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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`PHILIPS NORTH AMERICA LLC,
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`Plaintiff,
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`Defendant.
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`v.
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`FITBIT, INC.,
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`Civil Action No. 1:19-cv-11586-IT
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`JURY TRIAL DEMANDED
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`RESPONSE TO FITBIT’S MOTION FOR LEAVE TO SUBMIT SUPPLEMENTAL
`AUTHORITY RELATING TO CLAIM CONSTRUCTION (DKT. 98)
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`While Philips North America, LLC (“Philips”) does not object to submission of the
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`interlocutory order from the Central District of California, Philips does not agree that the
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`interlocutory order is supplemental “authority” in view of the fact that the order has no
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`preclusive effect, it is a non-final and not appealable, subject to intervening change as the parties
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`further brief the issues. See RF Del., Inc. v. Pacific Keystone Techs., 326 F.3d 1255, 1260-62
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`(Fed. Cir. 2003) (affirming that district court properly conducted independent claim construction,
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`without giving collateral estoppel effect to interlocutory orders of other court); Vardon Golf Co.
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`v. Karsten Mfg. Corp., 294 F.3d 1330, 1334-1335 (Fed. Cir. 2002) (finding error to give
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`interlocutory non-appealable orders preclusive effect). This is particularly true in view of the
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`preliminary nature of the order and its repeated reservation that the comments are being made “at
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`this time” subject to the court’s further understanding of the merits of the dispute. The court’s
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`determination on various claim terms was based on the briefs and record before it, and the
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`Case 1:19-cv-11586-IT Document 102 Filed 09/02/20 Page 2 of 4
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`arguments and issues raised by Garmin in the Central District of California, which in many
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`respects differ from the issues presented to this Court.
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`For example, with respect to the ’233 Patent, the Central District of California noted that
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`it was not addressing the merits of Garmin’s non-infringement argument that its devices do not
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`constitute “medical devices” because they were not FDA approved. (See Dkt. 98-1 at 18, n. 5.)
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`The order also includes some aspects that will need to be reconsidered so as to avoid reversible
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`error, including the Court’s improper disregard for expert testimony as to the ’007 patent. Amtel
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`Corp. v. Information Storage Devices, Inc., 198 F.3d 1374, 1382 (Fed. Cir. 1999) (reversing
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`grant of summary judgment of indefiniteness of means-plus-function claim for failing to consider
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`unrebutted expert testimony with regard to the appropriate structure).
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`Accordingly, the Court is not, and should not be, bound by the decision and should
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`continue to assess the issues on the record before it.
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`Dated: September 2, 2020
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`Respectfully Submitted,
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` /s/ Eley O. Thompson
`Lucas I. Silva (BBO 673,935)
`Ruben J. Rodrigues (BBO 676,573)
`John Custer (BBO 705,258)
`FOLEY & LARDNER LLP
`111 Huntington Avenue
`Suite 2500
`Boston, MA 02199-7610
`Phone: (617) 342-4000
`Fax: (617) 342-4001
`lsilva@foley.com
`rrodrigues@foley.com
`jcuster@foley.com
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`Eley O. Thompson (pro hac vice)
`FOLEY & LARDNER LLP
`321 N. Clark Street
`Suite 2800
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`Case 1:19-cv-11586-IT Document 102 Filed 09/02/20 Page 3 of 4
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`Chicago, IL 60654-5313
`Phone: (312) 832-4359
`Fax: (312) 832-4700
`ethompson@foley.com
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`Counsel for Plaintiff
` Philips North America LLC
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`Case 1:19-cv-11586-IT Document 102 Filed 09/02/20 Page 4 of 4
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above document was
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`served on September 2, 2020 on counsel for Defendant via electronic mail.
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`By: /s/Ruben J. Rodrigues
` Ruben J. Rodrigues
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