Case 1:19-cv-11586-IT Document 46-3 Filed 03/19/20 Page 1 of 6
`Case 1:19-cv-11586—IT Document 46-3 Filed 03/19/20 Page 1 of 6
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`EXHIBIT (cid:38)
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`EXHIBIT C
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`Case 1:19-cv-11586-IT Document 46-3 Filed 03/19/20 Page 2 of 6
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`Plaintiff,
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`v.
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`PHILIPS NORTH AMERICA LLC,
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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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`PLAINTIFF PHILIPS NORTH AMERICA LLC’S SUPPLEMENTAL L.R. 16.6(d)(1)
`DISCLOSURES
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`While Philips North America LLC (“Philips,” “Plaintiff” or “Patentee”) maintains the
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`sufficiency of its original L.R. 16.6(d)(1) disclosures, having met and conferred with counsel for
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`Fitbit, Philips nonetheless provides the following supplemental disclosures.
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`Philips nonetheless reiterates that discovery in this action is only just beginning, and as of
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`last week Defendants had not yet produced any documents concerning the accused products.1
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`Accordingly, these supplemental disclosures remain based solely upon publicly available
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`information and Plaintiff’s present understanding of said publicly available information.
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`Plaintiff’s investigation of the matters disclosed herein is ongoing. Accordingly, Plaintiff may
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`seek to amend, modify, or supplement these disclosures based upon further discovery and
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`investigation.
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`Throughout these disclosures the term “Accused Products” may, depending on context
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`and the specific patent at issue, mean any of the identified activity tracker products offered by
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`1 On March 13th, 2020 Fitbit provided its first document production in conjunction with its
`disclosures under L.R. 16.6(d)(4). Philips has not yet confirmed whether this production
`contained information concerning the detailed functionality of the accused products.
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`Case 1:19-cv-11586-IT Document 46-3 Filed 03/19/20 Page 3 of 6
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`Fitbit, as well as any software products related to, associated with, or used in conjunction with
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`said activity tracker products (regardless of whether such software runs on the activity tracker
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`itself, a mobile device, desktop/laptop computer, server, or other computing device). For
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`example, “Accused Product” may refer to an activity tracker alone or to a system utilizing the
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`activity tracker in combination with a device running the Fitbit App. An Accused Product may
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`also refer to a system that further includes server-based software and related hardware and
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`software.
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`Unless otherwise noted the supplemental information provided below applies to each
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`assertion of each asserted patent against each asserted product.
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`A. U.S. Pat. No. 6,013,007
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`1. Identification of means-plus-function terms under 35 U.S.C. §
`112
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`Philips identifies the following elements of the ’007 as means-plus-function terms
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`under 35 U.S.C § 112. The identity of the structures and in the accused products that
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`perform the claimed function are identified (to the extent possible given that Philips’s
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`contentions are presently based solely on publicly available information) in the claim
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`charts originally served with Philips’s 16.6(d)(1) disclosures. However, and in view of
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`questions posed by counsel for Fitbit during a meet and confer, Philips provides some
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`clarifications below. However, failure to specifically recite a specific function or item of
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`support in the below clarifications should not be interpreted as a waiving any claim of
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`infringement over any and all functions and structures identified in Philips’s original
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`charts.
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`2
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`Case 1:19-cv-11586-IT Document 46-3 Filed 03/19/20 Page 4 of 6
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`Means-Plus-Function Element
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`Additional Comments
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`Claim 1: “means for computing athletic
`performance feedback data from the series of
`time-stamped waypoints obtained by said GPS
`receiver”
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`Claim 1: “means for presenting the athletic
`performance feedback data to an athlete.”
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`As identified in the previously served claim
`charts, the “athletic performance feedback
`data” of the accused products includes at least
`waypoint-based distance, waypoint-based pace,
`and Cardio Fitness Score (which, upon
`information and belief, incorporates
`calculations of waypoint-based distance and/or
`waypoint-based pace in relation to other data).
`The computing is performed by the underlying
`processor(s) from time-stamped waypoints
`obtained by a GPS receiver. The details of that
`computation in the accused products have not
`yet been provided by Fitbit to Philips.
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`As identified in the previously served claim
`charts, the claimed “means for presenting”
`include the screen of a mobile device running
`the Fitbit App, as well as “voice cues” which
`provide audio feedback of athletic performance
`feedback data, including waypoint-based
`distance and waypoint-based pace.
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`Claim 7: “means for suspending and resuming
`operation of said means for computing when a
`speed of the athlete falls below a
`predetermined threshold”
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`As identified in the previously served claim
`charts, the means for suspending and resuming
`operation include the “Auto-Pause” feature of
`the accused products.
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`Claim 21: “means for computing athletic
`performance feedback data from the series of
`time-stamped waypoints obtained by said GPS
`receiver”
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`Claim 21: “means for presenting the athletic
`performance feedback data to an athlete”
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`As identified in the previously served claim
`charts, the “athletic performance feedback
`data” of the accused products includes at least
`waypoint-based distance, waypoint-based pace,
`and Cardio Fitness Score (which, upon
`information and belief, incorporates
`calculations of waypoint-based distance and/or
`waypoint-based pace). The computing is
`performed by the underlying processor(s) from
`time-stamped waypoints obtained by a GPS
`receiver. The details of that computation in the
`accused products have not yet been provided
`by Fitbit to Philips.
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`As identified in the previously served claim
`charts, the claimed “means for presenting”
`include the screen of a mobile device running
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`Case 1:19-cv-11586-IT Document 46-3 Filed 03/19/20 Page 5 of 6
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`the Fitbit App, as well as “voice cues” which
`provide audio feedback of athletic performance
`feedback data, including waypoint-
`baseddistance and waypoint-based pace.
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`As identified in the previously served claim
`charts, the claimed “means for verifying actual
`exercise activity” include at least the
`“SmartTrack” and “Auto-Pause” features of
`the accused products.
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`As identified in the previously served claim
`charts, the claims “means for exchanging GPS
`route waypoints via said Internet website”
`includes the “Share with Friends” feature of
`the Fitbit App that allows sharing of maps.
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`Claim 22: “means for verifying actual exercise
`activity.”
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`Claim 25: “means for exchanging GPS route
`waypoints via said Internet web site”
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`2. Additional details concerning infringement and acts of multiple
`parties.
`i. Direct Infringement (35 U.S.C. § 271(a))
`Fitbit has directly infringed the claims of the ’007 by at least making and using a
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`system that included every element of the accused products (as charted), at least for the
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`purposes of testing its products and services, demonstrating its products and services to
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`others, etc.
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`ii. Direct Infringement via Joint Infringement (35 U.S.C. §
`271(a))
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`Fitbit has directly infringed the claims of the ’007 by jointly infringing with its
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`customers. While Fitbit provides the accused activity tracker devices, the Fitbit App, and
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`(to the extent relevant to any given claim) the Fitbit servers that are accessible to the
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`Fitbit App, the customer provides the mobile device and any audio headset that may be
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`required by any particular claim. Fitbit and its customers jointly make and use the
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`Case 1:19-cv-11586-IT Document 46-3 Filed 03/19/20 Page 6 of 6
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`Dated: March 17, 2020
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`Respectfully Submitted,
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` /s/ Eley O. Thompson
`Lucas I. Silva (BBO 673,935)
`Ruben J. Rodrigues (BBO 676,573)
`FOLEY & LARDNER LLP
`111 Huntington Avenue
`Suite 2500
`Boston, MA 02199-7610
`Phone: (617) 342-4000
`Fax: (617) 342-4001
`lsilva@foley.com
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`Eley O. Thompson (pro hac vice to be filed)
`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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`12
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