Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 1 of 18
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF KANSAS
`
`
`
`
`
`
`Case No. 6:17-cv-01217
`
`
`
`
`
`
`
`
`LOGANTREE LP,
`
` Plaintiff,
`vs.
`
`GARMIN INTERNATIONAL, INC. and
`GARMIN USA, INC.,
`
`
`
`
`
`
`Defendants.
`
`DEFENDANTS’ REPLY CLAIM CONSTRUCTION BRIEF
`
`As set forth under District of Kansas Local Patent Rule 4.5, Defendants Garmin
`
`International, Inc. and Garmin USA, Inc. (“Garmin”) submits this Reply Claim Construction Brief.
`
`
`
`
`
`i
`
`
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 2 of 18
`
`
`
`Table of Contents
`I. ARGUMENT .......................................................................................................................... 1
`A. LoganTree Concedes the Need for this Court’s Aid ...................................................... 2
`B. First Time Stamp Information ........................................................................................ 3
`C. “Angle” and “Velocity” .................................................................................................... 8
`II. CONCLUSION .................................................................................................................... 14
`
`
`
`
`
`
`
`
`ii
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 3 of 18
`
`Table of Authorities
`
`Cases
`Conagra Foods Food Ingredients Co., Inc. v. Archer-Daniels-Midland Co., No. 12-cv-2171-
`EFM-KGS, 2013 WL 2455932 (D. Kan. June 5, 2013) ........................................................... 10
`
`
`Eon Corp. IP Holdings LLC v. Silver Spring Networks, Inc., 815 F.3d 1314 (Fed. Cir. 2016) ..... 3
`
`Interactive Gift Exp., Inc. v. Compuserve Inc., 256 F.3d 1323 (Fed. Cir. 2001) ............................ 8
`
`
`
`
`iii
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 4 of 18
`
`I.
`
`ARGUMENT
`
`LoganTree’s responsive brief focuses almost exclusively on two specific disputes: (1) “first
`
`time stamp information,” and (2) whether “unrestrained movement” is indefinite. The dispute on
`
`the first time stamp originally centered around the question of whether the time stamp must reflect
`
`a time “at which” the movement occurred (as Garmin contends) or some amorphous time
`
`“associated with” the movement (as LoganTree contends). That dispute is now moot because
`
`LoganTree concedes the intrinsic record supports Garmin’s construction. In LoganTree’s own
`
`words: “the intrinsic evidence is incredibly clear in supporting the scope of the phrase ‘first time
`
`stamp information reflecting a time at which the movement data … occurred.” ECF No. 91, at 8
`
`(emphasis added). Instead, LoganTree now argues that the time stamp cannot be the “system time.”
`
`But this argument ignores the plain meaning and understanding of a time stamp. Both the intrinsic
`
`record and the testimony of both parties’ experts during the Patent Office proceedings confirm that
`
`a time stamp is a record from the computer system’s internal clock (e.g., its system clock) that
`
`reflects the precise time at which an event occurs within the computer system (e.g., a system time).
`
`Akin to a time clock for an employee, the time stamp allows someone to see the precise time at
`
`which an event occurs. Because the time stamp comes from the computer system itself, Garmin
`
`proposes (and LoganTree previously proposed) that the time stamp be construed to indicate it is
`
`the “system time” to help clarify what the time is, and from where it comes. LoganTree’s
`
`opposition brief does not cite a shred of evidence that shows the ’576 Patent using time stamp in
`
`a manner contrary to its plain and easily understood meaning. For this reason, Garmin requests
`
`that “time stamp information reflecting a time at which the movement data … occurred” be
`
`construed as “time stamp information reflecting a system time at which the movement data …
`
`occurred.”
`
`
`
`1
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 5 of 18
`
`On the question of “unrestrained movement,” the parties are in agreement that the ’576
`
`Patent contemplates “unrestrained” as the opposite of a “restraining device used to immobilize …
`
`human limbs.” However, Garmin’s argument on indefiniteness rests on LoganTree’s shifting
`
`positions before this Court and the Patent Office that have made it impossible for anyone—the
`
`court, the parties, the jury, or an expert—to determine how, why, and when LoganTree finds a
`
`measuring device to be unrestrained versus restrained (sensors noted in red):
`
`’576 Patent
`Unrestrained
`
`’576 Patent
`Unrestrained
`
`’576 Patent
`Unrestrained
`
`Accused Products
`Unrestrained
`
`
`
`Stewart’s HAT System
`Restrained and
`Immobilized
`
`
`
`
`Sensor on
`shoulder
`
`
`
`
`
`
`Sensor on hip
`
`Sensor on
`chest
`
`
`
`Sensor on wrist
`
`Sensor on head
`
`
`
`The head worn system does not immobilize the head any more than Garmin’s watch
`
`immobilizes the arm or LoganTree’s sensor immobilizes the hips or torso. Yet only LoganTree
`
`can determine the true scope of its claims. And by removing the clarity required by the law,
`
`LoganTree has made it impossible to determine the scope of the claims and has thus rendered the
`
`claims indefinite.
`
`A. LoganTree Concedes the Need for this Court’s Aid
`
`LoganTree asserts each disputed term’s “plain and ordinary” meaning should apply but it
`
`fails to explain any legal or factual basis for this vague assertion. Notably, LoganTree provides
`
`very little explanation of this position. Instead, LoganTree spends much of its time arguing against
`
`
`
`2
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 6 of 18
`
`its own claim constructions and offering completely new constructions. It is clear from
`
`LoganTree’s own briefing that the parties’ dispute centers on what those plain and ordinary
`
`meanings are. And as LoganTree conceded throughout its brief, Federal Circuit precedent is clear
`
`that it would be legal error to “determin[e] only that the terms should be given their plain and
`
`ordinary meaning” in a case such as this where “the parties actively dispute[] the scope” of the
`
`claim terms at issue. Eon Corp. IP Holdings LLC v. Silver Spring Networks, Inc., 815 F.3d 1314,
`
`1320 (Fed. Cir. 2016); see also ECF No. 91, at 4, 9. As such, Garmin respectfully requests this
`
`Court apply constructions (or find the claim indefinite) rather than simply saying “plain and
`
`ordinary” and deferring this dispute for either summary judgment or pre-trial where they will have
`
`to be resolved prior to being sent to the jury.
`
`B. First Time Stamp Information
`
`Claim Term
`
`Garmin’s Proposal
`
`LoganTree’s Proposal
`
`First time stamp
`information reflecting a
`time at which the
`movement data causing
`the first user-defined
`event occurred
`
`First time stamp information
`reflecting a system time at
`which the movement data
`causing the first user-
`defined event occurred.
`
`LoganTree believes that no construction of
`this language is needed. To the extent the
`Court chooses to construe it, LoganTree
`believes that the following construction is
`appropriate:
`
`First time stamp information reflecting a
`system time associated with the movement
`data occurrence causing the first user-defined
`event.
`
`
`
`
`At the time of Garmin’s opening brief, there was only a single dispute between the
`
`parties—whether the claim required the time stamp to be a time “at which” the movement occurred
`
`or simply a time that was “associated with” the movement. That dispute shifted in LoganTree’s
`
`responsive brief where LoganTree focused the dispute on the question of what the time stamp is
`
`and from where it comes, arguing that the time stamp cannot be the “system time.” ECF No. 91,
`
`at 7-8. This issue was not addressed in Garmin’s original brief because the parties previously had
`
`
`
`3
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 7 of 18
`
`agreed that the time created by the time stamp is the “system time” and Garmin adopted this
`
`language from LoganTree’s own proposal. Ex. A Correspondence between LoganTree’s and
`
`Garmin’s counsel regarding JCCS and LoganTree’s draft Ex. A to JCCS; ECF No. 82, Ex. A, at
`
`4. Regardless of why LoganTree is now running from its own construction, the evidence
`
`overwhelmingly shows that the time from the time stamp is the “system time at which” the event
`
`occurred.1
`
`The question of what a time stamp is and from where it comes cannot reasonably be
`
`disputed. Time stamps are well known to persons of ordinary skill in the art (and to a lay jury)—
`
`they create a record (i.e., a “stamp”) that reflects the precise time at which an event occurs within
`
`a computer system (i.e., a system time). In operation, a computer system uses time stamps as
`
`follows. Within each computer is an internal, real-time clock. See, e.g., ’576 Patent, at 5:33-39.
`
`When a particular event occurs, the system obtains a readout from its internal clock reflecting the
`
`precise time at the moment the event in question occurred. Id., at 5:44-47. The system then creates
`
`a record of that event along with the time stamp indicating the precise time of the event. Id.
`
`A simple example is the Court’s email inbox, which includes a list of received emails, each
`
`with a time stamp indicating the system time at which the email was received. Another example
`
`of a time stamp would be a time clock used for an employee clocking in for a shift. There, the
`
`employee inserts her timecard into the employer’s time clock. The time clock then “stamps” the
`
`employee’s timecard with the precise time the employee clocked in for work, which is obtained
`
`from the time clock’s (e.g., the system’s) internal clock. Notably, the time stamp records the time
`
`at which the employee clocked in, not merely some amorphous time “associated with” when she
`
`
`1 Curiously, LoganTree’s brief at page 7 in the chart noting “LoganTree’s Position” still indicates
`the “appropriate” construction encompasses “system time.”
`
`
`
`4
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 8 of 18
`
`arrived at work. If the time stamp merely indicated the employee clocked in “before 12:00 pm” (a
`
`time “associated with” when she arrived), it would be worthless to both her and her employer for
`
`keeping an accurate record of her hours. Instead, by utilizing the precise time obtained from the
`
`system clock at which she arrived and clocked in, a full and complete record of the employee’s
`
`work hours is retained.2
`
`The invention of the ’576 Patent utilizes its time stamp in exactly the same way—it is the
`
`system time at which an event occurred. Both the intrinsic record and the expert declarations
`
`submitted by both parties to the Patent Office during the IPR proceeding support this construction.
`
`First, the intrinsic record. The computerized system of the ’576 Patent is designed to be
`
`worn on an individual and, when some specific event is recognized, the device “records the time
`
`and date of the occurrence.” ’576 Patent, Preamble. The time and date come from “a real-time
`
`clock connected to the microprocessor,” which is the clock utilized by the system. Id, Fig. 4 (noting
`
`“clock 46”); Fig. 5A (block 98 noting “Rec[ord] D[ate]/T[ime]”); 5:35-37 (“The clock 46 also
`
`serves as a real time clock to provide date and time information to the microprocessor 32”); 5:44-
`
`47 (“If a recordable event occurs, the microprocessor 32 retrieves the date/time stamp from the
`
`clock 46 and records the event information along with the date/time stamp in memory 50.”); 9:48-
`
`51 (“If the first angle limit has been exceeded, the microprocessor … records the event along with
`
`the date and time 98.”). Precision also is important to the invention of the ’576 Patent. Indeed, the
`
`the ’576 Patent emphasizes that one of its “significant feature[s]” is that it “gives instant
`
`
`2 The same time stamp is utilized in the Court’s ECF filing system, which creates a time stamp and
`allows the Court to see the precise time at which a filing was submitted. The importance of the
`precision of the time stamp is further highlighted in this scenario where the time at which a filing
`is submitted is crucial for determining whether a filing was late or on time, something that cannot
`be accomplished if the time stamp is simply an amorphous time associated with the filing (e.g., a
`filing around midnight as opposed to a filing at 12:01 a.m.).
`
`
`
`5
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 9 of 18
`
`information to the wearer at the moment of incorrect movement and also records the information
`
`for future reference and analysis.” Id., at 6:16-19. Recording the exact moment of incorrect
`
`movement is done through “a date/time stamp.” Id. at 6:20-21. Thus, the time stamp must record
`
`the system time with enough precision to identify “the moment” it occurred. This is precisely what
`
`the claims mean by requiring the time stamp to reflect “the time at which” the event occurred as
`
`determined by the system time from the computer system itself.
`
`Turning to the Patent Office proceedings, Garmin’s and LoganTree’s experts both provided
`
`declarations indicating their understanding that the claimed time stamp information was a
`
`recording of date and time information obtained from the system’s real-time clock, i.e., a system
`
`time. See Ex. B, Excerpts from IPR Declaration of Garmin Expert Andrew Singer, at ¶ 33
`
`(“Further, Holder’s device stored real-time clock data alongside the sensed physical data for
`
`analysis, thus ‘time stamping’ the data”); see also id. at ¶ 65 (“a first timestamp, including the time
`
`and date the spearing event was detected…”); ¶ 64-68; Ex. C, Excerpts from IPR Declaration of
`
`LoganTree Expert Vijay Madisetti, at ¶ 96 (“Petitioner also argues that [the time stamp] limitation
`
`is satisfied because Richardson calculates the time of a step’s footfall, and that when a cruise
`
`control alarm condition is triggered the footfall is recorded. Although, every footfall is recorded,
`
`it is unclear that the timestamp would ‘reflect’ the time at which the movement data causing the
`
`event occurred, as recited.”). And the Patent Office itself also agreed with this meaning of time
`
`stamp. Ex. D, Excerpt from IPR Institution Decision, at 13-14. In its decision instituting the
`
`proceeding, the Patent Office noted “[Garmin] has made an adequate showing [of the
`
`timestamping function]. In particular, Rush discloses a recording means that may record the time
`
`and date of each instance in which potentially injurious activity occurs.” Id.
`
`
`
`6
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 10 of 18
`
`Garmin’s proposal (and LoganTree’s prior proposal) for time stamp reflects the usage of
`
`the term from the specification, the parties’ experts, and the Patent Office, all of which agree the
`
`time stamp comes from the “system time” and reflects the precise time “at which” the movement
`
`data causing the first user-defined event occurred.
`
`LoganTree’s proposal, which rewrites the claim language to remove “at which” and replace
`
`it with an amorphous phrase where the time is merely “associated with” the movement data lacks
`
`all such intrinsic and extrinsic support.3 LoganTree’s re-written claim is shown below:
`
`Claim Term
`
`LoganTree’s Changes to the Claim
`
`First time stamp information reflecting a
`time at which the movement data causing
`the first user-defined event occurred
`
`First time stamp information reflecting a system
`time at which associated with the movement
`data occurrence causing the first user-defined
`event occurred.
`
`
`
`Garmin’s opening brief detailed, at length, the problems with changing “at which” to
`
`“associated with,” but LoganTree provides no substantive response. Moreover, LoganTree did not
`
`cite a shred of intrinsic or extrinsic evidence supporting its alternative “associated with” language.
`
`ECF No. 91, at 7-9. In fact, LoganTree concedes that the intrinsic record is “incredibly clear” in
`
`support of Garmin’s “at which” proposal:
`
`In doing so, however, Defendants reveal that the intrinsic evidence is
`incredibly clear in supporting the scope of the phrase ‘first time stamp
`information reflecting a time at which the movement data causing the first
`user-defined event occurred.
`
`Id. at 8. Thus, it appears that LoganTree has now abandoned its suggestion to rewrite “at which”
`
`to “associated with” and to change “movement data” to “movement data occurrence.”
`
`
`3 Curiously, LoganTree also rewrites “movement data” to be “movement data occurrence” without
`any explanation of why it has done so, or what this alternative language even means. Because
`Garmin’s proposal mirrors the claim language and because LoganTree has failed to explain the
`rationale for this modification, this Court should reject LoganTree’s alternative language.
`
`
`
`7
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 11 of 18
`
`Accordingly, Garmin asks the Court to adopt its proposed construction, which is centered on the
`
`claim language itself and LoganTree’s own proposal. Interactive Gift Exp., Inc. v. Compuserve
`
`Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001) (“In construing claims, the analytical focus must begin
`
`and remain centered on the language of the claims themselves, for it is that language that the
`
`patentee chose to use to ‘particularly point out and distinctly claim the subject matter which the
`
`patentee regards as his invention.’”).
`
`C. “Angle” and “Velocity”
`
`LoganTree’s Responsive
`Brief Proposal
`
`A measure of the amount of
`turning necessary to bring
`one line or plane into
`coincidence with or parallel
`to another.
`
`LoganTree’s Proposal
`
`LoganTree believes that no
`construction of this language is
`needed. To the extent the Court
`chooses to construe it, LoganTree
`believes that the following
`construction is appropriate:
`
` A
`
` measure of the amount of
`movement.
`
`LoganTree believes that no
`construction of this language is
`needed. To the extent the Court
`chooses to construe it, LoganTree
`believes that the following
`construction is appropriate:
`
`Rate of change of angular
`position.
`
`Includes both the speed of
`something in a given
`direction and the time rate
`change of angular position
`that has direction and sense
`such that the motion appears
`clock-wise to one looking in
`the direction of the vector.
`
`Claim
`Term
`
`Angle
`
`Garmin’s
`Proposal
`
`The space
`between two
`intersecting
`planes at the point
`where they meet.
`
`Velocity
`
`Speed of
`something in a
`given direction.
`
`
`
`1. Angle
`
`LoganTree’s responsive brief advances a definition for angle that actually differs from its
`
`actual proposed construction. ECF No. 91, at 11-12. LoganTree contends that a definition for
`
`“angle” reciting “a measure of the amount of turning necessary to bring one line or plane into
`
`coincidence with or parallel to another” should be included along with Garmin’s own provided
`
`
`
`8
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 12 of 18
`
`definition. Id. (“It is LoganTree’s position that the term ‘angle’ includes both definitions.”)
`
`(emphasis added). But LoganTree’s own alternative construction does not reflect that assertion.
`
`LoganTree’s proposed alternative construction more broadly encompasses “a measure of the
`
`amount of movement,” which would grossly broaden the definition of angle to include simple
`
`measures of distance (e.g., feet, meters, or miles). Obviously, no person of ordinary skill in the art
`
`would understand the term “angle” to encompass measures of distance let alone explain how a
`
`protractor could even be used to measure a distance. And LoganTree’s brief appears to abandon
`
`its prior proposal because it provides no support for its prior construction. Turning to the definition
`
`advocated for by LoganTree, it simply adds more confusion and stretches the interpretation of
`
`angle far beyond what is described in the ’576 Patent. Garmin respectfully requests the Court adopt
`
`its proposed construction and avoid introducing the confusion of measuring distance through
`
`angles as suggested by LoganTree.
`
`2. Velocity
`
`It is telling that regardless of whether Garmin’s proposal or LoganTree’s proposal for
`
`velocity is adopted, the measuring of pace by Garmin’s Accused Products—what LoganTree has
`
`mapped as reading on the velocity limitation—would not read on either parties’ construction. Thus,
`
`to streamline resolution of this motion for the Court, Garmin is willing to agree to LoganTree’s
`
`alternative construction for velocity: “rate of change of angular position.”
`
`D.
`
`“Unrestrained movement in any direction”
`
`Claim Term
`
`Garmin’s Proposal
`
`LoganTree’s Proposal
`
`Unrestrained movement in
`any direction
`
`This claim term is indefinite
`under § 112, ¶ 2 due to
`LoganTree’s inconsistent and
`opposite application of the phrase
`“unrestrained movement in any
`direction” before the U.S. Patent
`
`
`
`9
`
`Movement along multiple axes
`without restraint to the movement.
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 13 of 18
`
`Claim Term
`
`Garmin’s Proposal
`
`LoganTree’s Proposal
`
`Trial and Appeal Board and this
`Court. Given LoganTree’s
`inconsistent positions, the
`claimed phrase is indefinite
`because it fails to provide a
`PHOSITA with reasonable
`certainty regarding the
`invention’s scope.
`
`
`
`There is no need for this Court to postpone resolving the indefiniteness of the ’576 Patent
`
`until the summary judgment stage. Conagra Foods Food Ingredients Co., Inc. v. Archer-Daniels-
`
`Midland Co., No. 12-cv-2171-EFM-KGS, 2013 WL 2455932, *9-*12 (D. Kan. June 5, 2013)
`
`(resolving the alleged indefiniteness of several claim terms during Markman). LoganTree’s own
`
`arguments (as shown in the figures below) make this issue ripe for determination now. Either the
`
`’576 Patent would be found invalid, ending the litigation entirely or, at a minimum, LoganTree
`
`would be forced to stop talking out of both sides of its mouth when discussing infringement and
`
`validity.4 This would focus the case and allow the parties to focus only on those issues truly in
`
`dispute. Garmin respectfully requests this Court resolve the indefiniteness of this claim term
`
`through Markman.
`
`Turning to the substance of LoganTree’s Responsive brief, LoganTree spends the bulk of
`
`its argument on indefiniteness focusing on the intrinsic record of the ’576 Patent in an attempt to
`
`demonstrate the alleged clear scope of the phrase “unrestrained movement in any direction.” ECF
`
`No. 91, at 14-17. But there is no dispute between the parties on what the original applicant intended
`
`to mean when it used the phrase “unrestrained movement.” Indeed, LoganTree’s citation to the
`
`
`4 Notably, crystallizing infringement theories is one of the major goals of the patent local rules
`and LoganTree should not be permitted to continue injecting confusion into the case. Neonatal
`Prd. Grp., Inc.v. Shields, 276 F. Supp. 3d 1120, 1126 (D. Kan. 2017).
`
`
`
`10
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 14 of 18
`
`prosecution history makes this clear—unrestrained does not involve a “restraining device used to
`
`immobilize … human limbs.” Id. at 17. It appears LoganTree misapprehends that the
`
`indefiniteness does not arrive from the plain language itself but from LoganTree’s inconsistent
`
`applications of this phrase that leaves the parties, the Court, the jury, and the experts unable to
`
`ascertain the true scope of this phrase.
`
`This point is driven home by the Figures cited by LoganTree and those cited by Garmin in
`
`its original brief. As shown below, a sensor on the torso or the waist (as depicted in the ’576 Patent)
`
`does not restrain or immobilize the appendage and, thus, “unrestrained” under the claims.
`
`Similarly, Garmin’s accused watch does not restrain or immobilize the wearer’s arm making it
`
`“unrestrained under the claims.” But, for reasons known only to LoganTree, the head gear in the
`
`HAT system restrains or immobilizes the wearer’s head making it “restrained.”
`
`
`
`
`
`[INTENTIONALL LEFT BLANK]
`
`
`
`11
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 15 of 18
`
`Figs. 2A-2C of the ’576 Patent
`
`
`
`
`
`
`
`
`
`
`
`
`
`LoganTree contends the above identified
`sensors measure unrestrained movement.
`
` Garmin’s Accused Product
`
`
`
`
`
` Stewart’s HAT System
`
`
`
`LoganTree contends Garmin’s wrist-mounted
`
`
`
`
`
`
`Accused Products measure unrestrained movement.
`
`
`
`12
`
`
`LoganTree contends Stewart’s head-mounted
`sensors measure restrained movement; e.g., it
`restrains or immobilizes the head.
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 16 of 18
`
`On this point, LoganTree offers little to rebut Garmin’s argument.5 While LoganTree
`
`contends that its IPR position on why a measuring device connected to a head is restrained while
`
`one connected to an arm is unrestrained, LoganTree provides no explanation as to how or why.
`
`Instead, LoganTree provides nearly a page of citations to Stewart demonstrating that the HAT
`
`system is able to monitor impact forces to the wearer’s head without any explanation how this
`
`disclosure suggests the movement in Stewart is restrained. ECF. No. 91, at 19. Nor did LoganTree
`
`rebut, or even acknowledge, the disclosure of Stewart Garmin cited in its Opening Brief detailing
`
`the extensive translational, angular, and normal components of accelerations of the head the HAT
`
`system is able to measure through the use of between three and nine accelerometers—similar to
`
`how the single accelerometer is utilized by Garmin’s Accused Products. ECF No. 85, at 15-16.
`
`What remains impossible is determining what makes an accelerometer system restrained versus
`
`unrestrained. As shown above, only LoganTree and its expert are able to ascertain what makes a
`
`particular accelerometer’s measurement of a body part restrained or unrestrained. This is
`
`particularly troubling when none of those devices restrain or immobilize the body part in any
`
`manner. Yet LoganTree takes whatever position it needs to satisfy arguments in front of different
`
`courts, which has made it impossible for a person of ordinary skill in the art to determine the proper
`
`
`5 LoganTree makes a passing argument about how its infringement contentions may be
`supplemented or amended to avoid an inconsistency. This seems to be an implicit acknowledgment
`that its positions before this Court and the Patent Office are inconsistent. But, setting this aside, it
`is unlikely LoganTree will amend its contentions to claim that Garmin’s devices restrain
`movement. The inconsistency arises from LoganTree’s claim that Garmin’s devices measure
`unrestrained movement while a similar prior art device measures restrained movement. If
`LoganTree wanted to remove this inconsistency, it would need to admit that Garmin’s devices
`restrain movement and, thus, do not infringe. While Garmin would welcome such an amendment
`or supplementation, it is unlikely that LoganTree would do so making its offer to “fix” the
`inconsistency hollow and nothing more than a distraction.
`
`
`
`13
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 17 of 18
`
`scope of this claim limitation. Accordingly, Garmin respectfully requests this Court find the ’576
`
`Patent indefinite.
`
`II.
`
`CONCLUSION
`
`For at least the foregoing reasons, Garmin respectfully requests this Court find the asserted
`
`claims of the ’576 Patent invalid under § 112, ¶ 2 or, in the alternative, adopt Garmin’s proposed
`
`claim constructions.
`
`DATED: May 29, 2020
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Adam P. Seitz
`Adam P. Seitz, KS Bar #21059
`Megan J. Redmond, KS Bar #21999
`Carrie A. Bader, KS Bar #24436
`Clifford T. Brazen, KS Bar #27408
`ERISE IP, P.A.
`7015 College Blvd., Suite. 700
`Overland Park, KS 66211
`Phone: 913.777.5600
`Facsimile: 913.777.5601
`adam.seitz@eriseip.com
`megan.redmond@eriseip.com
`carrie.bader@eriseip.com
`cliff.brazen@eriseip.com
`
`Counsel for Defendants Garmin International, Inc.
`and Garmin USA, Inc.
`
`
`
`
`14
`
`

`

`Case 6:17-cv-01217-EFM-ADM Document 94 Filed 05/29/20 Page 18 of 18
`
`CERTIFICATE OF SERVICE
`
`
`
`
`I hereby certify that on May 29, 2020, Defendants’ Reply Claim Construction Brief was
`
`filed with the Clerk of the Court using CM/ECF and that all counsel of record who are deemed to
`
`have consented to electronic service are being served with a copy of this document.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Adam P. Seitz
`Adam P. Seitz
`
`
`
`15
`
`