Case 2:19-cv-06301-AB-KS Document 110 Filed 11/04/20 Page 1 of 17 Page ID #:3519
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`JEAN-PAUL CIARDULLO, CA Bar No. 284170
` jciardullo@foley.com
`FOLEY & LARDNER LLP
`555 South Flower Street, Suite 3300
`Los Angeles, CA 90071
`Telephone: 213-972-4500
`Facsimile: 213-486-0065
`
`ELEY O. THOMPSON (pro hac vice)
` ethompson@foley.com
`FOLEY & LARDNER LLP
`321 N. Clark Street, Suite 2800
`Chicago, IL 60654-5313
`Telephone: 312-832-4359
`Facsimile: 312-83204700
`
`RUBEN J. RODRIGUES (pro hac vice)
`rrodrigues@foley.com
`LUCAS I. SILVA (pro hac vice)
`lsilva@foley.com
`JOHN W. CUSTER (pro hac vice)
`jcuster@foley.com
`FOLEY & LARDNER LLP
`111 Huntington Avenue, Suite 2500
`Boston, MA 02199-7610
`Telephone: (617) 342-4000
`Facsimile: (617) 342-4001
`
`Attorneys for Plaintiff
`Philips North America LLC
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
`
` Case No. 2:19-cv-06301-AB-KS
`PHILIPS NORTH AMERICA LLC’s
`NOTICE OF MOTION AND MOTION
`UNDER RULE 54(b) TO ENTER
`FINAL JUDGMENT AS TO COUNT I
`FOR INFRINGEMENT OF
`U.S. PATENT NO. 6,013,007
`
`Date:
`Time:
`Crtrm:
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`
`
`
`Philips North America LLC,
`
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`
`Plaintiff,
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`vs.
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`
`Garmin International, Inc.
`Garmin USA, Inc. and Garmin Ltd.,
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`
`
`
`Defendants.
`
`December 4, 2020
`10:00AM
`7B (350 West First Street)
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`Case 2:19-cv-06301-AB-KS Document 110 Filed 11/04/20 Page 2 of 17 Page ID #:3520
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`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that on December 4, 2020 at 10:00 AM, or as soon thereafter
`as the matter may be heard before Honorable André Birotte Jr., in Courtroom 7B of the United
`States District Court, Central District of California, located at 350 West First Street, Los
`Angeles, CA 90012, Plaintiff Philips North America LLC (“Philips”) will, and hereby does,
`respectfully move pursuant to Fed. R. Civ. P. 54(b) to enter final judgment with respect to Count
`I of Philips’s Amended Complaint asserting infringement of U.S. Patent No. 6,013,007 (“’007
`Patent”).
`The grounds for the Motion are that the Court’s August 28, 2020 Claim Construction
`Order (Dkt. 102) found that the asserted claims of the ’007 Patent are invalid for indefiniteness,
`resulting in the complete resolution of Philips’s cause of action for infringement of the ’007
`Patent. Because the ’007 Patent cause of action is severable and distinct from Philips’s
`remaining causes of action, there is no just reason to delay entry of a final judgment on that
`cause of action so that Philips may appeal.
`This Motion is based on this Notice of Motion, the accompanying Memorandum of
`Points and Authorities, the pleadings and papers on file in this action, and on such other and
`further evidence as may properly be before this Court at the hearing on the Motion.
`This Motion is made following the conference of counsel which took place on October
`12, 2020.
`
` DATED: November 4, 2020
`
`FOLEY & LARDNER LLP
`
`/s/ Jean-Paul Ciardullo
`Jean-Paul Ciardullo
`Eley O. Thompson
`Ruben J. Rodrigues
`Lucas I. Silva
`John W. Custer
`Attorneys for Philips North America, LLC
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`RULE 54(b) MOTION
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`Case 2:19-cv-06301-AB-KS Document 110 Filed 11/04/20 Page 3 of 17 Page ID #:3521
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`I. 
`II. 
`
`TABLE OF CONTENTS
`
`INTRODUCTION .................................................................................................. 1 
`THE ’007 PATENT CAUSE OF ACTION IS SEVERABLE AND
`DISTINCT .............................................................................................................. 1 
`III.  THE CLAIM CONSTRUCTION ORDER HAS COMPLETELY
`DISPOSED OF THE ’007 PATENT INFRINGEMENT COUNT I ..................... 3 
`IV.  APPLICABLE LAW .............................................................................................. 5 
`A. 
`RULE 54(B) ................................................................................................. 5 
`B. 
`RULE 54(B) DISTINGUISHED FROM 28 U.S.C. § 1292 ........................ 6 
`ENTRY OF JUDGMENT UNDER RULE 54(B) IS APPROPRIATE ................. 9 
`A. 
`PHILIPS’S MOTION IS TIMELY .............................................................. 9 
`B. 
`THERE IS NO JUST REASON FOR DELAY ........................................... 9 
`VI.  CONCLUSION ..................................................................................................... 12
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`V. 
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`TABLE OF AUTHORITIES
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` Page(s)
`
`Cases
`23andMe, Inc. v. Ancestry.com DNA, LLC,
`No. 18-cv-02791-EMC, 2018 U.S. Dist. LEXIS 188327 (N.D. Cal. Nov.
`2, 2018) ......................................................................................................................... 10
`Amtel Corp. v. Information Storage Devices, Inc.,
`198 F.3d 1374 (Fed. Cir. 1999) ...................................................................................... 5
`Cardiac Pacemakers, Inc. v. St. Jude Med., Inc.,
`296 F.3d 1106 (Fed. Cir. 2002) ...................................................................................... 4
`Curtiss-Wright Corp. v. Gen. Elec. Co.,
`446 U.S. 1 (1980) ............................................................................................................ 5
`Depuydt v. FMC Corp.,
`No. 92-16729, 1994 U.S. App. LEXIS 25256 (9th Cir. Sep. 7, 1994) ........................... 9
`Fonar Corp. v. GE,
`107 F.3d 1543 (Fed. Cir. 1997) ...................................................................................... 4
`James v. Price Stern Sloan,
`283 F.3d 1064 (9th Cir. 2002) .................................................................................... 8, 9
`JVW Enterprises, Inc. v. Interact Accessories, Inc.,
`424 F.3d 1324 (Fed. Cir. 2005) ...................................................................................... 4
`Micro Chemical, Inc. v. Great Plains Chemical Co., Inc.,
`194 F.3d 1250 (Fed. Cir. 1999) ...................................................................................... 4
`Paragon Podiatry Lab. v. KLM Lab.,
`No. CV 90 - 6049 RG, 1991 U.S. Dist. LEXIS 21696 (C.D. Cal. July 3,
`1991) ............................................................................................................................. 10
`Seed Co. v. Westerman,
`2019 U.S. Dist. LEXIS 119067, 2019 WL 3222412 (D.D.C. 2019) .............................. 9
`Sun Pharm. Indus. v. Eli Lilly & Co.,
`No. 07-CV-15087, 2009 U.S. Dist. LEXIS 100947 (E.D. Mich. Oct. 29,
`2009) ....................................................................................................................... 10, 11
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`Synopsys, Inc. v. Mentor Graphics Corp.,
`No. C 12-6467 MMC, 2015 U.S. Dist. LEXIS 92769 (N.D. Cal. July 16,
`2015) ............................................................................................................................... 9
`Typeright Keyboard Corp. v. Microsoft Corp.,
`No. 98-1358-IEG (LAB), 2002 U.S. Dist. LEXIS 27466 (S.D. Cal. Nov.
`19, 2002) ......................................................................................................................... 9
`Statutes
`28 U.S.C. § 1292 ...................................................................................................... 6, 7, 8, 9
`Other Authorities
`Fed. R. Civ. P. 54(b) ...................................................................... 1, 5, 6, 7, 8, 9, 10, 11, 12
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`I.
`
`INTRODUCTION
`Plaintiff Philips North America LLC (“Philips”) hereby respectfully moves pursuant to
`Fed. R. Civ. P. 54(b) for the Court to enter final judgment on Count I of Philips’s Amended
`Complaint asserting infringement of U.S. Patent No. 6,013,007 (“’007 Patent”). The Court’s
`August 28, 2020 Claim Construction Order (Dkt. 102) found the asserted claims of the ’007
`Patent invalid for indefiniteness, thereby completely resolving the ’007 Patent cause of action
`and removing it entirely from the case. Because Philips’s cause of action with respect to the
`’007 Patent is severable and distinct from Philips’s remaining causes of action on unrelated
`patents in this case – indeed, the ’007 Patent could have been asserted as part of a completely
`separate parallel lawsuit – there is no just reason to delay entry of judgment so that Philips may
`appeal the determination of invalidity as to that patent. The remainder of the District Court case
`can proceed to trial unaffected, particularly since any decision from the Federal Circuit
`regarding the ’007 Patent would be well over a year away, and any remand would proceed
`separately on its own.
`II. THE ’007 PATENT CAUSE OF ACTION IS SEVERABLE AND DISTINCT
`Philips’s operative First Amended Complaint in this action was filed on December 9,
`2019, and asserts six claims of infringement on six different patents. (Dkt. 45.) While some of
`the patents are related and share the same inventors, the ’007 Patent stands alone. The ’007
`Patent was invented by Gary Miller Root and Frank van Hoorn (who are not inventors on any
`of the other five asserted patents), and generally claims a system for employing a stored series
`of GPS waypoints that have associated time stamps in order to provide athletic performance
`feedback data to an athlete. (’007 Patent, Dkt. 45-1, Claim 1.) Thus, for example, the patent
`would relate to (among other things) using a wearable device to track a runner’s pace and
`provide live updates to the runner about how long on average they are taking to run each mile.
`The Amended Complaint asserts infringement against the GPS-based performance feedback
`functionalities of several of Garmin’s products (Amended Compliant, Count I). These accused
`features are not implicated by Philips’s other infringement claims in this case.
`It is important to recognize that each of the patents in this case are focused different
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`functions and capabilities that may be common to many of the Garmin products. The ’007
`Patent infringement claims target the GPS-based athletic performance feedback functions that
`are present in a number of Garmin products. Philips separately accuses entirely different
`functions of infringing Philips’s other unrelated patents, and some of those functions may also
`exist in the same Garmin products that contain the accused GPS-based athletic performance
`feedback functionality. Thus, while the same Garmin products may be nominally implicated
`across multiple of Philips’s various infringement claims, they are implicated for very different
`reasons concerning entirely different functionalities, and the GPS-based athletic performance
`feedback function is only at issue with respect to the ’007 Patent.
`This is evident from the face of the Amended Complaint and the patents themselves.
`Count II asserts infringement of U.S. Patent No. 7,088,233 (“’233 Patent”), which was
`invented by Raymond J. Menard, and which is directed to “[a] personal and/or institutional
`health and wellness communications system, which may be used for a variety of emergency and
`non-emergency situations using two-way communications devices and a bi-directional
`communication network.” (Dkt. 45-2, ’233 Patent at Abstract.) The Amended Complaint
`identifies the accused functionalities as pertaining to, for example, the Garmin Connect App and
`how it wirelessly communicates between a user’s smartphone and a Garmin device to gather
`data such as heartrate. (Amended Complaint, Count II.) A GPS device that provides GPS-
`based athletic performance feedback data is not the focus of the count.
`Count III asserts infringement of U.S. Patent No. 8,277,377 (“’377 Patent”), which was
`invented by Roger J. Quy, and which is generally directed to a “wireless monitoring of exercise,
`fitness, or nutrition by connecting a web-enabled wireless phone to a device which provides
`exercise-related information, including physiological data and data indicating an amount of
`exercise performed.” (Dkt. 45-3, ’377 Patent at Abstract.) The accused functionalities relate to,
`for example, systems that use a smartphone applications that receive data from a Garmin device
`and calculated responses from an internet server. (Amended Complaint, Count III.) A GPS
`device that provides GPS-based performance feedback data is not the focus of the count.
`Count V asserts infringement of U.S. Patent No. 9,314,192 (“’192 Patent”), which was
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`invented by Annelies Goris and Maarten Peter Bodlaender, and which is generally directed to
`“[a] measuring system compris[ing] a sensor arranged to be attached to a subject for obtaining
`a measured value representing a physical or a physiological quantity of the subject.” (Dkt. 45-
`5, ’192 Patent at Abstract.) The infringement claims are generally directed to body motion
`sensors. (Amended Complaint, Count V.) A GPS device that provides GPS-based performance
`feedback data is not the focus of the count.
`Count VI asserts infringement of U.S. Patent No. U.S. Patent No. 9,801,542 (“’542
`Patent”), which was invented by Bao Tran and Ha Tran, and which is generally directed to a
`“heart monitoring system for a person [that] includes one or more wireless nodes; and wearable
`appliance in communication with the one or more wireless nodes, the appliance monitoring vital
`signs.” (Dkt. 45-6, ’542 Patent at Abstract.) The accused functionalities relate generally to
`physiological reading analysis. (Amended Complaint, Count VI.) A GPS device that provides
`GPS-based performance feedback data is not the focus of the count.1
`III. THE CLAIM CONSTRUCTION ORDER HAS COMPLETELY DISPOSED OF
`THE ’007 PATENT INFRINGEMENT COUNT I
`The Court’s August 28, 2020 Claim Construction Order (Dkt. 102) found that all asserted
`claims of the ’007 Patent are invalid for indefiniteness. Specifically, the Court first construed
`the claims to include athletic performance feedback data beyond just speed, pace, and distance,
`such as calories burned. (Order, p. 8-9.) Next, the Court concluded that the patent specification
`contained no corresponding structure that could support providing such performance feedback
`data. (Id., p. 9-10.) This finding of invalidity completely disposes of the entirety of Philips’s
`Count I for infringement of the ’007 Patent in this case.
`While it is not ultimately relevant to the resolution of this Motion, Philips notes that it has
`a meritorious basis to seek appeal and that the issues for appellate review are broadly important
`in patent law. Specifically, when construing a means plus function claim, the court should not
`
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`1 Count IV of the complaint concerned U.S. Patent No. 6,976,958, the asserted claims of
`which have been disclaimed at the U.S. Patent and Trademark Office and are no longer
`asserted by Philips in this matter. The parties are presently conferring on the best approach
`to amend the record to reflect that the ’958 Patent is no longer at issue.
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`alter the stated function. Micro Chemical, Inc. v. Great Plains Chemical Co., Inc., 194 F.3d
`1250, 1258 (Fed. Cir. 1999) (“The statute does not permit limitation of a means-plus-function
`claim by adopting a function different from that explicitly recited in the claim”); JVW
`Enterprises, Inc. v. Interact Accessories, Inc., 424 F.3d 1324, 1331 (Fed. Cir. 2005)(“The first
`construction violated two tenets governing the determination of function in a means-plus-
`function limitation. First, a court may not construe a means-plus-function limitation ‘by
`adopting a function different from that explicitly recited in the claim’”) In doing so, the court
`alters the relationship between specification and the claim that generates consequents at odds
`with Section 112(6) which provides for functional claiming in a means-plus-function format.
`Id. at 1258 (“An error in identification of the function can improperly alter the identification of
`structure in the specification corresponding to that function”). Based on the statement of the
`function, the claims are limited to the structural embodiments in the specification and any
`embodiments without sufficient structure are excluded from the scope of the claim Fonar Corp.
`v. GE, 107 F.3d 1543, 1551-52 (Fed. Cir. 1997) (“The '966 specification discloses use of a
`generic gradient waveform. Although it states that other waveforms may be used, it fails to
`specifically identify those waveforms. Thus, under section 112, P 6, claim 12 is limited to use
`of a generic gradient waveform and its equivalents.”); Cardiac Pacemakers, Inc. v. St. Jude
`Med., Inc., 296 F.3d 1106, 1113-14 (Fed. Cir. 2002) (“Alternative embodiments may disclose
`different corresponding structure, and the claim is valid even if only one embodiment discloses
`corresponding structure.”). Thus, if a court modifies the function of the claim to require specific
`functions based on embodiments in the patent (like calories burned), the court can generate an
`erroneous indefiniteness invalidity finding by limiting the functional term of the claim instead
`of limiting the structural term of the claim, which would result in a definite valid claim limited
`in scope to sufficiently supported structures.
`Here, Philips had presented unrebutted expert testimony that a supporting structure was
`adequately disclosed for the athletic performance feedback data (e.g., distance, speed, and pace),
`and Philips would argue that such unrebutted testimony should have sufficed to support the
`validity of the claims. Amtel Corp. v. Information Storage Devices, Inc., 198 F.3d 1374, 1382
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`(Fed. Cir. 1999) (reversing grant of summary judgment of indefiniteness of means-plus-function
`claim for failing to consider unrebutted expert testimony with regard to the appropriate
`structure).
`In any event, a full exposition of Philips’s future arguments on appeal is not required
`here. The only question presently before the Court is the purely procedural one of whether there
`is any just reason why an appeal should be delayed.
`IV. APPLICABLE LAW
`A. Rule 54(b)
`Rule 54(b) provides:
`When an action presents more than one claim for relief—whether as a
`claim, counterclaim, crossclaim, or third-party claim—or when
`multiple parties are involved, the court may direct entry of a final
`judgment as to one or more, but fewer than all, claims or parties only if
`the court expressly determines that there is no just reason for delay.
`Otherwise, any order or other decision, however designated, that
`adjudicates fewer than all the claims or the rights and liabilities of fewer
`than all the parties does not end the action as to any of the claims or
`parties and may be revised at any time before the entry of a judgment
`adjudicating all the claims and all the parties’ rights and liabilities.
`The Supreme Court in Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7-8 (1980)
`explained the 2-step test that courts apply in assessing whether to enter judgment under Rule
`54(b):
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`A district court must first determine that it is dealing with a ‘final
`judgment.’ It must be a ‘judgment’ in the sense that it is a decision upon
`a cognizable claim for relief, and it must be ‘final’ in the sense that it is
`‘an ultimate disposition of an individual claim entered in the course of
`a multiple claims action.’ 351 U.S., at 436.
`Once having found finality, the district court must go on to
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`determine whether there is any just reason for delay. Not all final
`judgments on individual claims should be immediately appealable,
`even if they are in some sense separable from the remaining unresolved
`claims. The function of the district court under the Rule is to act as a
`‘dispatcher.’ Id., at 435. It is left to the sound judicial discretion of the
`district court to determine the ‘appropriate time’ when each final
`decision in a multiple claims action is ready for appeal. Ibid. This
`discretion is to be exercised ‘in the interest of sound judicial
`administration.’ Id., at 437.
`Thus, in deciding whether there are no just reasons to delay the
`appeal of individual final judgments in a setting such as this, a district
`court must take into account judicial administrative interests as well as
`the equities involved. Consideration of the former is necessary to
`assure that application of the Rule effectively ‘preserves the historic
`federal policy against piecemeal appeals.’ Id., at 438. It was therefore
`proper for the District Judge here to consider such factors as whether
`the claims under review were separable from the others remaining to be
`adjudicated and whether the nature of the claims already determined
`was such that no appellate court would have to decide the same issues
`more than once even if there were subsequent appeals.
`Here, there can be no debate that the Claim Construction Order’s invalidation of the ’007
`Patent claims is a “final judgment” on Count I of the Amended Complaint. With respect to the
`question of whether there is any just reason to delay, as shown below, the present case is a
`quintessential example of one for which entry of judgment pursuant to Rule 54(b) is warranted.
`B. Rule 54(b) Distinguished From 28 U.S.C. § 1292
`There is confusion among many practitioners regarding the distinction between Rule
`54(b) and 28 U.S.C. § 1292, both of which apply to interlocutory appeals, but under different
`circumstances. Section 1292 requires rigorous review, whereas Rule 54(b) is a “routine”
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`application of the final judgment rule where an entire claim had been completely disposed of.
`The Ninth Circuit has explained the distinction as follows, and discussed the markedly different
`standards of review:
`Some of our cases use the phrase ‘Rule 54(b) certification.’
`…This is a misnomer born of confusion between Rule 54(b) and 28
`U.S.C. § 1292(b), only the latter of which requires a certification. The
`two procedures apply to different situations. See generally 10 Charles
`Alan Wright et al., Federal Practice and Procedure § 2658.2, at 89-95
`(1998) [hereinafter Wright & Miller]. Rule 54(b) applies where the
`district court has entered a final judgment as to particular claims or
`parties, yet that judgment is not immediately appealable because other
`issues in the case remain unresolved. Pursuant to Rule 54(b), the district
`court may sever this partial judgment for immediate appeal whenever
`it determines that there is no just reason for delay. A court of appeals
`may, of course, review such judgments for compliance with the
`requirements of finality, but accords a great deference to the district
`court. Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 797-98 (9th Cir. 1991).
`By contrast, section 1292(b) addresses the situation where a party
`wishes to appeal an interlocutory order, such as pertaining to discovery,
`[] denying summary judgment, [], denying a motion to remand, [], or
`decertifying a class, []. Normally, such interlocutory orders are not
`immediately appealable. In rare circumstances, the district court may
`approve an immediate appeal of such an order by certifying that the
`order ‘involves a controlling question of law as to which there is
`substantial ground for difference of opinion and that an immediate
`appeal from the order may materially advance the ultimate termination
`of the litigation.’ 28 U.S.C. § 1292(b). Even where the district court
`makes such a certification, the court of appeals nevertheless has
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`RULE 54(b) MOTION
`CASE NO. 2:19-cv-06301-AB-KS
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`Case 2:19-cv-06301-AB-KS Document 110 Filed 11/04/20 Page 13 of 17 Page ID #:3531
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`discretion to reject the interlocutory appeal, and does so quite
`frequently. See 16 Wright & Miller § 3929, at 363.
`Section 1292(b) is a departure from the normal rule that only
`final judgments are appealable, and therefore must be construed
`narrowly. This explains the reasons for the specific form of the
`certification required of the district court and de novo review thereof
`by the court of appeals. See, e.g., In re Cement Antitrust Litig. (MDL
`No. 296), 673 F.2d 1020, 1026 (9th Cir. 1982). By contrast, a Rule
`54(b) severance is consistent with the final judgment rule because the
`judgment being severed is a final one, whose appeal is authorized by
`28 U.S.C. § 1291. Referring to a Rule 54(b) severance order as a
`"certification" misleadingly brings to mind the kind of rigorous
`judgment embodied in the section 1292(b) certification process. In
`reality, issuance of a Rule 54(b) order is a fairly routine act that is
`reversed only in the rarest instances. See, e.g., In re First T.D. & Inv.,
`Inc., 253 F.3d 520, 531-33 (9th Cir. 2001); Ariz. State Carpenters
`Pension Trust Fund v. Miller, 938 F.2d 1038, 1040 (9th Cir. 1991).
`James v. Price Stern Sloan, 283 F.3d 1064, 1067 n.6 (9th Cir. 2002).
`The high bar of Section 1292 is in major part intended to save the appellate courts from
`having to contend with piecemeal appeals of different aspects of the same case. For example,
`if instead of invalidating the asserted claims of the ’007 Patent, the Court had merely construed
`them in a way that Philips had found objectionable, Philips would not have been able to seek
`entry of judgment under Rule 54(b), and would instead have ordinarily been required to take the
`case to a final judgment on all claims before any appeal. Likewise, where a plaintiff asserts
`multiple causes of action that are all based on an assessment of the same set of operative facts
`(for example, pleading in the alternative claims for fraud and intentional interference with
`contract that arise from the same set of facts), the dismissal of one of those interrelated causes
`of action as a matter of law prior to trial would not normally form the basis for entry of judgment
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`RULE 54(b) MOTION
`CASE NO. 2:19-cv-06301-AB-KS
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`Case 2:19-cv-06301-AB-KS Document 110 Filed 11/04/20 Page 14 of 17 Page ID #:3532
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`V.
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`under Rule 54(b) given that resolution of factual disputes concerning the still-pending cause of
`action would directly affect assessment of the dismissed cause of action.
`As discussed below, none of these concerns are implicated here.
`ENTRY OF JUDGMENT UNDER RULE 54(b) IS APPROPRIATE
`A.
`Philips’s Motion Is Timely
`As a threshold matter, Philips notes that its present Motion is timely. Indeed, Rule 54(b)
`sets no deadline for seeking entry of judgment. Seed Co. v. Westerman, 2019 U.S. Dist. LEXIS
`119067, *15-16, 2019 WL 3222412 (D.D.C. 2019) (“Rule 54(b), unlike a myriad of other
`provisions in the civil rules, contains no express temporal restrictions.”) (citing Bank of New
`York v. Hoyt, 108 F.R.D. 184, 185 (D.R.I. 1985)); see also Depuydt v. FMC Corp., No. 92-
`16729, 1994 U.S. App. LEXIS 25256, at *5-6 (9th Cir. Sep. 7, 1994) (affirming decision to
`certify for appeal five months after ruling entered). Here, apart from the fact that the statute
`contains no time restriction, Philips has filed its Motion within two months of the Claim
`Construction Order, having taken the intervening time (while still in the midst of ongoing
`litigation) to (1) diligently research the relevant procedural issues surrounding Rule 54(b) as
`distinguished from 28 U.S.C. § 1292 (discussed below), (2) assess and research Philips’s
`intended arguments on appeal, and (3) confer with opposing counsel more than seven days prior
`to filing as required by the Local Rules.
`B.
`There Is No Just Reason For Delay
`None of the concerns about “piecemeal appeals” are implicated by the present case,
`which – as the Ninth Circuit put it in James – simply involves a “routine” application of Rule
`54(b). See Typeright Keyboard Corp. v. Microsoft Corp., No. 98-1358-IEG (LAB), 2002 U.S.
`Dist. LEXIS 27466, at *13 (S.D. Cal. Nov. 19, 2002) (“Rule 54(b) certification is appropriate
`and common in patent infringement cases in which a district court has granted summary
`judgment of invalidity.”); Synopsys, Inc. v. Mentor Graphics Corp., No. C 12-6467 MMC, 2015
`U.S. Dist. LEXIS 92769, at *2-3 (N.D. Cal. July 16, 2015) (entering Rule 54(b) judgment as to
`patents that were held invalid on summary judgment, where other patents still remained in the
`case); Paragon Podiatry Lab. v. KLM Lab., No. CV 90 - 6049 RG (JRx), 1991 U.S. Dist. LEXIS
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`RULE 54(b) MOTION
`CASE NO. 2:19-cv-06301-AB-KS
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`Case 2:19-cv-06301-AB-KS Document 110 Filed 11/04/20 Page 15 of 17 Page ID #:3533
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`21696, at *5-6 (C.D. Cal. July 3, 1991) (entering Rule 54(b) judgment as to patent that was held
`invalid on summary judgment, where other claims still remained in the case); Sun Pharm. Indus.
`v. Eli Lilly & Co., No. 07-CV-15087, 2009 U.S. Dist. LEXIS 100947, at *5-7 (E.D. Mich. Oct.
`29, 2009) (entering judgment under Rule 54(b) in a case involving two patents where one was
`found invalid on summary judgment).
`The ’007 Patent cause of action is severable and independent from the others, and indeed
`could have been brought in parallel as its own separate lawsuit, having been joined with the
`other five patent claims in this case only as a matter of convenience. To illustrate this, if Philips
`had separately sued Garmin in a district court in a different State for infringement of the ’007
`Patent (while suing on the other five patents here in California), and if the ’007 Patent had been
`invalidated in the other case, there would be no question that an appeal could be immediately
`taken in that other case notwithstanding the ongoing California case. The happenstance of the
`unrelated patent claims having been brought together as part of the same lawsuit – a decision
`that was intended to increase judicial efficiency – should not paradoxically hamstring Philips’s
`ability to promptly appeal the ’007 Patent invalidation.
`Partial final judgment was entered under analogous circumstances in 23andMe, Inc. v.
`Ancestry.com DNA, LLC, No. 18-cv-02791-EMC, 2018 U.S. Dist. LEXIS 188327, at *5-6
`(N.D. Cal. Nov. 2, 2018), where the plaintiff’s patent infringement claims were dismissed while
`parallel claims remained pending, and wherein the court recognized the hardship the plaintiff
`would suffer were a cloud cas