`
`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) 832-4700
`LUCAS I. SILVA (pro hac vice)
` lsilva@foley.com
`FOLEY & LARDNER LLP
`111 Huntington Avenue, Suite 2500
`Boston, MA 02199-7610
`Telephone: (617) 342-4000
`Facsimile: (617) 342-4001
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
`
`PHILIPS NORTH AMERICA LLC,
`Plaintiffs,
`
`v.
`
`GARMIN INTERNATIONAL, INC.
` and GARMIN LTD.,
`
`Defendants.
`
`Case No. 2:19-cv-6301-AB-KS
`FIRST AMENDED COMPLAINT
`FOR PATENT INFRINGMENT
`
`JURY TRIAL DEMANDED
`
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`Philips North America LLC (“Philips North America” or “Plaintiff”), by its
`undersigned counsel, hereby alleges, with knowledge with respect to its own acts and on
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`4850-3530-3325.1
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`1
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`COMPLAINT
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 2 of 60 Page ID #:520
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`information and belief as to other matters, the following in support of its Complaint against
`Garmin International, Inc., and Garmin Ltd. (collectively “Defendants” or “Garmin”).
`NATURE OF THE ACTION
`1.
`Philips North America brings this action to compel Garmin to stop infringing
`Philips North America’s patents, and to compensate Philips North America for Garmin’s
`past infringement.
`2.
` Philips North America is a subsidiary of Koninklijke Philips N.V., originally
`founded in 1891, and a world leader in technology and innovation across many
`technological fields (generally referred to as “Philips”). For more than 100 years, Philips
`has dedicated significant resources to research and development for the advancement of
`technology used around the world.
`3.
`Philips strives to make the world heathier and more sustainable through
`innovation with the goal of improving lives of billions of people. Philips approaches
`healthcare as a continuum where its technologies can be applied across activities of healthy
`living, prevention, diagnosis, treatment and home care as depicted below:
`
`4. Connected health technologies developed by Philips are employed across the
`health continuum. Both inside and outside hospitals, Philips has developed technologies
`that empower consumers to better manage their health by improving access to and analysis
`of personal health and fitness information obtained in various manners.Philips provides the
`Actiwatch family of devices, which are designed to help better understand the daily activity
`
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`4850-3530-3325.1
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`2
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`COMPLAINT
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 3 of 60 Page ID #:521
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`and sleep and wake patterns of individuals. Examples of Philips Actiwatch devices are
`shown here:
`
`
`
`5.
`In another example, MIO Global incorporated Philips’ heart rate monitor
`technology into its MIO Alpha fitness tracker watch, making it among the first and most
`accurate integrated wrist-worn heartrate monitors available. Philips continues to lead the
`development of technologies that underpin connected health products including trackers.
`Others have recognized the value of Philips’ investment in innovation in this area and have
`sought and taken technology licenses from Philips, including licenses to the patents
`asserted in this case.
`6.
`Philips also invests in technologies developed by other companies and has
`acquired companies and their patented innovative technologies as part of its emphasis on
`supporting and advancing innovation. Philips has made numerous direct investments in
`connected health technologies in recent years, including its acquisition of Lifeline Systems,
`Inc. in 2006, its acquisition of Wellcentive in 2016, its acquisitions of Health and Parenting
`LTD and VitalHealth in 2017, and its acquisition of Blue Willow Systems in 2018. Each
`of these acquisitions expanded Philips’ capabilities in personal health management and
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`COMPLAINT
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 4 of 60 Page ID #:522
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`supported Philips’ longstanding commitment to deliver integrated solutions across the
`health continuum.
`7.
`Philips shares its innovation with others through, for example, its pioneering
`role in open innovation as well as in offering access to its technology through licensing.
`In this way, Philips has been able to share its innovations with many other companies.
`Licensing revenues fund further research at Philips. Philips’ patent portfolio currently
`includes more than 60,000 patents, and in 2017 Philips filed more patent applications in
`the field of medical technology at the European Patent Office than any other company in
`the world.
`8. While some of Philips’ patents are asserted in this action, Philips has many
`others covering connected health. The patented technologies asserted in this action enable
`and enhance customer demand for products such as, for example: GPS/audio athletic
`training, security mechanisms for transmission of personal data, connected wearable/online
`products, and handling of interrupted connections.
`9.
`Founded in 1989 as “ProNav,” Garmin was originally a company that offered
`devices for navigation. Garmin did not offer a wearable tracker for athletic activity until
`2014, after the smartphone eliminated demand for handheld GPS devices and Garmin’s
`sales plummeted. See https://www.forbes.com/sites/alexknapp/2016/09/14/how-garmin-
`mapped-out-a-new-direction-with-fitness-wearables/#5f382ea727b9.
`In entering
`the
`wearable tracker market, Garmin leveraged the patented technology of Philips from the
`beginning. Garmin experienced significant growth and revenues as a result. See
`https://www.cnet.com/news/garmins-doing-well-in-wearables/.
`10. For years, Philips has repeatedly offered to license rights in the Patents-in-
`Suit1 to Garmin, but Garmin has repeatedly refused to accept Philips’ offers to license.
`Garmin’s past and continuing sales of its devices i) willfully infringes Philips’ Patents-in-
`Suit and ii) impermissibly takes the significant benefits of Philips’ patented technologies
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`1 The “Patents-in-Suit” refer to the patents identified below in Counts I-VI.
`4
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`COMPLAINT
`
`4850-3530-3325.1
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`
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 5 of 60 Page ID #:523
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`without compensation to Philips. Garmin’s refusal to take a royalty bearing license under
`the Patents-in-Suit has forced Philips to seek remediation to stop Garmin’s continuing
`willful infringement of the Patents-in-Suit and to be compensated for Garmin’s past willful
`infringement of the Patents-in-Suit.
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`PARTIES
`11. Plaintiff Philips North America LLC (formerly known as Philips Electronics
`North America Corporation) is a limited liability company duly organized and existing
`under the laws of Delaware. There are facilities for Philips Sonicare in Ontario, CA within
`this Judicial District in addition to Philips Respironics in Carlsbad, CA. Philips has been
`a technology leader for over a century including in the field of connected health products
`and across the healthcare continuum. Philips patented innovations in this action pertain to
`GPS/audio athletic training, security mechanisms for transmission of personal data,
`connected wearable/online products, and handling of interrupted connections.
`12. Defendant Garmin International, Inc. is a corporation organized under the
`laws of Kansas having a regular and established place of business located at 120 Cremona
`Drive, Goleta, CA, within this Judicial District.
`13. Defendant Garmin International, Inc. also has a regular and established place
`of business at 21680 Gateway Center Drive, Diamond Bar, CA, within this Judicial
`District.
`14. Defendant Garmin Ltd. is a foreign company organized and existing under the
`laws of Switzerland with its principal place of business at Muhlenstalstrasse 2, 8200
`Schaffhausen, Switzerland. In addition to infringements, many leadership decisions are
`made from Garmin Ltd.
`15. Garmin International, Inc. is a wholly owned subsidiary of Garmin Ltd.
`16. Garmin develops, manufactures, markets, sells and uses connected health
`products including ones that employ GPS/audio athletic training, security mechanisms for
`transmission of personal data, connected wearable/online products, and handling of
`interrupted connections that incorporate Philips’ patented technology. Garmin has not
`5
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`COMPLAINT
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`4850-3530-3325.1
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`
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 6 of 60 Page ID #:524
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`obtained a license or otherwise acquired rights from Philips for use of the Patents-in-Suit.
`Instead, Garmin chose a path of willful infringement.
`JURISDICTION AND VENUE
`17. This action arises under the patent laws of the United States, Title 35 U.S.C.
`§§ 1, et seq. This Court has both general and specific personal jurisdiction over Garmin
`because Garmin has purposefully availed itself of the privilege of conducting business
`activities and has conducted and done business within California and this Judicial District.
`Garmin has availed itself of the rights and benefits of California law and has engaged in
`systematic and continuous contact with California, including with respect to the
`development, manufacture, marketing, sale and use of one or more Accused Products2.
`Garmin also derives substantial revenue from sales of the infringing products and services
`in California, and it has availed itself of the privilege of doing business within California.
`Garmin’s presence in this Judicial District requires it to pay taxes in California. Garmin is
`licensed to do business in California.
`18. Personal jurisdiction is proper because Garmin is doing business and has
`committed acts of direct and joint infringement in this Judicial District. This Court has
`personal jurisdiction over Garmin because, inter alia, this action arises from activities
`Garmin directed towards California. For example, Garmin ships infringing products to
`residents of California for use in this Judicial District, and it collects substantial revenues
`from such residents and related sales.
`19. As indicated above, Defendant Garmin International, Inc. maintains a regular
`and established place of business at 120 Cremona Drive, Goleta, CA. Research and
`development activities are conducted at Garmin’s Goleta, CA location, including software
`engineering related to the features and functionality of one or more of the Accused Product.
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`2 The “Accused Products” refers to the products accused of infringement herein such as
`referenced in Paragraphs 48-51 including all substantially similar products.
`6
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`COMPLAINT
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`4850-3530-3325.1
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 7 of 60 Page ID #:525
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`20.
` As indicated above, Defendant Garmin International, Inc. maintains a regular
`and established place of business at 21680 Gateway Center Drive, Diamond Bar, CA.
`Research and development activities are conducted at Garmin’s Diamond Bar, CA
`location, including software engineering related to the features and functionality of one or
`more of the Accused Products.
`21. Defendant Garmin Ltd. has shipped one or more of the Accused Products
`through the port of Los Angeles to Defendant Garmin USA, Inc. and/or Defendant Garmin
`International, Inc. for distribution within this Judicial District.
`22. Defendant Garmin Ltd. maintains ownership of software operating on
`infringing products and systems within this jurisdiction. For example, Garmin provides:
`“Garmin Ltd. and its subsidiaries (“Garmin”) grant you a license to use the software
`embedded in this device (the “Software”) … Title, ownership rights, and intellectual rights
`in and to the Software remain in Garmin and/or its third-party providers.” Source: Garmin
`vivofit
`Owner’s
`Manual
`(available
`at
`https://www8.garmin.com/manuals/webhelp/vivofit/EN-US/GUID-31E7CFE8-6348-
`49BC-9561-742127047774.html). Many devices running Garmin owned software are
`operating to infringe in this Judicial District.
`23. Exercising personal jurisdiction over Garmin in this Judicial District would
`not be unreasonable given Garmin’s extensive contacts with this Judicial District, the
`interest of this Judicial District in resolving disputes related to products and/or services
`sold herein, and the harm that would occur to Plaintiff if the Court did not exercise personal
`jurisdiction over Garmin.
`24.
`In addition, Garmin has knowingly induced and continues to induce and/or
`contribute to infringement within this Judicial District by advertising, marketing, offering
`for sale and/or selling devices with hardware and/or software that includes infringing
`functionality
`to consumers, customers, partners and/or end users (collectively
`“customers”), and it provides instructions, user manuals, advertising, and/or marketing
`materials which facilitate, direct, or encourage such infringing use with knowledge thereof.
`7
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`COMPLAINT
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 8 of 60 Page ID #:526
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`Garmin also jointly infringes with its customers and subscribers in this Judicial District
`with the establishment and operation of connected health solutions covered by the Patents-
`in-Suit.
`25. Each of the Accused Products has been sold by Garmin and shipped to
`residents of California for use in this Judicial District, and Garmin collects substantial
`revenues from such residents and related sales.
`26. One or more of the Accused Products are sold at BestBuy and Target retail
`stores located in this Judicial District.
`27.
` Defendant Garmin Ltd. has purposefully and knowingly directed sales of one
`or more of the Accused Products to California and this Judicial District, at least through
`agreements with its subsidiaries Garmin USA, Inc. and/or Garmin International, Inc.
`28.
` Defendant Garmin Ltd. has purposefully and knowingly directed sales of one
`or more of the Accused Products to California and this Judicial District, at least through
`established distribution channels it maintains targeting the state of California.
`29.
` Garmin owns the software deployed on devices in this Judicial District
`operating in manners to directly infringe with other products and systems offered by
`Garmin.
`30. Defendant Garmin Ltd. is aware that its subsidiaries Garmin USA, Inc. and/or
`Garmin International, Inc. direct sales of the Accused Products to California and this
`Judicial District.
`31. For these reasons, and for reasons that will be presented to the Court if
`jurisdiction is challenged, the Court has personal jurisdiction over each of the Defendants.
`32. Venue is proper under 28 U.S.C. §§ 1391(b), 1391(c), and 1400(b) because
`Garmin resides in this Judicial District and has substantial additional activities in this
`Judicial District as alleged herein (see e.g. paragraphs 20-24). Garmin has also engaged
`and continues to engage in infringing acts in this Judicial District such as alleged herein
`(see e.g. paragraphs 28-34).
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`4850-3530-3325.1
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`COMPLAINT
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 9 of 60 Page ID #:527
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`33. Garmin has admitted that it maintains a regular and established place of
`business in this Judicial District. On June 12, 2017, in the case styled Location Based
`Services, LLC v. Garmin International, Inc., 17-cv-133-JRG-RSP (E.D. Tex.), the parties
`filed a joint motion to transfer the case to this Court, stating that the “Defendant has a
`regularly established place of business” in this Judicial District.
`34. Venue is proper as to defendant Garmin Ltd. because Garmin Ltd. is a foreign
`entity and venue is proper wherever there is personal jurisdiction.
`35. Garmin purposefully directs sales and offers for sale the Accused Products,
`including those specifically identified below, toward California and this Judicial District.
`36. Furthermore, on information and belief, Garmin has committed acts of direct
`and joint infringement in this Judicial District through its development and use of the
`Accused Products in one or both of its California facilities, and/or by prototyping and
`testing functionality of the Accused Products in one or both of its California facilities that
`infringe one or more claims of the Patents-in-Suit.
`FACTUAL BACKGROUND
`Philips Background and Innovation Leadership
`37. Philips is a world-renowned company engaged in research and development
`in numerous technological fields. One of these fields pertains to connected health, which
`seeks to empower consumers to better manage their health and fitness by improving access
`to their own healthcare related information.
`38. Philips is a worldwide leader in the field of connected health. For example,
`Philips has developed systems for wearable wireless devices that can be worn discreetly
`around the neck to detect important patient information such as detecting falls and tracking
`step count. Philips offers HomeSafe and GoSafe Lifeline systems that include personal
`medical alert devices that enable the wearer to summon medical help in the event of an
`emergency. Philips has also developed HealthSuite, which is a cloud-based digital
`platform that promotes collaboration in the field of connected health by enabling Philips
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`COMPLAINT
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 10 of 60 Page ID #:528
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`and its partners to connect devices, collect health data, and securely aggregate, store and
`analyze the data, as well as the Actiwatch and other products noted above.
`39. The Philips Lifeline product is depicted below:
`
`
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`40. Philips North America invests heavily to promote innovation in the area of
`connected health. For example, Philips North America has hosted a Connect2Care User
`Summit in Los Angeles, which provides an opportunity for innovators from across the
`healthcare industry to explore top-of-mind issues in connected health, and to participate in
`an energizing exchange of ideas in an immersive and collaborative environment. Philips
`has also organized and funded healthcare “hackathons” in California that challenge
`software developers to create new solutions that enable health care providers to deliver
`higher quality of care in the hospital or the home by integrating data from personal, clinical
`and environmental sources. Philips North America also operates a nationwide open
`innovation portal called SPICE, through which companies and individuals can connect
`with one another, discuss their innovations with experts at Philips, and learn from Philips’
`experience in the area of connected health.
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 11 of 60 Page ID #:529
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`Garmin Background and Infringement
`41. Garmin develops and sells wireless-enabled wearable devices that measure
`data such as number of steps walked, heart rate, blood oxygen, duration and quality of
`sleep, number of steps climbed, and other inputs related to personal fitness and health.
`42.
`In addition to wearable devices, Garmin has developed and makes available
`for download various smartphone software applications that also enable users to connect
`to devices, record and analyze their fitness information. Garmin also maintains servers
`interfacing with the software applications and wearable devices collecting sensed
`information and providing calculated fitness and health information to its subscribers.
`43. While others using the patented technology have taken licenses to the Patents-
`in-Suit (or foreign equivalents) Garmin has refused to take a license and continues to
`infringe the Patents-in-Suit. Garmin has received multiple communications from Philips
`concerning the patents-in-suit and its infringement since approximately February of 2016,
`but it has failed to cease it infringing activities or to provide any response to Philips.
`Accused Products
`44. Garmin is, and has been, engaged in manufacturing and/or having
`manufactured, selling and/or offering for sale within the United States, using in the United
`States, and/or importing into the United States fitness tracking devices and/or
`accompanying software applications and servers providing functionality covered by one or
`more claims of each of the Patents-in-Suit (the “Accused Products”).
`45. Non-limiting examples of
`tracking devices
`the
`infringing
`fitness
`manufactured, sold, offered for sale, used, and/or imported by or for Garmin include
`various Approach, Edge, Forerunner, vivofit, vivosport, vivosmart, and Fenix 5 fitness
`tracker devices used in combination with Garmin apps running on smartphones or other
`devices model fitness trackers. Each of these fitness tracking devices has been sold and/or
`used within
`this Judicial District, without
`limitation,
`through
`the website
`https://buy.garmin.com.
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`46. Garmin maintains established distribution channels within the United States
`that permit Garmin to ship the Accused Products, including those specifically identified in
`this Complaint, to the state of California and this Judicial District.
`47. Garmin’s smartphone software applications are available for download on the
`Apple App Store, Google Play, the Windows Store, etc. On April 10, 2019, Garmin
`announced that its Connect IQ app had been downloaded over 90 million times to more
`than 10 million compatible smartphones. Garmin’s software applications are available for
`download throughout the United States including within this Judicial District and users of
`the Accused Products have downloaded Garmin’s software applications within this Judicial
`District for use with the Accused Products.
`Patents-in-Suit
`48. The following patents are infringed by Garmin (“Patents-in-Suit”): U.S.
`Patent No. 6,013,007 (“the ’007 patent”), U.S. Patent No. 7,088,233 (“the ’233 patent”);
`U.S. Patent No. 8,277,377 (“the ’377 patent”); U.S. Patent No. 6,976,958 (“the ’958
`patent”); U.S. Patent No. 9,314,192 (“the ’192 patent”), and U.S. Patent No. 9,801,542
`(“the ’542 patent”).
`49. The Patents-in-Suit derive from and/or relate to Philips’ efforts in this field of
`technology and claim protection for, among other things, GPS/audio athletic training,
`security mechanisms for transmission of personal data, connected wearable/online
`products, handling of interrupted connections, accurate recording of physical activity, and
`providing warnings in response to undesirable physiological conditions.
`50. Garmin has been and is still directly infringing, jointly infringing, contributing
`to infringement, and/or inducing others to infringe the Patents-in-Suit by making, using,
`offering for sale, selling, or importing devices that practice the Patents-in-Suit. Garmin’s
`acts of infringement have occurred within this Judicial District and elsewhere throughout
`the United States.
`
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`COMPLAINT
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`U.S. Patent No. 6,013,007
`51. The United States Patent and Trademark Office duly and legally issued the
`’007 patent to inventor Gary Miller Root on January 11, 2000. The ’007 patent is titled
`Athlete’s GPS-Based Performance Monitor. A true and accurate copy of the ’007 patent
`is attached as Exhibit A.
`52. Philips North America is the owner and assignee of all legal title in the ’007
`patent and holds the right to sue and recover damages for infringement thereof, including
`ongoing and past infringement.
`U.S. Patent No. 7,088,233
`53. The United States Patent and Trademark Office duly and legally issued the
`’233 patent to inventor Raymond J. Menard on August 8, 2006. The ’233 patent is titled
`Personal Medical Device Communication System and Method. A true and accurate copy
`of the ’233 patent is attached as Exhibit B.
`54. Philips North America is the owner and assignee of all legal title in the ’233
`patent and holds the right to sue and recover damages for infringement thereof, including
`ongoing and past infringement.
`U.S. Patent No. 8,277,377
`55. The United States Patent and Trademark Office duly and legally issued the
`’377 patent to inventor Roger J. Quy on October 2, 2012. The ’377 patent is titled Method
`and Apparatus for Monitoring Exercise with Wireless Internet Connectivity. A true and
`accurate copy of the ’377 patent is attached as Exhibit C.
`56. Philips North America is the owner and assignee of all legal title in the ’377
`patent and holds the right to sue and recover damages for infringement thereof, including
`ongoing and past infringement.
`U.S. Patent No. 6,976,958
`57. The United States Patent and Trademark Office duly and legally issued the
`’958 patent to inventor Roger J. Quy on December 20, 2005. The ’958 patent is titled
`Method and Apparatus for Health and Disease Management Combining Patient Data
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`COMPLAINT
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 14 of 60 Page ID #:532
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`Monitoring with Wireless Internet Connectivity. A true and accurate copy of the ’958
`patent is attached as Exhibit D.
`58. Philips North America is the owner and assignee of all legal title in the ’958
`patent and holds the right to sue and recover damages for infringement thereof, including
`ongoing and past infringement.
`U.S. Patent No. 9,314,192
`59. The United States Patent and Trademark Office duly and legally issued the
`’192 patent to inventors Annelies Goris and Maarten Peter Bodlaender on April 19, 2016.
`The ’192 patent is titled Detection and Compensation Method for Monitoring the Place of
`Activity on The Body. A true and accurate copy of the ’192 patent is attached as Exhibit
`E.
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`60. Philips North America is the owner and assignee of all legal title in the ’192
`patent and holds the right to sue and recover damages for infringement thereof, including
`ongoing and past infringement.
`U.S. Patent No. 9,801,542
`61. The United States Patent and Trademark Office duly and legally issued the
`’542 patent to inventors Bao Tran and Ha Tran on October 31, 2017. The ’542 patent is
`titled Health Monitoring Appliance. A true and accurate copy of the ’542 patent is attached
`as Exhibit F.
`62. Philips North America is the owner and assignee of all legal title in the ’542
`patent and holds the right to sue and recover damages for infringement thereof, including
`ongoing and past infringement.
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`Garmin’s Knowledge of Infringement
`63. Garmin had knowledge of each of the Patents-in-Suit as alleged herein and
`prior to that date was at least willfully blind to each patent and its infringement.
`64. On or about February 17, 2016, Philips sent a communication to the founder
`and CEO of Garmin, Mr. Clifton A. Pemble, notifying Garmin and Mr. Pemble that several
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 15 of 60 Page ID #:533
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`Accused Products offered for sale and sold by Garmin infringe the ’233 patent and the ’007
`patent. In subsequent discussions on or about December 8, 2016, Philips notified Garmin
`that several Accused Products offered for sale and sold by Garmin infringe the ‘377 patent
`and the ‘958 patent.
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`COUNT I
`INFRINGEMENT OF U.S. PATENT NO. 6,013,007
`65. The allegations of each of the foregoing paragraphs are incorporated by
`reference as if fully set forth herein.
`66. The ’007 patent is valid and enforceable.
`67. Garmin, in violation of 35 U.S.C. § 271, has infringed and continues to
`infringe at least claim 23 of the ’007 patent by making, using, offering to sell, selling,
`and/or importing the Accused Products that practice the claimed inventions in the ’007
`patent, either literally or under the doctrine of equivalents, either individually and/or jointly
`with their customers and subscribers employing their online products and apps including
`by way of example, the Approach, Edge, Forerunner, vivofit, vivosport, vivosmart and
`Fenix 5 fitness tracker devices.
`68. The Accused Products including access to the Garmin account and operational
`apps and related programs are provided under the direction and control of Garmin. Garmin
`establishes the procedures and timing to operate the Accused Products with the Garmin
`account including receipt of the benefits of the Accused Products. Access to the Garmin
`servers is limited to customers and subscribers that download and activate the required
`software and apps on to a smartphone or other wireless device.
`69. The Accused Products infringe one or more claims of the ’007 patent. For
`example, claim 23 of the ’007 patent is generally directed to a system that has a global
`positioning system GPS obtaining a series of time-stamped waypoints, that computes
`athletic performance feedback data from the series of time-stamped waypoints obtained by
`the GPS receiver, that presents the athletic performance feedback data to an athlete, that
`has a modem for transmitting the athletic performance feedback data to a remote computer
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 16 of 60 Page ID #:534
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`for comparison with athletic performance data of other athletes, and that has a headset and
`an audio module for presenting the athletic performance feedback data over the headset.
`The Accused Products are wearable fitness tracking devices that practice the claimed
`invention, including among other things and without limitation, by computing athletic
`performance feedback data from a series of time-stamped waypoints obtained by a GPS
`receiver, such as distance, time, pace, etc., and transmitting the athletic performance
`feedback data to a remote computer for comparison, and presenting the athletic
`performance feedback data over the headset. In some examples, Garmin provides the
`following:
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`Source: https://connect.garmin.com/
`The Accused Products further present athletic performance feedback data to an athlete,
`for example by providing “audio prompts” to an athlete wearing the device during a
`fitness activity. In an example, Garmin provides the following:
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Page 17 of 60 Page ID #:535
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`Source: https://www8.garmin.com/manuals/webhelp/forerunner235/EN-US/GUID-
`6A3A1403-F519-4990-B5C7-718E9352006D.html
`In additional examples, Garmin provides competitions:
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`Source: https://www8.garmin.com/manuals/webhelp/marqathlete/EN-US/GUID-
`FA0BDAD5-4576-4D05-B76B-A3B6712D0959.html
`Garmin also provides the following:
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`Case 2:19-cv-06301-AB-KS Document 45 Filed 12/09/19 Pag