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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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`OPPPOSITION TO MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY
`ON FITBIT’S RULE 12(b)(6) MOTION TO DISMISS UNDER 35 U.S.C. § 101
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`Plaintiff Philips North America LLC (“Philips”) respectfully submit this Opposition to
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`Fitbit’s Motion for Leave to File Supplemental Authority, (Dkt. 130), regarding the Federal
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`Circuit decision in Simio LLC v. Flexsim Software Prods. Inc., No. 2020-1171, -- F.3d --, 2020
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`WL 7703014 (Fed. Cir. 2020).
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`Contrary to Fitbit’s assertion that Simio is relevant to the issues in the present case, the
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`Federal Circuit’s decision in Simio merely applies the uncontroversial proposition that when the
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`parties agree that the claims are directed to the mere application of a preexisting “object-
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`oriented” programming language without improvement, the step 1 analysis may be done as a
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`matter of law, and that “conclusory allegations” that “just repackage assertions of non-
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`abstractness” are insufficient. The claims at issue in Simio have no resemblance to the claims at
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`issue in this case, and parties in this case hotly contest whether the claims are directed to the
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`application of a preexisting operation. See CardioNet, LLC v. InfoBionic Inc., 955 F.3d 1358
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`(Fed. Cir. 2020)(reversing because prior practice was in dispute).
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`As the Court noted in Simio, the claims were admittedly directed merely to “the decades-
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`old computer programming practice of substituting text[-]-based coding with graphical
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`4820-0143-6376.1
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`Case 1:19-cv-11586-IT Document 131 Filed 01/19/21 Page 2 of 4
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`processing.” Id. at *2. Additionally, in Simio, the there was no dispute that the “practice of using
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`graphics instead of programming to the environment of object-oriented simulations” was
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`“widespread,” while Simio failed to “show how claim 1 is directed to improving a computer’s
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`functionality.” Id. at *4-5. As explained in Philips’s Opposition and Sur-Reply, the claims at
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`issue here are not comparable in any way to those at issue in Simio, and Philips’s complaint
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`recites significant relevant facts—not conclusory allegations—that at least put into dispute the
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`background level of technology, Fitbit’s characterization thereof, and further demonstrates
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`myriad improvements to the art. (See Dkts. 36 and 51.) Indeed, at the end of the day, Simio
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`reinforces the fact that a well-plead complaint that puts facts into dispute—much like Philips’s
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`complaint and the facts to be established at trial, should prevent the grant of any motion to
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`dismiss. See id. at *9 (“This is therefore not a case in which a complaint’s allegations ‘prevent
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`resolving the eligibility question as a matter of law’”) (quoting Aatrix Software, Inc. v. Green
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`Shades Software, Inc., 882 F.3d 1121, 1125 (Fed. Cir. 2018).
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`The Court should deny Fitbit’s Motion for Leave to File Supplemental Authority as Simio
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`provides no additional relevant authority for the issues in front of this Court.
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`Dated: January 19, 2021
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`4820-0143-6376.1
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`Case 1:19-cv-11586-IT Document 131 Filed 01/19/21 Page 3 of 4
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`PHILIPS NORTH AMERICA LLC,
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`By Its Attorneys,
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`/s/ Eley O. Thompson
`Ruben Rodrigues (BBO 676,573)
`Lucas I. Silva (BBO 673,935)
`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
`rrodrigues@foley.com
`lsilva@foley.com
`jcuster@foley.com
`
`
`Eley O. Thompson (pro hac vice)
`FOLEY & LARDNER LLP
`321 N. Clark Street
`Suite 2800
`Chicago, IL 60654-5313
`Phone: (312) 832-4359
`Fax: (312) 832-4700
`ethompson@foley.com
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`4820-0143-6376.1
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`Case 1:19-cv-11586-IT Document 131 Filed 01/19/21 Page 4 of 4
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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: January 19, 2021
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`By: /s/ Eley O. Thompson
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`Eley O. Thompson
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`4820-0143-6376.1
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