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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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`v.
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`FITBIT, INC.,
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`Plaintiff,
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`Defendant.
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`Civil Action No. 1:19-cv-11586-IT
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`FITBIT’S MOTION FOR LEAVE TO SUBMIT SUPPLEMENTAL AUTHORITY
`RELATING TO CLAIM CONSTRUCTION
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`Defendant Fitbit, Inc. (“Fitbit”) respectfully submits this motion for leave to Submit
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`Supplemental Authority relating to Claim Construction. On September 1, 2020, Fitbit moved for
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`leave to submit as supplemental authority Judge Birotte’s Claim Construction Order in Philips
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`North America LLC v. Garmin Int’l, Inc., No. 2:19-cv-6301 (C.D. Cal.) (“the C.D. Cal. action”).
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`(Dkt. 98.) Philips North America LLC (“Philips”) responded to Fitbit’s motion. (Dkt. 102.) The
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`Court granted Fitbit’s motion for leave on September 3, 2020. (Dkt. 103.)
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`On November 4, 2020, Philips moved in the C.D. Cal. action for entry of final judgment
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`under Rule 54(b) with respect to Philips’ allegations of infringement of U.S. Patent No. 6,013,007
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`(“the ’007 patent”). As grounds for the motion, Philips asserted that “the Court’s August 28, 2020
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`Claim Construction Order (Dkt. 102) found that the asserted claims of the ’007 Patent are invalid
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`for indefiniteness, resulting in the complete resolution of Philips’s cause of action for infringement
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`of the ’007 Patent.” Philips sought entry of final judgment to appeal the ruling and sever that cause
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`of action from the remainder of the case.
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`On December 17, 2020, Judge Birotte issued an order denying Philips’ motion under Rule
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`54(b) (“Rule 54(b) order”) in the C.D. Cal. action. This Rule 54(b) order is attached as Exhibit A.
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`Case 1:19-cv-11586-IT Document 128 Filed 12/29/20 Page 2 of 4
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`Although ultimately denying the motion, Judge Birotte observed: “The Court and parties agree
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`that this Court’s Claim Construction Order is a final judgment that can be certified for a Rule 54(b)
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`appeal.” (Rule 54(b) order, 2:27–28.) Although the parties and the Court agreed the claim
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`construction order finding the ’007 patent invalid as indefinite was final, the Court found that
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`“practical considerations point toward requiring a final and complete resolution of this entire case
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`before appeal,” and “there is no practical reason to sever the expired ’007 Patent for purposes of
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`appeal while simultaneously proceeding with litigation relating to overlapping products and
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`subject matter.” (Rule 54(b) order, 4:2–4, 4:9–11.)
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`Dated: December 29, 2020
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`FITBIT, INC.
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`By Its Attorneys,
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`/s/ Yar R. Chaikovsky
`Yar R. Chaikovsky
`yarchaikovsky@paulhastings.com
`Chad Peterman
`chadpeterman@paulhastings.com
`Dave Beckwith
`davidbeckwith@paulhastings.com
`David Okano
`davidokano@paulhastings.com
`Radhesh Devendran
`radheshdevendran@paulhastings.com
`Berkeley Fife
`berkeleyfife@paulhastings.com
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`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, California 94304-1106
`Telephone: 1(650) 320-1800
`Facsimile:
`1(650) 320-1900
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`- 2 -
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`Case 1:19-cv-11586-IT Document 128 Filed 12/29/20 Page 3 of 4
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`Jennifer B. Furey (BBO # 634174)
`Andrew T. O’Connor (BBO # 664811)
`GOULSTON & STORRS PC
`400 Atlantic Avenue
`Boston, MA 02110
`Telephone: (617) 482-1776
`Facsimile: (617) 574-4112
`E-mail: jfurey@goulstonstorrs.com
`aoconnor@goulstonstorrs.com
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`LOCAL RULE 7.1 CERTIFICATION
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`I, Chad Peterman, counsel for Defendant Fitbit, Inc., hereby certify that Fitbit has
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`conferred with counsel for Philips North America, LLC to resolve the issues presented in this
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`motion, but after a good faith attempt to reach agreement, the parties did not do so.
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`Dated: December 29, 2020
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`By: /s/ Chad Peterman
`Chad Peterman
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`- 3 -
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`Case 1:19-cv-11586-IT Document 128 Filed 12/29/20 Page 4 of 4
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`
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`CERTIFICATE OF SERVICE
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`I certify that a true copy of the above document was served on the attorney of record for
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`each party via the Court’s CM/ECF system, which will send notification of this filing (NEF) to
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`all registered participants, and paper copies will be sent to those indicated as nonregistered
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`participants.
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`Dated: December 29, 2020
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`By: /s/ Chad Peterman
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`Chad Peterman
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`- 3 -
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