implicitly, and “it is improper to confine the scope of the
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`claims to the embodiments of the specification.”17
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`10 Id.
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`11 Id. at 1315 (quoting Markman, 52 F.3d at 978).
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`12 MGP Ingredients, Inc. v. Mars, Inc., 494 F. Supp. 2d 1231, 1234 (D. Kan. 2007) (quoting Phillips, 415
`F.3d at 1315).
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`13 Phillips, 415 F.3d at 1315 (quotation omitted).
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`14 Id. at 1316.
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`15 Id.
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`16 Id.
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`17 Mars, 494 F. Supp. 2d at 1234 (citing Phillips, 415 F.3d at 1323).
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`A court “should also consider the patent’s prosecution history, if it is in evidence.”18 This
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`consists of “the complete record of the proceedings before the PTO and includes the prior art cited
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`during the examination of the patent.”19 The prosecution history provides “evidence of how the
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`PTO and the inventor understood the patent.”20 Because, however, the prosecution history is an
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`ongoing negotiation between the patentee and the patent examiner, it “lacks the clarity of the
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`specification and thus is less useful for claim construction purposes.”21 Regardless, “the
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`prosecution history can often inform the meaning of the claim language by demonstrating how the
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`inventor understood the invention and whether the inventor limited the invention in the course of
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`prosecution, making the claim scope narrower than it would otherwise be.”22
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`Finally, a court may rely on extrinsic evidence, which consists of “all evidence external to
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`the patent and prosecution history, including expert and inventor testimony, dictionaries, and
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`learned treatises.”23 The Federal Circuit has found that technical dictionaries may provide a court
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`“ ‘to better understand the underlying technology’ and the way in which one of skill in art might
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`use the claim terms.”24 And, extrinsic evidence in the form of expert testimony can provide
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`background on the technology at issue, explain how an invention works, or establish that a
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`18 Phillips, 415 F.3d at 1317 (citation omitted).
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`19 Id.
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`20 Id.
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`21 Id.
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`22 Id.
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`23 Id.
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`24 Id. at 1318 (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1584 n.6 (Fed. Cir. 1996)).
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`particular term in the patent or prior art has a particular meaning in the pertinent field.25 But,
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`“conclusory, unsupported assertions by experts as to the definition of a claim term are not useful
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`to a court.”26 Overall, although “extrinsic evidence can shed useful light on the relevant art, . . . it
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`is less significant than the intrinsic record in determining the legally operative meaning of claim
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`language.”27
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`III. Analysis
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`There are four claim construction disputes for the Court to resolve. The disputed terms are
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`found in claims 1 and 20 of the Patent. Claim 1 states as follows, with the disputed terms in bold:
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`1. A portable, self-contained device for monitoring movement of body parts during
`physical activity, said device comprising:
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` a
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` movement sensor capable of measuring data associated with unrestrained
`movement in any direction and generating signals indicative of said movement;
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` power source;
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` a
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` a
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` microprocessor connected to said movement sensor and to said power source, said
`microprocessor capable of receiving, interpreting, storing and responding to said
`movement data based on user-defined operational parameters, detecting a first user-
`defined event based on the movement data and at least one of the user-defined
`operational parameters regarding the movement data, and storing first event
`information related to the detected first user-defined event along with first time
`stamp information reflecting a time at which the movement data causing the
`first user-defined event occurred;
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`at least one user input connected to said microprocessor for controlling the
`operation of said device;
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` a
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` real-time clock connected to said microprocessor;
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`memory for storing said movement data; and
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`25 Id.
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`26 Id.
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`27 Id. (quotation omitted).
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`an output indicator connected to said microprocessor for signaling the occurrence
`of user-defined events;
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`wherein said movement sensor measures the angle and velocity of said movement.
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`Claim 20 states as follows, with the disputed terms in bold:
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`20. A method to monitor physical movement of a body part comprising the steps
`of:
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`attaching a portable, self-contained movement measuring device to said body part
`for measuring unrestrained movement in any direction;
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`measuring data associated with said physical movement;
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`interpreting, using a microprocessor included in the portable self-contained
`movement measuring device, said physical movement data based on user-defined
`operational parameters and a real-time clock;
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`storing said data in memory;
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`detecting, using the microprocessor, a first user-defined event based on the
`movement data and at least one of the user-defined operational parameters
`regarding the movement data; and
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`storing, in said memory, first event information related to the detected first user-
`defined event along with first time stamp information reflecting a time at
`which the movement data causing the first user-defined event occurred.
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`In short, the disputed terms are (1) “first time stamp information reflecting a time at which the
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`movement data causing the first user-defined event occurred,” (2) “angle,” (3) “velocity,” and (4)
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`“unrestrained movement in any direction.” To the extent these terms are used in both claim 1 and
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`claim 20, the parties have not offered different constructions depending on the claim. Therefore,
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`the Court’s construction is assigned to each term wherever it appears in the claims at issue.
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`A.
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`“First time stamp information reflecting a time at which the movement data causing
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`the first user-defined event occurred”
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`Garmin contends that this term should be construed as “first time stamp information
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`reflecting a system time at which the movement data causing the first user-defined event occurred.”
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`Initially, LoganTree argued that no construction was necessary but proposed an alternate
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`construction should the Court construe the term. That construction was “first time stamp
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`information reflecting a system time associated with the movement data occurrence causing the
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`first user-defined event.” At the Markman hearing, LoganTree withdrew its alternate proposed
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`construction and simply asserted that no construction was necessary.
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`Garmin argues that the term “system” should be included because the Patent explains that
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`the time stamp is a “system time at which” the movement data causing the defined event occurred.
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`In support of this argument, Garmin points to the Abstract, which states that the device is meant
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`to be worn on an individual and that when a specific goal is recognized, the “device records the
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`time and date of the occurrence.”28 Garmin next points to the specification, which states that the
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`time and date of a specific event come from a real-time clock connected to the microprocessor,
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`which is the clock used by the system.29 Finally, Garmin argues that precision is also important
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`because the specification states that one of the “significant features” of the invention is that it
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`“gives instant information to the wearer at the moment of incorrect movement and also records the
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`information for future reference and analysis.”30
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`28 Doc. 85-2, p. 2.
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`29 See Doc. 85-2, p. 14, col. 5, ll. 35-47 and p. 14, col. 6, ll. 6-9.
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`30 Doc. 85-2, p. 14, col. 6, ll. 15-19.
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`At the Markman hearing, LoganTree agreed with Garmin that the time stamp information
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`is from the system. LoganTree also agreed that the claims are precise in nature and require the
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`time stamp information to be a time “at which” the movement data causing the defined event
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`occurred. LoganTree argued, however, that the inclusion of the term “system” requires the time
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`to be measured to a precise degree not required by the claims. According to LoganTree, the term
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`“system time” has a certain meaning in the world of technology, and a “system time” is often
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`measured to the millisecond or nanosecond. LoganTree thus argued that while the time stamp
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`information reflects a time at which the movement data occurred, there must be some flexibility
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`in the unit measurement of that time, meaning that the time stamp information could reflect the
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`hour or even the day the movement data occurred.
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`The Court is not persuaded by LoganTree’s arguments. The use of the term “system time”
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`does not mean that the time is automatically measured to the millisecond or nanosecond. A
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`“system time” is only this precise if the system itself measures time to that degree of particularity.
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`Furthermore, neither the intrinsic nor extrinsic evidence state that there must be flexibility in the
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`unit of time measurement. According to the specification, the time stamp information is a
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`recording of the time obtained from the system’s real time clock.31 The specification does not
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`specify the unit of measurement for that clock. Thus, the time stamp information is going to be
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`measured based on the unit of measurement that the real-time clock is programmed to obtain,
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`whether that be nanoseconds, seconds, minutes, or some other unit of measurement.
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`31 See Doc. 85-2, p. 7, fig. 4 (noting the clock connected to the microprocessor); Id. p. 14, col. 5, ll. 35-37
`(“The clock also serves as a real time clock to provide date and time information to the microprocessor”; Id. p. 15,
`col. 5, ll. 44-47 (“If a recordable event occurs, the microprocessor retrieves the date/time stamp from the clock and
`records the event information along with the date/time stamp in memory.”); Id. p. 16, col. 9, ll. 48-51 (“If the first
`angle limit has been exceeded, the microprocessor . . . records the event along with the date and time.”).
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` After considering the parties’ arguments for construing this term, the Court construes “first
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`time stamp information reflecting a time at which the movement data causing the first user-defined
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`event occurred” to mean “first time stamp information reflecting the time recorded or noted by the
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`system at which the movement data causing the first-user defined event occurred.”
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`B.
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`“Angle” and “Velocity”
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`Garmin proposes that the term “angle” should be construed as “the space between two
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`intersecting planes at the point where they meet.” LoganTree argues that no construction is
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`necessary, but if the Court does construe the term, then the Court should use Garmin’s definition
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`along with the following definition: “a measure of the amount of turning necessary to bring one
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`line or plane into coincidence with or parallel to another.”
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`Garmin proposes that the term “velocity” should be construed as “the speed of something
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`in a given direction.” LoganTree argues that no construction is necessary, but if the Court does
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`construe the term, it should define it as “rate of change of angular position.”
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`Based on the parties’ arguments at the Markman hearing, the Court understands the parties’
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`dispute to be whether the term “angle” or the term “velocity” encompasses “angular velocity.”
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`During the hearing, LoganTree argued that the term “velocity” is not limited to “linear velocity”
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`as Garmin’s proposed definition suggests, and that the patent’s specification describes the device
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`as measuring the angular velocity of the user’s movement. In response, Garmin argued that neither
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`“angle” nor “velocity” include “angular velocity,” and if LoganTree intended that the patented
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`device measure “angular velocity” then it should have included it in the claim language. Garmin’s
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`position is somewhat confusing, however, because in its reply, Garmin agreed to LoganTree’s
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`alternate proposed construction for the term “velocity,” and that alternate proposed construction
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`incorporates “angular velocity” by definition.32
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`The Court agrees with LoganTree that the term “velocity” in the claim language includes
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`angular velocity. The specification states that the device measures both linear and angular velocity.
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`For example, the specification states that one object of the invention is “to provide a system which
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`monitors, records and analyzes the time, date, angle of movement, and angular velocity of physical
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`movement for subsequent interpretation.”33 It also states that the device is capable of measuring
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`“the distance the wearer walks and how fast he walked.”34 And, it states that in a preferred
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`embodiment, the movement sensor on the device is “an accelerometer capable of detecting angles
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`of movement in multiple planes as well as velocity at which the movement occurs.”35
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`The Court understands the parties’ dispute to arise only in the context where the term
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`“velocity” means “angular velocity.” Therefore, the Court limits its construction of the term
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`“velocity” to that usage and not others. Within that usage, the Court adopts the parties agreed-
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`upon construction and defines “velocity” to mean “rate of change of angular position.”
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`As to the term “angle,” the Court declines to construe this term. Having addressed the
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`“angular velocity” dispute in the construction of the term “velocity,” the Court sees no dispute
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`between the parties regarding the scope of this term. Furthermore, “angle” is not a complicated,
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`32 Angular Velocity, Dictionary.com, http://dictionary.com/browse/angular-velocity (last visited Jan. 12,
`2021) (defining “angular velocity” as “the time rate of change of angular position of a rotating body, usually expressed
`in radians per second or radians per minute”).
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`33 Doc. 85-2, p. 12, col. 2, ll. 38-41.
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`34 Doc. 85-2, p. 13, col. 3, ll. 14-16.
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`35 Doc. 85-2, p. 13, col. 4, ll. 41-45.
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`complex term, and it is easily understood by a person of minimal education.36 Therefore, the Court
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`concludes that no construction is necessary.
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`C.
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`“Unrestrained movement in any direction”
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`Garmin contends that the term “unrestrained movement in any direction” is indefinite
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`under 35 U.S.C. § 112 because LoganTree has used the term inconsistently before the U.S. Patent
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`Trial and Appeal Board and this Court. LoganTree contends that the term is definite but the Court
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`should defer ruling on this issue until the summary judgment phase of litigation. Both parties
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`agree that if the Court defers ruling on the indefiniteness of the term, then no construction of the
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`term is necessary.
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`“[A] patent is invalid for indefiniteness if its claims, read in light of the specification
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`delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those
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`skilled in the art about the scope of the invention.”37 “The definiteness standard ‘must allow for a
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`modicum of uncertainty’ to provide incentives for innovation, but must also require ‘clear notice
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`of what is claimed, thereby appris[ing] the public of what is still open to them.’ ”38 Federal district
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`courts, however, have found that “ ‘several well-settled principles tend to discourage rulings on
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`indefiniteness at the Markman stage.’ ”39 “First, the burden of proof is higher for establishing
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`36 See Summit 6, LLC v. Samsung Elec. Co., Ltd., 802 F.3d 1283, 1291 (Fed. Cir. 2015) (noting that the
`district court did not err in declining to construe a term when the term was straightforward); cf. Eon Corp., IP Holdings,
`LLC v. Silver Spring Network, Inc., 815 F.3d 1314, 1320 (Fed. Cir. 2016) (finding that because the scope of the terms
`at issue was disputed during claim construction, the court improperly left the issue of claim scope to the jury when it
`construed the terms as having their plain and ordinary meaning).
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`37 Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901 (2014).
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`38 Interval Licensing, LLC v. AOL, Inc., 766 F.3d 1364, 1370 (Fed. Cir. 2014) (quoting Nautilus, 572 U.S. at
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`909).
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`39 Uretek Holdings, Inc. v. YD W. Coast Homes, Inc., 2016 WL 3021880, at *3 (M.D. Fla. 2016) (quoting
`CSB-Sys. Int’l, Inc. v. SAP Am., Inc., 2011 WL 3240838, at *17 (E.D. Pa. 2011)); see also Capstan AG Sys., Inc. v.
`Raven Indus., Inc., 2018 WL 953112, at *14 (D. Kan. 2018).
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`indefiniteness than it is for establishing a term’s construction.”40 “Second, the legal standard for
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`evaluating
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`indefiniteness
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`is different from [the standard] for determining
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`the
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`term’s
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`construction.”41 This is because, “unlike a Markman proceeding that gives meaning to patent
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`claims, indefiniteness invalidates the claims entirely.”42 Furthermore, the Federal Circuit has
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`stated that it “certainly [has] not endorsed a regime in which validity analysis is a regular
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`component of claim construction.”43
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`Based on these principles, courts often decline to make invalidity determinations at the
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`Markman stage.44 These courts have reasoned that “it would be more appropriate and logical to
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`defer the full consideration of any potential indefiniteness challenge to the summary judgment
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`stage, after all fact and expert discovery has been completed.”45 This Court adopts the same
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`reasoning here and declines to rule on Garmin’s indefiniteness argument on the term “unrestrained
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`movement in any direction” at this time.
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`The parties do not otherwise argue that this claim term is in dispute. In fact, at the Markman
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`hearing, both parties agreed that if the Court did not rule on the indefiniteness issue at this time,
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`then the Court need not construe the term. Therefore, the Court defines the term “unrestrained
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`movement in any direction” according to its plain and ordinary meaning.
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`40 Uretek, 2016 WL 3021880, at *3 (emphasis omitted).
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`41 Id. (emphasis omitted).
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`42 CSB-Sys., 2011 WL 3240838, at *18.
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`43 Phillips, 415 F.3d at 1327.
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`44 Uretek, 2016 WL 3021880, at *3 (collecting cases).
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`45 Id.
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`In summary, the Court construes the term “first time stamp information reflecting a time
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`at which the movement data causing the first user-defined event occurred” as “first time stamp
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`information reflecting the time recorded or noted by the system at which the movement data
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`causing the first user-defined event occurred.” The Court concludes that no construction is
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`necessary for the term “angle” and construes the term “velocity” as “rate of change of angular
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`position.” The Court declines to rule on Garmin’s argument that the term “unrestrained movement
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`in any direction” is indefinite and further concludes that no construction is necessary for this term.
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`IT IS THEREFORE ORDERED that the disputed terms of the Patent are construed as
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`set forth in this Order on the 19th day of January, 2021.
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`IT IS SO ORDERED.
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`Dated this 19th day of January, 2021.
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`ERIC F. MELGREN
`UNITED STATES DISTRICT JUDGE
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