Case 1:19-cv-11586-IT Document 73 Filed 06/05/20 Page 1 of 26
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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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`JURY TRIAL DEMANDED
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`i
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`Case 1:19-cv-11586-IT Document 73 Filed 06/05/20 Page 2 of 26
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`TABLE OF CONTENTS
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`I.
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`II.
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`INTRODUCTION ...............................................................................................................1
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`LEGAL STANDARDS .......................................................................................................1
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`III.
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`THE ASSERTED PATENTS ..............................................................................................2
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`a.
`
`b.
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`c.
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`d.
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`U.S. Patent No. 6,013,007 (the ’007 Patent) ............................................................2
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`U.S. Patent No. 6,976,958 (the ’958 Patent) ............................................................2
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`U.S. Patent No. 7,088,233 (the ’233 Patent) ............................................................3
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`U.S. Patent No. 8,277,377 (the ’377 Patent) ............................................................4
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`IV.
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`V.
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`LEVEL OF ORDINARY SKILL IN THE ART .................................................................4
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`DISPUTED CONSTRUCTIONS ........................................................................................5
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`a.
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`’007 Patent: “means for computing athletic performance feedback data from the
`series of time-stamped waypoints obtained by said GPS receiver” .........................5
`
`i.
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`ii.
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`Construction of functional language (claims 1, 21). ..........................................5
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`The term is not indefinite (claims 1, 21). ...........................................................7
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`b.
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`c.
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`d.
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`e.
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`f.
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`g.
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`h.
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`i.
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`j.
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`’007 Patent: “means for suspending and resuming operation of said means for
`computing when a speed of the athlete falls below a predetermined threshold”
`(Claim 7) ................................................................................................................11
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`’958 Patent: “in the event of an interruption of the wireless connection . . .
`configured to store” (Claims 15, 16)......................................................................12
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`’958 Patent: “memory” ..........................................................................................13
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`’958 Patent: “internet-enabled wireless web device” ............................................14
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`’958 Patent: “health parameter [or visual data] [indicative/corresponding to] of a
`disease state or condition of a patient” ..................................................................15
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`’233 Patent: “governing information transmitted between the first personal device
`and the second device”...........................................................................................16
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`’233 Patent: “first personal device” .......................................................................18
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`’233 Patent: “wireless communication”.................................................................18
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`’377 Patent: “indicating a physiological status of a subject” (Claims 1, 12) .........19
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`ii
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`VI.
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`CONCLUSION ..................................................................................................................20
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`iii
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`Case 1:19-cv-11586-IT Document 73 Filed 06/05/20 Page 4 of 26
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`TABLE OF AUTHORITIES
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`Page(s)
`
`Cases
`
`Alfred E. Mann Found. for Sci. Research v. Cochlear Corp.,
`841 F.3d 1334 (Fed. Cir. 2016)................................................................................................. 15
`
`AllVoice Computing PLC v. Nuance Comms., Inc.,
`504 F.3d 1236 (Fed. Cir. 2007)................................................................................................. 15
`
`Applied Med. Resources Corp. v. U.S. Surgical Corp.,
`448 F.3d 1324 (Fed. Cir. 2006)................................................................................................... 5
`
`Biomedino, LLC v. Waters Techs. Corp.,
`490 F.3d 946 (Fed. Cir. 2007)................................................................................................... 13
`
`Cardia Pacemakers, Inc. v. St. Jude Med., Inc.,
`296 F.3d 1106 (Fed. Cir. 2002)................................................................................................... 6
`
`Finisar Corp. v. DirecTV Grp., Inc.,
`523 F.3d 1323 (Fed. Cir. 2008)................................................................................................. 15
`
`Koninklijke Philips, N.V. v. Zoll Med. Corp.,
`2014 U.S. Dist. LEXIS 113735 at *23-24 (D. Mass. Aug 15, 2014) ....................................... 14
`
`McGinley v. Franklin Sports, Inc.,
`262 F.3d 1339 (Fed. Cir. 2001)............................................................................................. 6, 10
`
`Medtronic Minimed Inv. v. Animas Corp.,
`21 F.Supp.3d 1060 (C.D. Cal. 2014) ........................................................................................ 14
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)................................................................................................... 5
`
`S3 Inc. v. NVIDIA Corp.,
`259 F.3d 1364 (Fed. Cir. 2001)................................................................................................. 15
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996)..................................................................................................... 5
`
`Statutes
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`35 U.S.C. § 112 ......................................................................................................................... 6, 10
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`
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`iv
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`I.
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`INTRODUCTION
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`Plaintiff Philips North America, LLC (“Philips”) submits its opening claim construction
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`brief. As demonstrated below, Philips’s proposed constructions are grounded in the intrinsic
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`record and the plain meaning of various terms to a person of ordinary skill in the art, while
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`Defendant Fitbit, Inc’s (“Fitbit”) proposals are divorced from the specifications of the asserted
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`patents—in some instances going so far as to exclude exemplary embodiments. While Fitbit
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`might desire unreasonably broad constructions that would ensnare prior art, or unreasonably
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`narrower ones that would support non-infringement arguments, those are not the tenets that
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`should guide claim construction. Of note, despite advancing a number of unsupported
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`constructions in the present litigation, Fitbit has filed IPR petitions against the ’233, ’958, and
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`’377 Patents where it argued that no terms required construction.
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`II.
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`LEGAL STANDARDS
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`Claim construction is supposed to stay true to the meaning that a claim would have to a
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`technically qualified person of ordinary skill in the art in light of the intrinsic record. Phillips v.
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`AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). The patent specification “is the
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`single best guide to the meaning of a disputed term.” Vitronics Corp. v. Conceptronic, Inc., 90
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`F.3d 1576, 1582 (Fed. Cir. 1996). Expert testimony can be useful “to ensure that the court’s
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`understanding of the technical aspects of the patent is consistent with that of a person of ordinary
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`skill in the art, or to establish that a particular term in the patent or the prior art has a particular
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`meaning in the pertinent field.” Philips, 415 F.3d at 1318.
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`When claim construction involves disputed means-plus-function limitations, the Court
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`must identify the claimed function and the corresponding structure that performs that function.
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`See Applied Med. Resources Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1332 (Fed. Cir. 2006).
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`1
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`“Ordinary principles of claim construction govern the interpretation of the claim language used
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`to describe the function.” Cardia Pacemakers, Inc. v. St. Jude Med., Inc., 296 F.3d 1106, 1113
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`(Fed. Cir. 2002). A means-plus-function claim is construed to cover “the corresponding
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`structure . . . described in the specification and equivalents thereof.” 35 U.S.C. § 112 ¶ 6; see
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`also McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1347 (Fed. Cir. 2001) (“Drafters of
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`means-plus-function claim limitations are statutorily guaranteed a range of equivalents extending
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`beyond that which is explicitly disclosed in the patent document itself.”)
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`III. THE ASSERTED PATENTS
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`U.S. Patent No. 6,013,007 (the ’007 Patent)
`
`a.
`The ’007 Patent is entitled “Athlete’s GPS-Based Performance Monitor,” and an aspect
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`of the invention described therein utilizes a “Global Positioning System (GPS) based personal
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`athletic performance monitor for providing an athlete with real-time athletic performance
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`feedback data such as elapsed exercise time, distance covered, average pace, elevation
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`difference, distance to go and/or advice for reaching pre-set targets.” (Ex. 1 at Abstract.) One
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`embodiment of the ’007 Patent is an “Internet web site which displays comparison data
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`representing the relative performances of two or more athletes, provides customized individual
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`training advice and virtual competitions, and an opportunity for advertisers to reach highly well
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`defined potential customers.” (Ex. 1 at Abstract.) As shown in Fig. 2, an athlete wears the GPS-
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`based performance monitor 101 during an exercise session, while Fig. 6 provides a schematic
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`view of various components of an exemplary embodiment that includes a CPU and memory.
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`U.S. Patent No. 6,976,958 (the ’958 Patent)
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`b.
`The ’958 Patent is entitled “Method and Apparatus for Health and Disease Management
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`Combining Patient Data Monitoring With Wireless Internet Connectivity,” and the invention
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`described therein “provides a method and system for assisting patients to manage a disease or
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`2
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`maintain healthy lifestyle by collecting health-related data and providing information in response
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`to those data by means of [an internet-enabled wireless web device (“WWD”)] designed to
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`display interactive information through a connection to the Internet.” (Ex. 2 at 3:27-32.)
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`In an exemplary embodiment, an “internet-enabled wireless web device” (“WWD”), such
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`as a mobile phone, receives health parameters from a health monitoring device, such as a heart
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`rate monitor. (Ex. 2 at 3:44-51, 5:58-67). The health parameters correspond to a patient who can
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`be “a person under the care of a physician” or “a ‘normal’ or healthy individual who is interested
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`in maintaining a healthy physiologic balance.” (Ex. 2 at 6:7-11). An important feature of the
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`’958 Patent is the presence of an intermediary internet-enabled wireless web device, where the
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`intermediary device itself stores a health parameter—even when communication of the
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`intermediary device with the internet might be interrupted. (See e.g., Ex. 2 at, 14:19-33, Fig. 11.)
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`U.S. Patent No. 7,088,233 (the ’233 Patent)
`
`c.
`The ’233 Patent is entitled a “Personal Medical Device Communication System and
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`Method,” and utilizes “two-way communication devices and a bi-directional communication
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`network” and “provides multiple levels” of prioritization and various types of authentication.
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`(Ex. 3 at Title, Abstract). Fig. 5 demonstrates an exemplary embodiment of the invention:
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`3
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`(Ex. 3 at Fig. 5.) In Fig. 5, the personal device 100 of victim V is in short-range wireless
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`communication (via, for example, BLUETOOTH) with a second device of a bystander B. (See
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`Ex. 3 at 11:49-66.) The personal device of victim V can then be in wireless communication with
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`other aspects of the network. (See Ex. 3 at 12:1-37.)
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`U.S. Patent No. 8,277,377 (the ’377 Patent)
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`d.
`The ’377 Patent is entitled “Method and Apparatus for Monitoring Exercise With
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`Wireless Internet Connectivity” and the invention described provides a method and apparatus
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`“for wireless monitoring of exercise, fitness, or nutrition by connecting a web-enabled wireless
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`phone to a device which provides exercise-related information, including physiological data and
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`data indicating an amount of exercise performed.” (Ex. 4 at Abstract.) The invention further
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`provides that an “application for receiving the exercise-related information and providing a user
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`interface may be downloaded to the web-enabled wireless phone from an internet server. The
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`exercise-related information may be transmitted to an internet server, and the server may
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`calculate and return a response.” (Ex. 4 at Abstract.)
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`IV.
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`LEVEL OF ORDINARY SKILL IN THE ART
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`A person of ordinary skill in the art of the patented inventions is an individual with a.) at
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`least a bachelor’s degree in electrical engineering, computer engineering, computer science, or
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`the equivalent thereof, and b.) some experience with activity and/or health monitoring
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`technologies, or the equivalent thereof. For the ’007 Patent, a person of ordinary skill in the art
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`would additionally have experience with GPS technologies, while for the ’233 Patent a person of
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`ordinary skill in the art would also have experience with security in the context of wireless
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`communications. This level of ordinary skill is supported by the accompanying declaration of
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`Dr. Thomas L. Martin, PhD, who has much more than the ordinary level of skill in the art
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`pertinent to the patents. (See Ex. 5, Martin Decl. ¶ 11.)
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`4
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`As used above, the term “or the equivalent thereof” is intended to mean that the required
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`levels of experience may be met by varying means, such as through educational experience –
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`e.g., a person of ordinary skill could potentially have less industry experience but some other
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`relevant educational experience or vice versa.
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`V.
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`DISPUTED CONSTRUCTIONS
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`’007 Patent: “means for computing athletic performance feedback data from
`a.
`the series of time-stamped waypoints obtained by said GPS receiver”
`
`Construction of functional language (claims 1, 21).
`
`i.
`As reflected in the Joint Claim Construction Chart (Dkt. 68-1 at 1), the parties do not
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`dispute that this term is governed by 35 U.S.C. § 112, ¶ 6, nor is there any real dispute as to
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`structure.1 However, there is a dispute as to how the function “computing athletic
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`performance feedback data from the series of time stamped waypoints obtained by said
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`GPS receiver” should be construed:2
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`Philips’s Proposed Construction
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`Fitbit’s Proposed Construction
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`determining any of the following from a
`series of time-stamped waypoints obtained by
`said GPS
`receiver during and exercise
`session: elapsed distance of an athlete; current
`or average speed of an athlete; current or
`average pace of an athlete.
`
`“athletic performance feedback data” means:
`elapsed distance, current and average speeds and
`paces, calories burned, miles remaining and time
`remaining.
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`The ’007 patent generally describes different types of “performance feedback” of
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`an athlete during an exercise session as including “elapsed time, elapsed distance, current
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`1 Philips contends that any formal construction of structure include the language “and equivalents
`thereof,” consistent with the law governing construction of means-plus-function claims.
`McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1346-48 (affirming claim construction of
`structure that included the phrase “and any equivalents of such structure”). Fitbit, however, has
`baselessly rejected any such proposal.
`2 The Claim Construction Chart (Dkt. 68-1) further identifies Philips’s proposal for a narrative
`construction for § 112 ¶ 6 claims that incorporates the requisite structure and function in a
`manner that would be helpful, as opposed to confusing, for a potential jury.
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`and average speeds and paces, [and] current climbing rate.” (See Ex. 1 at 2:8-13; see also
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`Ex. 1 at Abstract (“athletic performance feedback data such as elapsed exercise time,
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`distance covered, average pace, elevation difference, distance to go and/or advice for
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`reaching pre-set targets.”).) Claims 1 and 21 of the ’007 Patent, however, concern only
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`athletic performance feedback data that is computed “from a series of time-stamped
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`waypoints obtained by a GPS receiver,” meaning that not all types of athletic
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`performance feedback data are claimed. For example, while the patent explains that a
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`“current climbing rate” or “elevation distance” constitute athletic performance feedback data, the
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`patent explains that this form of athletic performance feedback is computed from a barometric
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`pressure sensor and not a series of time-stamped GPS waypoints: “Elevation changes can be
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`determined by measuring changes in the atmospheric pressure. A barometric pressure sensor 610
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`is used to calculate the relative elevation changes during the exercise Session.” (Ex. 1 at 8:48-
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`51.) Climbing rate is therefore not “athletic performance feedback data” as contemplated by the
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`claim because it is not computed from a series of time-stamped GPS waypoints.
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`The ’007 Patent also describes the types of data that can be calculated from GPS position
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`and time information, even though not everything that one can calculate from GPS data would
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`constitute “athletic performance feedback data.” Items that the patent discloses as
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`determinable from GPS waypoints includes “elapsed distance, current and average speeds and
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`paces, calories burned, miles remaining, and time remaining.” (Ex. 1 at 7:40-50.) In each
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`instance, the values must be computed from a “series of time stamped waypoints” as opposed to
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`simply current distance or current time.
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`
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`Philips’s proposed construction seeks to capture the overlap between what constitutes
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`athletic performance feedback data in the specification, which necessarily reflects feedback on
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`the athletes performance provided during an exercise session, and the set of items that the
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`specification discloses as being capable of being calculated from a series of time-stamped
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`waypoints. Meanwhile, Fitbit’s proposed construction seeks to interpret anything that may be
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`determined from GPS/location data as athletic performance feedback data, regardless of whether
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`it constitutes feedback to the athlete “from a series of time-stamped waypoints.” For example,
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`Fitbit’s proposed construction includes calories, however, the specification never contemplates
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`calories being provided as feedback data during an exercise session, as opposed to tracking
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`calories for some other purpose. This of course makes sense. Information such as distance,
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`speed and pace is the sort of information provided as feedback on an athlete’s performance
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`during an exercise session, while tracking calories has little to do with feedback on performance
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`as opposed to being useful for weight management over time. One would not provide feedback
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`on a runner’s performance in a race by noting how many calories they burned.
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`
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`Fitbit further proposes that the proposed construciton include “miles remaining” and
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`“time remaining,” both of which would require that a user input some sort of destination end
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`point for the exercise session—a step contrary to the calculation contemplated by either claim 1
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`or claim 21. Additionally, “miles remaining” would be a calculation based solely on the most
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`recent GPS location (rather than a series of time-stamped waypoints as required by the claim)
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`while the specification never identifies “time remaining” as a form of feedback data on an
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`athlete’s performance. (See Ex. 5, Martin Decl. ¶ 26.)
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`The term is not indefinite (claims 1, 21).
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`ii.
`Fitbit further contends that, regardless of the construction adopted above, the claims are
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`indefinite because the specification fails to disclose an “algorithm” for implementing the claimed
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`function. (See Dkt. 68-1 at 1.) Yet it is Fitbit’s burden to provide indefiniteness with clear and
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`convincing evidence—a burden it cannot meet. That said, any inquiry into whether or not the
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`Case 1:19-cv-11586-IT Document 73 Filed 06/05/20 Page 12 of 26
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`claimed function is supported by the specification requires that the above dispute on the
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`construction of function be resolved first, and Philips would ask for the ability to full brief
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`indefiniteness issues after claim construction. Even so, the claim is not indefinite.
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`To survive a definiteness challenge for lack of algorithmic support under § 112 ¶ 6 the
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`specification need only “disclose, at least to the satisfaction of one of ordinary skill in the art,
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`enough of an algorithm to provide the necessary structure under § 112, ¶ 6.” Finisar Corp. v.
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`DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008). The required algorithm can be
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`expressed “in any understandable terms including as a mathematical formula, in prose, or as a
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`flow chart, or in any other manner that provides sufficient structure.” Id (internal citation
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`omitted). The algorithm needs only to “disclose adequate defining structure to render the bounds
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`of the claim understandable to one of ordinary skill in the art.” AllVoice Computing PLC v.
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`Nuance Comms., Inc., 504 F.3d 1236, 1245 (Fed. Cir. 2007).
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`Importantly, there is no requirement that the specification disclose information that a
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`person of ordinary skill would already know as “[t]he law is clear that patent documents need not
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`include subject matter that is known in the field of the invention and is in the prior art, for patents
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`are written for persons experienced in the field of invention.” S3 Inc. v. NVIDIA Corp., 259 F.3d
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`1364, 1371 (Fed. Cir. 2001). Thus, a patent provides adequate algorithmic structure if, based on
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`the specification, a person of ordinary skill would know to apply a well-known or basic formula
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`to achieve the recited function, even where said formula may not be expressly disclosed in the
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`specification. See e.g., Alfred E. Mann Found. for Sci. Research v. Cochlear Corp., 841 F.3d
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`1334, 1345 (Fed. Cir. 2016) (finding sufficient disclosure of an algorithm for calculating
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`impedance as a person of ordinary skill would know to apply Ohm’s law, even though it was not
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`expressly disclosed in the specification).
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`Here, the structure for performing the claimed function is a central processing unit (CPU)
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`(a processor) that also utilizes memory and is connected to a GPS receiver module that provides
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`geographical position information signals to the memory where such information is stored. The
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`specification explains a structure as including a CPU 602 with memory 608 that receives location
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`signals from the GPS module. (See Ex. 1 at 5:38-50.) The series of time stamped waypoints are
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`accessed from the memory 602 to determine the “athletic performance feedback data.” Fig. 6
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`shows the central processing unit, memory, and GPS:
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`(Ex. 1 at Fig. 6.)
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`
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`There is little doubt that “one skilled in the art” would “know and understand what
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`structure corresponds to the means limitation.” Biomedino, LLC v. Waters Techs. Corp., 490
`
`F.3d 946, 950 (Fed. Cir. 2007) (citations omitted). Fitbit is incorrect in asserting that computer
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`programming steps are the only way that structure may properly be specified. The specification
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`and the claim itself describe how the CPU interacts with other components, demonstrating that it
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`is not merely a “black box” that achieves a result but is an integrated structure of multiple
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`components. Koninklijke Philips, N.V. v. Zoll Med. Corp., 2014 U.S. Dist. LEXIS 113735 at
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`*23-24 (D. Mass. Aug 15, 2014) (J. Gorton); see also Medtronic Minimed Inv. v. Animas Corp.,
`
`21 F.Supp.3d 1060, 1070-71 (C.D. Cal. 2014). The the claims are not the sort of unbounded
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`claims typically found invalid for lack of algorithmic support. Rather, the specification provides
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`that “the GPS receiver module 604 continuously determines the athlete’s geographical position
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`and stores it in the memory 608…” (Ex. 1, at 7:41-50.) and the claims require that athletic
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`performance feedback data be determined “from the series of time-stamped waypoints
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`obtained by the GPS receiver”—a meaningful limitation on the scope of the claim that one of
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`ordinary skill in the art would understand as providing the framework by which to calculated
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`athletic performance feedback data—no further algorithm is required.
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`Second, if an algorithm beyond what is described by claims themselves were required, a
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`person of ordinary skill in the art would understand that the specification does disclose an
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`algorithm for computing various forms of elapsed distance, current and average speed, and
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`current and average pace from a series of GPS waypoints—that is the algorithm. A person of
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`ordinary skill would understand this as a sufficient algorithmic disclosure because all that is
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`required is a basic high school understanding of geometry and trigonometry to implement the
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`algorithm. See Alfred E. Mann Found., 841 F.3d at 1345. This understanding of math would be
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`well within the wheelhouse of a person of ordinary skill in the art, as explained in the
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`accompanying declaration of Dr. Thomas Martin, PhD. (See Ex. 5 Martin Decl. ¶¶ 18-25.)
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`’007 Patent: “means for suspending and resuming operation of said means
`b.
`for computing when a speed of the athlete falls below a predetermined threshold”
`(Claim 7)
`
`Philips’s Proposed Construction
`
`Fitbit’s Proposed Construction
`
`that
`thereof)
`a processor (and equivalents
`suspends said computing when a speed of the
`athlete is below a predetermined threshold and
`resumes said computing when a speed of the
`athlete is not below said predetermined threshold
`
`Indefinite
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`The dispute on this § 112 ¶ 6 term again boils down to whether additional algorithmic
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`support in the specification is required to avoid indefiniteness (it is not), though Philips further
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`believes that construction of the function would be helpful to the court and jury. Philips’s
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`proposed construction is consistent with the disclosure of the specification, which describes how
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`the invention may suspend or resume activities depending on the speed of an athlete:
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`A smart algorithm based on measured parameters such as speed,
`pace, exercise type, heart rate, and so forth can be optionally used
`to automatically determine if the athlete has temporarily suspended
`exercising and temporarily pauses monitoring until exercise is
`resumed.
`
`(Ex. 1 at 8:5-13.) While the specification contemplates a “smart algorithm” making a
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`determination based on multiple input parameters—claim 7 only claims a dumb one:
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`“suspending and resuming operation of said means for computing when a speed of the athlete
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`falls below a predetermined threshold.” Accordingly, it would be improper to construe the
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`claim as requiring a “smart algorithm” as Fitbit suggests—solely for the purpose of then arguing
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`indefiniteness—when the plain language of the claim is itself directed to a more simple
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`implementation: suspending operations when speed drops below a threshold, and resuming them
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`once the speed is not below said threshold. The claim is not indefinite.
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`
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`11
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`Case 1:19-cv-11586-IT Document 73 Filed 06/05/20 Page 16 of 26
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`
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`Philips further requests that the Court construe the term to avoid potential confusion by
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`an eventual fact finder or disingenuous arguments by Fitbit. The concern is that without a formal
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`construction, Fitbit may argue that the claimed function requires both suspending and resuming
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`operations when a speed of the athlete falls below a predetermined threshold (e.g. at the very
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`same time). That of course is not what the specification contemplates, and not what was
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`intended by the claim language. Accordingly, Philips’s proposed construction should be
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`adopted.
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`’958 Patent: “in the event of an interruption of the wireless connection . . .
`c.
`configured to store”
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`Philips’s Proposed Construction
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`No construction necessary.
`
`Fitbit’s Proposed Construction
`Claim 16: stores the health parameter or visual data
`in a memory or on the removable memory device in
`response to the event
`Claim 15: stores the health parameter from the
`health monitoring device in a memory or on a
`removable memory device in response to the event
`
`No construction is required as the term means exactly what it says: that the internet-
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`enabled wireless web device (“WWD”) is configured to store the health parameters in the event
`
`of an interruption of the wireless connection. There is no requirement, as Fitbit suggests, that the
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`storage of the health parameter be made “in response” to an event—those words never appear in
`
`the specification or prosecution history. The claim speaks to what happens “in the event of an
`
`interruption” and that during such event, the device is “configured to store.” Fitbit’s construction
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`would exclude embodiments of the specification and should not be adopted.
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`Thus, the specification contemplates storing data in memory in the time period after an
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`interruption of the wireless connection: “in the case of a dropout or other disruption of wireless
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`service (step 218 of FIG. 11), the data may be stored on the memory device or in the WWD if it
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`12
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`Case 1:19-cv-11586-IT Document 73 Filed 06/05/20 Page 17 of 26
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`has not already been, as may be the case for streamed data (step 216 of FIG. 11).” (Ex. 2 at
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`14:24-27.) The point of the specification is that storage happens during the event of interruption
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`(i.e., “in the event of an interruption”) Figure 11 further substantiates this as Step 216 explicitly
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`contemplates that data is stored during an interruption. (See Fig. 11 and step 298.)
`
`d.
`
`’958 Patent: “memory”
`
`Philips’s Proposed Construction
`
`Fitbit’s Proposed Construction
`
`No construction necessary.
`Alternatively: “any device capable of storing
`information, including temporary storage”
`
`The term “memory” should be given its plain and ordinary meaning. Fitbit’s proposed
`
`persistent data storage
`
`
`construction “persistent data storage” improperly adds the vague and unsupported requirement of
`
`“persistence” to the term that is neither found in the specification nor any reasonable reading of
`
`it. Fitbit’s proposed construction also does more harm than good, as it not clear what constitutes
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`“persistent” data storage versus “non-persistent” data storage. Merriam-Webster defines
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`“persistent” as “retained beyond the usual period,” which begs the question: what is the usual
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`period? (See Ex. 7.) Fitbit provides no guideposts in its construction, nor is it one supported by
`
`the specification—which contemplates any device capable of storing information as memory.
`
`To the extent that the Court determines a construction is necessary for this term, Philips
`
`proposes a construction consistent with the plain and ordinary meaning of the term, and which
`
`makes it clear that temporary storage of information is included. Both technical and non-
`
`technical dictionaries include temporary storage in the definition of memory. (See e.g. Ex. 8,
`
`Cambridge Business English Dictionary (defining memory as “the part of a computer in which
`
`information or programs are stored either permanently or temporarily, or the amount of space
`
`available on it for storing information”); Ex. 9, Oxford Dictionary of Electronics & Electrical
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`13
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`Case 1:19-cv-11586-IT Document 73 Filed 06/05/20 Page 18 of 26
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`Engineering (defining memory as “Any device or physical medium associated with a computer
`
`and used to store information for subsequent retrieval.”).)
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`e.
`
`’958 Patent: “internet-enabled wireless web device”
`
`Philips’s Proposed Constructi