Case 6:17-cv-01217-EFM-ADM Document 169 Filed 11/02/21 Page 1 of 6
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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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` Plaintiff,
`vs.
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`GARMIN INTERNATIONAL, INC. and
`GARMIN USA, INC.,
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` Defendants.
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`Case No. 6:17-cv-01217
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`GARMIN’S REPLY TO ITS MOTION TO STRIKE NEW MICROPROCESSOR
`THEORIES IN LOGANTREE’S EXPERT REPORT
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`Case 6:17-cv-01217-EFM-ADM Document 169 Filed 11/02/21 Page 2 of 6
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`LoganTree makes a strange argument to save its eleventh-hour theories. Apparently
`conceding that it never provided Garmin with notice of Goal Streak and Connect in its contentions,
`LoganTree suggests these new arguments are “demonstrative” in nature. ECF No. 167, at 4. Only
`LoganTree knows what it means by “demonstrative” because no further explanation is provided
`in its opposition brief. Nonetheless, calling something “demonstrative” cannot save LoganTree
`from its failures to comply with the most basic requirement of the Patent Local Rules—“early
`notice of their infringement … contentions.” Digital Ally, Inc. v. Taser Int'l, Inc., No. 16-CV-2032-
`CM-TJJ, 2018 WL 1138283, at *7 (D. Kan. Mar. 2, 2018). And suggesting the new theories are
`not evidence because they are “demonstrative” runs afoul of the 10th Circuit’s most basic definition
`of evidence. Lillie v. U.S., 953 F.2d 1188, 1190 (10th Cir. 1992) (“any kind of presentation to the
`jury or the judge to help the fact finder determine what the truth is and assimilate and understand
`the evidence is itself evidence.”). These new theories are not “demonstrative;” they are
`“disingenuous.” LoganTree is relying on Goal Streak and Connect to meet the limitations of the
`claims. LoganTree knew of these theories many months ago. And LoganTree made the decision
`to hide these theories from Garmin until its validity arguments in other forums were finalized.
`First, to the extent LoganTree is arguing Goal Streak merely “demonstrates” the operation
`of Step Goal, this is false. Goal Streak, unlike Daily Step Goals, is not a “user-defined” event based
`on “user-defined parameters,” as the claim requires. Ex. A, Excerpt of Myers Depo Trans., at 51:9–
`18; ECF No. 1-3, at Claims 1, 20. It is simply a “counter” that a user can never adjust or set. Id. A
`non-user defined functionality cannot be “demonstrative” of a user-defined functionality. And, Mr.
`Myers does far more than use Goal Streak as an example of Step Goal. Instead, he includes an
`extensive discussion of the Goal Streak source code and its (alleged) timestamps and maps Goal
`Streak to the claims. Ex. B, Excerpt of Myers’ Report, at 14, 18, 58, 127, 131, 171, 236, 239, 243,
`281, 347, 351, 354, 394 (Goal Streak source code discussion); id., at 64–71, 94–101, 177–184,
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`Case 6:17-cv-01217-EFM-ADM Document 169 Filed 11/02/21 Page 3 of 6
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`207–214, 287–294, 318–324, 401–408, 434–440 (mapping Goal Streak to the claims). Mr. Myers
`relies on Goal Streak to meet the limitations of the claims, not merely as an example of Step Goal.1
`Second, LoganTree accused, then abandoned, Garmin Connect in this case proving this is
`not merely a “demonstrative” addition to the expert report. In its Complaint, LoganTree originally
`accused Garmin Connect and its processor for meeting the “storing” limitation. See ECF No. 1-4,
`at 11 (highlighting in purple the role of Connect in “storing” and “analyzing”). LoganTree then
`expressly abandoned its allegations against Garmin Connect in its Initial Infringement
`Contentions, relying solely on the processor within the watches. ECF No. 158-6. And, given the
`operation of Garmin Connect, it is misleading for LoganTree to suggest its re-introduction of
`Garmin Connect is to merely “demonstrate” the operation of the processor in the watches. As
`explained to LoganTree by Garmin’s witnesses, Garmin Connect receives raw data from the
`watches and uses its own processors to analyze, store, and display data to the users. ECF No. 134,
`Ex. B, Blair Depo Trans., at 17:7–22:13. Thus, Garmin Connect cannot simply be “demonstrative”
`of behavior on the watches.
`Finally, the timing of LoganTree’s addition of Goal Streak and Garmin Connect shows this
`eleventh-hour addition is not “demonstrative” but instead, “disingenuous.” LoganTree originally
`abandoned its allegations against Garmin Connect so it could argue to the Patent Office that its
`patent was not invalid because the claims were focused on a single processor located within the
`“portable self-contained movement measuring device” of the claims. ECF No. 158-8, at 1–2.
`LoganTree did not re-introduce Garmin Connect after the IPR because it needed to argue to the
`District of Delaware that its invention was not abstract based on the unique, improved relationship
`between the claimed device’s internal movement sensor and microprocessor. ECF No. 158-9, at
`8–9; see also ECF No. 158-10, at 10 (noting the patent was not invalid because “[t]he specific
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`1 LoganTree was aware of Goal Streak over 6 months ago (as early as April 2021) when its expert
`discussed the Goal Streak theory with LoganTree’s attorneys. Ex. A, at 58:11–59:5. This is
`precisely why LoganTree does not argue diligence in discovering Goal Streak and moving to
`amend.
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`Case 6:17-cv-01217-EFM-ADM Document 169 Filed 11/02/21 Page 4 of 6
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`arrangement between the sensor and the microprocessor” was important for patentability).2 Having
`survived these invalidity challenges, LoganTree then served its expert report on infringement
`adding the processor of the Garmin Connect servers to the “detecting” and “storing” limitations.
`ECF No. 160; see also ECF No. 166, at 1–2 (reciting complete history of LoganTree’s inconsistent
`positions).
`The prejudice to Garmin (and other litigants) from LoganTree’s gamesmanship is
`significant.3 Garmin, the Patent Office, the Federal Circuit, the District of Delaware, and other
`litigants relied on LoganTree’s identifications of a processor within the portable, self-contained
`unit to uphold the validity of the ‘576 Patent. Having lost its IPR, Garmin relied on LoganTree’s
`interpretation of the claims to fashion its discovery strategy in this case, to search for prior art, and
`to prepare its invalidity expert report. Now, LoganTree seeks to change those mappings to
`hopefully save its infringement case. This should not be allowed, and it cannot be cured. Garmin
`cannot go back in time to address these new allegations with the Patent Office—it is statutorily
`barred from doing so. 35 U.S.C. § 315(e)(1). The District of Delaware already denied the motion
`to dismiss based on LoganTree’s characterizations of the patent. No extension of time or new
`expert reports can allow for a re-do in these forums where Garmin has spent millions of dollars
`chasing LoganTree’s shifting sands approach to litigation. The Court should strike LoganTree’s
`new theories from its expert report and force LoganTree to proceed with the manual step goal
`theory it disclosed and maintained throughout this entire case.
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`2 LoganTree did not file its opposition to the motion to dismiss in Delaware explaining the
`important relationship between the processor and the sensor until June 2, 2021. ECF No. 158-9, at
`8–9. This is precisely why LoganTree ignored the expert report deadlines in this case and sought
`an extension that would take it past the Delaware Court’s ruling on the invalidity issues.
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` This Court rejected nearly identical arguments to those now posited by LoganTree and found that
`ample prejudice exists to deny adding new theories into a case given the late stage of litigation.
`There, the Court rejected the “curable” argument and found prejudice because discovery was
`closed, claim construction was passed, and pre-trial and trial deadlines were approaching. See
`Digital Ally, Inc. v. Taser Int’l, Inc., 2018 WL 5620654, at *2 (D. Kan. Oct. 30, 2018).
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`Case 6:17-cv-01217-EFM-ADM Document 169 Filed 11/02/21 Page 5 of 6
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`Dated: November 2, 2021
` Respectfully submitted,
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` ERISE IP, P.A.
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` /s/ Adam P. Seitz
` Adam P. Seitz, KS Bar #21059
` Megan J. Redmond, KS Bar #21999
` Carrie A Bader, KS Bar #24436
` Clifford T. Brazen, KS Bar #27408
` ERISE IP, P.A.
` 7015 College Blvd., Suite 700
` Overland Park, Kansas 66211
` Telephone: (913) 777-5600
` Facsimile: (913) 777-5601
` adam.seitz@eriseip.com
` megan.redmond@eriseip.com
` carrie.bader@eriseip.com
` cliff.brazen@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 169 Filed 11/02/21 Page 6 of 6
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`CERTIFICATE OF SERVICE
`I hereby certify that, on November 2, 2021, 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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