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Case 1:19-cv-11586-IT Document 66 Filed 05/22/20 Page 1 of 5
`
`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
`
`FITBIT’S MOTION FOR LEAVE TO EXCEED PAGE LIMIT FOR FITBIT’S
`OPENING CLAIM CONSTRUCTION BRIEF
`
`Fitbit, Inc. (“Fitbit” or “Defendant”) files this Motion for Leave to Exceed Page Limits
`
`for Fitbit’s Opening Claim Construction Brief and seeks leave to file a brief in excess of the 20-
`
`page limit set forth in the Local Rules. See L.R. 16.6(e)(5) (providing that absent leave of court,
`
`the page limits of L.R. 7.1(b)(4) shall apply to briefs). Specifically, Fitbit seeks leave to file an
`
`opening brief up to 10 pages in excess of the limit, for a total of no more than 30 pages.
`
`Good cause exists for Fitbit’s request. Fitbit has identified 14 terms for construction from
`
`59 limitations over 31 asserted claims from four different patents in three different families.
`
`Fitbit has an outstanding petition to construe the additional four terms, beyond the ten typically
`
`allowed under the Local Rules. D.I. 63. The additional pages that Fitbit requests for its claim
`
`construction brief are necessary to adequately present evidence and argument applicable to each
`
`disputed claim term. For example, with 14 terms in dispute, Fitbit will need additional pages to
`
`provide sufficient context for each of those terms and the dispute over each. Moreover, four
`
`different terms in dispute invoke means-plus-function analysis under pre-AIA 35 U.S.C. 112(6).
`
`See D.I. 65. The briefing on these terms will require additional pages to address the case law
`
`unique to means-plus-function analysis, the proper construction of the function of terms, and the
`
`

`

`Case 1:19-cv-11586-IT Document 66 Filed 05/22/20 Page 2 of 5
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`identification of corresponding structure in the specification that is used to perform the claimed
`
`functions. See pre-AIA 35 U.S.C. 112(6). This is a more consuming process than construction of
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`a typical claim element.1 In addition, lengthened briefing on the disputed claim terms is
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`warranted by the fact that the four asserted patents include lengthy disclosures, numerous
`
`figures, and, at least for some, extensive file histories. These factors warrant additional pages for
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`Fitbit’s opening claim construction brief.
`
`Fitbit offered Philips the opportunity to join this motion, which Philips rejected. In an
`
`attempt to minimize disputes, Fitbit then offered Philips the opportunity to join this motion on a
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`contingent basis: Philips could assent only to the extent Fitbit’s request for four additional claim
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`terms was granted. Philips again rejected Fitbit’s effort to compromise. Philips stated that
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`instead, it would oppose Fitbit’s motion, while similarly requesting additional pages in its own
`
`opposition.
`
`For the reasons above, Fitbit respectfully requests that the Court grant leave for Fitbit to
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`file up to a 30-page opening claim construction brief. If this motion is granted, Fitbit will
`
`nonetheless endeavor to avoid all unnecessary verbiage and redundant arguments, and, where
`
`possible, file a brief shorter than the maximum allowed.
`
`
`
`
`
`
`1 In addition to the two means-plus-function terms Fitbit identified in its petition for leave to construe four additional
`claim terms, the parties identified two means-plus-function terms in their ten terms allowed under the Local Rules.
`See D.I. 65-2, 65-3. Thus, additional pages are required even if Fitbit’s petition for leave to construe four additional
`claim terms is denied.
`
`- 2 -
`
`

`

`Case 1:19-cv-11586-IT Document 66 Filed 05/22/20 Page 3 of 5
`
`Dated: May 22, 2020
`
`FITBIT, INC.
`
`By Its Attorneys,
`
`/s/ David Beckwith
`Yar R. Chaikovsky
`yarchaikovsky@paulhastings.com
`Chad Peterman
`chadpeterman@paulhastings.com
`Dave Beckwith
`davidbeckwith@paulhastings.com
`David Okano
`davidokano@paulhastings.com
`Radhesh Devendran
`radheshdevendran@paulhastings.com
`Berkeley Fife
`berkeleyfife@paulhastings.com
`
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, California 94304-1106
`Telephone: 1(650) 320-1800
`Facsimile:
`1(650) 320-1900
`
`
`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
`
`- 3 -
`
`
`
`
`
`
`

`

`Case 1:19-cv-11586-IT Document 66 Filed 05/22/20 Page 4 of 5
`
`
`
`LOCAL RULE 7.1 CERTIFICATION
`
`I, David Beckwith, counsel for Defendant Fitbit, Inc., hereby certify that we have
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`conferred with counsel for Philips North America, LLC to resolve the issues presented in this
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`motion, but after a good faith attempt to reach agreement, the parties did not do so.
`
`Dated: May 22, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By: /s/ David Beckwith
`David Beckwith (Pro Hac Vice)
`
`
`
`
`- 4 -
`
`

`

`Case 1:19-cv-11586-IT Document 66 Filed 05/22/20 Page 5 of 5
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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
`
`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
`
`participants.
`
`
`Dated: May 22, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`By: /s/ Nanette Cosentino
`
`
`Nanette Cosentino
`
`
`
`
`
`
`
`

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