Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 1 of 43
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`LOGANTREE LP,
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`Plaintiff,
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`v.
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`GARMIN INTERNATIONAL, INC.,
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`
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`Defendant.
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`
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`Case No. 17-1217-EFM-ADM
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`
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`PRETRIAL ORDER
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`On November 23, 2021, U.S. Magistrate Judge Angel D. Mitchell conducted a pretrial
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`conference in this case, by videoconference. The court and the parties circulated revised drafts
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`and reconvened the pretrial conference on December 3, 14, and 17. Plaintiff LoganTree LP
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`(“LoganTree”) appeared through counsel Christopher Barkley and Clayton Kaiser. Defendants
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`Garmin International, Inc. (“Garmin”) and Garmin USA, Inc.1 appeared through counsel Adam
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`Seitz, Megan Redmond, Carrie Bader, and Clifford Brazen. Garmin’s in-house counsel David
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`Ayers and Sam Korte were also present.
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`This pretrial order supersedes all pleadings and controls the subsequent course of this case.
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`It will not be modified except by consent of the parties and the court’s approval, or by order of the
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`court to prevent manifest injustice. Fed. R. Civ. P. 16(d) & (e); D. Kan. Rule 16.2(b).
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`1 During the pretrial conference, the parties stipulated to dismissing defendant Garmin USA,
`Inc. Garmin International, Inc. is the proper entity that would be responsible for any judgment in
`this case and Garmin International, Inc. stipulates that it will not raise any defenses based on
`Garmin USA, Inc. Accordingly, the court directs the clerk’s office to update the docket to reflect
`that Garmin USA, Inc. has been terminated as a party to this action.
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`

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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 2 of 43
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`1.
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`PRELIMINARY MATTERS.
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`a.
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`Subject-Matter Jurisdiction. Subject-matter jurisdiction is invoked under 28
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`§§ U.S.C. 1331 and 1338(a) and is not disputed.
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`b.
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`Personal Jurisdiction. The Court’s personal jurisdiction over the parties is not
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`disputed.
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`c.
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`d.
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`Venue. Venue in this court is not disputed.
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`Governing Law. Subject to the court’s determination of the law that applies to the
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`case, the parties believe and agree that the substantive issues in this case are governed by federal
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`law, including 35 U.S.C. §§ 1 et seq.
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`STIPULATIONS.
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`2.
`
`
`a.
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`The following facts are stipulated:
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`i. LoganTree LP is a limited partnership organized under the laws of the state
`of Nevada.
`
`ii. LoganTree’s sole general partner is Gulfstream Ventures, LLC.
`
`iii.
`
`(“Gulfstream”) is a limited liability company organized under the laws of
`the state of Nevada.
`
`iv. Defendant Garmin International, Inc. is a corporation organized and
`existing under the laws of the state of Kansas with its principal place of
`business at 1200 East 151st Street, Olathe, Kansas 66062.
`
`v. On November 21, 1997, Theodore Brann filed Patent Application No.
`08/976,228. It ultimately issued on May 9, 2000, as United States Patent
`No. 6,059,576 (“the ‘576 Patent”), with Theodore Brann listed as inventor.
`
`vi. On April 4, 2014, LoganTree filed a request for reexamination of the ‘576
`Patent with the Patent Office. On March 17, 2015, the Patent Office issued
`a reexamination certificate for the ‘576 Patent, bearing U.S. Patent No.
`6,059,576 C1 (“the ‘576 Reexamination Certificate”).
`
`vii. LoganTree is the owner by assignment of all right, title, and interest to the
`‘576 Patent, as reexamined, including the exclusive right to sue for
`infringement and recover past damages.
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`2
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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 3 of 43
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`viii. The ‘576 Patent expired on November 21, 2017.
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`ix.
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`Should the Court or jury determine that damages are appropriate, the period
`for which damages can be awarded is March 17, 2015, through November
`21, 2017.
`
`x. LoganTree asserts that Garmin literally and directly infringes claims 1, 4,
`20, 25, 36, and 134 of the ‘576 Patent (the “Asserted Claims”).
`
`a. Claim 1 is an independent claim and recites (key limitations noted in
`red):
`
`A portable, self-contained device for monitoring movement
`of body parts during physical activity, said device comprising:
`a movement sensor capable of measuring data associated
`with unrestrained movement in any direction and generating
`signals indicative of said movement;
`a power source;
`a 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
`selected first user-defined event along with the first time stamp
`information reflecting a time at which the movement data
`causing the first user-defined event occurred;
`at least one user input connected to said microprocessor for
`controlling the operation of said device;
`a real-time clock connected to said microprocessor;
`memory for storing said movement data; and
`an output indictor connected to said microprocessor for
`signaling the occurrence of user-defined events;
`wherein said movement sensor measures the angle and
`velocity of said movement.
`
`b. Claim 20 is independent and recites (key limitations noted in red):
`
`A method to monitor physical movement of a body part
`comprising the steps of:
`attaching a portable, self-contained movement measuring
`device to said body part for measuring unrestrained movement
`in any direction;
`measuring data associated with said physical movement;
`interpreting, using a microprocessor included in the portable,
`self-contained measuring device, said physical movement data
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`3
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`

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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 4 of 43
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`based on user-defined operational parameters and a real-time
`clock;
`storing said data in memory;
`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
`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.
`
`
`c. Claim 4 depends from Independent Claim 1 and adds the following
`limitation:
`
`wherein said movement sensor comprises at
`accelerometer.
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`least one
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`d. Claim 36 depends from Independent Claim 1 and adds the following
`limitation:
`
`to display
`is configured
`indicator
`wherein said output
`information signaling the occurrence of the first user-defined
`event based on the detection of the first user-defined event.
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`e. Claim 25 depends from Independent Claim 20 and adds the following
`limitation:
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`wherein said movement measuring device is an accelerometer.
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`f. Claim 134 depends from Independent Claim 20 and adds the following
`limitation:
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`signaling, using an output indicator included in the portable,
`self-contained movement measuring device, the occurrence of
`user-defined events.
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`xi. LoganTree accuses the following Garmin products of literally and directly
`infringing the ‘576 Patent (hereinafter, the “Accused Products”):
`
`Vivofit Model Family
`Vivofit 2
`Vivofit 3
`Vivosmart HR
`Vivosmart HR+
`Vivosmart 3
`Vivosmart 3 S/M
`Vivoactive
`
`4
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`
`
`Fenix Model Family
`Fenix 3
`Fenix 3 HR
`Fenix 3 Sapphire
`Fenix 3 HR
`Sapphire Fenix Chronos
`Fenix 5
`Fenix 5 PLUS
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`

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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 5 of 43
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`Fenix 5S
`Fenix 5S PLUS
`Fenix 5X
`Fenix 5X PLUS
`Fenix 5X Sapphire
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`Quatix Model Family
`Quatix 3
`Quatix 5
`Quatix 5 Sapphire
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`Quatix Model Family
`D2 Bravo
`D2 Bravo Sapphire
`D2 Charlie
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`Vivoactive HR
`Vivoactive 3
`Vivomove
`Vivomove HR
`Vivosport
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`Forerunner Model Family
`Forerunner 225
`Forerunner 25
`Forerunner 230
`Forerunner 235
`Forerunner 630
`Forerunner 735XT
`Forerunner 35
`Forerunner 935
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`Approach Model Family
`Approach S20
`Approach S60
`Approach X40
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`xii.
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`For each Accused Product, LoganTree accuses Garmin’s user-defined step-
`goal functionality of infringing the Asserted Claims.
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`xiii. LoganTree does not assert any doctrine of equivalents or indirect
`infringement theories.
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`xiv. LoganTree has no claim for willful infringement.
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`xv. LoganTree filed the present lawsuit on August 23, 2017.
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`b.
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`The parties stipulate to the admissibility of the following exhibits for purposes of
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`summary judgment and trial:
`
`i.
`
`ii.
`
`iii.
`
`iv.
`
`v.
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`U.S. Patent No. 6,059,576
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`U.S. Patent No. 6,059,576 Reexamination
`Certificate
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`ECF 1-1
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`ECF 1-2
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`File History for U.S. Patent No. 6,059,576
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`GARMIN_0280002-280181
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`Reexamination File History for U.S. Patent
`No. 6,059,576 (4-4-2014 Filing Date)
`
`LT 0000001-561
`GARMIN_280182-280743
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`Fenix5.xlsx – Raw .FIT file excel output
`(Produced by LoganTree)
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`Exhibit to Myers’ Report
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`5
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`

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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 6 of 43
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`vi.
`
`
`vii.
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`viii.
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`
`ix.
`
`
`Forerunner25.xlsx - Raw .FIT file excel
`output (Produced by LoganTree)
`
`Forerunner235.xlsx - Raw .FIT file excel
`output (Produced by LoganTree)
`
`Vivofit3.xlsx - Raw .FIT file excel output
`(Produced by LoganTree)
`
`Exhibit to Myers’ Report
`
`Exhibit to Myers’ Report
`
`Exhibit to Myers’ Report
`
`Vivosport.xlsx - Raw .FIT file excel output
`(Produced by LoganTree)
`
`Exhibit to Myers’ Report
`
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`The parties anticipate stipulating to the admissibility of additional exhibits for trial, which
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`stipulation they will file at least 5 days in advance of trial.
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`c.
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`Subject to the presiding judge’s approval, the parties stipulate to the following trial
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`procedures:
`
`i.
`
`ii.
`
`iii.
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`Legible photocopies of exhibits may be used, offered, and received in lieu
`of originals, subject to all foundational requirements and other objections
`that might be made to the admissibility of originals, and subject to the right
`of the party against whom it is offered to inspect an original upon request
`reasonably in advance of any proposed use of the photocopy.
`
`Electronic versions of document exhibits in their native format, such as
`spreadsheets or presentations, may be offered and received in evidence in
`lieu of paper or PDF versions.
`
`Legible photocopies of United States patents and the content of U.S. Patent
`& Trademark Office file histories may be offered and received in evidence
`in lieu of certified copies.
`
`3.
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`FACTUAL CONTENTIONS.2
`
`a.
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`Infringement
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`Following are the parties’ infringement and non-infringement contentions as to the key
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`disputed claim limitations.
`
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`2 The court reorganized the standard order of the parties’ contentions (e.g., plaintiff’s first, then
`defendant’s) to present them on an issue-by-issue basis, beginning with the factual contentions of
`the party that bears the burden of proof on a particular issue. For example, on infringement issues,
`
`
`6
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`i.
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`“first time stamp information reflecting a time at which the movement
`data causing the first user-defined event occurred”
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`Plaintiff’s Contentions: The Accused Products store time stamp information when a user-
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`defined event occurs. LoganTree’s infringement expert, Monty Myers, tested the Accused
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`Products. A step goal of 750 steps was manually entered as a daily step goal (“user-defined
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`operational parameter”). The tester walked at a constant pace and noted the time when the Accused
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`Products indicated the goal of 750 steps was reached (“user-defined event”). The Accused
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`Products produce and store a “.FIT file” that contains accumulated data such as step data and
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`timestamps. When Myers downloaded the .FIT file from the tests, the .FIT file included a
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`timestamp corresponding with the noted time of the step goal being met, leading Myers to conclude
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`that the Accused Products store a timestamp reflecting a time when the step goal is met.
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`Garmin contends that the Accused Products do not meet this limitation because a
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`timestamp is not stored to the exact second corresponding to when the user-defined event occurs
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`(i.e., 750 steps in Myers’ tests). But the court construed this limitation 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 occurred.” (ECF 106, at 9.) The court reasoned that “the time stamp
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`information is a recording of the time obtained from the system’s real time clock” and “the time
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`stamp information is going to be measured based on the unit of measurement that the real-time
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`LoganTree’s contentions are first, followed by Garmin’s response. For invalidity, Garmin’s
`contentions are first, followed by LoganTree’s response.
`Also, during the pretrial conference, Garmin asserted objections to certain aspects of
`LoganTree’s factual contentions as beyond the scope of what LoganTree disclosed in discovery.
`The court sustained those objections in part and granted them in part (as stated on the record at the
`reconvened pretrial conference on December 17) by including LoganTree’s contentions to the
`extent that LoganTree supported them with discovery materials, and by excluding those that were
`not properly supported. In fashioning the scope of the parties’ contentions at this procedural
`juncture, the court in no way foreclosed other objections that a party may wish to lodge to the other
`party’s factual contentions, such as by way of motions to exclude expert testimony, motions in
`limine, and/or motions seeking relief pursuant to Federal Rule of Civil Procedure 37(c)(1).
`7
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`

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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 8 of 43
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`clock is programmed to obtain, whether that be nanoseconds, seconds, minutes, or some other unit
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`of measurement.” (Id. at 8.) The Accused Products record a timestamp for a step count at a second
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`interval when activity occurs, but the recorded timestamp is tied to what is called a “minute
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`boundary.” The Accused Products detect that the activity occurs at a second interval and record a
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`timestamp at a second interval in connection with step count data. The timestamp is merely moved
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`to the beginning of the minute boundary. So a timestamp is stored at a second interval as provided
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`by the real-time clock. The Accused Products cannot avoid the timestamp limitation simply by
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`recording timestamps at a minute boundary, as opposed to the exact second the event occurs. The
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`Accused Products’ use of the minute boundary is a design choice of precision, presumably because
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`the user does not need to know the exact second of the day the user met their daily step goal.
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`Garmin also contends that the Accused Products do not store a timestamp when the goal is
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`met because the .FIT files do not state the exact 750 step goal. According to Garmin, the Accused
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`Products record time stamps on regular predetermined intervals (i.e., every 15-minutes) or when a
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`user changes activity (e.g., slows down, stops, or speeds up), but never record a time stamp because
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`the user-defined step goal is met. However, Myers’ testing showed multiple timestamp entries in
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`the .FIT files associated with step data other than at every 15-minute time interval or a change in
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`activity level. Myers concluded that these corresponded with multiples of when the step goal
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`would have been met, regardless of the number 750 not appearing in the .FIT file.
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`The reason that 750 steps is never recorded with a timestamp is that the Accused Products
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`record a timestamp tied to the minute boundary as described above, regardless if the timestamp is
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`created because a 15-minute interval elapsed, a change in activity occurred, or a user-defined event
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`is achieved. After moving the timestamp to the minute boundary, the Accused Products record
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`the number of steps that correspond with that minute boundary, which is why the recorded step
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`counts are near, but are never exactly, multiples of 750. LoganTree disagrees with Garmin’s
`8
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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 9 of 43
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`characterization that LoganTree is advancing a new doctrine of equivalents argument. The parties
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`simply disagree about the scope of the court’s claim construction.
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`Finally, Garmin contends that Myers manipulated the results of his tests. But Garmin’s
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`own expert confirms Myers’ conclusions. When Garmin’s expert performed tests of the Accused
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`Products, he did not change his activity level and maintained a constant pace of 90 steps/minute.
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`Yet those tests resulted in multiple time stamps being created that did not correspond to 15-minute
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`intervals. And the timestamps that do not correspond with a 15-minute interval recorded a step
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`count within 90 steps of the manual step count goal, which makes sense because the Accused
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`Products record timestamps on the minute boundary.
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`Defendant’s Contentions: The court construed “first time stamp information reflecting a
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`time at which the movement data causing the first user-defined event occurred” to mean “first time
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`stamp information reflecting the time recorded or noted by the system at which the movement
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`data causing the first user-defined event occurred (emphasis added). LoganTree identifies a
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`user-defined daily step goal as the user-defined event, so LoganTree must show that the Accused
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`Products record a time stamp indicating the time at which the user met the daily step goal. But the
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`Accused Products do not save time stamps when the user achieves a user-defined step goal.
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`Instead, they record time stamps on regular predetermined intervals (e.g., at 15-minute time
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`intervals) or when a user changes activity (e.g., slows down, stops, or speeds up). Garmin’s
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`products never record a time stamp because the user-defined step goal is met.
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`Despite hundreds of tests, LoganTree has not provided a single example in which a time
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`stamp was created at the point at which the step goal was met. LoganTree relies on time stamps
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`in the .FIT file showing when a user achieved only 208 steps (Forerunner 235), 238 steps
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`(Forerunner 25), 290 steps (Vivofit 3), 687 steps (Fenix 5) and 704 steps (Vivosport) for a user-
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`defined step goal of 750 steps. These timestamps were written before the user-defined step goal
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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 10 of 43
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`of 750 steps was achieved, not “a time at which the movement data causing the first user defined
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`even occurred.”3 LoganTree also fails to identify any source code or technical documents
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`demonstrating that Garmin’s Accused Products create and record a time stamp when the user-
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`defined step goal occurred. As such, LoganTree’s statement that “the .FIT file included a
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`timestamp that corresponded with the noted time of the step goal being met” has no factual or
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`evidentiary basis. Myers never relied on any notes taken by any tester in forming his opinions.
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`Myers’ speculation that the “multiple entries of timestamps” must be a result of the goal
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`being met is insufficient to establish infringement. LoganTree does not explain why, if these
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`timestamps related to the user reaching the step goal, no such information is stored in the .FIT file.
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`Because the .FIT files do not store information relating to detecting the user meeting his or her
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`750-step goal, the Accused Products do not store timestamp information along with “first event
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`information related to the detected first user-defined event.”
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`Further, Garmin’s non-infringement expert, William (“Bill”) Michalson, confirmed that
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`these timestamps could have been the result of other activity changes, such as stopping for a
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`pedestrian, changing direction, a change in heart rate, a change in stress level, or a change in
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`altitude. Michalson also confirmed that “the step goal didn’t” force a timestamp to be written,
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`which is “obvious because the step goal had not yet been achieved.” The only evidence LoganTree
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`identified in Michalson’s testing as allegedly supporting its theory is a timestamp that was stored
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`before Michalson reached his goal.
`
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`3 Garmin believes that LoganTree’s expert manipulated the devices during his testing in an
`attempt to force a timestamp to be written near the step goal. Garmin’s expert has conducted his
`own tests and will explain at trial how and why he believes LoganTree’s testing was improper and
`designed to force the devices to write a time stamp in an (unsuccessful) attempt to show
`infringement.
`
`10
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`The Accused Products also do not infringe because the court’s claim construction order
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`recognized that the timestamp “is a recording of the time obtained from the system’s real time
`
`clock.” (ECF 106, at 8.) Consequently, the specificity of “the time stamp information is going to
`
`be measured based on the unit of measurement that the real-time clock is programmed to obtain,
`
`whether that be nanoseconds, seconds, minutes, or some other unit of measurement.” (Id.) Garmin
`
`system’s real-time clock records information on a “per-second” basis. So, under the court’s claim
`
`construction, any time stamps relating to the user-defined step goal must record the time, accurate
`
`to the second, at which the user-defined step goal was achieved. In Garmin’s system, time stamps
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`for step count information are recorded either every 15 minutes or on the minute boundary when
`
`the device detects a change in activity. For example, if a change is detected at 5m03s, a time stamp
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`will not be recorded until 57s later at 6m00s. In other words, Garmin’s Accused Products are
`
`intentionally designed to wait (anywhere from 1 minute to 15 minutes) to write a time stamp
`
`associated with step data. Time stamps for step-count information are never written on a per-
`
`second basis.
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`LoganTree now contends that a timestamp on the minute boundary somehow qualifies as
`
`a system time even though it is undisputed that the system records to the second. This new “close
`
`enough” argument is essentially a doctrine of equivalence argument that LoganTree never raised,
`
`and LoganTree stipulates above that it is not alleging infringement via doctrine of equivalence.
`
`Furthermore, LoganTree’s argument on this issue is contrary the court’s claim construction, which
`
`requires the time stamp to be obtained from the system’s real time clock and Garmin’s real time
`
`clock records down to seconds. LoganTree admits that Garmin made a different design choice
`
`and Garmin chose not to practice the claim limitation as construed by the court. Garmin’s Accused
`
`Products store a “unique time stamp” when a user has a change in activity and not when a user
`
`11
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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 12 of 43
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`defined event occurs, and which is stored on the nearest minute boundary not the real time clock’s
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`system time (in seconds).
`
`ii.
`
`“unrestrained movement in any direction”
`
`Plaintiff’s Contentions: The Accused Products measure unrestrained movement in any
`
`direction via accelerometers
`
`(that measure 3-dimensional movement
`
`in
`
`terms of
`
`acceleration/velocity) and related source code. They measure and process this movement data and
`
`convert it into steps (and other useful data). Myers’ testing of the Accused Products confirmed his
`
`observations in the source code (and related developer descriptive comments) in that he was able
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`to move his body and his arm in an unrestrained fashion and his steps were reasonably counted
`
`utilizing the accelerometer data.
`
`Garmin contends that LoganTree allegedly made contrary statements regarding this
`
`limitation to the Patent Office and by its expert, Frank Ferrese. Not so. LoganTree’s statements
`
`made to the Patent Office and Ferrese’s opinions were not contrary and were provided based on
`
`an understanding of the specific use of the accelerometers in devices as taught by the prior art.
`
`Garmin has taken different positions than LoganTree as to the specific teachings of the prior art
`
`and has mostly taken its positions by focusing on the devices including an X, Y, Z accelerometer.
`
`Garmin contends that Ferrese testified in his deposition that “Vock/Flentov would need to
`
`measure movement in nine directions to actually measure movement in all directions.” Based on
`
`this, Garmin contends that Ferrese’s testimony would require that the Accused Products include
`
`nine accelerometers to meet the claim limitation of measuring unrestrained movement in any
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`direction. But Garmin mischaracterizes Ferrese’s testimony. He testified that nine accelerometers
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`would be required for complete resolution of motion in all directions, but the claims do not require
`
`complete resolution of motion in all directions. Rather, the claims require measuring movement
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`in any direction. Later in Ferrese’s deposition, he testified that a three-axis accelerometer (as in
`12
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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 13 of 43
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`the Accused Products) is capable of measuring movement in any direction. So Ferrese’s opinions
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`regarding the Vock/Flentov references are consistent with LoganTree’s infringement contentions
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`regarding measuring unrestrained movement in any direction.
`
`Defendant’s Contentions: Garmin’s Accused Products use accelerometers to measure
`
`movement in three directions, which LoganTree contends meets the “unrestrained movement”
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`limitation. But this infringement read conflicts with LoganTree’s prior statements to the Patent
`
`Office regarding validity. During prosecution, the Patent Office rejected LoganTree’s patent over
`
`prior art references (e.g., Vock/Flentov), which disclose accelerometers that measure movement
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`in six directions. LoganTree argued to the Patent Office that these accelerometers do not measure
`
`“unrestrained movement in any direction.” Now, LoganTree is claiming that Garmin’s Accused
`
`Products that measure movement in even fewer directions (three) somehow infringe this claim
`
`limitation. Adding to this confusion, Ferrese testified that Vock/Flentov would need to measure
`
`movement in nine directions to actually measure movement in all directions. Garmin’s Accused
`
`Products do not measure movement in nine directions, so they cannot infringe the Asserted Claims.
`
`LoganTree contends that Ferrese’s opinions do not contradict its infringement theory
`
`because his opinions were based on the prior art’s alleged intended purpose. For example, Ferrese
`
`originally opined that Vock/Flentov’s intended purpose was solely to measure loft time and speed,
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`which would not constitute measuring unrestrained movement in any direction. But Ferrese
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`ultimately testified that Vock/Flentov also disclosed measuring direction. So LoganTree’s prior
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`statements to the Patent Office that Vock/Flentov did not disclose measuring unrestrained
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`movement in any direction despite measuring loft time, speed, and direction contradict
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`LoganTree’s infringement theory based on the Accused Products measuring unrestrained
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`movement when, in fact, they operate in the same manner as the devices in Vock/Flentov.
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`13
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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 14 of 43
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`iii. Method Claim 20
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`Plaintiff’s Contentions:
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` LoganTree has expert
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`testimony, supplemented by
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`circumstantial documentary evidence, that Garmin practiced method Claim 20, which is sufficient
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`for a jury to find direct infringement. Myers testified that, based on his experience, people at
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`Garmin would have performed tasks in the normal course of designing, testing, and validating the
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`Accused Products such as setting the user-defined step goal, confirming that the goals are met and
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`being displayed on the watch, and confirming that the material written to the .FIT file is
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`correct. Moreover, Jay Dee Krull of Garmin testified that Garmin generally tests its products. The
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`Accused Product manuals further support that Garmin tests its products and, in doing so, directly
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`infringes method claim 20. To create the product manuals, which instruct the user to use the
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`Accused Products in infringing ways, people at Garmin had to carry out the very tasks they instruct
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`the user to perform.
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`Defendant’s Contentions: Method Claim 20 can only be infringed by Garmin performing
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`the method. LoganTree cannot rely on a user performing the claimed method because LoganTree
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`has not pled indirect infringement. LoganTree has no evidence of anyone, whether Garmin or a
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`device user, performing every step of the actual method claimed. Moreover, contrary to
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`LoganTree’s contention, Krull’s testimony related only to testing of Garmin’s prior art products.
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`He did not offer any testimony about the Accused Products, and he certainly did not testify that
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`Garmin or the Accused Products perform every step of method Claim 20.
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`LoganTree took the deposition of the witness with knowledge of the Accused Products—
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`Robert Blair—and did not ask a single question about Garmin’s product testing, or about testing
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`the Accused Products specifically. LoganTree never sought discovery into Garmin’s internal
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`testing of the Accused Products, LoganTree’s Final Infringement contentions never raised an
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`14
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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 15 of 43
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`infringement theory based on Garmin’s internal testing, and LoganTree never raised any damages
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`theory related to Garmin’s internal testing of the Accused Products.
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`Myers never opined that Garmin’s internal testing of the Accused Products infringed Claim
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`20. LoganTree now relies on Myers’ speculation during his deposition along with alleged
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`circumstantial evidence that Garmin would have tested the Accused Products. But Garmin’s
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`product manuals do not reflect any testing by Garmin, let alone any testing showing the steps of
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`Claim 20 were performed. Instead, LoganTree “suspects” or “guesses” that Garmin must have
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`done this testing, but LoganTree has not substantiated this claim through discovery or expert
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`testimony. Furthermore, LoganTree must tie its testing theory to the infringement period (March
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`2015 – November 2017). LoganTree has no evidence that any purported testing was conducted
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`during this period or that any such testing was conducted in the United States.
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`iv.
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`Claim limitation 1(c)(i) – “a microprocessor that is capable of receiving,
`interpreting, storing and responding to the movement data based on the
`user-defined operational parameters”
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`Claim limitation 20(c) – “microprocessor that interprets physical
`movement data based on user-defined operational parameters and a real-
`time clock”
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`Plaintiff’s Contentions: The source code shows the flow and operation of the devices
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`functioning according to claim limitations 1(c)(i) and 20(c) above, and the source code requires a
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`microprocessor to perform those functions. Source code defines the functions and operations of
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`the Accused Products as programmed by the engineers, and it is then compiled and converted to
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`machine code that is readable by and operational on a particular microprocessor. The source code
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`Myers observed—in its compiled, machine code form—operates on the processor in the Accused
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`Products. Machine code requires a processor to be useful/operational and a processor is not useful
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`until it is given machine code instructions. Myers confirmed that the Accused Products operate
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`consistently with the functions in the source code.
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`15
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`Case 6:17-cv-01217-EFM Document 187 Filed 12/20/21 Page 16 of 43
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`Defendant’s Contentions: LoganTree provided no evidence that Garmin’s Accused
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`Products infringe the “microprocessor that is capable of receiving, interpreting, storing and
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`responding to the movement data based on the user-defined operational parameters” limitation
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`1(c)(i). Myers provides no source code or technical documents evidencing infringement. Myers’
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`only evidence that this limitation is infringed is:
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`
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`LoganTree’s attempt to supplement Myers’ opinions for this limitation through this Pretrial
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`
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`Order still does not provide evidence of infringement. LoganTree generally describes the process
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`of compiling source code, which is irrelevant to the question of infringement. Furthermore, the
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`microprocessor in the Accused Products is