Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 1 of 27
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`LOGANTREE LP
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`Plaintiff,
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`v.
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`GARMIN INTERNATIONAL, INC.
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`Defendants.
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`CIVIL ACTION NO. 6:17-CV-01217
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`PLAINTIFF LOGANTREE’S RESPONSE IN OPPOSITION TO DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
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`LoganTree, LP (“Plaintiff” or “LoganTree”) submits this response in opposition to Garmin
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`International, Inc. (the “Defendant” or “Garmin”) Motion for Summary Judgment. For the reasons
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`stated below, Garmin’s motion should be denied in its entirety.
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`Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 2 of 27
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`Table of Contents
`Introduction ........................................................................................................................... 4
`I.
`II. Statement of Facts ................................................................................................................. 4
`Response to Garmin’s Statement of Facts ................................................................... 4
`A.
`Plaintiff’s Statement of Additional Material Facts ..................................................... 8
`B.
`III. Legal Standard for Summary Judgment ......................................................................... 9
`IV. Argument ............................................................................................................................ 9
`A. Genuine Issues of Material Fact Exist for LoganTree’s Infringement Claim. ......... 9
`1.
`Garmin Misconstrues the Claim Language and Applies an Unreasonable
`Interpretation Based on the Plain Meaning and the Court’s Construction. ................. 11
`2.
`LoganTree Provides Evidence of the Recorded Time Stamps and the First Event
`Information related to when the User Defined Step Goal is Achieved. ......................... 13
`Garmin’s Minute Boundary Obfuscates the Recorded Time Stamp. .................. 16
`3.
`LoganTree Has Provided Sufficient Evidence of Infringement of Claim 20. ..... 18
`4.
`B. Garmin Fails to Meet Its Burden of Establishing the ‘576 Patent is Invalid by Clear
`and Convincing Evidence and Genuine Issues of Material Fact Exist for Garmin’s
`Invalidity Claim. ..................................................................................................................... 20
`1.
`Garmin Fails to Show LoganTree Made Inconsistent Positions Regarding the
`Definition of Claim Terms “Unrestrained Movement” and “In Any Direction” ......... 21
`2.
`LoganTree Provides Expert Opinion Which Creates A Factual Issue Precluding
`Summary Judgment of Invalidity for Indefiniteness ....................................................... 23
`V. Conclusion and Prayer ....................................................................................................... 25
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`Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 3 of 27
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`Cases
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`Table of Authorities
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`Acceleration Bay LLC v. Take-Two Interactive Software, Inc., 2020 WL 1333131 (D. Del. Mar.
`23, 2020). .................................................................................................................................. 19
`Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998). ............................................. 10, 16
`Bausch & Lomb v. Alcon Laboratories, Inc., 64 F. Supp. 2d 233 (W.D.N.Y. 1999) ................... 24
`Cardinal Chem. Co. v. Morton Intern., Inc., 508 U.S. 83 (1993) ................................................. 24
`Colorado v. New Mexico, 467 U.S. 310 (1984) ............................................................................ 21
`CommScope Techs. LLC v. Dali Wireless, Inc., 10 F.4th 1289 (Fed. Cir. 2021). .................. 16, 24
`Cox Commc’ns, Inc. v. Sprint Commc’n Co. LP, 838 F.3d 1224 (Fed. Cir. 2016) ...................... 21
`Delsa Brooke Sanderson v. Wyoming Highway Patrol, 976 F.3d 1164 (10th Cir. 2020). ........... 10
`Duckett v. City of Cedar Park, 950 F.2d 272 (5th Cir. 1992). ........................................................ 9
`Freeman v. Gerber Products Co., 388 F.Supp.2d 1238 (D. Kan. 2005). ..................................... 10
`Hay & Forage Indus. v. New Holland N. Am., Inc., 25 F.Supp.2d 1180 (D. Kan. 1998). ....... 9, 10
`In re Independent Svc. Orgs. Antitrust Litigation, 85 F.Supp.2d 1130 (D. Kan. 2000). .............. 10
`Infinity Comp. Prods., Inc. v. Oki Data Americas, Inc., 987 F.3d 1053 (Fed. Cir. 2021) ...... 22, 23
`Interval Licensing, LLC v. AOL, Inc., 766 F.3d 1364 (Fed. Cir. 2014) ........................................ 22
`LNP Eng'g, 77 F. Supp. 2d ........................................................................................................... 24
`Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301 (Fed. Cir. 2009); .................................. 19, 20
`McGinley v. Franklin Sports, Inc., 75 F.Supp.2d 1218 (D. Kan. 1999) ....................................... 10
`Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91 (2011). ............................................................... 21
`Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261 (Fed. Cir. 1986). .................................. 19
`Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898 (2014). .................................................. 21
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) ........................................................ 12, 13
`Procter & Gamble Co. v. Teva Pharms. USA, Inc., 566 F.3d 989 (Fed. Cir. 2009) .................... 21
`Snyder v. American Kennel Club .................................................................................................. 26
`Snyder v. American Kennel Club, 661 F.Supp.1219 (D. Kan. 2009). .......................................... 16
`TC Mfg. Co. v. Polyguard Prods., Inc., No. 96 C 8392, 1999 WL 753932 (N.D.Ill. Sept. 15, 1999)
`................................................................................................................................................... 24
`Voter Verified, Inc. v. Election Sys. & Software LLC, 887 F.3d 1376 (Fed. Cir. 2018) ............... 24
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`Statutes
`35 U.S.C. § 282(a) ........................................................................................................................ 20
`35 U.S.C. 112(b) ........................................................................................................................... 23
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`Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 4 of 27
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`I.
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`Introduction
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`Garmin has asserted that it should be granted summary judgment on LoganTree’s
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`infringement claim and claims invalidity due to indefiniteness. However, when the evidence is
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`viewed in the light most favorable to LoganTree, as it must be for summary judgment, and when
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`the proper case law is applied, it is clear that Garmin’s motion for summary judgement should be
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`wholly denied.
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`II.
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`Statement of Facts
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`A. Response to Garmin’s Statement of Facts
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`Pursuant to Local Rule of Civil Procedure 56.1, Garmin was to submit a statement of
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`undisputed material facts in support of it motion for summary judgment. LoganTree responds to
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`Garmin’s statement of facts as follows:
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`1-2. LoganTree does not dispute ¶¶ 1-2 of Garmin’s Statement of Facts.
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`3.
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`LoganTree does not dispute ¶ 3 of Garmin’s Statement of Facts, subject to
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`clarification. LoganTree contends that the Accused Products record a timestamp for a step count
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`at a second interval when activity occurs, but the recorded timestamp is tied to a “minute
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`boundary”. ECF 187, at 8; Ex. A, Myers Report, at 72-75 and 120; Ex. B, Myers’ Depo. Trans., at
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`38:6 – 44:19; Ex. C, Blair Depo. Trans., at 24:16 – 25:2 and 33:7-17; Ex. D, Michalson Report,
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`at 104-15.
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`4.
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`LoganTree does not dispute ¶ 4 of Garmin’s Statement of Facts.
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`5.
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`LoganTree does not dispute ¶ 5 of Garmin’s Statement of Facts, subject to
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`clarification. LoganTree contends that Garmin’s Accused Products measure and record
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`information on a “per second basis”, but further contends that that recorded timestamp is then tied
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`to what is called a “minute boundary.” ECF 187, at 8; Ex. A, Myers Report, at 72-75 and 120; Ex.
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`B, Myers’ Depo. Trans., at 38:6 – 44:19; Ex. C, Blair Depo. Trans., at 24:16 – 25:2 and 33:7-17;
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`Ex. D, Michalson Report, at 104-15.
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`6.
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`LoganTree does not dispute ¶ 6 of Garmin’s Statement of Facts, subject to
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`clarification. LoganTree does not dispute that Garmin’s Accused Products store time stamps at
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`certain time intervals or at the nearest minute boundary after the device detects a change in activity.
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`However, LoganTree disputes any suggestion that Garmin’s Accused Products store time stamps
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`in only these instances. LoganTree contends that Garmin’s Accused Products also store
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`timestamps 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 187, at 8; Ex. A, Myers Report, at 72-75 and
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`120; Ex. B, Myers’ Depo. Trans., at 38:6 – 44:19; Ex. C, Blair Depo. Trans., at 24:16 – 25:2 and
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`33:7-17; Ex. D, Michalson Report, at 104-15.
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`7.
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`Denied. LoganTree observed that Garmin’s Accused products’ use of the minute
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`boundary is a design choice of precision of the system, presumably because the user does not need
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`to know the exact second of the day the user met their daily step goal. ECF 187, at 8.
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`8.
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`Denied. LoganTree does not dispute that its expert, Myers, performed extensive
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`testing on the Accused Products, however, these tests consistently showed timestamps
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`corresponding with the noted time of the step goal being met. ECF 187, at 7; Ex. A, Myers Report,
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`at 72-75 and 120; Ex. B, Myers’ Depo. Trans., at 38:6 – 44:19; Ex. D, Michalson Report, at 104-
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`15. LoganTree agrees that “750 is never recorded with a timestamp” because the Accused Products
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`record all timestamps tied to a minute boundary. Ex. A, Myers Report, at 72-75 and 120; Ex. B,
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`Myers’ Depo. Trans., at 38:6 – 44:19; Ex. D, Michalson Report, at 104-15. After moving the
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`timestamp to the minute boundary, the Accused Products record the number of steps that
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`correspond with that minute boundary, which is why the recorded step counts are near, but never
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`Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 6 of 27
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`exactly, multiples of 750. ECF 187, at 8; Ex. A, Myers Report, at 72-75 and 120; Ex. B, Myers’
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`Depo. Trans., at 38:6 – 44:19.
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`9.
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`Denied. LoganTree does not rely on and allege that the listed information reflects
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`the “time at which the user has achieved the user defined step goal of 750 steps and saved the time
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`stamp and user defined goal to the .FIT file.” ECF 191, at 7, ¶ 9. LoganTree contends that the
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`Accused products record timestamps at a minute boundary, and store these timestamp entries in
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`the .FIT files associated with step data. ECF 187, at 8; Ex. A, Myers Report, at 72-75 and 120;
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`Ex. B, Myers’ Depo. Trans., at 38:6 – 44:19; Ex. D, Michalson Report, at 104-15.
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`10. Denied. LoganTree provided deposition testimony to show the Accused Products
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`record a time stamp when the user-defined step goal is achieved. Ex. B, Myers’ Depo. Trans., at
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`38:6 – 44:19.
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`11. Denied. LoganTree contends that Garmin’s Accused Products do save a timestamp
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`and step data causing a user step goal to be met to the .FIT file when a user achieves a manual step
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`goal. ECF 187, at 8; Ex. A, Myers Report, at 72-75 and 120; Ex. B, Myers’ Depo. Trans., at 38:6
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`– 44:19; Ex. C, Blair Depo. Trans., at 24:16 – 25:2 and 33:7-17; Ex. D, Michalson Report, at 104-
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`15.
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`12.
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` Denied. LoganTree has expert testimony, supplemented by circumstantial
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`documentary evidence, that Garmin practiced Method Claim 20. ECF 187, at 13-14; Ex. A, Myers
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`Report, at 544. Myers testified that, based on his experience, people at Garmin would have
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`performed tasks in the normal course of designing, testing, and validating the Accused Products
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`such as setting the user-defined step goal, confirming that the goals were met and being displayed
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`on the watch, and confirming that the material written to the .FIT file is correct. ECF 187, at 13;
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`Ex. B, Myers’ Depo Trans., at 109:8– 111-14. Moreover, Jay Dee Krull of Garmin testified that
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`Garmin generally tests its products. Ex. F, Krull Depo Trans., at 64:24–66:2. The Accused
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`Products’ manuals further support that Garmin tests its products, and in doing so, directly infringes
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`on Method Claim 20. Ex. G, Fenix 5 Manual (Garmin 0001474 – 0001513). To create the product
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`manuals, which instruct the user to use the Accused Products in infringing ways, people at Garmin
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`had to carry out the very tasks they instruct the user to perform. ECF 187, at 14.
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`13. LoganTree does not dispute ¶ 13 of Garmin’s Statement of Facts.
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`14. LoganTree does not dispute ¶ 14 of Garmin’s Statement of Facts.
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`15.
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`LoganTree does not dispute ¶ 15 of Garmin’s Statement of Facts.
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`16. LoganTree does not dispute ¶ 16 of Garmin’s Statement of Facts, subject to
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`clarification. Garmin provides a confusing recitation the ‘576 Patent’s prosecution history to
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`suggest that LoganTree provided two opposing definitions of the claimed limitation to
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`overcome prior art, which it did not. During Reexamination, LoganTree argued that neither
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`Flentov nor Vock taught measuring movement “in any direction”. Ex. H, Request for Ex Parte
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`Reexamination by Patent Owner, at 55 and 85. LoganTree argued “the ‘unrestrained
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`movement’ being measured in Flentov is restricted to the ‘forward axis’ (parallel to vehicle
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`movement along surface) and the ‘height axis’ (perpendicular to vehicle movement along
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`surface)” and that “the ‘unrestrained movement’ being measured in Vock is restricted to
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`‘upwards’ or ‘downwards.’” Id. In making these arguments, LoganTree took into consideration
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`the teachings of Vock and Flentov as a whole and took the position that the devices taught in
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`Vock/Flentov were specifically structured so that they were not measuring movement “in any
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`direction.” Id.; ECF 187, at 29.
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`17.
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`LoganTree does not dispute ¶ 17 of Garmin’s Statement of Facts.
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`Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 8 of 27
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`18. Denied. Garmin mischaracterizes Ferrese’s deposition testimony. In his deposition,
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`Garmin’s attorneys suggested that Ferrese’s indefiniteness section never refers to any disclosures
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`of the ‘576 patent. Ferrese does not explicitly agree with this statement as Garmin suggests but
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`merely “take[s] [Garmin] at [its] word.” Ex. I, Ferrese Depo. Trans., at 126:25–127:11.
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`19. Denied. LoganTree contends Garmin’s Accused Products measure unrestrained
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`movement in any direction via accelerometers that measure 3-dimensional movement in terms of
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`acceleration/velocity and related source code. ECF 187, at 12. Myer’s testing of the Accused
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`Products confirmed his observations in the source code in that he was able to move his body and
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`arm in an unrestrained fashion and his steps were reasonably counted utilizing the accelerometers
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`data. Id.; Ex. A, Myers Report at 63–64, 88–89, 176-77, 201-03, 285-86, 311-12, 399–400.
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`20. Denied. Garmin mischaracterizes Ferrese’s testimony. Further, Ferrese testified
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`that nine accelerometers would be required for complete resolution of motion in all directions. Ex.
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`I, Ferrese Depo. Trans., at 22:21–23:05. Ferrese testified that a three-axis accelerometer, as in the
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`Accused Products, is capable of measuring movement in any direction. Ex. I, Ferrese Depo.
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`Trans., at 130:08–130:15. Thus, Ferrese’s opinions regarding the Vock/Flentov references are
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`consistent with LoganTree’s infringement contentions regarding unrestrained movement in any
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`direction. ECF 187, at 12-13.
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`B. Plaintiff’s Statement of Additional Material Facts
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`1. Garmin admits that any ambiguity between restrained and unrestrained exists both on
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`LoganTree’s products as well as Garmin’s Accused Products. ECF 108, at 65:25-66:8.1
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`1 THE COURT: Mr. Seitz, my question is that ambiguity different between your device and LoganTree's? I realize it
`goes to invalidity, but with respect to infringement issues, whatever ambiguity exists as to whether the device is
`restrained or unrestrained, is that ambiguity materially the same with respect to both devices?
`MR. SEITZ: That is correct. I'm sorry, I misunderstood. That is correct.”
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`Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 9 of 27
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`III. Legal Standard for Summary Judgment
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`Summary judgment is appropriate only if Garmin “demonstrates that there is no genuine
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`issue as to any material fact and that it is entitled to a judgment as a matter of law.” Hay & Forage
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`Indus. v. New Holland N. Am., Inc., 25 F.Supp.2d 1180, 1185 (D. Kan. 1998). The movant must
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`make a prima facie case showing that they are entitled to the relief sought. Celotex Corp., 477
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`U.S. at 323-24. Once a prima facie case is shown, the burden shifts to the non-movant to show
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`that there is a genuine factual dispute requiring a trial. Duckett v. City of Cedar Park, 950 F.2d
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`272, 276 (5th Cir. 1992). An issue is genuine when sufficient evidence exists that allows “a
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`rational trier of fact” to resolve the issue either way. Delsa Brooke Sanderson v. Wyoming
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`Highway Patrol, 976 F.3d 1164, 1173 (10th Cir. 2020). A material fact exists when based on the
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`“substantive law it is essential to the proper disposition of the claim.” Id. For purposes of Garmin’s
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`motion, the Court must view the evidence and make all reasonable inferences in the light most
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`favorable to LoganTree. McGinley v. Franklin Sports, Inc., 75 F.Supp.2d 1218, 1221 (D. Kan.
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`1999), aff’d in relevant part, 262 F.3d 1339 (Fed. Cir. 2001).
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`As the movant, Garmin must first meet its burden of “demonstrating an absence of a
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`genuine issue of material fact.” Hay & Forage Indus., 25 F.Supp.2d at 1185. To meet its burden,
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`Garmin must “point out to the court a lack of evidence for the other party on an essential element
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`of that party’s claim.” Id. If Garmin meets its burden, then LoganTree must “set forth specific
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`facts showing that there is a genuine issue for trial.” Id. Specifically, “to accomplish this, the facts
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`must be identified by reference to affidavits, deposition transcripts, or specific exhibits
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`incorporated therein.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).
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`A. Genuine Issues of Material Fact Exist for LoganTree’s Infringement Claim.
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`IV. Argument
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`Literal infringement of a patent claim exists when “every limitation recited in the claim is
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`found in the accused device.” In re Independent Svc. Orgs. Antitrust Litigation, 85 F.Supp.2d 1130,
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`1165 (D. Kan. 2000). Literal infringement is a question of fact. Freeman v. Gerber Products Co.,
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`388 F.Supp.2d 1238, 1243-44 (D. Kan. 2005). Garmin’s motion for summary judgment addresses
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`only select portions of claims from LoganTree’s patent.
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`First, Garmin misconstrues the claim language throughout its motion for summary
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`judgment in an effort to support its position. Specifically, Garmin interprets “first event
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`information related to the detected first user-defined event” narrowly without any basis from the
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`Court or any evidence that Garmin’s interpretation is within the “ordinary and customary
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`meaning.” Garmin also interprets “first time stamp information reflecting the time recorded or
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`noted by the system at which the movement data causing the first user-defined event occurred”
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`narrowly and without giving merit to the prosecution history, the scope of the claims, or the Court’s
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`Construction.
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`Despite Garmin’s extensive restatements of the same argument, LoganTree has provided
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`significant evidence of its infringement claim. In its motion for summary judgment, Garmin
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`misapplies the evidence and argues that LoganTree’s expert’s report and testimony were
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`speculative, despite testing, analysis, and evidence to the contrary. LoganTree’s expert, Myers,
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`conducted extensive research prior to providing his opinion and did not merely speculate on the
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`Accused Products’ infringement. See Ex. A, Myers Report, at ¶¶ 79-90. Garmin provided no
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`evidence for how Myers’ testimony was speculative, but instead solely made allegations that only
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`suggest Garmin does not agree with the expert’s opinion. Unfortunately for Garmin, it did not meet
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`its burden or provide the Court with any evidence for why summary judgment should be granted
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`on LoganTree’s infringement claim.
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`Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 11 of 27
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`Additionally, Garmin’s motion for summary judgment referenced and applied inconsistent
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`standards when discussing its unit of measurement for its time stamps. Garmin’s expert made
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`similar inconsistent statements in his deposition. Garmin did not meet its burden in its motion for
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`summary judgment, and as exemplified below, LoganTree’s evidence provides a genuine issue of
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`material fact regarding its infringement claim, which precludes summary judgment.
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`Finally, Garmin contends that it does not perform Method Claim 20. In doing so, it
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`ignores the expert and documentary evidence on the record which demonstrates Garmin
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`practiced every limitation of the claim, in the United States, during the relevant damages period.
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`LoganTree’s evidence creates a genuine issue of material fact and summary judgment on this
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`issue is thus precluded also.
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`1. Garmin Misconstrues the Claim Language and Applies an Unreasonable
`Interpretation Based on the Plain Meaning and the Court’s Construction.
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`Garmin’s interpretation of the claim language is inaccurate. Garmin argues that “first event
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`information related to the detected first user-defined event” means the device must store the exact
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`step count of when the user reaches its goal (e.g., a data point for the 5,000th step) when it records
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`the time stamp for the user-defined event. Garmin did not dispute the interpretation of these terms
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`at the Markman hearing. Therefore, the Court did not construe the term, and the words are “given
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`their ordinary and customary meaning.” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir.
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`2005) (en banc), as stated by the Court in ECF 106, at p. 2. When determining the “ordinary and
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`customary meaning,” each claim does not stand alone, but rather the claims “are part of ‘a fully
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`integrated written instrument.’” Id. at 1315. Garmin’s interpretation narrowly construes the claim,
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`which is not supported by the Court’s interpretation of the claim language as a whole or the related
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`language in the claim which discusses the “first time stamp information.” See infra at p. 9-10.
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`Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 12 of 27
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`Garmin asserts that “first time stamp information” means the exact second the user meets
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`the user-defined event. ECF 106, at p. 9. However, the Court never states that it is the exact second
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`or that the time stamp information only reflects one moment in time. The claim language states
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`“first time stamp information,” not only a single time stamp, which Garmin assumes throughout
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`its motion for summary judgment.
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`In fact, the Court’s inclusion of “the movement data causing the first user-defined event”
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`exemplifies that multiple time stamps could exist. Rather, for the time stamp to include “the
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`movement data,” it would have to encompass the steps leading up to a step goal, which would
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`ultimately trigger the user-defined event and not just the final step in the user’s goal. At the
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`Markman hearing, the Court specifically declined to use Garmin’s interpretation which stated
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`“movement data occurrence causing the first user-defined event.” Id. at p. 8. The term
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`“occurrence” supports a narrower construction, but the Court specifically removed this term from
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`the claim language. The Court’s construction allows for a broader interpretation, which supports
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`LoganTree’s patent and its technology. Further, Garmin’s own argument for this claim language
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`cuts against its argument in its motion for summary judgment. In support of the claim language in
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`question, Garmin cited the reexamination history, which states “the microprocessor retrieves at
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`least one time stamp for the real-time clock and associates the retrieved time stamp with the
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`received movement data.” ECF 82, Exhibit B, at p. 1. The reexamination history supports an
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`interpretation of more than one time stamp, by stating “at least one,” and the microprocessor
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`associates the time stamp with the “received movement data,” which does not indicate that the
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`movement data consists of solely one specific step (e.g., the 5000th step). Rather, movement data
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`indicates a data set instead of a data point.
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`Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 13 of 27
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`Additionally, the Court’s claim construction states “time stamp information reflecting the
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`time recorded or noted by the system.” Id. at p. 8. The Court provided no additional definition for
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`the term “reflecting.” Therefore, this term is given its “ordinary and customary meaning.” Phillips,
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`415 F.3d at 1312. Based on its ordinary and customary meaning, the term “reflecting” generally
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`means to “embody or represent.” Based on this meaning, the term “reflecting” in the claim
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`construction means the time stamp that embodies or represents “the time recorded or noted by the
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`system.” The evidence shows the Accused Products’ time stamps do embody or represent the time
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`recorded or noted by the system for the user-defined event.
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`2. LoganTree Provides Evidence of the Recorded Time Stamps and the First Event
`Information related to when the User Defined Step Goal is Achieved.
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`Based on the Court’s claim construction and the claim language, LoganTree provided
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`evidence of the recorded time stamps in the Accused Products’ source code and the .FIT files from
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`the devices. Ex. A, Myers Report; Ex. B, Myers’ Depo. Trans., at 89:9-10, 131:13-20, and 133:13-
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`15. As explained in Myers’ report and deposition, Myers conducted testing of the devices, which
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`exemplified one or more time stamps reflecting the occurrence of the user-defined event. Myers
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`explained how the time stamps were reflected in the .FIT file. In particular, a manual step goal
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`(e.g., 750 steps) was set for the devices. Ex. B, Myers’ Depo. Trans., at 45:18-22; 50:25-51:2.
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`The wearer of the device would walk to exceed 750 steps. Id., at 87:10-12. The test was structured
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`to demonstrate key observations, one being that the .FIT file logs events when a daily step goal is
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`met or a multiple events goal is met. Id., at 87:12-17. Myers structured the walking activity to
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`where at least one 15-minute interval would be crossed to show that is a basic logging event that
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`is baked into the Garmin devices. Id., at 87:18-22. Myers also showed how the devices log events
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`in the .FIT file based on if you stop walking or if you change the level of vigor that you are walking
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`or speed. Id., at 87:10-88:3.
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`Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 14 of 27
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`Once the step goal was met, the devices gave instant information to the wearer of the device
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`that the step goal was met. Ex. A, Myers Report, at 67, 68, 97, 98, 180, 210, 211, 290, 291, 320,
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`321, 511 and 512.
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`Myers hands on use and testing provides evidence which demonstrates that the Accused
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`Products infringe the ‘576 Patent. Contrary to Garmin’s assertions, the Accused Products do not
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`only record timestamps on regular predetermined intervals (i.e., every 15 minutes) or when a user
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`changes activity (e.g., slows down, stops, or speeds up). The Accused Products also record a
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`timestamp when a user-defined step goal is met. LoganTree has presented evidence that each
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`Accused Product records time stamps when the user defined step goal is achieved.
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`First, the record has ample evidence to show that the Fenix 5 system records a timestamp
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`when the user-defined step goal is met. The Fenix 5 system’s timestamp is tied to what is called a
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`“minute boundary.” This timestamp is detected and recorded in connection with step count data
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`on a second interval. Ex. B, Myers Depo. Trans., at 101:06-07. Then, that timestamp is merely
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`moved to the beginning of the minute boundary. Ex. A, Myers Expert Report, at 104. Myer’s
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`testing demonstrates that the Fenix 5 consistently records a timestamp at the user-defined step goal
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`and its multiples. Ex. B, Myers Depo. Trans., at 102:07-08; Ex. A, Myers Expert Report, at 104.
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`What is stored in the .FIT file does not need to show 750 steps, because a timestamp is nevertheless
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`being recorded directly in response to meeting the step goal. Ex. B, Myers Depo. Trans., at 99:5-
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`8.
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`The Vivosport works on the same level of granularity (i.e., minute boundary) as the Fenix
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`5, as also demonstrated by Myer’s testing. Ex. A, Myers Expert Report, at 187. When the user
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`defined goal is met, the step count is recorded in connection with a timestamp, and then the
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`timestamp is tied to a minute boundary. Ex. B, Myers Depo. Trans., at 133:13-19.
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`Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 15 of 27
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`The Forerunner 25 and 235 devices similarly infringe the ‘576 Patent but record
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`timestamps in a slightly different way. Ex. B, Myers Depo Trans. at 133:13-14. Instead of tying
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`one timestamp to a minute boundary, two timestamps are recorded within 15-minute boundaries.
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`Ex. A, Myers Expert Report, at 298; Ex. B, Myers Depo. Trans., at 144:06-14. The user-defined
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`goal is met, recorded, and encompassed within these two timestamps. Ex. B, Myers Depo. Trans.,
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`at 142:5-24.
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`While the Vivofit is unique from the other devices in that it does not have a physical port
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`to directly access its files, when data is pulled from the device the data verifies that the devices
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`logs and stores when then user-defined step goal is reached. Ex. A, Myers Expert Report, at 491.
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`The Vivofit works differently than the other Accused Products because the data in the .FIT file is
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`logged in a curve, which is then compared to the goal. Ex. B, Myers Depo. Trans., at 149:3-6.
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`Myers confirmed the accuracy of this timestamp through his testing.
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`Additionally, Myers explained how the Accused Products show the first event information.
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`Through his testing, the .FIT files logged “events when a goal, a daily step goal [was] met or a
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`multiple events goal [was] met.” Ex. B, Myers’ Depo. Trans., at 87:10-20. The .FIT files clearly
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`show first event information, and Garmin’s contention that the Accused Products do not record
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`this type of information is wholly inaccurate.
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`Garmin contends multiple times that LoganTree’s expert’s opinion was pure speculation,
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`conclusory and is not “evidence” of the patent infringement. However, case law specifically
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`supports the use of deposition testimony as evidence to support an opposition to a motion for
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`summary judgment. Adler, 144 F.3d at 670; supra at p. 7. In essence, Garmin’s argument requests
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`the Court determine the weight and credibility of the evidence provided by LoganTree. However,
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`a motion for summary judgment “does not empower a court to act as the jury and determine the
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`Case 6:17-cv-01217-EFM Document 194 Filed 01/13/22 Page 16 of 27
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`witness credibility, weigh the evidence, or choose between competing testimony.” Snyder v.
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`American Kennel Club, 661 F.Supp.1219, 1235 (D. Kan. 2009). Therefore, Garmin’s contentions
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`regarding the weight and credibility are invalid, and LoganTree has met its burden by providing
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`evidence of Garmin’s infringement.
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`Further, Garmin attempts to discredit LoganTree’s evidence based on the CommScope
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`case. See CommScope Techs. LLC v. Dali Wireless, Inc., 10 F.4th 1289 (Fed. Cir. 2021). In
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`CommScope, the claim required the controller to render itself “nonoperating,” when the controller
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`was actually “continuously operating.” Id. at 1298. CommScope represents a lack of literal patent
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`infringement when the claim construction and the actual product in question are wholly opposite