Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 1 of 15
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`IN THE 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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`
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`Civil Action No. 1:19-cv-11586-FDS
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`Leave to file granted during April 21, 2021
`status conference
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`
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`DEFENDANT’S SUR-REPLY IN OPPOSITION TO PLAINTIFF’S
`MOTION FOR LEAVE TO AMEND L.R. 16.6(d)(1) INFRINGEMENT CONTENTIONS
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 2 of 15
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ...........................................................................................................................1
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`ARGUMENT ...................................................................................................................................3
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`I.
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`PHILIPS AGAIN FAILS TO SHOW GOOD CAUSE FOR ITS
`AMENDMENTS. ................................................................................................................3
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`1.
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`2.
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`Philips Cannot Blame Fitbit For Philips’s Lack Of Diligence. ...............................3
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`Adding Four New Accused Products After The Close Of Fact Discovery
`Prejudices Fitbit. ......................................................................................................6
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`II.
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`THE ’377 PATENT’S EXPIRATION BEFORE THE NEW PRODUCTS WERE
`RELEASED RENDERS PHILIPS’S AMENDMENTS FUTILE. ......................................8
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`CONCLUSION ..............................................................................................................................10
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 3 of 15
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`TABLE OF AUTHORITIES
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`CASES
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`Page(s)
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`Abiomed, Inc. v. Maquet Cardiovascular LLC,
`No. CV 16-10914-FDS, 2020 WL 3868803 (D. Mass. July 9, 2020) ................................ 7
`
`Adobe Sys. v. Wowza Media Sys.,
`No. 11-cv-02243-JST, 2014 U.S. Dist. LEXIS 23153 (N.D. Cal. Feb. 22, 2014).............. 7
`
`Allvoice Devs. US, LLC v. Microsoft Corp.,
`612 F. App’x 1009 (Fed. Cir. 2015) ................................................................................... 3
`
`Apple, Inc. v. Samsung Elecs. Co.,
`No. 11-CV-01846-LHK, 2012 WL 1067548 (N.D. Cal. Mar. 27, 2012) ........................... 3
`
`Atmel Corp. v. Info. Storage Devices, Inc.,
`No. C 95–1987 FMS, 1998 WL 775115 (N.D. Cal. 1998) ................................................. 4
`
`CyWee Grp. Ltd v. Apple Inc.,
`No. 14CV01853HSGHRL, 2016 WL 7230865 (N.D. Cal. Dec. 14, 2016) ....................... 8
`
`Intellectual Ventures I, LLC v. Lenovo Group Ltd.,
`No. 16-10860-PBS (D. Mass. Aug. 15, 2019) ................................................................ 3, 8
`
`Medtronic CoreValve, LLC v. Edwards Lifesciences Corp.,
`741 F.3d 1359 (Fed. Cir. 2014)................................................................................. 8, 9, 10
`
`Nat. Alts. Int’l, Inc. v. Iancu,
`904 F.3d 1375 (Fed. Cir. 2018)........................................................................................... 9
`
`O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc.,
`467 F.3d 1355 (Fed. Cir. 2006)................................................................................... 3, 4, 5
`
`Rembrandt Pat. Innovations LLC v. Apple Inc.,
`No. 1405093WHACONSOLIDAT, 2015 WL 8607390 (N.D. Cal. Dec. 13, 2015) .......... 8
`
`37 C.F.R. § 1.53(c)(3) ..................................................................................................................... 9
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`REGULATIONS
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`ii
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 4 of 15
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`INTRODUCTION
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`Philips continues to offer contradictory excuses for its delay in seeking to add four new
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`products to this litigation after the close of fact discovery. Philips could and should have sought
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`leave to amend its contentions long ago. Nonetheless, despite another chance to explain its delay,
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`Philips gives no credible justification for its lack of diligence. That alone warrants denying
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`Philips’s Motion and should resolve this issue.
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`Seemingly acknowledging that it was far from diligent, Philips focuses much of its Reply
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`(D.I. 176) on the assertion that the newly-proposed contentions could not prejudice Fitbit because,
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`according to Philips, they do not introduce new infringement theories. But Philips incorrectly
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`contends that its new contentions only accuse features that were previously identified for earlier
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`accused products. Contrary to Philips’s assertion that its infringement contentions for the new
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`Charge 4, Sense, Inspire 2, and Versa 3 products accuse the “very same features” previously
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`disclosed for the Charge 3, Inspire HR, and Versa 2 products (see Reply at 1, 4-5), the new
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`contentions actually accuse additional features that were not included in any prior contentions for
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`the Charge 3, Inspire HR, and Versa 2 and introduce new infringement theories after the close of
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`fact discovery that prejudice Fitbit.
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`Moreover, even if Philips does not intend to introduce new theories of infringement,
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`applying Philips’s earlier theories to four new products still prejudices Fitbit. As an example, the
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`new products include new features and functionalities. Philips accused those new features in its
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`December 2020 infringement charts but has now removed those accusations from its contentions,
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`ostensibly to try to argue that no new features are accused. Philips’s remolding of its infringement
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`contentions in the middle of briefing on its Motion is the epitome of the “shifting sands” that the
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`infringement contention disclosure rules seek to prevent. Philips’s shift also raises significant new
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`questions, including whether and how Philips contends the new features should be valued and
`1
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 5 of 15
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`factored into damages for the new products. The new features, which Philips does not now accuse
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`of infringement, present potential non-infringing alternatives as well as features that should be
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`accounted for in apportioning the value of accused and non-accused features. Fitbit is prejudiced
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`by not being able to seek discovery regarding Philips’s contentions for those issues, as well as any
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`additional discovery that might be necessitated by Philips’s positions. That prejudice cannot be
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`reconciled now, as the time for complicating this case with new issues has long passed.
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`Philips also cannot escape the legal impact of the conversion in the ’377 Patent’s priority
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`chain. Patent term is cut a year short when a provisional application is converted to a non-
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`provisional application. As a result, the ’377 Patent expired before the four new products were
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`released in 2020. Philips’s effort to require the public to uncover a purported error in its priority
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`chain disclosure—arguing that the “conversion” language was merely “colloquial”—fails because
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`the burden is on patentees to accurately state their priority claims. Philips’s argument is further
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`undermined by its inability to explain how the priority claim language would have been any
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`different if the patentee had actually intended a conversion instead of using colloquialisms.
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`Philips’s additional explanations of why a patentee generally may not want to convert a provisional
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`application simply reinforce the legal implications of the language actually used in the priority
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`claim in this case—language that the public is entitled to rely on. The inescapable consequence
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`of the priority claim (even if made in error) is that the ’377 Patent expired prior to the release of
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`any of the four new products. Thus, Philips’s amendments would be futile even if good cause
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`were found.
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 6 of 15
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`ARGUMENT
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`I.
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`PHILIPS AGAIN FAILS TO SHOW GOOD CAUSE FOR ITS AMENDMENTS.
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`1.
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`Philips Cannot Blame Fitbit For Philips’s Lack Of Diligence.
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`“In order to establish good cause, the moving party first must demonstrate diligence in
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`amending its contentions.”1 Allvoice Devs. US, LLC v. Microsoft Corp., 612 F. App’x 1009, 1015
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`(Fed. Cir. 2015) (citing O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1366–
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`67 (Fed. Cir. 2006)). “Only if the moving party is able to show diligence may the court consider
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`the prejudice to the non-moving party.” Apple, Inc. v. Samsung Elecs. Co., No. 11-CV-01846-
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`LHK, 2012 WL 1067548, at *2 (N.D. Cal. Mar. 27, 2012) (applying identical good cause analysis).
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`It is undisputed that Philips waited one year after the release of the Charge 4 and six months after
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`the release of the Versa 3, Inspire 2, and Sense to file its motion seeking to add those products to
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`its contentions. Similarly, it is undisputed that these contentions are based exclusively on publicly
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`available information and, as such, could have been filed shortly after the products’ release. (See
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`Reply at 3 (“Philips’s proposed amendments rely on publicly available information.”).) Philips
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`failed to timely seek leave to add these products, despite benefiting from three extensions of fact
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`discovery. See D.I. 116, 127, 152. That complete lack of diligence should end this dispute. See
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`Intellectual Ventures I, LLC v. Lenovo Group Ltd., No. 16-10860-PBS, slip. op. at 2 (D. Mass.
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`Aug. 15, 2019) (denying motion to amend invalidity contentions without considering prejudice
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`where movant failed to establish diligence in seeking to amend its contentions after the close of
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`fact discovery).
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`Philips’s reasons for its lack of diligence do not withstand scrutiny. For example, Philips
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`maintains that it waited to seek leave to amend its contentions to “avoid piecemeal amendments
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`1 All emphases are added unless otherwise noted.
`3
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 7 of 15
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`as Fitbit rolled out new products through 2020.” (See Reply at 2.) Philips still does not explain
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`how it could have known that unannounced later products that might require such “piecemeal
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`amendments” would ever be released. To the contrary, Philips actually confirms that it did not
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`know additional products would be released, acknowledging that “Philips could not have known
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`about these new products until Fitbit actually released them.” (Id. at 3.) Philips cannot have it
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`both ways. Moreover, even if Philips suspected later products might be released—an assertion
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`Philips does not support—Philips offers no justification for delaying amendment to add one
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`product because of the mere possibility that another amendment may be necessary to add a later
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`product. Indeed, such a strategy would both undermine the diligence requirement and contravene
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`the purpose of infringement contentions to “require parties to crystallize their theories of the case
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`early in the litigation.” O2 Micro, 467 F.3d at 1364 (citing Atmel Corp. v. Info. Storage Devices,
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`Inc., No. C 95–1987 FMS, 1998 WL 775115, at *2 (N.D. Cal. 1998)).
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`Philips’s slanted recounting of the parties’ fleeting attempt to negotiate mutual contention
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`amendments is an effort to improperly shift blame to Fitbit that should be rejected.2 First,
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`regarding the timing of Philips’s proposed amendments, Philips first notified Fitbit of its intent to
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`amend its contentions on December 14, 2020 and provided corresponding claim charts on
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`December 18, 2020. (See Ex. A at 2; Ex. B at 2.) By that time, the Charge 4 had already been
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`released and publicly available for eight months. Thus, even under Philips’s most favorable
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`characterization of its actions, it still waited to assert infringement contentions based solely on
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`public information far longer than any diligent party would. Moreover, Philips’s first offer to
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`consider mutual contention amendments did not come until January 11, 2021, nine months after
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`2 Philips claims it “sought to amend its contentions in December 2020.” (Reply at 2.) As is clear
`from the timing of the Motion, Philips did not. In December 2020, Philips indicated that in would
`seek leave to amend. (Ex. C at 3.) But it failed to actually do so until March 31, 2021. D.I. 167.
`4
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 8 of 15
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`the release of the Charge 4 and nearly four months after the release of the other products. (See
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`Ex. G at 5-6.) Even if Philips had sought to amend its contentions in December 2020 or January
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`2021 when it first raised the notion of accusing new products and said it would seek leave, the
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`amendments still would have been untimely.
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`Second, regarding the content of Philips’s proposed amendments, regardless of whether
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`Philips’s current proposed contentions add or remove infringement theories, the contentions it
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`sought to discuss in December 2020 are not the same contentions Philips now seeks to add.
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`Indeed, Philips primarily rests its argument for leave on the (incorrect, as explained below) premise
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`that its new contentions—unlike the contentions it proposed in December 2020—do not accuse
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`new functionality. (See Reply at 4.) Philips’s changes to its infringement contentions for the new
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`products between December 2020 and its Reply are a transparent attempt to mold the contentions
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`into charts that the Court might let pass. The Court should not condone such gamesmanship. See
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`O2 Micro, 467 F.3d at 1364 (explaining that the purpose of infringement contentions is to prevent
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`parties from utilizing a “shifting-sands approach” in its infringement theories).
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`Third, Philips ignores the fact that any potential negotiations regarding contention
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`amendments ended when Philips rejected the proposal Fitbit offered in January 2021 regarding the
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`Versa 3, Inspire 2, and Sense.3 (See Ex. G at 4-6.) Despite fact discovery being scheduled to close
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`on February 23 at that time,4 Philips made no further inquiries until March 10, more than one
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`month later. Philips’s failure to diligently engage in any “negotiations” and then now seeking to
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`3 In that proposal, Fitbit unambiguously stated that it would oppose any new contentions with
`respect to the Charge 4. (See Ex. G at 5.)
`4 Philips moved for an emergency extension of fact discovery on February 17, 2021, six days prior
`to the scheduled close of fact discovery. D.I. 150. In seeking that emergency extension, Philips
`made no mention of any desire or intent to amend its contentions to add the four products it now
`seeks to accuse. See D.I. 151.
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`5
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 9 of 15
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`rely on those negotiations to explain its delay is but another example of its overall failure to timely
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`pursue its case. Because Philips still fails to show that it acted diligently in seeking to amend its
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`contentions, Philips cannot establish good cause to amend its contentions. The Motion should be
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`denied.
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`2.
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`Adding Four New Accused Products After The Close Of Fact Discovery
`Prejudices Fitbit.
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`Even if the Court were to excuse Philips’s lack of diligence, Philips’s request to add four
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`new products at this late stage should nevertheless be denied as prejudicial to Fitbit. As an initial
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`matter, Philips’s new contentions present previously undisclosed infringement theories. Philips
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`belabors that its new infringement contentions introduce “no new infringement theories” and
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`accuse the “very same features” previously disclosed with respect to the Charge 3, Inspire HR,
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`and Versa 2 products. (See Reply at 1, 4-5 (emphasis in original).) But that assertion is incorrect.
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`Each of the newly-disclosed contentions actually accuse additional features that were not
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`identified in Philips’s earlier contentions for the Charge 3, Inspire HR, or Versa 2 products. For
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`example, in its new contentions for the Charge 4, Versa 3, Inspire 2, and Sense (Exs. I, R, S, T),
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`Philips asserts the theory that determining heart rate zones “personalized” to a user meets the
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`“receiving a calculated response” limitation of the ’377 Patent. But none of Philips’s contentions
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`for the Charge 3, Inspire HR, or Versa 2 (Exs. H, U, V) included that theory or made any reference
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`at all to the “personalized” heart rate zones feature. (Compare Ex. H at 20 with Ex. I at 22; Ex. R
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`at 20 with Ex. U at 20; Ex. S at 21 with Ex. V at 18; Ex. T at 21 with Ex. V at 18.) Thus, contrary
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`to Philips’s assertions, its new contentions accuse features and functionalities that were never
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`identified in either its initial February 2020 contentions or in its supplemental contentions in May
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`2020. Philips’s attempt to introduce new infringement theories at this late stage—whether
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`purposeful or inadvertent—prejudices the Fitbit and should not be allowed. See, e.g., Adobe Sys.
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 10 of 15
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`v. Wowza Media Sys., No. 11-cv-02243-JST, 2014 U.S. Dist. LEXIS 23153, at *52 n.7 (N.D. Cal.
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`Feb. 22, 2014) (“[P]rejudice is inherent in the assertion of a new theory after discovery has
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`closed.”); Abiomed, Inc. v. Maquet Cardiovascular LLC, No. CV 16-10914-FDS, 2020 WL
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`3868803, at *6 (D. Mass. July 9, 2020) (rejecting the addition of new products with respect to
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`certain claims that introduced new theories of infringement).
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`Moreover, as Fitbit explained in its Opposition (D.I. 173), even without the introduction of
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`new infringement theories, the addition of four new products would require additional discovery
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`that could have been taken during the thrice-extended period for fact discovery had Philips timely
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`sought leave to amend. (See Opposition at 8-9.) As one example, the new products Philips seeks
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`to add include new features and functionalities that Philips intended to accuse of infringement in
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`December 2020 but has now removed from its contentions to argue that no new features are
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`accused. Had the new products been timely accused, Fitbit could have sought discovery from
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`Philips regarding how Philips contends damages should be assessed for the new products, and in
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`particular how Philips would account for the new, non-accused features in that assessment.
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`Depending on Philips’s undisclosed contentions on those issues, Fitbit could have sought
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`additional discovery either from Philips or from third parties regarding the value—or lack
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`thereof—that Philips attributes to its accused and non-accused features in the new products. And
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`while Philips notes that Fitbit has agreed to produce additional financial data if the Court were to
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`allow Philips’s proposed amendments (see Reply at 5), Fitbit’s willingness to comply with a
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`potential Court order does not demonstrate a lack of prejudice.
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`Fact discovery was extended three times in this case and has closed. Philips is currently
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`asserting twenty-four claims across three patents against twenty-one Fitbit products. It is time for
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`the issues to be addressed at expert discovery, summary judgment, and trial to narrow, not expand.
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 11 of 15
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`See, e.g., Intellectual Ventures, No. 16-10860-PBS, slip. op. at 2 (denying leave to amend
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`contentions where fact discovery had closed and expert reports were approaching); CyWee Grp.
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`Ltd v. Apple Inc., No. 14CV01853HSGHRL, 2016 WL 7230865, at *3 (N.D. Cal. Dec. 14, 2016)
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`(denying leave to add two new products with only two weeks remaining in fact discovery). In
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`short, “[i]t is time to prepare for the trial of the already-accused products.” Rembrandt Pat.
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`Innovations LLC v. Apple Inc., No. 1405093WHACONSOLIDAT, 2015 WL 8607390, at *3 (N.D.
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`Cal. Dec. 13, 2015).
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`II.
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`THE ’377 PATENT’S EXPIRATION BEFORE THE NEW PRODUCTS WERE
`RELEASED RENDERS PHILIPS’S AMENDMENTS FUTILE.
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`Philips’s Reply again raises the purely legal issue of who bears the consequences of a
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`purported mistake in the legally-required priority disclosure section of an issued patent. Federal
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`Circuit authority makes clear that the patent owner bears the consequences because the patent
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`owner is uniquely positioned to ensure accuracy in its priority disclosure and that the public is
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`entitled to rely on the patent owner’s priority claim—even if a forensic analysis of file histories
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`might uncover a potential error. See Medtronic CoreValve, LLC v. Edwards Lifesciences Corp.,
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`741 F.3d 1359, 1366-67 (Fed. Cir. 2014). Philips provides no sound reason for departing from
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`that precedent to excuse Philips from the consequence of the ’191 Patent and ’377 Patent priority
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`claims, which Philips characterizes as “colloquial” and mistakes. The consequence of the priority
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`claims is that the ’377 Patent expired on January 18, 2020, and thus Philips’s amendment would
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`be futile even if it were supported by good cause.
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`There can be no dispute that the burden of stating an accurate claim of priority based on
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`earlier-filed applications falls on the patentee. Philips attempts to sidestep that burden by parsing
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`the requirement that a patent include a “specific reference” to each of its priority applications from
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`other aspects of a priority claim. (See Reply at 5.) But the burden that patentees bear is not so
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 12 of 15
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`limited. “The patentee is the person best suited to understand the genealogy and relationship of
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`her applications; a requirement for her to clearly disclose this information should present no
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`hardship.” Medtronic, 741 F.3d at 1366. Thus, Philips is incorrect that there is no “legal import
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`to the word ‘conversion’ in this context.” (Reply at 6.) The patentee unequivocally stated in the
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`priority claim that the ’191 Patent was “a conversion” of an identified provisional application, thus
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`setting forth both the “genealogy” of the ’191 Patent (by identifying the earlier provisional) and
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`the “relationship” of the applications (by identifying the ’191 Patent as a “conversion”). See
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`Medtronic, 741 F.3d at 1366. The public, including Fitbit, is entitled to rely on that unequivocal
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`statement and is not required to sift through patent office records to determine whether that
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`statement may have been merely “colloquial” or a mistake, as Philips asserts. Id.; see also Nat.
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`Alts. Int’l, Inc. v. Iancu, 904 F.3d 1375, 1380 (Fed. Cir. 2018). And although Philips repeatedly
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`characterizes the priority claim as merely “colloquial,” Philips does not explain how the language
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`used for the priority claim would have been any different had the patentee actually intended to
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`convert its provisional application.
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`Philips’s additional discussion of reasons behind U.S. patent law amendments or the
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`general frequency of provisional application conversions do not change what happened in this
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`case. (See Reply at 6-7.) The patentee could have very well had multiple reasons not to convert
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`its provisional application into the ’191 Patent, as Philips contends. But, as Philips acknowledges,
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`the patentee was also warned by the federal regulations of the negative effects of conversion. (See
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`id. at 6 (citing 37 C.F.R. § 1.53(c)(3) and acknowledging “the regulation cautions against its use”).)
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`That backdrop only strengthens the reasons for holding Philips to the priority claim stated in its
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`patents. Having multiple reasons not to convert its provisional application, and faced with a direct
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`warning in the federal regulations of the ill effects of conversion, the patentee nonetheless chose
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 13 of 15
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`to state expressly that the ’191 Patent “is a conversion of U.S. Provisional Patent Application Ser.
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`No. 60/172,486” and maintained that same statement years later in the ’377 Patent. (Ex. 8 at 1:18-
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`22; Ex. 9 at 1:9-10.) Even assuming it was the patentee’s subjective intent to use such words in a
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`“colloquial” sense, the consequences of that decision remain unchanged. Holding Philips to the
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`priority claim stated in its patents is not extreme or unprecedented, but rather it is exactly what
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`precedent requires. Medtronic, 741 F.3d at 1366 (declining to reinterpret a priority claim in a way
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`that would “run[] afoul” of statutory provisions that “require[] precise detail in priority claims”).
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`Furthermore, Philips incorrectly asserts that Fitbit did not address the proposition that its
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`expired patent should not preclude Philips’s request to amend its contentions. (See Reply at 7.)
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`Fitbit explained that the proposed amendment is futile because of the patent’s expiration. (See
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`Opposition at 2, 9, 12-13.) Should the Court find good cause for Philips’s amendments, there is
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`no reason to defer addressing the expiration date dispute because it is ripe for resolution and will
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`settle the accused products and the damages window for Philips’s ’377 Patent before the parties
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`proceed to expert reports and discovery. Philips does not identify any additional information the
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`Court would need to resolve to dispute and does not provide any other reason why the Court should
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`shift the responsibility for accurate priority claims from the patent owner to the public. The Court
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`should not leave this legal issue hanging to be decided later.
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`CONCLUSION
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`For the foregoing reasons, Fitbit respectfully requests that the Court deny Philips’s Motion.
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 14 of 15
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`Dated: April 28, 2021
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`By:
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`
`
`
`
` /s/ Karim Oussayef
`Karim Z. Oussayef (pro hac vice)
`koussayef@desmaraisllp.com
`Leslie M. Spencer (pro hac vice)
`lspencer@desmaraisllp.com
`Brian D. Matty (pro hac vice)
`bmatty@desmaraisllp.com
`
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`Telephone: (212) 351-3400
`Facsimile: (212) 351-3401
`
`Ameet A. Modi (pro hac vice)
`amodi@desmaraisllp.com
`Emily H. Chen (pro hac vice)
`echen@desmaraisllp.com
`
`DESMARAIS LLP
`101 California Street
`San Francisco, CA 94111
`Telephone: (415) 573-1900
`Facsimile: (415) 573-1901
`
`Gregory F. Corbett (BBO # 646394)
`WOLF, GREENFIELD & SACKS, P.C.
`600 Atlantic Avenue
`Boston, MA 02110
`Telephone: (617) 646-8000
`Facsimile: (617) 646-8646
`E-mail: gcorbett@wolfgreenfield.com
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`Attorneys for Fitbit, Inc.
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`Case 1:19-cv-11586-FDS Document 182 Filed 04/28/21 Page 15 of 15
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`CERTIFICATE OF SERVICE
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`I certify that this document is being filed through the Court’s electronic filing system, which
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`serves counsel for other parties who are registered participants as identified on the Notice of
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`Electronic Filing (NEF). Any counsel for other parties who are not registered participants are being
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`served by first class mail on the date of electronic filing.
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`/s/ Gregory F. Corbett
`Gregory F. Corbett
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