`Exhibit  F  
`
`Exhibit F
`
`

`

`Case 1:19-cv-11586-IT Document 77 Filed 07/08/20 Page 1 of 24
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`Plaintiff,
`
`
`
`v.
`
`PHILIPS NORTH AMERICA LLC
`
`
`
`
`
`FITBIT, INC.,
`
`
`
`
`
`Defendant.
`
`C.A. No. 1:19-cv-11586-IT
`
`JURY TRIAL DEMANDED
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`PLAINTIFF’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`
`
`i
`
`

`

`Case 1:19-cv-11586-IT Document 77 Filed 07/08/20 Page 9 of 24
`
`
`
`c)
`
`To the extent an algorithm is required, a person of ordinary
`skill would understand the specification as disclosing one.
`
`In an effort analogize this dispute to cases that Fitbit would like to rely on, Fitbit alleges
`
`that during the meet and confer “Philips stated that one skilled in the art would know how to use
`
`the processor to perform the claimed function.” (Dkt. 72 at 5.) That has never been Philips’s
`
`contention and Fitbit’s use of a full page in its brief to describe cases where such an argument
`
`failed is a red herring. (See Dkt. 72 at 5.)
`
`Rather, as explained in Philips’s opening brief, a person of ordinary skill in the art would
`
`understand that an algorithm is disclosed in the specification—namely, calculating athletic
`
`performance feedback data (elapsed distance, average or current speed, or current or average
`
`pace) from a series of GPS waypoints obtained from a GPS receiver. (See Dkt. 73 at 7-10
`
`(explaining the applicable legal standards, and how well-known and basic formulas—even when
`
`forming part of algorithm—need not be expressly disclosed if a person or ordinary skill in the art
`
`would understand them from the disclosure).) This is consistent with the Federal Circuit’s
`
`instruction that a specification need only “disclose, at least to the satisfaction of one of ordinary
`
`skill in the art, enough of an algorithm to provide the necessary structure under § 112 ¶ 6,” and
`
`that the algorithm can be expressed “in any understandable terms including as a mathematical
`
`formula, in prose, or as a flow chart, or in any other manner that provides sufficient structure.”
`
`Finisair Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008) (internal citation
`
`omitted).
`
`Here, the formulas for calculating distance, speed, and pace from a series of points—all
`
`of which involves high school level math—are not expressly disclosed in the specification, but
`
`are aspects of the algorithm that a POSITA would nevertheless be well aware of. See Alfred E.
`
`Mann Found. for Sci. Research v. Cochlear Corp., 841 F.3d 1334, 1345 (Fed. Cir. 2016) (finding
`
`
`
`6
`
`