UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C. 20436
`
`Before the Honorable Dee Lord
`Administrative Law Judge
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`
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`
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`In the Matter of
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`CERTAIN ACTIVITY TRACKING
`DEVICES, SYSTEMS, AND COMPONENTS
`THEREOF
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`
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`Investigation No. 337-TA-963
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`RESPONDENTS FITBIT, INC., FLEXTRONICS INTERNATIONAL LTD., AND
`FLEXTRONICS SALES & MARKETING (A-P) LTD.’S
`RESPONSIVE CLAIM CONSTRUCTION BRIEF
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`Respondents’ Responsive Claim Construction Brief
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`FITBIT EXHIBIT 1021
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................................. 1
`PATENTS-IN-SUIT AND DISUTED CLAIM TERMS ................................................... 3
`A.
`Only Respondents’ proposed construction of “forming a . . . molding”
`properly reflects that the molding must be formed over the underlying
`components ............................................................................................................. 3
`The word “band” has a plain and ordinary meaning that requires no
`construction ............................................................................................................. 9
`The ’546 patent discloses two mutually exclusive types of data:
`“contextual data” and “physiological data” .......................................................... 12
`CONCLUSION ................................................................................................................. 15
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`B.
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`C.
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`I.
`II.
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`III.
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`TABLE OF AUTHORITIES
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`Cases
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`Alloc, Inc. v. Int’l Trade Comm’n,
`342 F.3d 1361 (Fed. Cir. 2003)..................................................................................................2
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`Apple Computer, Inc. v. Articulate Sys., Inc.,
`234 F.3d 14 (Fed. Cir. 2000)......................................................................................................5
`
`Curtiss-Wright Flow Control Corp. v. Velan, Inc.,
`438 F.3d 1374 (Fed Cir. 2006)...................................................................................................5
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`Helmsderfer v. Bobrick Washroom Equip., Inc.,
`527 F.3d 1379 (Fed. Cir. 2008)..........................................................................................11, 12
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`Hill-Rom Servs., Inc. v. Stryker Corp.,
`755 F.3d 1367 (Fed. Cir. 2014)............................................................................................9, 10
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`ICU Med., Inc. v. Alarais Med. Sys., Inc.,
`558 F.3d 1368 (Fed. Cir. 2009)..............................................................................................2, 6
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`Merck & Co. v. Teva Pharm. USA, Inc.,
`395 F.3d 1364 (Fed. Cir. 2005)..................................................................................................9
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`Ormco Corp. v. Align Tech., Inc.,
`498 F.3d 1307 (Fed. Cir. 2007)..................................................................................................2
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`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)..................................................................................................2
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`Praxair, Inc. v. ATMI, Inc.,
`543 F.3d 1306 (Fed. Cir. 2008)..................................................................................................6
`
`Renishaw PLC v. Parposs Societa’ per Azioni,
`158 F.3d 1243 (Fed. Cir. 1998)..................................................................................................5
`
`Trading Techs. Int’l, Inc. v. eSpeed, Inc.,
`595 F.3d 1340 (Fed. Cir. 2010)..............................................................................................8, 9
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`Pursuant to Order No. 14 Ordering Resubmission of Markman Briefs, and Ground Rule
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`5.2.2, Respondents Fitbit, Inc., Flextronics International Ltd., and Flextronics Sales & Marketing
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`(A-P) Ltd. (collectively, “Respondents”) hereby submit their Responsive Claim Construction
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`Brief in this Investigation in response to the Initial Markman briefs by Complainants Aliphcom
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`d/b/a Jawbone and BodyMedia, Inc. (“Complainants’ Brief”) and Staff (“Staff’s Brief”)
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`regarding the disputed claim terms in U.S. Patent Nos. 8,529,811 (“the ’811 patent”); 8,793,522
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`(“the ’522 patent”); 8,398,546 (“the ’546 patent”).
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`I.
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`INTRODUCTION
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`Each of Complainants’ proposed constructions suffers from the same fundamental flaw:
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`instead of reading the claims in light of the full body of intrinsic evidence, Complainants cherry-
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`pick language favorable to their proposed constructions and contend either that the language in
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`isolation demonstrates that the patentee acted as his own lexicographer, or (if the language is not
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`favorable) that it should be ignored for the purposes of claim construction.
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`For example, although the word “band” is frequently used and has a well-understood
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`meaning (e.g., fitness band, hair band, rubber band), and although the asserted ’522 patent uses
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`the word in a wide array of contexts, Complainants pick a single description of how the band
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`may be used to define what constitutes a band for the purposes of the asserted claims. Similarly,
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`although
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`the ’546 patent explicitly
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`juxtaposes “physiological and contextual data,”
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`Complainant’s insist that contextual data and physiological data can be one and the same, based
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`on a sentence that relates not to “contextual data,” but to the different “contextual parameters.”
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`And finally, although the main teaching of the ’811 patent is that a molding process (e.g.,
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`injecting hot thermoplastics into a container to form a specific shape once it cools) can be
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`performed over sensitive components if those sensitive components are first covered by a
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`protective material, Complainants ignore that teaching in proposing a construction where the
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`molding process does not need to take place over the sensitive components in the first place. But
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`if the molding is not formed over the sensitive components and sensors, there would be no need
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`for the protective covering, or for the purported intention of the ’811 patent.
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`Complainants’ use of the specification simply cannot be reconciled with the directive that
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`“the person of ordinary skill in the art is deemed to read the claim term not only in the context of
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`the particular claim in which the disputed term appears, but in the context of the entire patent,
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`including the specification.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (emphasis added); see
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`ICU Med., Inc. v. Alarais Med. Sys., Inc., 558 F.3d 1368, 1375 (Fed. Cir. 2009) (“It is true that
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`we should not import limitations from the specification into the claims. But the line between
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`construing terms and importing limitations can be discerned with reasonable certainty and
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`predictability if the court’s focus remains on understanding how a person of ordinary skill in the
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`art would understand the claim terms. Indeed, the court should focus on how such a person
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`would understand the claim term after reading the entire patent.” (internal quotation marks and
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`citations omitted)); see also Ormco Corp. v. Align Tech., Inc., 498 F.3d 1307, 1313–14 (Fed. Cir.
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`2007) (construing claims based on the construction that “most naturally aligns with the patent’s
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`description of the invention” (quotation marks omitted)); Alloc, Inc. v. Int’l Trade Comm’n, 342
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`F.3d 1361, 1370 (Fed. Cir. 2003) (considering “whether the specification read as a whole
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`suggests that the very character of the invention requires that the limitation be a part of every
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`embodiment”).
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`For these, and for the additional reasons below, the Commission should adopt
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`Respondents’ proposed constructions.
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`A.
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`II.
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`PATENTS-IN-SUIT AND DISUTED CLAIM TERMS
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`Only Respondents’ proposed construction of “forming a . . . molding” properly
`reflects that the molding must be formed over the underlying components1
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`Respondents’ Proposed
`Construction
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`Complainants’ Proposed
`Construction
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`Staff’s Proposed
`Construction
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`using a . . . mold to apply
`material
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`No construction necessary. If
`the term is construed, the
`proper construction is
`“making with a mold . . . a
`molding.”
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`ORIGINAL: No construction
`necessary. If the term is
`construed, “making with a
`mold”
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`NEW: No construction
`necessary. If the term is
`construed, “using a mold to
`form a . . . material”
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`The parties and Staff uniformly agree that this limitation requires using a mold to form,
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`or set, material into a particular shape. Indeed, all three proposed constructions require either
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`“using a mold” or “making with a mold.” In essence, the limitation recites the industrial version
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`of a process that frequently occurs in household kitchens: the use of a mold to shape Jell-O,
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`bundt cakes, and other batters into a particular form or structure as they cool.
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`But Complainant’s and Staff’s initial proposed constructions were fundamentally flawed
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`insofar as they required the mold (i.e., enclosing shell) to “cover[] all or substantially all” of the
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`underlying component, whereas the claim language requires the material formed by the mold to
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`cover the underlying component. Respondents’ Br. at 7–9. Recognizing this error,
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`Complainants now seek to change their construction midstream.
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`Complainants’ new construction—“using a mold to form a . . . material”—resolves one
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`problem, but injects a new one in its stead. Specifically, Complainants’ proposed construction
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` 1 As discussed in the initial Markman brief, Respondents do not believe that difference in the proposed levels of
`ordinary skill alters the construction of any of the disputed terms.
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`does not require the underlying component or device to be present while the molding material is
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`shaped; rather, Complainants’ construction would permit the molding material to be formed and
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`shaped in isolation, and then later attached as a fully shaped structure to the underlying
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`component or device. But the entire purpose of the ’811 patent is to devise a way to form a
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`molding that fully covers the underlying components or device, by shaping the molding directly
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`over those underlying components or device, while at the same time mitigating the purported risk
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`of damage due to applying high pressure and high temperature molding processes around fragile
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`sensors. See ’811 patent, col 2:11–18 (“As a conventional example, sensitive electronic
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`components such as printed circuit board assemblies (‘PCBA’), sensors, and computer memory
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`[] can be significantly damages or destroyed during manufacturing processes where protective
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`overmoldings or layers of material occurs using techniques such as injection molding, cold
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`molding, and others.”). The molding process contemplated by the ’811 patent involves rigorous
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`temperatures and pressures because both are necessary to keep the molding material in a pliable
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`state such that it can be shaped using the mold. See id., col. 9:2–3. This creates a manufacturing
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`challenge because the temperatures and pressures of the molding process can damage the
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`components that the molding material is intended to protect after being formed.
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`To solve this problem, the ’811 patent discloses—and claims—an initial step of
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`selectively applying a “covering” or a “protective material” over the sensitive electronic
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`components. See id., Claim 1; id., Claim 16. These protective coverings are intended “to
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`prevent damage from later stages of a manufacturing process (e.g., introduction into a mold
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`cavity . . .) in which rigorous temperatures, pressures, or other environmental conditions are
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`created in order to apply other coated materials.” Id., col. 8:66–9:3. Based on the patent’s
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`disclosures, the coverings—which are at the inventive core of the ‘811 patent—would be entirely
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`unnecessary but for the fact that the patentees contemplated forming the molding directly over
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`the components. See id., col. 8:13–16 (“[A]fter selectively applying protective material an inner
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`molding is formed over a framework, associated elements (i.e., elements coupled to the
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`framework, and the previously, selectively-applied protective material.”).
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`Complainants’ new proposed construction—which neither acknowledges the presence of
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`the underlying components during the molding process nor requires that the molding be formed
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`in a way that would cover the underlying components—thus completely divorces the claims
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`from the very problem the ’811 patent purports to solve and ignores the consistent disclosure in
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`the specification. If, as Complainants’ new proposed construction suggests, the molding need
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`not be formed over the covering, plurality of elements, and framework, there would be no need
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`for the “covering” in the first place, nor for the purported invention of the ’811 patent as a whole.
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`In contrast, Respondents’ proposed construction—“using a . . . mold to apply material”—
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`remains faithful to the purpose of the purported invention by requiring the application of the
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`molding material in a manner that “covers all or substantially all” of the underlying components.
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`Because the patentees were very explicit about the purpose of the invention, and because
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`Complainants’ proposed construction is inconsistent with that purpose, the new proposed
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`construction should be rejected. See Apple Computer, Inc. v. Articulate Sys., Inc., 234 F.3d 14,
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`25 (Fed. Cir. 2000) (“[T]he claim must be interpreted in light of the teachings of the written
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`description and the purpose of the invention described therein.”); see, e.g., Curtiss-Wright Flow
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`Control Corp. v. Velan, Inc., 438 F.3d 1374, 1382 (Fed Cir. 2006) (“Any construction to the
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`contrary is not consistent with the overall context of this invention and this field of art as
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`described in the specification.”); Renishaw PLC v. Parposs Societa’ per Azioni, 158, F.3d 1243,
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`1251 (Fed. Cir. 1998) (“[The claim] does not exist in rarefied air, but rather is surrounded by a
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`patent disclosure of singular purpose.”); Hill-Rom Co. v. Kinetic Concepts, Inc., 209 F.3d 1337,
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`1341 n.* (Fed. Cir. 2000) (“noting that “[w]e have frequently looked to the abstract to determine
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`the scope of the invention”).
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`Indeed, the ’811 patent does more than simply imply that the molding should be applied
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`directly over the components. It uniformly describes the moldings as being selectively formed
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`directly over the framework, electrical sensors, and other moldings. See, e.g., ICU Med., 558
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`F.3d at 1374–75 (determining that the term “spike” must be pointed in the claims because, “[a]s
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`the district court correctly noted, the specification repeatedly and uniformly describes the spike
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`as a pointed instrument for the purposes of piercing a seal inside the valve” (quotation marks
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`omitted)); Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1324 (Fed. Cir. 2008) (“The claims of the
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`patent must be read in light of the specification’s consistent emphasis on this fundamental feature
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`of the invention”).
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`According to the ’811 patent, to form the inner molding, the framework and the
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`electronic sensors are “placed in mold cavity 302 where another protective layer or coating (e.g.,
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`inner molding []) may be applied from [the] nozzle 304.” Id., col. 5:16–18. As is apparent in the
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`accompanying picture, the molding 312 is formed by covering the framework while it is in the
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`mold cavity 302.
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`Id., Fig. 3; see also id., col. 8:13–16 (“[A]fter selectively applying protective material, an inner
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`molding is formed over a framework, associated elements (i.e., elements coupled to the
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`framework), and the previously, selectively applied protective material.” (emphasis added)).
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`Consistent with the stated purpose of protecting the sensitive components during the molding
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`step, moreover, the inner molding is formed over the framework only after a covering 108 and/or
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`a protective coating 208 is applied to protect those components.
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`Likewise, to form the outer molding, the framework with the already formed inner
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`molding is “placed in mold cavity 402.” Id., col. 5:16–18. As made apparent in the
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`accompanying figure, the framework (which is already covered by the inner molding 312), is
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`placed directly in the mold 402, to form the outer molding 412.
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`Id., Fig. 3; see also id., col. 8:32–34 (“[A]n outer molding is formed over the inner molding, the
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`framework, its elements, and the protective material.” (emphasis added)). The rest of the figures
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`also describe the moldings as being formed directly over the other elements of the wearable
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`device. See also id., Fig. 6C (“Form molding over securing coating, components, and
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`framework.” (emphasis added)); Fig. 10 (“Form coating over protective layer.” (emphasis
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`added)); Fig. 11 (“Form coating over material to provide protective property.” (emphasis
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`added)); Fig. 12 (“Mold one or more layers over framework and material to protect and provide
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`protective property.” (emphasis added)).
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`Accordingly, when read in light of the specification, including the purpose of the
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`purported invention, a person of ordinary skill would understand that the moldings need to be
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`selectively formed by using a mold to apply the molding material.
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`B.
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`The word “band” has a plain and ordinary meaning that requires no construction2
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`Respondents’ Proposed
`Construction
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`Complainants’ Proposed
`Construction
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`Staff’s Proposed
`Construction
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`plain meaning; no
`construction needed
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`data-capable device that may
`be worn as a strap or band
`around an arm, leg, ankle, or
`other bodily appendage or
`feature
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`No construction necessary.
`Plain and ordinary meaning.
`If construed, the proper
`construction is “a substantially
`flat encircling strip.”
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`As discussed in Respondents’ Brief, “band” is not a technical term of art, is not defined in
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`the patent specification, and has no bearing on the purpose of the patent. To the contrary, “band”
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`has a common meaning and has been used as in a variety of contexts over a long period of time.
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`Complainants’ argument that “band” should be narrowed from its plain and ordinary meaning
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`relies on an isolated, cherry-picked sentence in the specification and a contention that the
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`patentee acted as his own lexicographer. Both arguments are misguided.
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`To act as his own lexicographer, a patentee must “demonstrate[] a clear intention to limit
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`the claim scope using words or expression of manifest execution or restriction.” Trading Techs.
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`Int’l, Inc. v. eSpeed, Inc., 595 F.3d 1340, 1352 (Fed. Cir. 2010). The phrase relied upon by
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`Complainants to establish this clear intention to limit “band”—“‘strapband’ or ‘band’ may be
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`used to refer to the same or substantially similar data-capable device that may be worn as a strap
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`or band around an arm, leg, ankle, or other bodily appendage or feature,” ’522 at 4:17–21
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`(emphasis added)—simply does not constitute an explicit definition or restriction. Instead, the
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`patentees’ use of “may be” falls well short of the requirement that the patentee use “words or
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`expressions of manifest execution or restriction.” Trading Techs., 595 F.3d at 1352; see, e.g.,
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`Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1372 (Fed. Cir. 2014) (holding that there
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` 2 Regardless of whether the term “band” is determined to be limiting in the preamble of claim 2 of the ’522
`patent, the term also appears in the body of the claim.
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`is no disclaimer or lexicography because “[t]here is no disclosure that, for example, the present
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`invention ‘is,’ ‘includes,’ or ‘refers to’ a wired datalink and there is nothing expressing the
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`advantages, importance, or essentiality of using a wired as opposed to wireless data link”);
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`Merck & Co. v. Teva Pharm. USA, Inc., 395 F.3d 1364, 1370 (Fed. Cir. 2005) (holding that the
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`specification did not have “sufficient clarity to put one reasonably skilled in the art on notice that
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`the inventor intended to redefine the claim term”).
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`Complainants’ opening brief also ignores another critical point: the patentees made
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`affirmative statements throughout the specification indicating that “band” was not limited by this
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`single, noncommittal sentence. For example, the patentees also indicated that a “band” “may be
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`attached directly or indirectly to other items, organic, or inorganic, animate, or static.” ’522 at
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`4:20–23. Similarly, the patentee also disclosed that “bands [] can be attached to the body or
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`affixed to clothing, or otherwise disposed at a relatively predetermined distance from a user’s
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`person.” Id., col. 4:28–29. And, the specification continues that “band 900 and the elements
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`described above in connection with FIGS. 1–9[] may be varied in type, configuration, function,
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`structure, or other aspects, without limitation to any of the examples shown and described.” Id.,
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`col. 19:50–53; see also id., col. 19:54–58 (“[T]he number, type, function, configuration,
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`ornamental appearance, or other aspects shown may be varied without limitation”).3
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`Accordingly, a person of ordinary skill in the art would understand that, far from acting
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`as their own lexicographer to narrowly define “band,” the patentees used numerous illustrations
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`to demonstrate that the word is used in the plain and ordinary manner. Furthermore, the purpose
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`of the patent—allowing the device to conserve battery power during shipment—is entirely
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` 3 Complainants’ arguments that the disclosed embodiments are consistent with its proposed construction are
`irrelevant because there is no explicit definition in the specification.
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`unrelated to the shape of the band. A person of ordinary skill would not, therefore, read the
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`patent as requiring that the band be worn in a specific and narrow manner. See Hill-Rom, 755
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`F.3d at 1373 (“[A]bsent some language in the specification or prosecution history suggesting that
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`the wired connection is important, essential, necessary, or the ‘present invention,’ there is no
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`basis to narrow the plain and ordinary meaning of the term data link to one type of datalink.”).
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`Complainants’ argument that the patentee acted as his own lexicographer should therefore be
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`rejected.
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`Complainants’ new proposed construction also fails to address shortcomings that existed
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`in their original construction as well. For example, like the old construction, the new proposed
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`construction does not purport to describe the band itself, but rather, how the band may be worn.
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`See Respondents Brief at 12. Moreover, Complainants’ proposed construction also seeks to
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`import limitations that are redundant of limitations already in the asserted claim. See Staff’s
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`Brief at 9.
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`Staff’s alternate construction of “a substantially flat encircling strip” also falls short.
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`While a band may be a “substantially flat encircling strip,” not all bands share those
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`characteristics. Indeed, the bands illustrated in the ’522 patent are neither substantially flat, nor
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`are they encircling in the sense of forming a complete circle. ’522 Patent, Figs. 7C and 7A. In
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`sum, both Complainants and Staff have failed to demonstrate that a person of ordinary skill
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`would have understood “band” differently from its plain and ordinary meaning in the context of
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`this patent.
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`Respondents’ proposed construction of plain and ordinary meaning is therefore correct.
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`C.
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`The ’546 patent discloses two mutually exclusive types of data: “contextual data”
`and “physiological data”
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`Respondents’ Proposed
`Construction
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`Complainants’ Proposed
`Construction
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`Staff’s Proposed
`Construction
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`non-physiological information
`regarding the individual’s
`activity state, environment,
`surroundings, or location
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`data relating to the
`individual’s activity state,
`environment, surroundings, or
`location
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`information relating to an
`individual’s activity state,
`environment, surroundings, or
`location
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`As described in Respondents’ Brief, the specification and claims of the ’546 patent draw
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`a clear line between “contextual” data/sensors on the one hand, and “physiological” data/sensors
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`on the other hand. Respondents’ Br. at 16–17. For example, claim 1 states as follows: “derive
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`physiological and contextual data of the individual from data detected by said sensor device.”
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`Complainants’ refusal to acknowledge this distinction is predicated on the assertion that
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`the patentees acted as their own lexicographers, which in turn is based on a single cherry-picked
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`sentence in the specification. Complainants’ Br. at 5–6. As noted above, a high hurdle must be
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`surmounted before one can find that patentees acted as their own lexicographer. And here again,
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`Complainants’ argument falls flat because the sentence upon which they rely does not even
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`utilize the phrase “contextual data.” Instead, it uses the phrase “contextual parameters.” See
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`Complainants’ Br. at 5. Of course, different terms in a patent are presumed to have different
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`meanings. See Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1382 (Fed. Cir.
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`2008) (“Our precedent instructs that different claim terms are presumed to have different
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`meanings.”). And in the context of this claim term, that presumption is both well founded and
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`entirely consistent with Respondents’ proposed construction.
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`The ’546 patent unambiguously defines “contextual parameters” as “parameters relating
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`to activity state or to the environment, surroundings and location of the individual, including, but
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`not limited to, air quality, sound quality, ambient temperature, global positioning and the like.”
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`’546 patent, col. 10:5-10. A specific location such as the summit of Mt. Everest is an example of
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`a contextual parameter.
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`As Complainants point out, the patent further states that “data [may be] indicative of
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`various contextual parameters [such as environment, surroundings, or location].” Id. (quoting
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`’546 patent, col. 13:1–3). But this does not mean, as Complainants would have it, that “data”
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`and “contextual parameters” have identical meanings. Instead, it merely explains that “data”
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`such as low partial pressure of oxygen might provide information about “contextual parameters”
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`(e.g., that the “location” or “environment” is at an extreme elevation such as the top of Mt.
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`Everest). The common sense notion that certain “data” may provide information about the
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`environment, surroundings, or location is a far cry—both legally and logically—from the notion
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`that the data and the parameter (i.e., “environment, surrounds, or location”) suddenly become
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`one and the same. Accordingly, the Commission should reject Complainants’ efforts to equate
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`“contextual data” and “contextual parameters.” See CAE Screenplates Inc. v. Heinrich Fiedler
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`GmbH & Co., 224 F.3d 1308, 1317 (Fed. Cir. 2000) (“In the absence of evidence to the contrary,
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`we must presume that the use of these different terms in the claims connotes different
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`meanings.”); Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006) (“claims are
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`interpreted with an eye toward giving effect to all terms in the claim”).
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`To be sure, the patent’s use of the phrases “contextual parameters” and “contextual data”
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`is not the model of clarity insofar as it may lead one to believe that the two are identical, or that
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`only “contextual data” may provide information relating to “contextual parameters.” Indeed,
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`Staff notes with concern that the ’546 patent teaches that contextual parameters “may be derived
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`in part from data supplied by physiological sensors.” Staff’s Br. at 11. In doing so, Staff
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`commits the same error as Complainants by assuming that, if data from physiological sensors
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`can inform contextual parameters, then a contextual parameter must be the same thing as a
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`physiological parameter.
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`But that is not the teaching of the ’546 patent. As noted above, the ’546 patent defines
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`contextual parameters as a parameter relating to things such as the environment, surroundings
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`and location of the individual. Importantly, the patent further teaches that two kinds of data may
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`provide information about one’s environment—physiological data and (non-physiological)
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`contextual data. Compare ’546 patent, col. 12:27–30 (“Sensor device 10 may be able to derive
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`information relating to an individual’s physiological state based on the data indicative of one or
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`more physiological parameters”) with id., col 13:1–3 (“Additionally, sensor device 10 may also
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`generate data indicative of various contextual parameters relating to activity state or the
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`environment surrounding the individual.”). To continue with the Mt. Everest example,
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`“physiological data” suggesting an extreme elevation may include an individual’s elevated heart
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`rate and shortness of breath, and contextual / non-physiological data may include the
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`aforementioned low partial pressure of oxygen. While the ’546 patent does not explicitly so
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`state, the implied concept is that by using both physiological (heart rate) and contextual (partial
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`pressure of oxygen) data, the disclosed system may more accurately determine the contextual
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`parameter (location with high elevation). Thus, when the ’546 patent indicates that contextual
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`parameters may be derived in part from data supplied by physiological sensors, it is merely
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`teaching the common-sense notion that a user’s physiological readings also may provide insight
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`into her current location or activity status.
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`Accordingly, in light of the entirety of the patent disclosure—as opposed to the one
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`cherry-picked sentence relied on by Complainants—a person of ordinary skill would have
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`understood that contextual parameters are mutually exclusive from physiological parameters.
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`Respondents’ construction is therefore correct.
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`III. CONCLUSION
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`For the foregoing reasons, Respondents respectfully ask the Commission to adopt its
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`proposed constructions for the disputed claim terms addressed herein, and reject Complainants’
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`proposed constructions.
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`Date: December 4, 2015
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`Respectfully submitted,
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`/s/ Frederick Chung
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`Josh A. Krevitt
`GIBSON, DUNN & CRUTCHER LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: 212.351.4000
`Facsimile: 212.351.4035
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`Wayne Barsky
`GIBSON, DUNN & CRUTCHER LLP
`2029 Century Park East, Suite 4000
`Los Angeles, CA 90067-3026
`Telephone: 310.552.8500
`Facsimile: 310.551.8741
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`Jason Lo
`GIBSON, DUNN & CRUTCHER LLP
`333 South Grand Avenue
`Los Angeles, CA 90071-3197
`Telephone: 213.229.7153
`Facsimile: 213.229.6153
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`Neema Jalali
`GIBSON, DUNN & CRUTCHER LLP
`555 Mission Street, Suite 3000
`San Francisco, CA 94105-0921
`Telephone: 415.393.8258
`Facsimile: 415.374.8409
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`Frederick S. Chung
`Stuart M. Rosenberg
`GIBSON, DUNN & CRUTCHER LLP
`1881Page Mill Road
`Palo Alto, CA 94304-1211
`Telephone: 650.849.5300
`Facsimile: 650.849.5333
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`E-Mail: Fitbit337TA963@gibsondunn.com
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`Counsel For Respondent Fitbit, Inc.
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`Respectfully submitted,
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`/s/ Mark L. Hogge
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`Mark L. Hogge
`Shailendra K. Maheshwari
`Nicholas H. Jackson
`DENTONS US LLP
`1301 K Street N.W.
`Suite 600, East Tower
`Washington, D.C. 20005
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`Counsel for Respondents Flextronics International
`Ltd. and Flextronics Sales &Marketing (A-P)