Case 6:17-cv-01217-EFM-ADM Document 170 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,
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`v.
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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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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO AMEND ITS
`INFRINGEMENT CONTENTIONS
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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO AMEND ITS INFRINGEMENT
`CONTENTIONS
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`Case 6:17-cv-01217-EFM-ADM Document 170 Filed 11/02/21 Page 2 of 6
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`LoganTree filed a motion for leave to amend its infringement contentions in accordance
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`with this Court’s recommendation and out of an abundance of caution. Garmin’s arguments in
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`opposition to LoganTree’s motion rely on the incorrect premise that Garmin Connect and Goal
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`Streak are being offered in LoganTree’s infringement Expert Report (the “Expert Report”) to
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`satisfy the “storing” and “detecting” limitations of LoganTree’s infringement theories. LoganTree
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`strongly believes that its Expert Report is fully supported by its infringement contentions and
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`merely offers additional evidentiary proof displaying that Garmin’s self-contained fitness tracking
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`watches (the “Accused Products”) do in fact practice the limitations. However, to the extent the
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`Court desires LoganTree’s infringement contentions fully reflect all information cited in its Expert
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`Report, LoganTree expresses its desire and willingness to amend accordingly.
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`I. ARGUMENT
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`Garmin cleverly attempts to confuse and complicate the simple issue at bar by
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`mischaracterizing the Expert Report’s mentions of Garmin Connect and Goal Streak as “new
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`theories.” Instead, LoganTree’s Expert Report supports its existing theories with additional
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`evidence that Garmin Connect and Goal Streak illustrate the Accused Products’ infringements.
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`A. The Expert Report Does Not Issue a New Theory Needing Amendment, But Is
`Simply an Identification of Additional Evidentiary Proof of Infringement.
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`Plaintiffs need not “prove up” their theories in their contentions; rather, the expert report
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`can put forth additional evidence supporting those theories even when that includes identifying
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`aspects of the accused products that exhibit the infringement contentions. SOL IP, LLC v. AT&T
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`Mobility LLC, No. 2:18-cv-00526-RWS-RSP, 2020 WL 10045985, at *1-2 (E.D. Tex. April 23,
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`2020); see also Finjan, Inc. v. Symantec Corp., No. 14-cv-02998-HSG (JSC), 2018 WL 620169,
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`at *2 (N.D. Cal. Jan. 30, 2018). Thus, if the expert report merely provides additional evidentiary
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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO AMEND ITS INFRINGEMENT
`CONTENTIONS
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`1
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`Case 6:17-cv-01217-EFM-ADM Document 170 Filed 11/02/21 Page 3 of 6
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`support illustrating the infringement contention, then amendment to the infringement contentions
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`is unnecessary as contentions do not require full evidentiary proof. See cases supra.
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`As its infringement contentions currently reflect, and as is further explained in its Expert
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`Report, LoganTree relies solely on the microprocessor within the self-contained Accused Products.
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`As stated throughout the Expert Report, the microprocessor in the Accused Products detects when
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`a first user-defined event is met, and subsequently that microprocessor stores a timestamp in a .FIT
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`file. The Expert Report merely utilizes Garmin Connect to visually display the information that
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`was detected and stored on the Accused Products’ microprocessor, as further proof that the
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`Accused Products practice the “detecting” and “storing” limitations. See Dkt. 163-5 at 70. (“The
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`step goal information displayed on the Garmin Connect app and the connect.garmin.com website
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`are stored and transferred via .FIT files first created and stored on the Garmin device.” (Emphasis
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`added)). Therefore, the Expert Report does not set forth a new theory needing an amendment to
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`the infringement contentions.
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`B. LoganTree Reasonably Believed There Was No Reason To Amend Its
`Infringement Contentions, Yet Was Diligent Upon Advice of the Court
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`Further, Garmin incorrectly argues that LoganTree made no attempt to substantiate its
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`reasonable belief that an amendment was not needed. LoganTree’s belief was reasonable because
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`it infringement contentions fully comply with the local rules. LoganTree’s infringement
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`contentions identify specifically “where each limitation of each asserted claim is found within each
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`Accused Instrumentality” without amendment. See D. Kan. Pat. Rule 3.1(c).
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`Further, the scope of infringement contentions and expert reports are not co-extensive—
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`infringement contentions “need not disclose specific evidence nor do they require plaintiff to prove
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`its infringement case, whereas expert reports must include a complete statement of the expert’s
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`opinion . . . .” Shurtape Techs., LLC v. 3M Co., No. 5:11-CV-17-RLV-DCK, 2011 WL 4750586,
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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO AMEND ITS INFRINGEMENT
`CONTENTIONS
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`2
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`Case 6:17-cv-01217-EFM-ADM Document 170 Filed 11/02/21 Page 4 of 6
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`at *2 (W.D. N.C. Oct. 7, 2011). LoganTree reasonably believed it was unnecessary to amend its
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`infringement contentions because its Expert Report simply offers evidence proving its existing
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`infringement theories.
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`Nonetheless, while maintaining its belief that it was in compliance with the local rules,
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`LoganTree diligently heeded the advice of this Court by promptly filing a motion to amend its
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`infringement contentions to reflect the additional evidence cited by its Expert Report.
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`C. Amendment Will Not Result in Prejudice To Garmin
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`Finally, Garmin cannot genuinely claim it is prejudiced by the additional evidence offered
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`in the Expert Report. The amendment will not substantially change the asserted infringement
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`theories, if at all. Further, to the extent that the theories are modified, the relevant consideration in
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`deciding whether the other party will be unduly prejudiced is not simply the phase of litigation—
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`it is whether the other party has been on sufficient notice to develop a line of defense. See Karl
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`Storz Endoscopy-Am., Inc. v. Stryker Corp., No. 14-CV-00876-RS (JSC), 2016 WL 2855260, at
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`*8 (N.D. Cal. May 13, 2016). LoganTree does not need to offer evidence that it previously put
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`Garmin on notice of Goal Streak—Garmin’s own actions demonstrate that it was on “sufficient
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`notice to develop a line of defense” and has already done so in its supplemental interrogatory
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`responses. See id.; Dkt. 163-4.
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`II. CONCLUSION
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`LoganTree wishes to heed the advice of the Court and amend its infringement contentions
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`to reflect the additional proof cited by its expert’s report. Garmin’s argument that such amendment
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`should be disallowed is entirely based on the incorrect premise that LoganTree submits new
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`theories of infringement. Thus, LoganTree respectfully asks the Court to grant LoganTree’s
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`motion for leave to amend its infringement contentions.
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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO AMEND ITS INFRINGEMENT
`CONTENTIONS
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`3
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`Case 6:17-cv-01217-EFM-ADM Document 170 Filed 11/02/21 Page 5 of 6
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`Dated: November 2, 2021
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`Respectfully submitted by:
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`FOULSTON SIEFKIN LLP
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`/s/ Clayton J. Kaiser
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`Clayton J. Kaiser, Kansas Bar #24066
`Foulston Siefkin LLP
`1551 N. Waterfront Pkwy, Suite 100
`Wichita, Kansas 67206
`(316) 291-9539
`(866) 280-2532 FAX
`Email: ckaiser@foulston.com
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`and
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`MCCATHERN, PLLC
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`/s/ Christopher M. Barkley
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`Arnold Shokouhi, TX (pro hac vice)
`Christopher Barkley (pro hac vice)
`James E. Sherry, TX (pro hac vice)
`McCathern, PLLC
`3710 Rawlins Street, Suite 1600
`Dallas, TX 75219
`(214) 443-4478
`(214) 741-4717 FAX
`Email: arnolds@mccathernlaw.com
`Email: cbarkley@mccathernlaw.com
`Email: jsherry@mccathernlaw.com
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`Counsel for Plaintiff
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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO AMEND ITS INFRINGEMENT
`CONTENTIONS
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`4
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`Case 6:17-cv-01217-EFM-ADM Document 170 Filed 11/02/21 Page 6 of 6
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`CERTIFICATE OF SERVICE
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`I hereby certify that on November 2, 2021, I electronically filed a copy of the foregoing
`document with the Clerk of the Court using the CM/ECF system, which will send notification of
`such filing to counsel of record for all parties in the case.
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`/s/Clayton J. Kaiser
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`Clayton J. Kaiser, #24066
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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO AMEND ITS INFRINGEMENT
`CONTENTIONS
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`5
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