`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`PHILIPS NORTH AMERICA LLC,
`
`v.
`
`FITBIT, INC.,
`
`Plaintiff,
`
`Defendant.
`
`Civil Action No. 1:19-cv-11586-IT
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`DEFENDANT’S NOTICE OF SPECIFIC UNMARKED PATENTED ARTICLES
`SUBJECT TO 35 U.S.C. § 287
`
`In Arctic Cat Inc. v. Bombardier Recreational Prod. Inc., the Federal Circuit held that an
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`alleged infringer challenging a patentee’s compliance with 35 U.S.C. § 287 bears only “an initial
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`burden of production to articulate the products it believes are unmarked ‘patented articles’
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`subject to § 287.” 876 F.3d 1350, 1368 (Fed. Cir. 2017). The Federal Circuit further held that an
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`alleged infringer meets this burden by putting “the patentee on notice that he or his authorized
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`licensees sold specific unmarked products which the alleged infringer believes practice the
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`patent.” Id. Once this burden—“a low bar”—is met, “the patentee bears the burden to prove the
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`products identified do not practice the patented invention.” Id.
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`Defendant Fitbit, Inc. (“Fitbit”) provides notice to Plaintiff Philips North America LLC
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`(“Philips”) that Defendant contends that the following products are “patented articles” that
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`practice the inventions of U.S. Patent Nos. 6,013,007, 7,088,233, 8,277,377, and/or 6,976,958 for
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`which Philips bears the burden of proving compliance with 35 U.S.C. § 287.
`
`Fitbit identifies at least the following products it believes are “patented articles” sold by
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`Philips or its licensees, as identified by Fitbit in its correspondence to Rubin Rodrigues dated
`
`February 14, 2020:
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`
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`Case 1:19-cv-11586-IT Document 62 Filed 04/10/20 Page 2 of 5
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`
`
`
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`Philips Products:
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` Actiwatch product line
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` HealthSuite health application
`
` Health watch
`
`MIO Products:
`
` Alpha fitness tracker watch
`
`
`
`Dated: April 10, 2020
`
`
`
`
`
`FITBIT, INC.
`
`By Its Attorneys,
`
`/s/ Yar R. Chaikovsky
`Yar R. Chaikovsky
`yarchaikovsky@paulhastings.c
`om
`Dave Beckwith
`davidbeckwith@paulhastings.c
`om
`David Okano
`davidokano@paulhastings.co
`m
`Radhesh Devendran
`radheshdevendran@paulhastin
`gs.com
`Berkeley Fife
`berkeleyfife@paulhastings.co
`m
`
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, California 94304-
`1106
`Telephone: 1(650) 320-1800
`Facsimile:
`1(650) 320-1900
`
`
`- 2 -
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`
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`Case 1:19-cv-11586-IT Document 62 Filed 04/10/20 Page 3 of 5
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`
`
`Jennifer B. Furey (BBO #
`634174)
`Andrew T. O’Connor (BBO #
`664811)
`GOULSTON & STORRS PC
`400 Atlantic Avenue
`Boston, MA 02110
`Telephone: (617) 482-1776
`Facsimile: (617) 574-4112
`E-mail:
`jfurey@goulstonstorrs.com
`aoconnor@goulstonstorrs.com
`
`
`
`
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`
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`- 3 -
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`
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`Case 1:19-cv-11586-IT Document 62 Filed 04/10/20 Page 4 of 5
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`
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`CERTIFICATE OF SERVICE
`
`I certify that a true copy of the above document was served on the attorney of record for
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`each party via the Court’s CM/ECF system, which will send notification of this filing (NEF) to
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`all registered participants, and paper copies will be sent to those indicated as nonregistered
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`participants.
`
`
`Dated: April 10, 2020
`
`
`
`
`
`
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`
`
`
`
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`
`
`
`By: /s/ Yar R. Chaikovsky
`
`
`Yar R. Chaikovsky (Pro Hac Vice)
`
`
`
`
`
`Case 1:19-cv-11586-IT Document 62 Filed 04/10/20 Page 5 of 5
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`
`
`CERTIFICATE OF SERVICE
`I, Alice Cameron, hereby certify that the attached document has been served upon the
`following parties as indicated below on April 10, 2020.
`*
`
`Counsel for Philips North America LLC
`Lucas I Silva
`Ruben J. Rodrigues
`Foley & Lardner LLP
`111 Huntington Avenue, Suite 2500
`Boston, MA 02199
`Tel:
`(617) 342-4000
`
`
`Eley O. Thompson
`FOLEY & LARDNER LLP
`321 North Clark Street, Suite 2800
`Chicago, IL 60654
`Telephone: (312) 832-4500
`
`
`
`
`
`
`
`
`
`
`☐ Via First Class Mail
`☐ Via Express Delivery
`☐ Via Hand Delivery
`☒ Via Electronic Mail at:
`lsilva@foley.com
`rrodrigues@foley.com
`☐ Via First Class Mail
`☐ Via Express Delivery
`☐ Via Hand Delivery
`☒ Via Electronic Mail at:
`ethompson@foley.com
`
`
`
`
`
`
`
`/s/ Alice Cameron
`Alice Cameron
`
`
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