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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`PHILIPS NORTH AMERICA LLC
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`Plaintiff,
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`v.
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`FITBIT, INC.,
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`Defendant.
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`C.A. No. 1:19-cv-11586-IT
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`JURY TRIAL DEMANDED
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`PLAINTIFF’S MOTION FOR LEAVE TO FILE A SUR-REPLY IN OPPOSITION
`TO DEFENDANT’S MOTION TO DISMISS
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`Plaintiff Philips North America, LLC (“Philips”) respectfully requests leave to file the
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`brief proposed Sur-Reply Brief attached as Exhibit 1 in response to the Reply brief filed by
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`Defendant in support of its Motion to Dismiss (Dkt. 39). Philips’s proposed Sur-Reply is six
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`pages in length, and is limited to addressing new arguments and issues raised in Defendant’s
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`Reply that should have been raised in Plaintiff’s original Motion and that Philips has not had an
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`opportunity to address. For example, and by Defendant’s own admission, much of its Reply
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`brief is focused on addressing the allegations made in Philips’s Amended Complaint—which
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`Defendant obviously had well before filing its motion. In particular the proposed Sur-Reply
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`addresses two specific items:
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`1. Fitbit’s (legally incorrect) Reply argument that the detailed pleadings in Philips’
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`complaint should be ignored and only the patent considered for the purposes of
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`evaluating the claims under 35 U.S.C. §101. (See Dkt. 39) This argument is directly
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`contradicted by recent Federal Circuit case law. To make it, Fitbit relies on cases
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`Case 1:19-cv-11586-IT Document 40 Filed 02/03/20 Page 2 of 5
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`where implausible pleadings contradicted the language of a patent—not the issue
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`here.
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`2. The Supreme Court’s recent denial of certiorari in several cases addressing 35 U.S.C.
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`§101. Without explanation, Fitbit’s Reply characterizes those decisions as “rejecting
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`the same types of arguments that Philips raises” in its opposition. But in fact, the
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`opposite is true—even though one of those denied petitions (Cellspin) was filed by
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`Fitbit.
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`Where a Reply brief arguably raises new arguments, a Sur-Reply is appropriate. See e.g.
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`Klein v. MHM Correctional Services, Inc., No. 08-11814-MLW, 2010 WL 3245291, *2 (D.
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`Mass Aug. 16, 2010). This is especially so where the Reply arguments could have (and should
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`have) been raised in the original motion, as is the case with Fitbit’s criticism of the facts alleged
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`in Philips’s Amended Complaint.
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`The Court has not scheduled a hearing on Defendant’s Motion and no party will be
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`prejudiced by the Court granting leave to file the proposed limited Sur-Reply.
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`2
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`Case 1:19-cv-11586-IT Document 40 Filed 02/03/20 Page 3 of 5
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`LOCAL RULE 7.1(a)(2) CERTIFICATE
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`The undersigned counsel certify that they have conferred with counsel for Defendant, and
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`that Defendant does not consent to the relief requested in this motion
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`3
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`Case 1:19-cv-11586-IT Document 40 Filed 02/03/20 Page 4 of 5
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`Dated: February 3, 2020
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`Respectfully Submitted,
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` /s/ Ruben J. Rodrigues
`Lucas I. Silva (BBO 673,935)
`FOLEY & LARDNER LLP
`111 Huntington Avenue
`Boston, MA 02199
`Phone: (617) 342-4000
`Fax: (617) 342-4001
`lsilva@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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`
`
`
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`
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`Counsel for Philips North America LLC
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`4
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`Case 1:19-cv-11586-IT Document 40 Filed 02/03/20 Page 5 of 5
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 3, 2020, a copy of the foregoing
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`document was filed with the Court through the ECF system and that a copy will be electronically
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`served on registered participants as identified on the Notice of Electronic Filing.
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`By:
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` /s/ Ruben J. Rodrigues
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`5
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