Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 1 of 34
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
`
`LOGANTREE LP,
`
`Plaintiff,
`
`v.
`
`Case No. 17-1217-EFM-ADM
`
`GARMIN INTERNATIONAL, INC.,
`
`Defendant.
`
`MEMORANDUM IN SUPPORT OF
`GARMIN’S MOTION FOR SUMMARY JUDGMENT
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`

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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 2 of 34
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`TABLE OF CONTENTS
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`Procedural History ................................................................................................................... 4
`I.
`II. Statement of Facts ................................................................................................................... 6
`A. The ’576 Patent’s Time Stamp Requirement. ..................................................................... 6
`B. Garmin’s Accused Products ................................................................................................ 6
`C. LoganTree’s Conflicting Statements Relating to “Unrestrained Movement.” .................... 8
`III.
` Legal Standard ...................................................................................................................... 10
`IV. Argument ............................................................................................................................... 11
`A. Garmin’s Accused Products do not (and cannot) infringe where they never record a time
`stamp based on a user reaching a step goal. .............................................................................. 11
`1. The Accused Products Do Not Record Time Stamps When the User Defined Step Goal
`is Achieved ............................................................................................................................ 14
`2. The Accused Products Intentionally Delay Writing Time Stamps and Do Not Record
`“The Time” the Goal is Met from the System Clock ............................................................ 18
`3. The Accused Products do not Store “First Event Information Related to the Detected
`First User-Defined Event Along with First Time Stamp Information” ................................. 20
`4. Garmin does not perform the method of Claim 20 ........................................................ 21
`B. The asserted claims are indefinite where LoganTree has made conflicting statements as to
`the scope of “unrestrained movement in any direction.” ........................................................... 23
`V. Conclusion ............................................................................................................................. 29
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`i
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 3 of 34
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`TABLE OF AUTHORITIES
`
`CASES
`Acceleration Bay LLC v. Take-Two Interactive Software, Inc., 2020 WL 1333131 (D. Del. Mar.
`23, 2020) .................................................................................................................................... 22
`Alcon Research Ltd. v. Barr Labs., Inc., 745 F.3d 1180 (Fed. Cir. 2014) .................................... 21
`Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343 (Fed. Cir. 2001) ........................ 24
`Aristocrat Techs. Australia Pty Ltd. v. Int’l Game Tech., 709 F.3d 1348 (Fed. Cir. 2013) .......... 20
`Berkheimer v. HP, Inc., 881 F.3d 1360 (Fed. Cir. 2018) .............................................................. 28
`Bones v. Honeywell Intern., Inc., 366 F.3d 869 (10th Cir.2004) .................................................. 11
`Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ......................... 10
`CommScope Techs. LLC v. Dali Wireless Inc., 10 F.4th 1289 (Fed. Cir. 2021) .................... passim
`Garrison v. Gambro, Inc., 428 F.3d 933 (10th Cir.2005) ............................................................. 10
`Haynes v. Level 3 Commc'ns, LLC, 456 F.3d 1215 (10th Cir. 2006) ............................................ 10
`Infinity Computer Prods., Inc. v. Oki Data Americas, Inc., 987 F.3d 1053 (Fed. Cir. 2021) . 24, 27
`Infinity Computer Prods., Inc. v. Oki Data Americas, Inc., 2019 WL 2422597 (D. Del. Jun. 10,
`2019) .......................................................................................................................................... 26
`KCJ Corp. v. Kinetic Concepts, Inc., 39 F. Supp. 2d 1286 (D. Kan. 1999) .................................. 11
`KMMentor, LLC v. Knowledge Mgmt. Pro. Soc., Inc., 712 F. Supp. 2d 1222 (D. Kan. 2010) ..... 11
`LifeWise Master Funding v. Telebank, 374 F.3d 917 (10th Cir. 2004) ......................................... 10
`Mitchell v. City of Moore, Okla., 218 F.3d 1190 (10th Cir.2000) ................................................. 11
`Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014) .......................................... 24, 27
`Packet Intelligence LLC v. NetScout Sys., Inc., 965 F.3d 1299 (Fed. Cir. 2020) .......................... 20
`Peters v. Active Mfg. Co., 129 U.S. 530, 9 S.Ct. 389, 32 L.Ed. 738 (1889) ................................. 23
`Ricoh Co., Ltd. v. Quanta Computer Inc., 550 F.3d 1325 (Fed. Cir. 2008) .................................. 22
`Smith v. Garlock Equip. Co., 658 F. App’x 1017 (Fed. Cir. 2016) ............................................... 17
`Sprint Commc’ns Co. L.P. v. Cable One, Inc., 2014 WL 3661081 (D. Kan. July 23, 2014) ........ 20
`Thom v. Bristol–Myers Squibb Co., 353 F.3d 848 (10th Cir. 2003) ............................................. 10
`TNS Media Research, LLC v. Tivo Research & Analytics, Inc., 629 F. App’x 916 (Fed. Cir.
`2015) .......................................................................................................................................... 22
`White v. York Int'l Corp., 45 F.3d 357 (10th Cir.1995) ................................................................. 11
`
`
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`
`ii
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 4 of 34
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`LoganTree’s allegations of infringement revolve around the ability of certain Garmin
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`fitness watches to accumulate and track a user’s steps throughout the day. According to
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`LoganTree, Garmin’s products allegedly infringe because they store a time stamp in memory that
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`records the time at which the user reached a user-defined step goal. This is demonstrably incorrect.
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`As Garmin explained many times to LoganTree, the evidence relied upon by LoganTree for the
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`time stamp showed an entry that was recorded before the step goal of 2,500 steps was reached:
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`
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`(ECF 158-2, at 2).
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`LoganTree, however, contends that the time stamp does not need to reflect the time at
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`which the user actually met their step goal, as long as it was merely “associated” with the steps.
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`This was the key issue Garmin asked the Court to resolve during claim construction—what level
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`of precision is required for the time stamp. As this Court recently noted, “[t]he Court largely agreed
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`with Garmin’s proposed construction” and found the time stamp must record information
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`“reflecting the time recorded or noted by the system at which” the user-defined step goal is met.
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`Shortly after this order, Garmin again pointed out the flaws in LoganTree’s case and asked it to
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`dismiss the case in light of the court’s claim construction. ECF 186, at 7. LoganTree refused.
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`1
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 5 of 34
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`Despite Garmin’s explanation for how LoganTree lacked a good faith basis to proceed in view of
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`the Court’s claim construction, “LoganTree doubled down on its existing infringement theories”
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`and served final infringement contentions that were materially identical. Id., at 8. LoganTree’s
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`final contentions continued to advance the same infringement theories, relying on the same time
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`stamp that appears before the user met their step goal. Id.
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`LoganTree then had its expert conduct hundreds of tests on Garmin’s Accused Products
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`trying to find a single time stamp that recorded the time “at which” the user met the step goal and
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`not before. After hundreds of tests and countless hours, LoganTree’s expert’s own testing revealed
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`the Accused Products never record a time stamp when the user achieves their user-defined step
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`goal—precisely what Garmin has been telling LoganTree for well over two years. After all this
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`testing, the closest LoganTree could get to a time stamp “reflecting a time at which the movement
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`data causing the first user-defined event (i.e. step goal) occurred” was always before the user
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`defined step goal, and in some cases still hundreds of steps away from the purported test step goal
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`of 750:
`
`Tested Accused
`Product
`Forerunner 235
`Forerunner 25
`Vivofit 3
`Fenix 5
`Vivosport
`
`Total Steps away from
`the user-defined goal
`542
`512
`460
`63
`46
`
`Step Goal Step number LoganTree
`Contends is Infringing
`208
`238
`290
`687
`704
`
`750
`750
`750
`750
`750
`
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`SOF ¶ 9. Despite these results, LoganTree has inexplicably maintained its position that a time
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`stamp that appears, for example, 542 steps before the step goal is reached is a time stamp reflecting
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`“the time at which” the step goal was met. This isn’t surprising. This is how Garmin’s products
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`were designed to work.
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`2
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 6 of 34
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`LoganTree’s own testing results are consistent with every letter Garmin has sent to
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`LoganTree questioning its good faith basis for infringement. They are consistent with the
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`testimony of every Garmin engineer that provided a deposition. They are consistent with Garmin’s
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`expert’s analysis of the products. And they align with how Garmin programmed the software (e.g.,
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`the “source code”) that operates on each Accused Product. Every piece of evidence in this case
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`confirms the Accused Products do not store a time stamp when a user-defined step goal is met.
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`Garmin simply designed its products a different way than what is described in the ’576 Patent
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`because Garmin’s customers do not care about the precise time at which a step goal was met. Other
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`than its expert’s rampant speculation, LoganTree has no evidence that the Accused Products ever
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`record a time stamp when a user hits their user-defined step goal. No jury should be empaneled to
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`waste a week’s worth of time to reach the simply conclusion that that 208 does not equal 750.
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`Summary judgment of noninfringement is warranted.
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`As described in other briefing in this case, LoganTree has engaged in significant
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`gamesmanship by taking a shifting sands approach to the meaning of its patent before this Court,
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`the District of Delaware, the U.S. Patent Office, and the Federal Circuit. (ECF 186, at 25–29). The
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`result of this shifting sands approach to its patent is that LoganTree has twisted the meaning of
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`terms one way for validity and another for infringement, thus rendering the term “unrestrained
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`movement in any direction” (as used in Claims 1 and 20) indefinite. Specifically, during
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`prosecution, reexamination, and the IPR, LoganTree argued that references teaching movement
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`measurement in six and nine directions do not teach unrestrained movement in any direction. But
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`here, it is undisputed that Garmin’s Accused Products measure movement in only three directions
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`yet, somehow, LoganTree contends they do measure unrestrained movement in any direction.
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`Even LoganTree’s own expert cannot explain this inconsistency in light of LoganTree’s prior
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`3
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 7 of 34
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`statements. SOF ¶¶ 18, 20. LoganTree’s conflicting positions fail to inform, with reasonable
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`certainty, those skilled in the art about the scope of the invention, rendering its asserted claims
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`indefinite. Summary judgment is therefore proper.
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`I.
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`Procedural History1
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`When LoganTree served its initial infringement contentions, it alleged that Garmin’s
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`Accused Products met the “time stamp” limitation by storing certain information in a .FIT file2 on
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`the Garmin devices. ECF 186, at 6. LoganTree’s contentions showed that monitoring messages
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`are stored in the .FIT file at intervals rather than being tied to the user reaching a step goal. Id., at
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`7. To date, all of LoganTree’s contentions identified a time prior to the user meeting the step goal,
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`not the time at which the user met the goal. Id.
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`The precision of the time stamp was a central focus of this Court’s claim construction
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`hearing and order. There, the parties disputed the portion of the “storing” limitation requiring “first
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`time stamp information reflecting a time at which the movement data causing the first user-defined
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`event occurred.” Id., at 6. Garmin proposed the construction “first time stamp information
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`reflecting a system time at which the movement data causing the first user-defined event
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`occurred.”. ECF 99-1. LoganTree proposed the construction “first time stamp information
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`reflecting a system time associated with the movement data occurrence causing the first user-
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`defined event.” Id. The dispute centered around the question of whether the time stamp must be
`
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`1 The procedural history of this case was recited in Magistrate Judge Mitchell’s December 20
`Memorandum and Order, ECF 186, and Garmin highlights the most pertinent aspects of the history
`of this case that are relevant to the current motion.
`2 The “.FIT File” is the name of the file within the memory of the Garmin devices where the data
`captured by the watches that will be reviewed by the user is stored. For example, the FIT files store
`raw data relating to the user’s total steps, calories, run distances, heart rate, sleep data, GPS data,
`etc., that the user may transfer to Garmin’s servers where it is then analyzed and further processed
`for display and review of the “Garmin Connect” app on a user’s smartphone and computer.
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`4
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 8 of 34
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`precise enough to reflect a time “at which” the movement occurred (as Garmin contended) or some
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`amorphous time merely “associated with” the movement (as LoganTree proposed). The Court
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`largely agreed with Garmin, construing the limitation to mean “first time stamp information
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`reflecting the time recorded or noted by the system at which the movement data causing the first
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`user-defined event occurred.” ECF 106, at 9. Thus, the dispute now presented on summary
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`judgment has largely been resolved—LoganTree must identify a time stamp recording or noting
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`“the time … at which [the user-defined step goal] occurred.”
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`In light of this Court’s ruling, Garmin sought dismissal of LoganTree’s claims because, as
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`reflected in LoganTree’s infringement contentions, Garmin’s Accused Products do not record the
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`time (a time stamp) at which the user reaches its step goal. ECF 186, at 7. Instead of dismissing,
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`LoganTree “doubled down” on its infringement theory, serving final contentions in March 2021,
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`which included the same theory that Garmin’s Accused Products met the “storing” limitation by
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`noting a time stamp that reflects a time and step count before the step goal is met. As noted above,
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`LoganTree’s expert report is identical—in every single instance LoganTree relies on time stamps
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`that reflect a time and step count before the step goal is met. During the Final Pretrial Hearing,
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`LoganTree admitted that its case relies on a different interpretation of the Court’s claim
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`construction. Ex. M, 12-17-21 Hrg. Trans., at 6:19–23.3 Thus, LoganTree is seeking to relitigate
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`an issue the Court already has decided.
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`Separately during claim construction, the parties disputed whether the term “unrestrained
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`movement in any direction” was rendered indefinite based on LoganTree’s conflicting and ever-
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`shifting positions during prosecution, reexam, the IPR, and now litigation. At the Markman
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`3 “COURT: And, Mr. Barkley, as I understand it, LoganTree’s position is that this isn’t a DOE theory, this
`is just a different read of the court’s claim construction order; is that correct Mr. Barkley?
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`MR. BARKLEY: That’s correct, Your Honor.”
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`5
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 9 of 34
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`hearing, this Court noted that LoganTree’s “inconsistency of arguments and positions . . . might
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`present a problem to them,” but it decided to forego ruling on indefiniteness until summary
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`judgment. ECF 106, at 29. Thus, as a second basis for its motion for summary judgment, Garmin
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`seeks a judgment that “unrestrained movement in any direction” is indefinite and claims 1, 20, and
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`their dependent claim are, therefore, invalid.
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`II.
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`Statement of Facts
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`The ’576 Patent’s Time Stamp Requirement.
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`The time stamp element in independent claims 1 and 20 of the ’576 Patent requires:
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`A.
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`1.
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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.” ECF 187, at 3.
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`2.
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`The Court construed the “first time stamp” 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 event occurred. ECF 106, at 9 (emphasis added). The Court’s claim
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`construction order also noted “the time stamp information is a recording of the time obtained from
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`the system’s real time clock,” and “is going to be measured based on the unit of measurement that
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`the real-time clock is programmed to obtain, whether that be nanoseconds, seconds, minutes, or
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`some other unit of measurement.” Id. at 8.
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`3.
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`LoganTree contends the claimed “user-defined event” is achieving a user-defined
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`step goal (e.g., a manually entered step goal of 750 steps) and that when the user-defined goal is
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`reached a time stamp is recorded in a .FIT file saved on the Accused Products. ECF 187, at 7.
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`B.
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`4.
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`Garmin’s Accused Products
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`LoganTree accuses forty-one Garmin products of literally and directly infringing
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`the ’576 Patent (the “Accused Products”). Id., at 4–5.
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`6
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 10 of 34
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`5.
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`The system’s real-time clock within Garmin’s Accused Products measures and
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`records information on a “per second” basis. Id. at 8, 11; Ex. A, Michalson Report, at 132, ¶ 237;
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`Ex. B, Myers’ Depo. Trans., 101:3–7.
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`6.
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`Garmin’s Accused Products store time stamps at certain time intervals (e.g. 15
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`minutes) or at the nearest minute boundary after the device detects a change in activity (i.e., storing
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`a time stamp at 6m00s after the system detects that the user stops moving and becomes stationary
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`at 5m18s). ECF 187, at 8; Ex. C, Blair Depo. Trans., at 25:23–26:10; 33:7–34:4; 35:1–16; Ex. A,
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`Michalson Report, at 143–44, ¶ 261.
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`7.
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`LoganTree admits that Garmin made a different “design choice of precision” by
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`saving step information to the .FIT file on the minute boundary. ECF 187, at 8.
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`8.
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`LoganTree’s expert, Myers, “did dozens and likely hundreds of tests” on the
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`Accused Products, but LoganTree admits that “750 steps is never recorded with a time stamp” in
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`the Accused Products. Ex. B, Myers’ Depo Trans., at 90:23–91:4; 99:9–12; 102:6–7; 133:18–19;
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`ECF 187, at 8.
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`9.
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`Myers relies on and alleges the following reflect the time at which the user has
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`achieved the user defined step goal of 750 steps and saved the time stamp and user defined goal to
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`the .FIT file:
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`• Forerunner 235 .FIT file – time stamp where the user only achieved 208 steps;
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`• Forerunner 25 .FIT file – time stamp where the user only achieved 238 steps;
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`• Vivofit 3 .FIT file – time stamp where the user only achieved 290 steps;
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`• Fenix 5 .FIT file – time stamp where the user only achieved 687 steps; and
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`•
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` Vivosport .FIT file – time stamp where the user only achieved 704 steps.
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`Ex. D, Myers’ Created .FIT Files; Ex. A, Michalson Report, at 22–23, ¶ 52; 25–26, ¶ 57.
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`7
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 11 of 34
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`10.
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`LoganTree provided no citation to the source code, technical evidence, or
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`deposition testimony to show the Accused Products record a time stamp when the user-defined
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`step goal is achieved. ECF 187, at 8; Ex. E, Myers’ Report, at 72–77, 102–07, 185–90, 215–20,
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`296–302, 326–31, 411–16, 443–48, 490–93, 516–18. Ex. B, Myers’ Depo Trans., at 99:9–12;
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`102:6–7; 133:18–19; Ex. A, Michalson Report, at 133, ¶ 239; 134, ¶ 242; 135, ¶ 243; 136, ¶ 246
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`– 142, ¶ 258.
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`11.
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`The Accused Products do not save a time stamp and the associated user step goal
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`to the .FIT file when a user achieves the manual step goal. Ex. A, Michalson Report, at 133, ¶ 240
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`– 134, ¶ 241; Ex. C, Blair Depo Trans., at 32:10–16; 38:8–15; 38:22–23; Ex. F, Henderson Depo
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`Trans., at 21:19–23.
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`12.
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`LoganTree has no evidence of Garmin testing the Accused Products during the
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`relevant time period from March 2015–November 2017, no evidence that the testing infringed
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`Asserted Claims 20, 25, and 134, and no evidence any alleged testing occurred in the United States.
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`ECF 187, at 14; Ex. B, Myers’ Depo Trans., at 116:7–117:15, 134:1–12, 145:10–18, 153:1–7,
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`161:25–162:10.
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`13.
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`Garmin witness Jay Dee Krull was designated as a corporate representative under
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`30(b)(6) on a single topic to offer testimony about Garmin’s prior art products and offered
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`testimony limited to Garmin’s GPS II/II Plus prior art device. Ex. G, Krull Depo Trans., at 11:10–
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`18; 64:17–66:4.
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`C.
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`14.
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`LoganTree’s Conflicting Statements Relating to “Unrestrained Movement.”
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`To obtain its patent, LoganTree amended the claims by adding the following
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`underlined language: “a movement sensor capable of measuring data associated with unrestrained
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`movement in any direction and generating signals indicative of said movement.” Ex. H, Excerpts
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`of File History, at GARMIN_0280135–37; Ex. I, Ferrese Report, at 19–20, ¶ 60.
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`8
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 12 of 34
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`15.
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`In the reexamination proceeding, while discussing the claimed invention,
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`LoganTree stated “[f]or instance, upon detection of the event, such as when a user’s measured
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`movement passes a given angle (or some other type of movement threshold), time stamp
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`information is recorded. This recorded time stamp information reflects a time at which the user’s
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`movement (e.g. passing the given angle) caused the event to occur (patent specification, column
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`6, lines 15-40 also see col. 7, lines 32-43).” Ex. J, Reexam File History, at GARMIN_0280699–
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`700.
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`16.
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`Also during reexamination, LoganTree stated the Vock/Flentov patents,4 which
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`teach measuring movement in six directions, did not teach unrestrained movement “in any
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`direction”. Instead “the ‘unrestrained movement’ being measured in Flentov is restricted to the
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`‘forward axis’ (parallel to vehicle movement along surface) and the ‘height axis’ (perpendicular
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`to vehicle movement along surface)” and “the ‘unrestrained movement’ being measured in Vock
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`is restricted to ‘upwards’ or ‘downwards.’” Ex. J, Reexam File History, at GARMIN_0280345–
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`56, GARMIN_0280379–93; Ex. E, Myers Report, at 10, ¶ 32; Ex. I, Ferrese Report, at 21, ¶ 64;
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`Ex. K, Ferrese Depo Trans., 21:24–22:17.
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`17.
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`During the IPR, LoganTree stated that Stewart, “merely provides for a helmet that
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`includes three sets of three orthogonally-placed accelerometers that can be used to measure
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`uniquely the translational, angular and normal components of acceleration of the head,” also did
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`not measure unrestrained movement in any direction and “is believed to be restrained.” ECF 85-
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`8, at 4:57–59, 6:32–36, 6:42–45, 7:21–23; ECF 85-9, 85-10.
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`18.
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`During this litigation, LoganTree’s validity expert, Ferrese, contended that to
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`measure unrestrained movement in any direction (i.e. “complete measure of all directions”)
`
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`4 The Vock and Flentov prior art references are related and share a specification.
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`
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`9
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`

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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 13 of 34
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`Vock/Flentov would need to measure movement in nine directions (i.e. “nine accelerometers”).
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`Ex. K, Ferrese Depo Trans., at 22:21–23:19. Yet Ferrese never referred to any disclosure of the
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`’576 Patent to support his indefiniteness opinions. Id. at 126:25–127:11. Nor did he discuss any
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`reference in the ’576 Patent to impact forces restraining movement. Id. at 129:20–130:2.
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`19.
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`LoganTree accused Garmin’s Accused Products, which measure movement in three
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`directions, of measuring unrestrained movement. ECF 187, at 12.
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`20.
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`Ferrese opined that it was a “reasonable position” to contend that Flentov/Vock
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`“does not teach the measurement of unrestrained movement in any direction because
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`[Flentov/Vock] only teaches the measurement of loft (time) and speed.” Ex. I, Ferrese Report, at
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`55–57, ¶ 31. However, when confronted with Vock/Flentov’s disclosure that its movement sensors
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`could measure distance (including distance in six directions) in addition to loft time and speed,
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`Ferrese admitted “Vock/Flentov only teaches the measurement of loft (time) and speed.” Ex. K,
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`Ferrese Depo Trans., at 62:10–12.
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`III.
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` Legal Standard
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`Summary judgment is appropriate if the moving party demonstrates that “there is no
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`genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed.
`
`R. Civ. P. 56(c). “An issue of fact is ‘genuine’ if the evidence allows a reasonable jury to resolve
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`the issue either way.” Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006).
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`A fact is “material” when “it is essential to the proper disposition of the claim.” Id. The court must
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`view the evidence and all reasonable inferences in the light most favorable to the nonmoving party.
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`LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
`
`The moving party bears the initial burden of demonstrating the absence of a genuine issue
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`of material fact. Thom v. Bristol–Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing
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`
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 14 of 34
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`Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In
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`attempting to meet this standard, the moving party need not disprove the nonmoving party’s claim;
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`rather, the movant must simply point out the lack of evidence on an essential element of the
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`nonmoving party’s claim. Id. If the moving party carries its initial burden, the party opposing
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`summary judgment cannot rest on the pleadings but must bring forth “specific facts showing a
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`genuine issue for trial.” Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir.2005). The
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`opposing party must “set forth specific facts that would be admissible in evidence in the event of
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`trial from which a rational trier of fact could find for the nonmovant.” Mitchell v. City of Moore,
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`Okla., 218 F.3d 1190, 1197 (10th Cir.2000) (citation omitted). Conclusory allegations alone cannot
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`defeat a properly supported motion for summary judgment. White v. York Int’l Corp., 45 F.3d 357,
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`363 (10th Cir.1995). The nonmovant’s “evidence, including testimony, must be based on more
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`than mere speculation, conjecture, or surmise.” Bones v. Honeywell Intern., Inc., 366 F.3d 869,
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`875 (10th Cir.2004); see also KMMentor, LLC v. Knowledge Mgmt. Pro. Soc., Inc., 712 F. Supp.
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`2d 1222, 1236 (D. Kan. 2010).
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`IV. Argument
`
`A.
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`Garmin’s Accused Products do not (and cannot) infringe where they never record a
`time stamp based on a user reaching a step goal.
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`LoganTree alleges Garmin infringes the Asserted Claims by literal, direct infringement.
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`SOF ¶ 4. The burden is on LoganTree to show that “the properly construed claim reads on the
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`accused device exactly.” CommScope Techs. LLC v. Dali Wireless Inc., 10 F.4th 1289, 1298 (Fed.
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`Cir. 2021); KCJ Corp. v. Kinetic Concepts, Inc., 39 F. Supp. 2d 1286, 1289 (D. Kan. 1999).
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`Because LoganTree has only pled literal infringement, this means LoganTree cannot argue a time
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`stamp that is before the user-defined goal is “similar” or “close enough.” It must be exact. Id.
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`LoganTree cannot meet its burden.
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 15 of 34
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`The key claim limitation in all the asserted claims warranting summary judgment of no
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`infringement is the “time stamp” limitation, which requires storing “first time stamp information
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`reflecting a time at which the movement data causing the first user-defined event occurred.” SOF
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`¶ 1. The Court construed the time stamp limitation as “first time stamp information reflecting the
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`time recorded or noted by the system at which the movement data causing the first user-defined
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`event occurred.” (emphasis added). SOF ¶ 2. Supporting that construction, the Court explained
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`that “the time stamp information is a recording of the time obtained from the system’s real time
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`clock,” and “is going to be measured based on the unit of measurement that the real-time clock is
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`programmed to obtain, whether that be nanoseconds, seconds, minutes, or some other unit of
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`measurement.” Id. Thus, to satisfy the time stamp limitation under the Court’s claim construction,
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`Garmin’s Accused Products must detect a first user-defined event and record a time stamp (with
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`the specificity of the system clock) indicating the time at which the user-defined event occurred.
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`Because LoganTree accuses Garmin’s user-defined daily step goal as the first user-defined event,
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`LoganTree must show that Garmin’s Accused Products record a time stamp indicating the time
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`(accurate to the second because that is the unit of measurement utilized by the Accused Products)
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`at which the user met the daily step goal. LoganTree cannot make this showing.
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`The focal point of LoganTree’s infringement theory for the time stamp limitation are the
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`time stamps relating to step counts stored in a .FIT file on the Accused Products. SOF ¶ 3. Below
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`is an excerpt of the excel version of the .FIT file from the Forerunner 235, created and relied upon
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`by Myers in his report, showing the .FIT files general format and layout:
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 16 of 34
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`SOF ¶ 9; Ex. D. LoganTree’s evidence for each category of Accused Products is the same—every
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`instance relies on time stamps that occur before the user-defined step goal has been met:
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`
`
`Tested Accused
`Product
`Forerunner 235
`Forerunner 25
`Vivofit 3
`Fenix 5
`Vivosport
`
`Step Goal Step number LoganTree
`Contends is Infringing
`208
`238
`290
`687
`704
`
`750
`750
`750
`750
`750
`
`Total Steps away from
`the user-defined goal
`542
`512
`460
`63
`46
`
`
`Id.
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`LoganTree’s entire infringement theory hinges on its claim that the Garmin Accused
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`Products literally (i.e., “exactly”) infringe by recording time stamps before the user-defined step
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`goal is met when the claim requires a time stamp reflecting the time at which a user achieved his
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`or her user-defined step goal. SOF ¶¶ 1, 4, 9. They do not, and no jury should be empaneled to
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`perform basic math to determine that a time stamp of 208 steps is before a goal of 750 steps.
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`LoganTree performed hundreds of tests on Garmin’s Accused Products and each one proved
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`Garmin’s case—there was not a single time stamp stored in any of the .FIT files generated by any
`
`of LoganTree’s tests indicating when the step goal was met. SOF ¶ 8. LoganTree admitted as much
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`in the Pretrial Order. Id. In other words, none of the .FIT files offered as evidence by LoganTree
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`include any stored time stamps that reflect the time at which the user achieved their selected step
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`goal. As such, summary judgment of non-infringement is appropriate.
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`Case 6:17-cv-01217-EFM Document 191 Filed 12/23/21 Page 17 of 34
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`1.
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`The Accused Products Do Not Record Time Stamps When the User Defined Step
`Goal is Achieved
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`LoganTree provides no evidence that any group of Accused Products stores “first time
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`stamp information reflecting a time at which the movement data causing the first user-defined
`
`event occurred,” as construed by the Court. This is for a good reason—the Accused Products are
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`not designed to, and do not in operation, record a time stamp when the user reaches their user-
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`defined step goal. SOF ¶¶ 10–11. While LoganTree contends that a time stamp is recorded to the
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`.FIT file on the Accused Products when a user reaches their user-defined step goal (e.g., 750 steps
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`in Myers’ testing), LoganTree’s .FIT file “evidence,” compiled from hundreds of tests, confirms
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`the opposite—no time stamp is recorded that reflects