Case 2:19-cv-06301-AB-KS Document 97 Filed 08/25/20 Page 1 of 5 Page ID #:3428
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`LAMKIN IP DEFENSE
`RDL@LamkinIPDefense.com
`Rachael D. Lamkin (246066)
`One Harbor Drive, Suite 304
`Sausalito, CA 94965
`(916) 747-6091 Telephone
`Michelle L. Marriott (pro hac vice)
`michelle.marriott@eriseip.com
`Erise IP, P.A.
`7015 College Blvd.
`Suite 700
`Overland Park, KS 66211
`(913) 777-5600 Telephone
`(913) 777-5601 Facsimile
`
`Attorneys for Defendants Garmin
`International, Inc. and Garmin Ltd.
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`PHILIPS NORTH AMERICA LLC,
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`GARMIN INTERNATIONAL, INC.
`AND GARMIN LTD.,
`
`
`
`
`
`
`Defendants.
`
`Case No. 2:19-cv-06301-AB-KS
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`DEFENDANTS’ UNOPPOSED
`REQUEST FOR LEAVE TO FILE
`SUPPLEMENTAL EVIDENCE
`(PORTIONS OF INVENTOR
`DEPOSITION TRANSCRIPT
`RELEVANT TO CLAIM
`CONSTRUCTION)
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`By and through its undersigned counsel, the Garmin Defendants respectfully
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`seek unopposed leave to submit supplemental evidence relevant to claim
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`construction, obtained after claim construction briefing was completed.
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`Defendants’ Request for Leave to File Supplemental Evidence
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`LAMKIN IP DEFENSE
`RDL@LamkinIPDefense.com
`Rachael D. Lamkin (246066)
`One Harbor Drive, Suite 304
`Sausalito, CA 94965
`(916) 747-6091 Telephone
`Michelle L. Marriott (pro hac vice)
`michelle.marriott@eriseip.com
`Erise IP, P.A.
`7015 College Blvd.
`Suite 700
`Overland Park, KS 66211
`(913) 777-5600 Telephone
`(913) 777-5601 Facsimile
`
`Attorneys for Defendants Garmin
`International, Inc. and Garmin Ltd.
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`PHILIPS NORTH AMERICA LLC,
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`GARMIN INTERNATIONAL, INC.
`AND GARMIN LTD.,
`
`
`
`
`
`
`Defendants.
`
`Case No. 2:19-cv-06301-AB-KS
`
`DEFENDANTS’ UNOPPOSED
`REQUEST FOR LEAVE TO FILE
`SUPPLEMENTAL EVIDENCE
`(PORTIONS OF INVENTOR
`DEPOSITION TRANSCRIPT
`RELEVANT TO CLAIM
`CONSTRUCTION)
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`
`By and through its undersigned counsel, the Garmin Defendants respectfully
`
`seek unopposed leave to submit supplemental evidence relevant to claim
`
`construction, obtained after claim construction briefing was completed.
`
`
`Defendants’ Request for Leave to File Supplemental Evidence
`
`
`
`Case 2:19-cv-06301-AB-KS Document 97 Filed 08/25/20 Page 2 of 5 Page ID #:3429
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`Claim construction briefing closed on July 9, 2020 when the Parties
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`submitted their Responsive Claim Construction Briefs, Dkt. Nos. 79 and 80. This
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`Honorable Court took the briefs under submission on July 28, 2020, Dkt. No. 86.
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`Frank Van Hoorn, a named inventor for asserted US Patent No. 6,013,007 was
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`deposed four (4) days ago, on August 21, 2020. Portions of his deposition
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`transcript are relevant to claim construction. Garmin seeks leave to submit said
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`evidence. Philips does not oppose.
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`
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`The relevant portions of the deposition of Frank Van Hoorn are submitted as
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`Exhibit A to the Lamkin Declaration filed concurrently herewith.
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`In brief, inventor testimony is relevant to claim construction. See Phillips v.
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`AWH Corp., 415 F.3d 1303, 1317-18 (Fed. Cir. 2005) (“[Although we have
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`emphasized the importance of intrinsic evidence in claim construction, we have
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`also authorized district courts to rely on . . . expert and inventor testimony,” which
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`“can be useful to a court for a variety of purposes”); Howmedica Osteonics Corp.
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`v. Wright Med. Tech. Inc., 540 F.3d 1337, 1347 & n. 5 (Fed. Cir. 2008)
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`(“testimony of an inventor, of course, may be pertinent as a form of expert
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`testimony . . . as to understanding the established meaning of particular terms in
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`the relevant art”) (citation omitted); CCS Fitness, Inc. v. Brunswick Corp., 288
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`F.3d 1359, 1368 (Fed. Cir. 2002) (inventor testimony equal to expert testimony in
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`claim construction); see also Phillips, 415 F.3d, at 1313 (Fed. Cir. 2005) (en banc)
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` 1
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`Case 2:19-cv-06301-AB-KS Document 97 Filed 08/25/20 Page 3 of 5 Page ID #:3430
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`(referring to the “well-settled understanding that inventors are typically persons
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`skilled in the field of the invention”).
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`Especially where , as here, Philips’ counsel hired Mr. Van Hoorn as an
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`expert on the asserted ’007 Patent. See Van Hoorn Tr. 12:10-13:13.
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`All of the submitted Van Hoorn testimony pertains to a single claim
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`construction limitation, “means for presenting the athletic performance feedback
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`data to the athlete” in limitation (c) of Claims 1 and 21. Garmin contends that the
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`means for presenting must be audio (with or without optional text or visual means)
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`and cannot be text or visual means alone. (Dkt. No. 73-2, at 2.) In his deposition,
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`Mr. Van Hoorn ultimately admits that text/visual performance feedback is
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`“inconsistent” with the teachings of the ’007 Patent because visual/text feedback
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`was dangerous while am athlete was running or skiing, For example, Mr Van
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`Hoorn testified:
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`Q. Okay. Let’s please, sir, return to the passages we discussed earlier, and
`specifically in Column 1 starting at Line 53 [of the ’007 Patent]. And I want
`to specifically call your attention to the specification, your specification,
`where you say, “Current devices requires frequent visual interaction
`compromising the safety and concentration of their user, making them
`incompatible with exercise activities.”
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`Your specification in the ’007 says visual means of conveying information is
`incompatible with exercise activities; is that correct?
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`A. It is, yes.
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`Q. So how can you have an embodiment that only communicates visually?
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` 2
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`Case 2:19-cv-06301-AB-KS Document 97 Filed 08/25/20 Page 4 of 5 Page ID #:3431
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`A. Yeah, I’m looking at this. That’s not the best option.
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`Q. It’s inconsistent with your patent’s specification to have an embodiment
`that only communicates performance data visually; is that correct?
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`A. That is correct.
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`(Van Hoorn Tr., 47:5-48:1.)
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`Garmin respectfully asks the Court to consider Exhibit A in its claim
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`Respectfully submitted,
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`_____
`By:
`
`Rachael D. Lamkin
`Counsel for Defendants Garmin International,
`Inc. and Garmin Ltd.
`
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`construction adjudication.
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`DATED: August 25, 2020
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`Case 2:19-cv-06301-AB-KS Document 97 Filed 08/25/20 Page 5 of 5 Page ID #:3432
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`CERTIFICATE OF SERVICE
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`On this date, August 25, 2020, I did personally serve upon counsel for
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`Philips the following documents through the Court’s ECF system:
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`DEFENDANTS’ UNOPPOSED REQUEST FOR LEAVE TO FILE
`SUPPLEMENTAL EVIDENCE (PORTIONS OF INVENTOR DEPOSITION
`TRANSCRIPTS RELEVANT TO CLAIM CONSTRUCTION)
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`LAMKIN DECLARATION ISO
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`EXHIBIT A HERETO
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`_____
`By:
`
`Rachael D. Lamkin
`Counsel for Defendants Garmin International,
`Inc. and Garmin Ltd.
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