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`Case 1:19-cv-11586-FDS Document 422-1 Filed 09/28/23 Page 2 of 4Case 1:19-cv-11586-FDS Document 424 Filed 10/02/23 Page 1 of 3
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`PHILIPS NORTH AMERICA LLC,
`
`v.
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`FITBIT LLC,
`
`Plaintiff,
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`Defendant.
`
`
`
`Civil Action No. 1:19-cv-11586-FDS
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`PHILIPS’S REPLY IN SUPPORT OF MOTION TO DISMISS CLAIMS PERTAINING
`TO U.S. PAT. NO. 7,088,233 AND TO ENTER FINAL JUDGMENT ON
`U.S. PAT. NOS. 8,277,377 AND 6,013,007
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`Fitbit’s Opposition to Philips’ Motion for Final Judgment does not dispute that all claims
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`have been resolved and that this Court should “enter a final judgment that disposes of all claims
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`and counterclaims.” Dkt. 420 at 1 (emphasis suppled). Fitbit’s Opposition is premised solely on a
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`mistaken assertion that this Court no longer has jurisdiction. However, Philips only filed its Motion
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`for Final Judgment after Fitbit claimed in its Docketing Statement that the Federal Circuit lacks
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`jurisdiction. See Ex. 1 at 1 (Dkt. 419-1) (“[T]his appeal should be dismissed because the Federal
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`Circuit lacks jurisdiction.”). Thus, under Fitbit own view of the case, this Court, not the Federal
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`Circuit, has jurisdiction and can enter Final Judgment.
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`Fitbit’s contention in the Federal Circuit is the reason this motion was filed to clarify the
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`record and put an end to Fitbit’s erroneous argument. Indeed, while Fitbit’s Opposition cites to
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`Griggs, the Supreme Court in that case confirmed that even if a notice of appeal is filed
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`prematurely (as Fitbit has erroneously alleged has occurred here1) then the notice is considered a
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`1 Philips maintains that its original Notice of Appeal was timely as all issues had been disposed of. See Dkt. 418 at
`2-3. However, in an effort to moot Fitbit’s unfounded jurisdictional concerns, Philips filed its Motion for Final
`Judgment and plans to file as necessary an additional Notice of Appeal following an entry of Final Judgment “in
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`1
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`Case 1:19-cv-11586-FDS Document 422-1 Filed 09/28/23 Page 3 of 4Case 1:19-cv-11586-FDS Document 424 Filed 10/02/23 Page 2 of 3
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`“nullity” and the lower court retains jurisdiction. Griggs v. Provident Consumer Discount Co., 459
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`U.S. 56, 61 (1982). Further, in accordance with Federal Rule of Appellate Procedure 4(a)(2), the
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`Federal Circuit has routinely maintained appeals where lower Courts entered final judgment after
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`an allegedly premature Notice of Appeal was filed. See, e.g., PODS, Inc. v. Porta Stor, Inc., 484
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`F.3d 1359, 1365 (Fed. Cir. 2007); ABC Corp. I v. P’ship & Unincorporated Ass’ns Identified on
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`Schedule “A”, 52 F.4th 934, 940 n.6 (Fed. Cir. 2022); Peralta v. Cal. Franchise Tax Bd., 673
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`Fed.Appx. 975, 977 (Fed. Cir. 2016); J.G. Peta, Inc. v. Club Protector, Inc., 65 Fed.Appx. 724,
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`725 (Fed. Cir. 2003); see also Pause Tech. LLC v. TiVo Inc., 401 F.3d 1290, 1295 (Fed. Cir. 2005)
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`(granting Appellant leave to seek remedial action with the District Court to obtain final judgment).
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`Respectfully Submitted,
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`
`
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`
`
`/s/ Eley O. Thompson
`
`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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`Counsel for Plaintiff Philips North America LLC
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`
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` Dated: September 28, 2023
`
`
`
`
`Ruben J. 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
`lsilva@foley.com
`rrodrigues@foley.com
`jcuster@foley.com
`
`
`
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`order to avoid any doubts over [appellate] jurisdiction.” Clausen v. Sea-3 Inc., 21 F.3d 1181, 1183-84 (1st Cir.
`1994).
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`Case 1:19-cv-11586-FDS Document 422-1 Filed 09/28/23 Page 4 of 4Case 1:19-cv-11586-FDS Document 424 Filed 10/02/23 Page 3 of 3
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing document was filed with
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`the Court through the ECF system and that a copy will be electronically served on registered
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`participants as identified on the Notice of Electronic Filing.
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`By: /s/ John W. Custer
` John W. Custer
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