Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 1 of 23
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`LOGANTREE LP,
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`Plaintiff,
`
`v.
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`Case No. 17-1217-EFM-ADM
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`GARMIN INTERNATIONAL, INC.,
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`Defendant.
`
`GARMIN’S REPLY IN SUPPORT OF
`ITS MOTION FOR SUMMARY JUDGMENT
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`

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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 2 of 23
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`TABLE OF CONTENTS
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`Introduction ............................................................................................................................. 1
`I.
`II. The Parties’ Responses to the Statements of Undisputed Facts ............................................. 3
`A. LoganTree’s Improper Responses to Garmin’s Undisputed Facts ..................................... 3
`B. Garmin’s Responses to LoganTree’s Counter Statement of Undisputed Facts .................. 3
`III. Argument ................................................................................................................................ 3
`A. LoganTree’s Belated and Improper Attempt to Rewrite the Court’s Claim Construction
`Lacks Merit and Should be Rejected .......................................................................................... 3
`B. There is no Genuine Dispute of Material Fact that Garmin’s Accused Products do not
`Infringe the Time Stamp Limitation ........................................................................................... 7
`1.
`There is no Genuine Dispute Regarding the Operation of the Accused Products—They
`do not Store a Time Stamp to the .FIT file when the User Hits Their Daily Step Goal ......... 8
`2.
`LoganTree’s Alleged Evidence it Contends Shows that Garmin’s Accused Products
`Store a Time Stamp when the User Hits Their Daily Step Goal is Insufficient to Create a
`Genuine Material Dispute ..................................................................................................... 11
`C. LoganTree’s Circumstantial Evidence that Garmin Directly Infringed Method Claim 20 is
`Conclusory, Unsupported, and Insufficient to Survive Summary Judgment ............................ 13
`D. LoganTree Still has not Defined the Scope of the Claims with Reasonable Certainty,
`Rendering the Claims Indefinite ............................................................................................... 14
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 3 of 23
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`TABLE OF AUTHORITIES
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`CASES
`Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343 (Fed. Cir. 2001) ....................... 19
`Centricut, LLC v. Esab Grp., Inc., 390 F.3d 1361 (Fed. Cir. 2004) ............................................... 9
`CommScope Techs. LLC v. Dali Wireless Inc., 10 F.4th 1289 (Fed. Cir. 2021) ............................ 7
`Dominion Energy, Inc. v. Alstom Grid LLC, 725 F. App’x 980 (Fed. Cir. 2018) .................. 10, 11
`E-Pass Techs., Inc. v. 3Com Corp., 473 F.3d 1213 (Fed. Cir. 2007) ........................................... 14
`Implicit Networks Inc. v. F5 Networks Inc., 2013 WL 1007250 (N.D. Cal. Mar. 13, 2013) .......... 9
`O.J. of Stillwater, Inc. v. Davidson, 242 F.3d 389 (10th Cir. 2000) ................................... 8, 10, 11
`Oracle Am., Inc. v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014) .................................................. 8
`White v. Dunbar, 119 U.S. 47 (1886) ........................................................................................... 19
`Wi-LAN Inc. v. Sharp Elecs. Corp., 362 F. Supp. 3d 226 (D. Del. 2019) ...................................... 9
`
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 4 of 23
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`I.
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`Introduction
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`LoganTree admits four key facts that mandate summary judgment:
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`• Garmin’s real-time clock works on a second basis.
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`• Garmin does not write a timestamp to the second, only the minute.
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`• Garmin’s software (e.g., its “source code”) for the Accused Products does not instruct the
`devices to write a time stamp when the user defined step goal is met.
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`• Of the hundreds of tests performed by both experts in this case, not a single one shows a
`timestamp that matches the set step goal.
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`The Court construed the phrase “first time stamp information reflecting a time at which the
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`movement data causing the first user-defined event occurred” to mean “first time stamp reflecting
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`the time recorded or noted by the system at which the movement data causing the first user-defined
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`event occurred.” ECF 106, at 9 (emphasis added). As the Court explained, “the time stamp
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`information is going to be measured based on the unite 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. at 8. In other words, the Court already explained that the asserted claims require
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`a time stamp showing the precise second when the user defined event occurred (e.g., manual step
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`goal is achieved) if the system time is in seconds. As noted by the Court, there is no “flexibility in
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`the unit of time measurement” and given it is undisputed that the real time clock measures in
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`seconds, there is no evidence of infringement. ECF 106, at 8. Because LoganTree does not dispute
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`that Garmin’s Accused Products do not write a system time (in seconds) but only a time stamp on
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`the minute boundary, LoganTree’s infringement claim fails under the Court’s claim construction.
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`Additionally, summary judgment is also required because Garmin’s Accused Products do
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`not write any time stamp based on the step goal—whether it’s to the minute or the second.
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`LoganTree does not dispute that it is relying on minute boundary time stamps long before the
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`step goal even occurred: 208 steps before the 750 step goal, 238 steps before the 750 step goal,
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 5 of 23
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`290 steps before the 750 step goal, 687 steps before the 750 step goal, and 704 steps before the
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`750 step goal. These timestamps appear hundreds of steps before the goal and do not reflect the
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`time “at which” the step goal was met. Of the hundreds of tests submitted by the parties, not one
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`shows a timestamp that matches the set step goal.
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`Despite reviewing all of Garmin’s source code (the software that controls Garmin’s
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`Accused Products), LoganTree does not even dispute that it has no evidence that the Accused
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`Products record a time stamp when the user-defined step goal is achieved. ECF 194, at 6, SOF ¶
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`10. The lack of source code evidence from LoganTree is telling because it previously informed
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`this Court that the “source code is invaluable” to its infringement case. Now, despite multiple
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`efforts to locate anything in the code to prove infringement, LoganTree found nothing because
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`Garmin’s Accused Products do not include the time stamp functionality required by the claims.
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`No reasonable juror could find that time stamps hundreds of steps before the step goal are
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`indicative of the time “at which” the step goal was met.
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`Finally, the Court should find the asserted claims invalid as indefinite. Garmin first
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`contended the claims were indefinite during claim construction, almost two years ago. At that time,
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`Garmin directly questioned how LoganTree’s characterization of the “unrestrained movement in
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`any direction” limitation in this litigation could be reconciled with its past, seemingly contradictory
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`characterization of that limitation before the Patent Office and this Court. Since that time,
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`LoganTree failed to explain how its myriad characterizations are consistent, prompting Garmin to
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`move for summary judgment. Now, given one last opportunity to clearly resolve this issue for the
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`Court, LoganTree cannot do so. Accordingly, the Court should find the asserted claims invalid.
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 6 of 23
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`II.
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`The Parties’ Responses to the Statements of Undisputed Facts
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`A.
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`LoganTree’s Improper Responses to Garmin’s Undisputed Facts
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`LoganTree’s responses to Garmin’s statements of undisputed facts are improper under this
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`Court’s rules and guidance. D. Kan. Summary Judgment Guidelines. First, when LoganTree
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`disputed Garmin’s facts, on several occasions it responded with its legal contentions. See, e.g.,
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`ECF 194, at 4–8, SOF ¶ 3 (“LoganTree contends that the Accused Products record a
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`timestamp…”); ¶¶ 5, 6, 19 (stating LoganTree’s contentions). Moreover, LoganTree’s denials
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`were often conclusory, string citing evidence with no explanation of how the cited evidence
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`allegedly refutes Garmin’s facts. See e.g., id. at 5, SOF ¶ 6. Additionally, the factual evidence
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`LoganTree relies on to dispute Garmin’s facts often does not support the claim LoganTree
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`suggests. See, e.g., id. at 6, SOF ¶ 10 (cited Myers’ testimony has no relation to LoganTree’s
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`denial). Lastly, LoganTree repeatedly relies on conclusory deposition testimony that has no factual
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`basis, which the Court may disregard. See D. Kan. Summary Judgment Guidelines, at ¶ 14.
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`Specifically, Garmin requests the Court disregard LoganTree’s responses to Garmin’s Statement
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`of Facts ¶¶ 3, 5, 6, 8–12, 16, and 19.
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`B.
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`1.
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`Garmin’s Responses to LoganTree’s Counter Statement of Undisputed Facts
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`Garmin admits that any ambiguity between restrained and unrestrained exists both
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`on LoganTree’s products as well as Garmin’s Accused Products. ECF 108, at 65:25–66:8.
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`Garmin’s Response: Uncontroverted.
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`III. Argument
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`A.
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`LoganTree’s Belated and Improper Attempt to Rewrite the Court’s Claim
`Construction Lacks Merit and Should be Rejected
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`Having failed to come forth with any evidence that the Accused Products infringe the time
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`stamp limitation, LoganTree attempts to rewrite the Court’s claim construction. LoganTree’s
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 7 of 23
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`newly raised objection to the Court’s claim construction is three-fold. First, that the Court’s
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`construction does not require the time stamp reflect the second the user hit their daily step goal
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`despite the real time clock measuring to seconds. Second, that the claimed “time stamp” allows
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`for multiple time stamps. Third, that the claim term “reflecting” should broadly be read as meaning
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`to “embody or represent.” ECF 194, at 12–13. Beyond being a belated and improper attempt to
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`reconstrue the claims, LoganTree’s new arguments fail to provide any factual or legal basis to deny
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`summary judgment and confirms why Garmin’s Accused Products cannot infringe under the
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`Court’s actual construction of the claims.
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`LoganTree’s first argument is a single, conclusory sentence: “However, the Court never
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`states that it is the exact second or that the time stamp information only reflects one moment in
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`time.” ECF No. 194, at 12. But this is exactly what the Court determined. The Court stated the
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`claims require that “the time stamp information is going to be measured based on the unit of
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`measurement that the real-time clock is programmed to obtain, whether that be nanoseconds,
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`seconds, minutes, or some other unit of measurement.” Id. Here, there is no dispute that the real
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`time clocks in Garmin’s Accused Products are programmed to measure time in seconds. ECF 194,
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`at 4, SOF ¶ 5 (LoganTree not disputing the real-time clock in the Accused Products measures and
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`records information on a “per second” basis). Given this, the Court’s claim construction mandates
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`that the first time stamp information must reflect the time, “measured based on the [second],”
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`recorded or noted by the Accused Products. However, LoganTree plainly admits that its
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`infringement theory relies on time stamps stored to the nearest minute boundary, rather than at the
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`second the event occurs, in direct contradiction to the Court’s claim construction.
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`Second, LoganTree suggests the Court’s claim construction is broad enough to allow for
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`multiple time stamps. LoganTree’s argument here is muddled,1 but also irrelevant. Whether the
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`Court’s construction allows for multiple time stamps has no bearing here, where none of the minute
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`boundary time stamps relied on by LoganTree measure to the second or show the time when the
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`goal was met. Not a single test shows the user’s step count matching the step goal, as would be the
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`case if Garmin had made the design choice to timestamp step goals as required by the asserted
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`claims. The Court’s claim construction requires there be at least one identified “first time stamp
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`information” that reflects, down to the second, when the user-defined event occurred. LoganTree
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`failed to identify any time stamp with second information and relied on time stamps that often are
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`hundreds of steps away from the goal. Moreover, LoganTree never explains how this argument
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`aids its infringement theory in any way given these two key facts.
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`LoganTree’s final argument is, like the others, conclusory and irrelevant. LoganTree
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`contends the plain and ordinary meaning of the claimed “reflecting” means to “embody or
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`represent.” ECF 194, at 13. Tellingly, LoganTree provides no intrinsic or extrinsic support for this
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`definition, nor does it ask the Court to construe this term. Id. This is likely because further
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`construction would not save LoganTree’s infringement theory because the claim would still
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`require at least one identified “first time stamp information” that “embodies or represents” the time
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`in seconds at which the user met their daily-step goal. Yet LoganTree cannot even identify one
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`such time stamp in any of the 41 Accused Products. Id.
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`1 LoganTree’s argument is also based on a false premise. LoganTree contends this limitation should broadly
`be read to allow for multiple time stamps because “the Court specifically declined to use Garmin’s
`interpretation [of the claim] which stated ‘movement data occurrence causing the first user-defined event.’”
`ECF 194, at 12. This is wrong on two counts. First, it was not Garmin who advocated for that interpretation,
`but LoganTree. See ECF 106, at 7. Second, the Court did not “specifically decline” to use this interpretation
`of the claim. In fact, the Court did not substantively address LoganTree’s interpretation at all because
`LoganTree withdrew it during the Markman hearing. Id.
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 9 of 23
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`Obviously, the heart of LoganTree’s argument is that the time stamp limitation is met under
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`the Court’s claim construction because some time stamp is recorded on a minute, rather than
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`second basis, even though the real-time clock measures down to the second, and even though that
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`time stamp has nothing to do with the step goal. ECF 194, at 17. Not so. LoganTree agreed with
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`Garmin “that the claims are precise in nature and require the time stamp information to be a time
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`‘at which’ the movement data causing the defined event occurred.” ECF 106, at 8; see also Ex. A,
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`Markman Hearing Transcript, at 56:2–4. Thus, there is no dispute that the time stamp stored must
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`precisely state the time “at which” the event occurred. LoganTree concedes that the time stamp
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`recorded does not precisely reflect the time “at which” the user met their daily step goal, because
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`instead, the time stamp LoganTree alleges exists is stored at a minute boundary near in time to
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`when the user hit their step goal. ECF 194, at 17. That admission mandates summary judgment.
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`LoganTree’s decision to raise this “claim construction” argument for the first time in
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`opposition to Garmin’s motion for summary judgment appears to be, in actuality, an attempt by
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`LoganTree to introduce a doctrine of equivalents theory of infringement into the case. Specifically,
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`LoganTree is arguing that the Accused Products storing of a random time stamp at the nearest
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`minute boundary should be considered “close enough” to storing a time stamp reflecting the actual
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`system time at which the user-defined event occurred, as the Court’s construction requires. This is
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`supported by LoganTree’s own view of its contentions. See ECF 187, at 8 (“The Accused Products
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`cannot avoid the timestamp limitation simply by recording timestamps at a minute boundary, as
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`opposed to the exact second the event occurs.”). That is a doctrine of equivalents argument, not a
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`claim construction argument. But LoganTree never pursued a doctrine of equivalents theory in this
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`case (likely because it was legally barred from doing so given the myriad of amendments
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`LoganTree was forced to make to save its claims from being invalidated during Reexamination).
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`Moreover, LoganTree has repeatedly stipulated that it is solely advancing a literal theory of
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`infringement. ECF 187, at 3; ECF 194, at 4, SOF ¶ 4. And literal infringement requires that
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`LoganTree prove that “the properly construed claim reads on the accused device exactly.”
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`CommScope Techs. LLC v. Dali Wireless Inc., 10 F.4th 1289, 1298 (Fed. Cir. 2021) (emphasis
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`added). Because LoganTree’s pseudo-equivalency argument cannot meet that standard, its
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`argument should be rejected, and summary judgment granted.
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`B.
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`There is no Genuine Dispute of Material Fact that Garmin’s Accused Products
`do not Infringe the Time Stamp Limitation
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`Garmin moved for summary judgment of no direct infringement based on, among other
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`things, LoganTree’s complete failure of proof in support of its contention that the Accused
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`Products record a time stamp to the second when a user of the Accused Products reaches their
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`daily step goal, as required to prove infringement of the ’576 Patent. See generally ECF 190, 191.
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`Garmin’s Accused Products simply do not do this. They record time stamps at intervals and not
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`when a user hits his or her step goal. This is why none of the tests submitted by either party show
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`a time stamp equaling a step goal. Occasionally, the Accused Products might write a time stamp
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`that is related to other fitness metrics (e.g., change of heart rate, elevation, speed, etc.). And in
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`addition to recording those fitness metrics, they will also record the step count. These time stamps
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`will be recorded when the device detects these other fitness metrics and may, in some instances,
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`appear shortly before or after a step goal is met. But these time stamps are untethered to the step
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`goal and cannot be infringement and there is no evidence to suggest otherwise.
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`As Garmin explained, “LoganTree provided no citation to the source code, technical
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`evidence, or deposition testimony to show the Accused Products record a time stamp when the
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`user-defined step goal is achieved.” ECF 191, at 8, SOF ¶ 10. The record evidence establishes the
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`opposite—that the Accused Products do not save a time stamp and the associated user step goal to
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 11 of 23
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`the .FIT file when a user achieves the manual step goal. Id. at 8, SOF ¶ 11. Garmin supported that
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`assertion with the opinions of its non-infringement expert, who reviewed the source code, and the
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`testimony of two Garmin engineers, all of whom confirmed the Accused Products did not record
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`a time stamp when the user’s daily step goal was met. Id. Accordingly, to defeat Garmin’s motion,
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`LoganTree was required to “bring forward specific facts showing a genuine issue for trial[.]” O.J.
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`of Stillwater, Inc. v. Davidson, 242 F.3d 389 (10th Cir. 2000). In this instance, that means specific
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`facts from which a jury could conclude the Accused Products do store a time stamp when the user’s
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`daily step goal was met. Not only did LoganTree fail to present such facts, its own testing shows
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`no infringement. Accordingly, summary judgment of no infringement is mandated.
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`1.
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`There is no Genuine Dispute Regarding the Operation of the Accused Products—
`They do not Store a Time Stamp to the .FIT file when the User Hits Their Daily
`Step Goal
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`When it comes to a device’s software, it is the source code that dictates the functionality
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`of the device. Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1355 (Fed. Cir. 2014) (“Courts have
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`defined source code as ‘the spelled-out program commands that humans can read.’ . . . Object code
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`refers to ‘the binary language comprised of zeros and ones through which the computer directly
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`receives its instructions’”). Thus, if Garmin’s Accused Products recorded a time stamp when the
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`user met their daily step goal, that functionality would necessarily be reflected in the Accused
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`Products’ source code.
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`The need for source code evidence in cases such as this one, where the operation of
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`software is at issue, is of heightened importance. Here, the importance of the source code is
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`particularly critical to LoganTree’s infringement case, as its own testing shows no infringement.
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`As is now well-documented before the Court, Garmin has maintained for years the Accused
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`Products do not operate as LoganTree alleged and that the source code would prove Garmin
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 12 of 23
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`correct. LoganTree itself also identified the source code specifically as the evidence it
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`characterized as “invaluable” to its infringement case:
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`The source code would be invaluable because at this point in time Garmin has, one,
`accused us that our testing was in some form manipulated, and they’re going to
`attach our data results. So I think to the extent of, you know, winning those
`arguments and saying that our testing was inaccurate or manipulated or whatnot,
`with that risk, then I think the source code is invaluable for us.
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`Ex. B, 06/08/2021 Transcript of Discovery Conference Hearing, at 16:23–17:7. Ultimately,
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`Garmin produced printed copies of all of its source code that related to the step counting
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`functionality of the Accused Products. Id. at 22:9–23:19. Thus, if Garmin’s Accused Products
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`operated as LoganTree alleged, there would be evidence of that functionality in the source code.
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`Tellingly, LoganTree could find no such evidence. Nor did it rely on a single citation to Garmin’s
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`source code to rebut Garmin’s motion for summary judgment. See ECF 191, at 8, SOF ¶¶ 10–11.
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`LoganTree’s failure to identify any source code instructing the Accused Products to store a time
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`stamp when the user meets their daily step goal is fatal to LoganTree’s case and warrants summary
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`judgment. Centricut, LLC v. Esab Grp., Inc., 390 F.3d 1361, 1369–70 (Fed. Cir. 2004) (“We have
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`also noted that ‘typically’ expert testimony will be necessary in cases involving complex
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`technology”); Wi-LAN Inc. v. Sharp Elecs. Corp., 362 F. Supp. 3d 226, 234 (D. Del. 2019)
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`(granting summary judgment of no infringement because Plaintiff failed to advance admissible
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`source code evidence, holding that “without source code from the SoC manufacturers, no
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`reasonable juror could find that Defendants’ accused televisions practice the limitations of the
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`asserted claims”); Implicit Networks Inc. v. F5 Networks Inc., 2013 WL 1007250, at * 13 (N.D.
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`Cal. Mar. 13, 2013) (“[Plaintiff] has the burden, especially in a technically complex case such as
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`this, to show by expert testimony how the accused products actually work”). Of course,
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 13 of 23
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`LoganTree’s goose chase was doomed to fail as Garmin’s Accused Products do not record a
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`timestamp when the user hits his or her step goal.
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`As LoganTree has no testing, documentation, source code, or other actual evidence to
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`support its case, ECF 194, at 6, LoganTree tried to give the appearance of a factual dispute by
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`stating that it “provided deposition testimony to show the Accused Products record a time stamp
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`when the user-defined step goal is achieved.” Id. But the deposition testimony cited shows no such
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`thing. Id. Instead, the cited deposition testimony all pertained to either TechPats—the consulting
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`firm relied upon by LoganTree—or LoganTree’s expert, Monty Myers’, understanding of the
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`Court’s claim construction. See ECF 194-3. Significantly, nowhere in the cited deposition
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`testimony is the source code for the Accused Products discussed at all.2 Id.
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`Moreover, “just saying that something is so does not make it true, especially when there is
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`no record support and, in fact, the [record evidence] indicates otherwise,” as the .FIT file evidence
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`does here. Dominion Energy, Inc. v. Alstom Grid LLC, 725 F. App’x 980, 986 (Fed. Cir. 2018);
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`ECF 191, at 7, SOF ¶¶ 7–9. Any such rank speculation by Myers that the Accused Products may
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`record a timestamp when the user-defined event occurs cannot save LoganTree’s case from
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`summary judgment. O.J. of Stillwater, 242 F.3d at 389 (explaining that “[m]ere speculation of
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`plausible alternative scenarios will not suffice” to survive summary judgment).
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`2 It appears that LoganTree’s citation to pages 38:6 – 44:19 may have been a citation to the rough deposition
`transcript, which LoganTree submitted to the Court during the preparation of the Pretrial Order. However,
`nothing in the cited portion of Myers’ rough deposition transcript relates to the source code for the Accused
`Products either. See Ex. C, Excerpts of Rough Myers’ Depo Trans., at 38–44. The entirety of the cited
`portion of that transcript also relates only to the Court’s claim construction and Myers’ understanding of it.
`Id.
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 14 of 23
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`The source code for the Accused Products confirms what Garmin has maintained for
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`years—the Accused Products are not programmed or instructed to store a time stamp when a user
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`of the Accused Products meets their daily step goal. Summary judgment must be granted.
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`2.
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`LoganTree’s Alleged Evidence it Contends Shows that Garmin’s Accused
`Products Store a Time Stamp when the User Hits Their Daily Step Goal is
`Insufficient to Create a Genuine Material Dispute
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`Lacking any evidence in the source code to suggest Garmin’s Accused Products infringe,
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`LoganTree advances several immaterial and conclusory claims in an effort to avoid summary
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`judgment. ECF 194, at 14–15.
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`Starting with the Fenix 5 and Vivosport, LoganTree identifies several pieces of alleged
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`evidence it contends supports its claim that the Fenix 5 stores a timestamp when the daily step goal
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`is met. ECF 194, at 14. But the alleged evidence LoganTree cites for the sole material dispute—
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`whether the Fenix 5 stores a time stamp at all when the user hits their daily step goal—are
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`conclusory and unsupported. Specifically, LoganTree points to Myers’ testimony stating his belief
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`that the user exceeded the step goal of 750 steps, but “chose to write 687 in the FIT file.” ECF
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`194-3, at 102:6–7. The same quality of testimony is identified for the Vivosport. Id. at 133:13–19.
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`However, Myers does not support his stated belief with any actual evidence. Id. at 102:6–7;
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`133:13–19. LoganTree also identifies a page from Myers’ expert report. ECF 194, at 14. This too,
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`however, just shows select entries from the Fenix 5 and Vivosport’s .FIT files, none of which show
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`what Myers claims. ECF 194-2, at 104, 187; ECF 191, at 7, SOF ¶ 9; id. at 13. Absent any
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`supporting evidence, Myers’ speculation can be ignored. Dominion Energy, 725 F. App’x 980,
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`986 (Fed. Cir. 2018); O.J. of Stillwater, 242 F.3d at 389. The actual evidence, of course, shows no
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`infringement.
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 15 of 23
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`Turning to the Forerunner 25 and 235, which LoganTree addresses together, LoganTree
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`improperly relies on its Garmin Connect infringement theory stricken from the case (an Order that
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`LoganTree never appealed). See generally ECF 186; see also ECF 194-3, at 141:10–142:5.
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`Regardless, the evidence LoganTree identifies to suggest a time stamp is stored is just more
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`conclusory, unsupported testimony from Myers, none of which are supported by any evidence.
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`ECF 194-3, at 142:5–24.
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`Finally, as to the Vivofit, LoganTree again advances an improper new infringement theory
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`for the first time. Specifically, LoganTree contends “the Vivofit works differently than the other
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`Accused Products because the data in the .FIT file3 is logged in a curve, which is then compared
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`to the goal.” ECF 194, at 15. The absurdity of this argument is demonstrated by the fact that the
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`Vivofit only recorded time stamps that were hundreds of steps away from the 750 step goal. See
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`FN3. But more problematically, LoganTree has never disclosed this theory of infringement, as
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`reflected in LoganTree’s contentions in the Pretrial Order. See ECF 187, at 7–9. Of course, this is
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`not the first time LoganTree has tried to improperly add new theories to the case. See ECF 186.
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`But even if this theory had been properly disclosed, it lacks merit. LoganTree cites to just three
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`lines from Myers’ deposition transcript, but this cited testimony appears to relate to the Forerunner
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`25 product, and Myers makes no mention of data being logged in a curve. See ECF 194-3, at
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`149:3–6. But even if this was a fair characterization of the Vivofit’s operation, LoganTree does
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`not explain how its logging of the .FIT file data on a curve that does not indicate the time at which
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`the step goal was met would read on the time stamp limitation as construed by the Court. ECF 194,
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`at 15. Thus, the Court can summarily reject this argument and grant summary judgment.
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`3 LoganTree’s Vivofit argument and evidence is particularly troubling. The .FIT file does not contain any
`time stamp at the step goal of 750 steps. Instead, LoganTree relies on a time stamp indicating 290 steps, a
`step count that is 460 steps away from the goal. ECF 191, at 2; ECF 191-5, at 6.
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 16 of 23
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`C.
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`LoganTree’s Circumstantial Evidence that Garmin Directly Infringed
`Method Claim 20 is Conclusory, Unsupported, and Insufficient to Survive
`Summary Judgment
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`To infringe claim 20, LoganTree must prove that Garmin actually performed each and
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`every step of method claim 20 during the damages period of March 2015 to November 2017.
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`Inexplicably, LoganTree did not conduct a single bit of discovery on this topic and never addressed
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`this topic in any deposition. Acknowledging its lack of evidence, LoganTree advances a
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`circumstantial theory of infringement that asks to survive summary judgment on nothing more
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`than pure conjecture that Garmin must have performed the infringing method of claim 20 during
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`the damages period when it prepared its user manuals. ECF 194, at 18–20. There is not a scintilla
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`of evidence upon which a reasonable juror could conclude Garmin performed the infringing steps
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`during the damages period and the Court must decline LoganTree’s invitation to turn the trial into
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`a sideshow of rampant speculation.
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`Surprisingly, LoganTree does not provide the Court with a single user manual as evidence
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`of the alleged infringing instructions. To avoid summary judgment, LoganTree must come forward
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`with more than attorney argument. Fed.R.Civ.P. 56(c)(1) (“A party asserting that a fact cannot be
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`or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials
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`in the record …”) (emphasis added). This would require, at a minimum, submitting the instruction
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`manuals upon which LoganTree asks this Court to rely in denying summary judgment. The fact
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`that LoganTree failed to submit the instruction manuals is not surprising—not a single manual
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`includes instructions on how to infringe the ’576 Patent. This is because Garmin never instructs
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`its users to create a timestamp indicating when the step goal was met. Without such evidence,
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`LoganTree cannot survive summary judgment.
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`LoganTree’s reliance on Lucent Techs., Inc. v. Gateway, Inc. likewise fails. ECF 194, at
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`18–20 (citing Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1318 (Fed. Cir. 2009)). Lucent
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`Case 6:17-cv-01217-EFM Document 198 Filed 01/27/22 Page 17 of 23
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`does not stand for the proposition that a plaintiff can avoid summary judgment simply by pointing
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`to unproven circumstantial evidence. Instead, in Lucent, the Federal Circuit required two pieces
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`of circumstantial evidence to support its infringement theory: (1) that the Accused Products were
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`designed to practice the claimed method; and (2) that the