Case 6:17-cv-01217-EFM-ADM Document 11 Filed 10/24/17 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`DISTRICT OF KANSAS
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`Case No. 6:17-cv-01217
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`LOGANTREE LP,
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` Plaintiff,
`vs.
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`GARMIN INTERNATIONAL, INC.,
`GARMIN USA, INC., and GARMIN, LTD,
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`Defendants.
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`GARMIN’S MEMORANDUM OF LAW IN SUPPORT OF ITS
`MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6)
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`The current lawsuit is LoganTree’s third attempt to set forth a complaint that identifies a
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`plausible claim of patent infringement against Garmin International, Inc. and Garmin, USA, Inc.
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`(“Garmin”).1 Unfortunately, it fares no better and continues a troubling pattern of LoganTree
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`failing to set forth any good faith basis for its allegations. LoganTree previously filed suit against
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`Garmin in the Western District of Texas. In that complaint, LoganTree failed to provide any
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`allegations as to how Garmin’s products allegedly infringed the below key limitation of the
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`patent—as required by Federal Circuit precedent:
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`•  
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` “storing . . . the first time stamp information reflecting a time at which the movement
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`data causing the first user-defined event occurred.”
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`After a telephone conference between the parties, LoganTree admitted it could not
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`provide the required details on how Garmin’s products infringed this limitation of the ‘576
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`patent. Garmin was then forced to file a Motion to Dismiss LoganTree’s initial complaint
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`                                                                                                                
`1 As used in this motion, “Garmin” refers to Garmin International, Inc. and Garmin USA, Inc.
`Named defendant Garmin, Ltd. has not been served and is not voluntarily appearing in this
`lawsuit through this motion.
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`1
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`detailing how LoganTree’s complaint ignored this critical limitation. After LoganTree was
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`unable to provide those critical details in its responsive brief, Garmin noted in its Reply brief that
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`LoganTree’s position raised serious concerns that it had failed to conduct an adequate pre-suit
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`investigation, as required by Rule 11. While the Western District of Texas never had a chance to
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`rule on that Motion,2 LoganTree implicitly acknowledged the merit of Garmin’s position when it
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`refiled its Complaint in the present action (“Complaint”) by attempting to cover up its prior
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`shortcomings.
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`Unfortunately, while LoganTree’s complaint is long on words and charts, it still fails to
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`explain how Garmin’s products allegedly infringe this key limitation. The inclusion of claim
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`charts is a new development, presumably done to give the appearance that LoganTree did, in
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`fact, have a viable infringement theory. But LoganTree’s claim chart is still silent on how
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`Garmin’s products are “storing” as required by the asserted patent claims. The charts simply do
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`not provide any details whatsoever on where or how Garmin’s products store a time stamp
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`reflecting a time at which the movement data causing the first user-defined event occurred.
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`LoganTree’s third bite at the apple raises significant questions as to its good faith basis to
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`bring this suit. In two separate briefs to the court, Garmin identified this very same key limitation
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`from the asserted patent claims and LoganTree still cannot identify how Garmin’s accused
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`products infringe (or meet) that key “storing” limitation. Garmin should not be forced to
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`repeatedly expend its time and resources defending infringement claims that LoganTree knows,
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`or should know, lack any plausible basis for infringement. Accordingly, Garmin respectfully
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`requests this Court dismiss LoganTree’s Complaint with prejudice.
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`                                                                                                                
`2 The Case was dismissed for improper venue and then, after a significant delay, was refiled in
`Kansas.    
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`2
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`Case 6:17-cv-01217-EFM-ADM Document 11 Filed 10/24/17 Page 3 of 14
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`I.   LEGAL STANDARDS
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`A complaint should be dismissed pursuant to Rule 12(b)(6) when it fails to plead “enough
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`facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
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`544, 570 (2007). A “mere possibility” is not enough. Ashcroft v. Iqbal, 556 U.S. 662, 679
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`(2009). A complaint demonstrates plausibility when “the plaintiff pleads factual content that
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`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Iqbal, 556 U.S. at 678.
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`Prior to December of 2015, to sufficiently plead direct infringement, a Plaintiff needed
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`only comply with the minimal requirements of Form 18, which set forth a sample direct
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`infringement pleading. These requirements included:
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`(1) an allegation of jurisdiction; (2) a statement that the plaintiff owns the patent;
`(3) a statement that defendant has been infringing the patent “by making, selling,
`and using [the device] embodying the patent”; (4) a statement that the plaintiff has
`given the defendant notice of its infringement; and (5) a demand for an injunction
`and damages.
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` Lyda v. CBS Corp., 838 F.3d 1331, 1338 (Fed. Cir. 2016). However, Form 18 was abrogated in
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`December of 2015, and since then courts have consistently held that a Plaintiff pleading direct
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`infringement has the burden of meeting the standards set forth by the Supreme Court in Iqbal and
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`Twombly. See, e.g., Gracenote, Inc. v. Sorenson Media, Inc., No. 2:16-cv-950 CW, 2017 WL
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`2116173 at *2 (D. Utah May 15, 2017) (noting that the case law following the abrogation of
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`Form 18 strongly suggested that the Iqbal and Twombly standard applied to the pleading of direct
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`infringement).
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`Under Iqbal/Twombly, establishing a plausible basis for infringement requires Plaintiff to
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`show how the Accused Products infringe each limitation of at least one claim of the asserted
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`patent. See e.g., Atlas IP, LLC v. Exelon Corp., 189 F.Supp.3d 768, 775 (N.D. Ill. May 17, 2016)
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`(requiring factual allegations that allow a court to infer that the accused product meets each
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`limitation of at least one claim to meet the standards set forth under Iqbal and Twombly). The
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`“limitations” are the distinct parts or steps that describe the patented invention, and which are
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`recited within the patent’s claims. See, e.g., Duz-Mor, Inc. v. Hein-Werner Corp., No. 87-1643-
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`MLB, 1994 WL 715628, *4 (D. Kan. Dec. 2, 1994). Accordingly, to comply with the pleading
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`standard established by the Supreme Court in Iqbal/Twombly, the Plaintiff must show that the
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`Accused Products contain each and every one of the distinct parts or steps set forth in at least one
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`of the asserted claims. If even a single limitation is missing, the Plaintiff has failed to comply
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`with its burden. Id.
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`PROCEDURAL BACKGROUND
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`A.
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`The Reexamined ‘576 Patent
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`The ‘576 patent, which is entitled “Training and Safety Device, System and Method To
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`Aid In Proper Movement During Physical Activity,” originally issued on May 9, 2000 with 29
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`claims. Dkt. 1 Ex. A. Each of those claims required a “portable, self-contained’ device capable
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`of measuring data associated with “unrestrained movement in any direction.” See id.,
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`independent claims 1 and 13.
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`Fourteen years later, on April 4, 2014, LoganTree filed a reexamination request with the
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`United States Patent and Trademark Office. Dkt. 1 Ex. B. None of the 29 originally-issued
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`claims survived the reexamination. Id. Instead, through the reexamination process, LoganTree
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`was forced to add narrowing limitations to argue around the prior art. In particular, LoganTree
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`added the following two limitations to all of the claims:
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`•   “detecting a first user-defined event based on the movement data and at least one of the
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`user-defined operational parameters regarding the movement data,” and
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`4
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`•   “storing . . . the first time stamp information reflecting a time at which the movement
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`data causing the first user-defined event occurred.”
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`Dkt. 1 ¶ 25 (reciting above-referenced limitations in “Claim 1 (the ‘Device Claim’)”, ¶ 28
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`(reciting above-referenced limitations in “Claim 13 (the ‘System Claim’), and ¶ 30 (reciting
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`above-referenced limitations in “Claim 20 (the ‘Method Claim’);” see also Dkt. 1 Ex. B
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`(emphasis added). All 185 claims of the Reexamined ‘576 patent include these limitations. Dkt.
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`1 Ex. B.
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`Explicit in the claim language is the requirement that the “user-defined event” must be
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`caused by movement data (such as the angle and velocity of the user’s movement, see Dkt. 1 Ex.
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`B, Reexamined ‘576 patent claim 1) and at least one of the other user-defined operational
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`parameters (such as, for example, the “angular levels at which notices will be generated,” ‘576
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`patent at 7:11-14). Then, a “time stamp” is stored that reflects the time when the user-defined
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`event occurs.
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`As is evident from the prosecution history, LoganTree added these limitations as
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`“clarifying amendments” to “tie the claimed first time stamp information such that it reflects a
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`time at which the movement data causing the first user-defined event occurred.” Ex. A
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`(Response to Ex Parte Reexamination Final Office Action, Jan. 9, 2015, p. 48).3 The following
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`example provided by LoganTree during the reexamination is instructive:
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`                                                                                                                
`3 In deciding a Rule 12(b)(6) motion, a court may take judicial notice of the prosecution
`histories, which are “public records.” Won-Door Corp. v. Cornell Iron Works, Inc., No. 2:13-
`CV-331 TS, 2014 WL 119320 at *2 (D. Utah Jan. 13, 2014) (noting that in the Tenth Circuit,
`district courts are allowed “to take judicial notice of patent documents such as the patent’s
`prosecution history.”); Fin. Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir.
`2006) (“[i]n ruling on Rule 12(b)(6) motions,” courts are permitted “to rely on matters of public
`record”); Genetic Techs. Ltd. v. Bristol-Myers Squibb Co., 72 F. Supp. 3d 521, 526 (D. Del.
`2014) (noting that patent prosecution histories are “public records”).
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`For instance, upon detection of the event, such as when a user’s measured
`movement passes a given angle (or some other type of movement threshold), time
`stamp information is recorded. This recorded time stamp information reflects a
`time at which the user’s movements (e.g., passing the given angle) caused the
`event to occur . . . .
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`Id. (emphasis added). Importantly, LoganTree repeatedly disclaimed a user manually pushing a
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`button to indicate movement, making clear that the claims of the Reexamined ‘576 patent
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`required that “the microprocessor” must detect the user-defined event (i.e., the movement data
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`and operational parameters) and store time-stamp information reflecting the time at which the
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`movement data causing the event occurred:
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`For example, in the Office Action, it is asserted that the alleged event in Flentov
`occurs when the user (skier) pushes a button 58 instructing the system to stop
`recording movement data . . . PO respectfully submits that even if Flentov is
`interpreted this way, it still does not teach the claimed detection operation because
`the Examiner is overlooking the fact that the claims require the microprocessor
`to detect a first user-defined event based on the movement data and at least one
`of the user-defined operational parameters.
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`That is, the event is detected by the microprocessor based on the movement data,
`not the user. . . .
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`Id. at 50-51 (emphasis in original); see also id. at 56 (disclaiming Vock prior art “teachings of a
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`user pressing the start/stop button 58 to signal the end of a run (e.g., down a hill) as
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`corresponding to the claimed event detection,” emphasizing that “the claimed microprocessor”
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`must detect the event “based on the movement data” and store the time stamp).
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`B.
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`LoganTree’s Initial Complaint Against Garmin in the Western District of Texas
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`LoganTree filed its initial complaint against Garmin on February 10, 2017, in the
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`Western District of Texas. LoganTree LP v. Garmin Int’l, Inc. et al., No. 5:17-cv-00098, Dkt. 1
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`(W.D. Tex. Feb. 10, 2017). The initial complaint generally alleged direct infringement of the
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`“Reexamined ‘576 Patent,” referencing each of the three independent claims – which it
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`characterizes as “Device” (claim 1), “System” (claim 13), and “Method” (claim 20) – and the
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`182 “other claims dependent” on them. Id. ¶¶ 24, 27, 28, 29. The initial complaint broadly
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`defined the “Accused Products” as “wearable accelerometer-based activity tracker[s],” and
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`included a laundry list of product lines. Id. ¶ 24.
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`For each of the independent claims, the initial complaint contained a paragraph stating
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`that, “[o]n information and belief, the Accused Products infringe” the claim and its dependents.
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`Dkt. 1 ¶¶ 27 (“Device” claim), 28 (“System” claim), 29 (“Method” claim). However, the initial
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`complaint provided no additional information, and no attempted claim mapping, for any of the
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`182 dependent claims. Id. Further, for the “user-defined event” and “time stamp” limitations,
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`which were added during the reexamination proceeding and were the focus of LoganTree’s
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`arguments over the prior art, the initial complaint was noticeably silent. Id. Garmin identified
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`these missing allegations in its motion to dismiss but LoganTree was unable to provide any
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`further details. The Western District of Texas never reached the merits of Garmin’s original
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`motion to dismiss on 12(b)(6) grounds, instead dismissing the case for improper venue under
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`12(b)(3) in light of the Supreme Court’s decision in TC Heartland. LoganTree, No. 5:17-cv-
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`00098, Dkt. 26 (W.D. Tex. June 22, 2017).
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`C.
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`LoganTree’s Complaint in the Present Action
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`LoganTree refiled its lawsuit against Garmin in the District of Kansas on August 23,
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`2017. The infringement allegations in LoganTree’s Complaint are largely identical to those in the
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`initial complaint filed in the Western District of Texas, with one notable difference. In an
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`implicit acknowledgment that its initial Complaint was deficient, LoganTree included a new
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`exhibit, Exhibit C, which is a claim chart LoganTree alleges maps features from three of
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`Garmin’s Products (out of the over 80 products within the 14 Accused Product families) to the
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`claim limitations of independent claim 1. Dkt. 1, ¶ 35; Ex. C. The claim chart provides
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`screenshots from various Garmin sources, along with highlighting to show the extent of
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`LoganTree’s allegations on how Garmin’s products meet the “storing” limitation:
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`8
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`Dkt. 1, Ex. C at 8; 11.
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`As this chart shows, LoganTree has done nothing more than merely circle words in an
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`instruction manual suggesting a user can review activity information through Garmin Connect.
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`There is absolutely no identification of where or how Garmin Connect would “stor[e] . . . the
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`first time stamp information reflecting a time at which the movement data causing the first
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`user-defined event occurred.”
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`II.   ARGUMENT
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`A.  
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`LoganTree’s Complaint Fails to Plead a Plausible Claim for Direct
`Infringement
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`LoganTree’s Complaint fails to plead “enough facts to state a claim to relief that is
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`plausible on its face.” Twombly, 550 U.S. at 570. To state a plausible claim for direct
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`infringement, LoganTree must, at a minimum, show how it contends the Accused Products
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`infringe each limitation of at least one claim of the Reexamined ‘576 Patent. See Atlas IP, 189
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`F.Supp.3d at 775.
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`Through the reexamination process that led to the issuance of the 185 claims of the
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`Reexamined ‘576 Patent, LoganTree amended the claims to include additional limitations in an
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`effort to argue around the prior art. For example, LoganTree specifically argued that the claims
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`of the Reexamined ‘576 Patent do not cover a manual button press by a user of a movement
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`monitoring device to “detect” a “user-defined event” or to “store” a time stamp. Ex. A
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`(Response to Ex Parte Reexamination Final Office Action, Jan. 9, 2015, p. 48-56). Instead, the
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`microprocessor in the device must detect the “user-defined event,” which is caused by movement
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`data and at least one of the user-defined operational parameters regarding the movement data,
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`and then must store a time stamp reflecting the time when the movement data caused the user-
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`defined event. Id.
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`As was the case with LoganTree’s Texas complaint, LoganTree’s Kansas Complaint is
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`completely silent on these key limitations. LoganTree ignores the limitations entirely when
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`alleging infringement of independent claims 1 and 13, and merely regurgitates the claim
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`language when alleging infringement of independent claim 20. In fact, there is not a single
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`factual allegation within the complaint itself that plausibly suggests that the Accused Products
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`infringe a single claim of the Reexamined ‘576 Patent. This is woefully short of the pleading
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`required to satisfy the Iqbal/Twombly standard.
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`While LoganTree’s newly added claim chart goes further than the Complaint by at least
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`purporting to map the claim limitations to features of the Accused Products, it too falls short as
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`to exactly those key claim limitations LoganTree knows are deficient in its Complaint. As an
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`initial matter, LoganTree only provides a claim chart as to three of Garmin’s Products, and yet
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`the Product families accused by LoganTree for infringement contain over 80 products.
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`LoganTree has no explanation as to how it could plausibly plead infringement as to all 80 widely
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`different products based solely on its claim chart of 3 products.
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`More problematic, even to those products LoganTree has mapped, LoganTree’s claim
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`chart makes no attempt to show where in those products, or even if, time stamp information
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`reflecting a time at which the movement data causing the first user-defined event occurred is
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`stored on the Accused Products. For example, LoganTree identifies Garmin’s Virtual Pacer
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`feature in the Forerunner device as one such “user-defined event.” Dkt. 1, Ex. C at 8:
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`10
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`LoganTree also identified a user exceeding or dropping below the target pace as a “user-defined
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`operational parameter.” Id. Therefore, to establish plausible infringement of the time-stamp
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`limitation, LoganTree must identify some feature in Garmin’s Accused Products—in this
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`example, the Forerunner device—showing that time stamp information is stored reflecting the
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`time when a user drops or exceeds a target pace. LoganTree has failed to make any such
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`allegations. Instead, all LoganTree has shown is that Garmin’s “Garmin Connect” program
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`allows a user to review detailed time data. Id. at 11. Garmin and the Court are simply left to
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`guess as to whether this time data would include any indication of a time stamp that was stored
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`when the user exceeded or fell below the user-defined pace. The law requires more—LoganTree
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`must plausibly identify where and how each limitation is met and, because it has failed to do so,
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`its Complaint should be dismissed.
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`Requiring LoganTree to identify the allegedly infringing product functionality is
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`especially important here, where the complaint broadly accuses more than 80 products within the
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`14 different product families, many with different features, functionalities, and settings.
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`LoganTree’s blanket assertion that all 80 of these products infringe all 185 claims of the
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`Reexamined ‘576 Patent—without any factual suggestion to indicate that any products meet a
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`minimal threshold of infringing even one claim—fails to give Garmin even “scant notice of what
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`is truly alleged to be at issue in the case.” Joao Control & Monitoring Sys., LLC v. Protect
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`America, Inc., No. 1-14-CV-134-LY, 2015 WL 3513151 at *4 (W.D. Tex. Mar. 24, 2015) (“A
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`pleading that alleges ‘one or more’ of the over 900 claims in the patents-in-suit are infringed
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`gives [Defendant] and this court scant notice of what is truly alleged to be at issue in this case.”).
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`Moreover, it raises a serious question as to the adequacy of Plaintiff’s pre-suit investigation
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`required under Rule 11, especially in light of the fact that many of the products have been
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`discontinued by Garmin. See Atlas IP, 189 F.Supp.3d at 775 (“[G]iven the investigation that
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`Rule 11(b) requires before filing a complaint, it is difficult to imagine how an action for
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`infringement could be brought without a tentative but nonetheless coherent theory of which
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`claims are allegedly infringed and how the accused products practice—or, because Rule 11(b)(3)
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`permits pleading on information and belief, may practice—each of those claims’ elements.”).
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`III.   CONCLUSION
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`For all of the reasons stated herein, Garmin respectfully requests that the Court dismiss
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`this case in its entirety, with prejudice.
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`Dated: October 24, 2017
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`Respectfully submitted,
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`/s/ Adam P. Seitz
`Adam P. Seitz, KS Bar #21059
`Megan J. Redmond, KS Bar #21999
`Clifford T. Brazil, KS Bar #27408
`ERISE IP, P.A.
`6201 College Blvd., Suite 300
`Overland Park, Kansas 66211
`Telephone: (913) 777-5600
`Facsimile: (913) 777-5601
`adam.seitz@eriseip.com
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`megan.redmond@eriseip.com
`cliff.brazil@eriseip.com
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`ATTORNEYS FOR DEFENDANTS
`GARMIN INTERNATIONAL, INC. AND
`GARMIN USA, INC.
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`Case 6:17-cv-01217-EFM-ADM Document 11 Filed 10/24/17 Page 14 of 14
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`CERTIFICATE OF SERVICE
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`I hereby certify that, on October 24, 2017, the foregoing document filed with the Clerk of
`the Court using CM/ECF and that all counsel of record who are deemed to have consented to
`electronic service are being served with a copy of this document via the Court’s CM/ECF system
`accordingly.
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`By: /s/ Adam P. Seitz
`Adam P. Seitz
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