Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 1 of 10
`Case 1:19-cv-11586—FDS Document 200-3 Filed 06/18/21 Page 1 of 10
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`EXHIBIT C
`
`EXHIBIT C
`
`

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`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 2 of 10
`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 2 of 10
`
`Schilowitz, Elias [elias.schilowitz@philips.com]
`12/12/2017 12:27:45 PM
`Matthew Hollander [mhoilander@fitbit.com]
`RE: Letter of April 13, 2017
`
`From:
`Sent:
`To:
`Subject:
`
`Hi Matt,
`
`Per our discussion on Friday, have you managed to identify German counsel for Fitbit?
`
`Thanks, Elias
`
`From: Matthew Hollander [mailto:mhollander@fitbit.com]
`
`Sent: Friday, December 08, 2017 11:56 AM
`
`To: Schilowitz, Elias <elias.schilowitz@philips.com>
`
`Subject: Re: Letter of April 13, 2017
`
`Sounds great.
`
`Matthew Hollander
`
`Lead IP Litigation Counsel
`
`.333.h91l§fl§i§£®flf§§2§§£9.93. éfiéfitfifiéfi
`
`On Dec 8, 2017, at 8:51 AM, Schilowitz, Elias <eiias.schilowitz§&)thligscorr» wrote:
`
`No, let's keep our current call time, although please excuse me if l’m a few minutes fate.
`
`From: Matthew Hollander [maaltomhnlianderafihtbttronfl
`
`Sent: Friday, December 08, 2017 11:49 AM
`
`To: Schilowitz, Elias <eiias.sch§lowitz 5‘ hiii s,com>
`
`Subject: Re: Letter of April 13, 2017
`
`Hi Elias,
`
`No problem. Unfortunately, I cannot make those times. 11 am PST/2 pm EST still works, but I can also speak
`
`on Monday if that time is inconvenient for you.
`
`Thanks, Matt
`
`Matthew Hollander
`
`Lead IP Litigation Counsel
`
`mhoilandetQDfltbttwm fi.t§.;§€<1駧§
`
`On Dec 8, 2017, at 4:21 AM, Schilowitz, Elias <elias.schilowitz@thligs.com> wrote:
`
`Hi Matt,
`
`Thanks or this. Something came up that i hadn’t anticipated for that time. Could you do the call either before noon EST
`or between 3~4pm EST? if not, let’s keep the current time.
`
`Thanks, Elias
`
`—
`
`PNA-F80006567
`
`

`

`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 3 of 10
`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 3 of 10
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`From: Matthew Hollander [mailto:mholianderfi’fitbitcom|
`
`Sent: Thursday, December 07, 2017 8:16 PM
`
`To: Schilowitz, Elias <eiias.schélowitz@théigs.com>
`
`Subject: RE: Letter of April 13, 2017
`
`I’m not going to be at my desk, so please use the following dial—in:
`
`Dial: +1 646 876 9923 (US)
`Meeting ID: 299 314 118
`
`Matthew Hollander
`
`Lead IP Litigation Counsel
`
`antigellxamésate?.fi%.§b...i.§;s;9m 415-941-3955
`
`From: Schilowitz, Elias [mailtcueliasschilowitz
`
`
`60 hill scam
`
`Sent: Thursday, December 7, 2017 4:12 AM
`
`Subject: RE: Letter of April 13, 2017
`
`Sure, I can do that. Should I call you at the number below?
`
`Thanks, Elias
`
`From: Matthew Hollander lmeats;gestalt:.0.:3.s3.{£32fittiitzrsszrjll
`Sent: Wednesday, December 06, 2017 11:04 PM
`
`To: Schilowitz, Elias <eiias.schilowitz , hiiias.com>
`
`Subject: Re: Letter of April 13, 2017
`
`Sure. Does 11 am PST/ 2 PM EST work on Friday?
`
`Matthew Hollander
`
`Lead |P Litigation Counsel
`mhollander@fitbit.com 415.941.3955
`
`From: "Schilowitz, Elias" <elias.schilowitz
`
`hill s.com>
`
`Date: Wednesday, December 6, 2017 at 12:02 PM
`
`T0: Matthew Hollander <meetl.eeéetsélfltizitsgm>
`
`Subject: RE: Letter of April 13, 2017
`
`Matthew,
`
`Do you have time for a 5 minute call tomorrow or Friday? We have a question concerning our patents.
`
`Thanks, Elias
`
`From: Matthew Hollander [maéltomhoiianderflfitbittom|
`
`Sent: Thursday, September 07, 2017 11:49 PM
`
`To: Schilowitz, Elias <e¥ias.schilowit2@ Qhfimsmm»
`
`Subject: Re: Letter of April 13, 2017
`
`—
`
`PNA-FBoooesss
`
`

`

`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 4 of 10
`Case 1:19-cv-11586—FDS Document 200-3 Filed 06/18/21 Page 4 of 10
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`Elias,
`
`Thank you for speaking with me yesterday. As discussed, and as I’ve explained previously, Fitbit is open to having
`
`discussions with Philips, but we need details regarding Philips’s patent infringement allegations before we can engage in
`
`any commercial discussions. To date you have provided almost none.
`
`To move things fon/vard, I requested that:
`
`(1) we enter into an NBA to enable us to have productive conversations going forward; and
`
`(2) we schedule a meeting so Philips can provide us with more detail regarding its infringement allegations. Prior to the
`
`meeting, we again request that you provide us with claim charts.
`
`Given your concerns about delay, I also suggested that we could agree to a schedule for our discussions. For example,
`
`we would be open to agreeing to a date for Philips to provide claim charts to Fitbit, a date for our initial meeting, and a
`
`date by which Fitbit will provide a response to Philips regarding the allegations.
`
`You said that you would take this proposal back to your colleagues. I understand that you are traveling next week, but
`
`look forward to your response when you return.
`
`Thanks, Matt
`
`Matthew Hollander
`
`Lead |P Litigation Counsel
`mhollandeeritbit.com 415.941.3955
`
`From: "Schilowitz, Elias" <elias.schilowitz
`
`
`hilt s.com>
`
`Date: Friday, September 1, 2017 at 4:08 AM
`
`To: Matthew Hollander <mhollanderg’éJfitbit‘con»
`
`Subject: RE: Letter of April 13, 2017
`
`Let’s do it at 1:3OPM, then.
`
`From: Matthew Hollander [133:3£39.;magiiaadetfifitti3:529:91
`Sent: Friday, September 01, 2017 12:51 AM
`
`To: Schilowitz, Elias <eiias.schilowitzgfi)phi§ips.com>
`
`Subject: RE: Letter of April 13, 2017
`
`Elias,
`
`Great. I can’t make 11 am EST, but l’m available any time after 1 PM EST on September 6. Let me know what works best.
`
`Thanks, Matt
`
`Matthew Hollander
`
`Lead IP Litigation Counsel
`mhollanderfwfitbitcom 415.941.3955
`
`
`
`From: Schilowitz, Elias [mailtozeliasschilowitziq‘: _ hiii scorn]
`
`Sent: Thursday, August 31, 2017 6:51 AM
`
`To: Matthew Hollander «whalianderf‘zcu fitbit.com>
`
`Subject: RE: Letter of April 13, 2017
`
`—
`
`PNA-F80006569
`
`

`

`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 5 of 10
`Case 1:19-cv-11586—FDS Document 200-3 Filed 06/18/21 Page 5 of 10
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`Matt,
`
`September 6 works for a call. How about 11am EST?
`
`Regards, Elias
`
`From: Matthew Hollander [mailto:mholianderftflfitbitcom|
`
`Sent: Wednesday, August 30, 2017 12:34 AM
`
`To: Schilowitz, Elias <§.§.i§.§.:.§§.izil.<3231313..£3?9.l).iii.r2.:‘e.-..<.:52r_:1>
`
`Subject: RE: Letter of April 13, 2017
`
`Elias,
`
`Thank you for your email.
`
`Fitbit has been and remains open to engaging in productive discussions with Philips. Our continued openness has driven
`
`Fitbit's repeated requests to review Philips’s claim charts—which you’ve inexplicably refused to provide despite the fact
`
`that you’ve indicated Philips has already prepared them. We’ve made these requests regardless of whether you’ve
`
`proposed a face-to-face or phone meeting so that Fitbit can meaningfully analyze Philips‘s specific allegations in
`advance.
`
`it is unreasonable for Fitbit to pursue ”commercial discussions" with Philips based on the limited information it has
`
`provided thus far. Again, Philips has provided no specificity as to its allegations that would enable Fitbit to engage in any
`
`process of valuing Philips’s intellectual property, let alone make an informed decision as to whether its proposed $1
`royalty rate is necessary or reasonable (which at present, we contend it is absolutely not). Nor does Philips provide any
`
`basis for arriving at a $1 royalty rate other than to "facilitate discussions.” As noted in my email below, Fitbit has no legal
`duty to analyze your current allegations that likely encompass hundreds of claims across a multitude of Fitbit products.
`
`We proposed entering into a non-disclosure agreement to allow the parties to provide complete information to resolve
`these issues fairly and reasonably. We still think that is the best approach moving forward.
`
`As you know, I am currently on vacation, but l will be back in the office on September 5. Rather than continuing to go in
`
`circles with repeated e-mails, I propose that we have a short call on either September 5, 6, or 7 to discuss how Philips
`
`and Fitbit can engage in productive discussions moving forward.
`
`We look forward to your response.
`
`Thanks, Matt
`
`Matthew Hollander
`
`Lead IP Litigation Counsel
`
`
`
`From: Schilowitz, Elias lif).at.l13.9.S.§.lli%.§;.fé.£§l.1§.lS.?.‘.<‘~.il3..‘£@.i?.l2§3.l£.?§.-.£§.9IILl
`Sent: Wednesday, August 23, 2017 11:15 AM
`
`To: Matthew Hollander <mhollander-‘fifitbit.com>
`
`Subject: RE: Letter of April 13, 2017
`
`Matt,
`
`—
`
`PNA-FBoooesm
`
`

`

`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 6 of 10
`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 6 of 10
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`Thank you for your response.
`
`it’s generally our preference not to enter non—disclosure agreements. Nor do we believe Fitbit would need one unless it
`
`intends to provide us with internal information for the purpose. of reaching agreeable licensing terms.
`
`If that’s what you
`
`have in mind, please let us know.
`
`We have no desire to go in circles regarding characterizations of prior correspondence but will simply note that: (1)
`
`changes in personnel do not excuse Fitbit from not responding to letters and emails, and (2} after Fitbit indicated that it
`
`did not want a face—to—face meeting, we offered to have a phone call during which we would walk you through claim
`charts. That said, our position remains the same. We are amenable to prompt discussions concerning licensing but,
`
`whereas we once would have been happy to entertain detailed technical discussions, given the time it’s take to get
`
`here, we are only interested in commercial discussions at this point. To facilitate discussions, we believe reasonable
`
`licensing terms would include a royalty rate of $1 per device. This rate is suggested without access to Fitbit sales
`information and we reserve the right to change it or suggest alternative figures.
`
`Regards, Elias
`
`From: Matthew Hollander [mailmanhollanderfifitbitcom
`
`
`Sent: Monday, August 14, 2017 8:09 PM
`To: Schilowitz, Elias <eiias.schilowitz a} )hiii s.com>
`
`
`Subject: RE: Letter of April 13, 2017
`
`Elias,
`
`Thank you for your email.
`
`Fitbit takes your correspondence seriously, and we are not attempting to delay any analysis or conversation. Fitbit
`
`always has and will continue to respect any valid third party intellectual property rights. However, your repeated refusal
`
`to provide Fitbit with your specific allegations is unreasonable and is preventing Fitbit from proceeding with any
`
`meaningful analysis.
`
`While we are committed to analyzing your allegations in good faith and in a prompt manner, it is not reasonable for
`
`Fitbit to analyze such broad allegations that fail to both: (1) specify the claims that Fitbit is alleged to infringe; and (2)
`specify how Fitbit’s products are alleged to infringe any such claims. For example, the first of the seven US. patents
`
`listed on your October 2016 letter, U.S. Patent No. 6,602,191, has a total of 105 claims. Your only allegation directed to
`
`this patent is that "the Fitbit Mobile App and Dashboard infringes US 6602191.” Due to Philips’s lack of specificity and
`
`lack of identification of claims that Fitbit allegedly infringes of this single patent or any other patent, you must be aware
`
`that Fitbit has no legal duty to analyze any of your current allegations that likely encompass hundreds of claims across a
`multitude of Fitbit products.
`
`As you note in your May 22, 2017 email, you already have prepared claim charts. For Fitbit to engage in a meaningful
`
`analysis of your allegations we are making a very reasonable request that Philips provide those claim charts. While we
`
`appreciate your desire to present the information in person and similarly desire to engage in such an in person meeting,
`
`any such meeting will be substantially less productive unless Fitbit is able to fully analyze your positions detailed in your
`
`previously prepared (months ago) claim charts in advance. To mitigate any disclosure concerns by either party while
`
`engaging in reasonable discussions, the parties should enter into a non-disclosure agreement prior to any further
`communication. I've attached such a non-disclosure agreement to this correspondence.
`
`Moreover, your commercially unreasonable demand for an offer by the end of August is disingenuous and largely an
`
`attempt to create a self-sewing record to be used against Fitbit and ignores that Philips has provided no specificity as to
`its allegations that would enable Fitbit to engage in any process of valuing Philips’s intellectual property.
`
`—
`
`PNA-F80006571
`
`

`

`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 7 of 10
`Case 1:19-cv-11586—FDS Document 200-3 Filed 06/18/21 Page 7 of 10
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`As to our communications to date, it is Philips—not Fitbit—that has mischaracterized the history of the correspondence.
`Once Scottjoined Fitbit in February 2017 and received your April 13, 2017 letter, he responded via email shortly
`
`thereafter on April 21, 2017 (before the requested response date). By April 25, 2017 (again prior to the requested
`
`response date), Scott requested Philips’s ”best allegations” to use as the ”basis of the investigation.” Philips did not
`provide that information. On May 25, 2017, Scott again requested this information and claim charts, explaining that
`
`once Fitbit analyzes those claim charts, ”we‘d be in a better position to sit down and talk with you." Ignoring Fitbit's
`request for claim charts, Philips has continued to pursue an unproductive and inefficient in-person meeting, without a
`
`mutually beneficial non-disclosure agreement, because Philips intentionally has not disclosed which of the numerous
`
`patent claims Fitbit is alleged to infringe or how Fitbit’s products are alleged to infringe any such claims.
`
`As Scott noted in his April 21, 2017 email to you, he had just started at Fitbit and was coming up to speed on many
`
`different matters. I too just recently started in May 2017 and am also coming up to speed. Nonetheless, lam responding
`
`to your latest email to demonstrate Fitbit’s commitment to take all such notices seriously and to have reasonable and
`productive ongoing communications.
`
`Finally, I will be on vacation from August 21 through September 4, and will be unavailable during those dates. In the
`
`meantime, we look forward to your response as Fitbit desires to work together amicably and expeditiously after I return.
`
`Thanks, Matt
`
`Matthew Hollander
`
`Lead IP Litigation Counsel
`mhollanderflfitbitcom 415.941.3955
`
`
`From: Schilowitz, Elias [mailtozeliasschilowitz’cfl hili scorn]
`
`Sent: Monday, August 7, 2017 6:36 PM
`
`To: Matthew Hollander <rnhollander {03‘ litbit.<:om>
`
`Subject: RE: Letter of April 13, 2017
`
`Matthew,
`
`Thank you for your response. Unfortunately, it mischaracterizes the history of our efforts to engage Fitbit. As you note,
`
`Fitbit has been on notice of our patents since October of last year.
`
`in April, after more than 6 months of Fitbit ignoring
`
`us, we received an email saying that Scott was getting up to speed and "having trouble being able to give you a
`
`timeframe for reply” but would appreciate more details on Philips’ position. Since then, Fitbit has declined or ignored
`our requests to give us a time to further discuss our patents with you.
`in short, Fitbit has essentially ignored us or stalled
`for close to 10 months.
`
`Your assertion that you need detailed claim charts before you even speak with us seems like a pretense for further
`delay. Our October 2016 letter called attention to five patents for one of your products, and two patents for another.
`Surely a sophisticated company like Fitbit can glean enough from that in the nearly 10 months since we contacted you to
`
`understand their value and form an opinion.
`
`As a general matter, we are happy to walk companies through our claims in a meeting.
`
`indeed, that is how Philips
`
`generally proceeds. We find this to be the most productive way forward. However, given Fitbit’s delay, it is our view
`
`that Fitbit should be able to complete its analysis and make a commercial offer by no later than and of August, absent of
`which we would conclude that Fitibit is not seriously interested in an amicable resolution of this matter.
`
`Regards, Elias
`
`—
`
`PNA-FBooossvz
`
`

`

`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 8 of 10
`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 8 of 10
`
`From: Matthew Hollander [mailtozmholiarider
`
`Sent: Wednesday, July 26, 2017 1:52 PM
`
`63fit bitco m
`
`
`
`
`Subject: RE: Letter of April 13, 2017
`
`Elias,
`
`Thank you for your e—mail. I work with Scott Hauser, and he asked that I help on this issue.
`
`As Scott explained below, your October 10, 2016 letter simply contains a vague list of patents and Fitbit products, with
`
`absolutely no specifics on how you think any Fitbit products infringe the identified patents. if you have claim charts (as
`
`you’ve noted below) with more detail, please provide them so we can evaluate your allegations. Scott has been
`
`requesting this since April. After that, we would be happy to evaluate whether it would make sense to have a further
`meeting.
`
`Thanks, Matt
`
`Matthew Hollander
`
`Lead IP Litigation Counsel
`mitt)llander-’11)fétbit.<:om 415.941.3955
`
`From: "Schilowitz, Elias" <elias.schilowitz 0:
`
`hili s.com>
`
`Date: Wednesday, July 19, 2017 at 9:20 AM
`To: Scott Hauser <shauser chitbit.<:om>
`
`Cc: "Pastink, Erik" <erik. estink
`
`hilt s.com>
`
`Subject: RE: Letter of April 13, 2017
`
`Scott,
`
`We have been trying to engage Fitbit in discussions for close to 10 months. Please let me know ASAP your availability in
`
`the next two weeks for a call or face--to--face meeting.
`
`Thanks, Elias
`
`Elias Schilowitz
`Senior lP Counsel
`
`Philips Intellectual Property & Standards
`465 Columbus Avenue
`
`Suite 340
`
`Valhalla, NY 10595
`
`Phone: +1 (646) 824—5656
`
`Facsimile: +1 (914) 495-9540
`E—mail: elias.schilowitz@thlips.com
`
`From: Schilowitz, Elias
`
`Sent: Thursday, July 13, 2017 7:48 AM
`
`To: ‘Scott Hauser' <shauser@fitbit.com>
`
`Subject: RE: Letter of April 13, 2017
`
`<image001.png>
`
`—
`
`PNA-FBoooes73
`
`

`

`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 9 of 10
`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 9 of 10
`
`Scott,
`
`Let me know if there is a day the week of .luEyliiSl“d when you are available to talk.
`
`Thanks, Elias
`
`From: Schilowitz, Elias
`
`Sent: Tuesday, May 30, 2017 12:27 PM
`
`To: ‘Scott Ha user' <§eha9§er92fi3.e§.§.-.s;52m>
`
`Subject: RE: Letter of April 13, 2017
`
`Hi Scott,
`
`l understand. Are you available for a call the week oflune 19 for me to walk you through some claim charts?
`
`Thanks, Elias
`
`From: Scott Hauser [mailtozshauserfiffitbit.com
`
`Sent: Thursday, May 25, 2017 10:06 PM
`
`
`
`T0: Schilowitz, Elias «hasschalcwatrcephtiirsror»
`
`Subject: Re: Letter of April 13, 2017
`
`Elias,
`
`Thanks for your offer to come out. It would be a great deal easier if you could send over your best
`
`allegations/claim charts and let us review them. After that, we’d be in a better position to sit down and talk
`
`with you.
`
`-Scott
`
`From: "Schilowitz, Elias" <elias.schilowitz
`
`hill s.com>
`
`Date: Monday, May 22, 2017 at 7:12 AM
`To: Scott Hauser <shauser
`fit§3it.com>
`
`Subject: RE: Letter of April 13, 2017
`
`Scott,
`
`I’m happy to come. to you and walk you through some claim charts.
`
`When would be good for you for a visit?
`
`Thanks, Elias
`
`From: Scott Hauser lmattealleges:.r.@{iteim9533.]
`Sent: Tuesday, April 25, 2017 2:07 AM
`
`To: Schilowitz, Elias <eiias.schilowitz . hiiiascom>
`
`Subject: Re: Letter of April 13, 2017
`
`Elias,
`
`—
`
`PNA—FBoooes74
`
`

`

`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 10 of 10
`Case 1:19-cv-11586-FDS Document 200-3 Filed 06/18/21 Page 10 of 10
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`Thanks for your email. While 1 can’t speak to the past l am reaching out to you now. We take IP seriously. I am, though,
`
`having trouble being able to give you a timeframe for reply. Your letter simply lists patents and products but doesn’t give
`
`me any more than that to go on. A reply would take on the order of months to prepare since I have no idea what any of
`
`the specific allegations might be, or even which claims you think might apply. It would be helpful if you could provide
`what you think are your best allegations and we can use that as the basis of the investigation. That would certainly allow
`me to pull in the time for reply and give us something to discuss.
`
`-Scott
`
`From: "Schilowitz, Elias"<eiias.schilowitz
`
`hiii s.com>
`
`Date: Monday, April 24, 2017 at [Apr 24]4:19 AM
`To: Scott Hauser <shauser
`fittbitcom>
`
`Subject: RE: Letter of April 13, 2017
`
`Scott,
`
`Thank you for your email. While l appreciate that you just started and need some time, please also keep in mind that
`Fitbit has not responded to our ietters for months. Please let me know when we can expect a reply.
`
`Thanks, Elias
`
`From: Scott Hauser [mailtorshauser rziitbitcom]
`
`Sent: Friday, April 21, 2017 7:39 PM
`
`To: Schilowitz, Elias <eiiasschiiowitzg‘aghiiips.com>
`
`Subject: Letter of April 13, 2017
`
`Hi Elias,
`
`i wanted to let you know I now have your letter written to James Park of Fitbit, Inc. dated April 13, 2017 of
`
`your offer to license. I’ve just recently started here so am still coming up to speed on many different matters.
`
`l’ll need to do some investigating before I’m in a position to get back to you.
`
`Thanks
`
`-Scott
`
`Robert Scott P3324893?
`
`Associate Genera! Counsel »
`shauserfwfiétbitcom
`
`inteiiectuai Property
`
`
`
`—
`
`PNA-FBooossvs
`
`