Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 1 of 25
`
`Philips v. Fitbit
`Case No. 1:19‐cv‐11586 (D. Mass)
`Hon. Judge Talwani
`
`Plaintiff’s Claim Construction Presentation
`August 5, 2020
`
`1
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`
`
`Philips v. Fitbit
`Case No. 1:19‐cv‐11586 (D. Mass)
`Hon. Judge Talwani
`
`Plaintiff’s Claim Construction Presentation
`August 5, 2020
`
`1
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`
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 2 of 25
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`Overview
`• U.S. Patent No. 6,013,007 (Root)
`– “means for computing athletic performance feedback data from the series
`of time‐stamped waypoints obtained by said GPS receiver”
`– “means for suspending and resuming operation of said means for computing
`when a speed of the athlete falls below a predetermined threshold”
`• U.S. Patent No. 7,088,233 (Menard)
`– “governing information transmitted between the first personal device and
`the second device”
`– “first personal device”
`– “wireless communication”
`• U.S. Patent No. 8,277,377 (Quy)
`– “indicating a physiologic status of a subject”
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`2
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 3 of 25
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`U.S. Patent No.
`6,013,007
`(Root)
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`3
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 4 of 25
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`‘007: Structure – Claim Recites Algorithm
`
`‘007: 7:40‐43
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`4
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 5 of 25
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`‘007: Structure – Algorithm Stated In Claim
`
`• A patentee may express an algorithm "in any understandable terms including as a
`mathematical formula, in prose, or as a flow chart, or in any other manner that
`provides sufficient structure." Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376,
`1385 (Fed. Cir. 2011).
`• "Structure may also be provided by describing the claim limitation's operation, such as
`its input, output, or connections. The limitation's operation is more than just its
`function; it is how the function is achieved in the context of the invention." Apple v.
`Motorola, 757 F.3d 1286, 1299 (Fed. Cir. 2014) (overruled on other grounds by
`Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015) (en banc)).
`• “Because the claim language discloses the algorithm to perform the stated function,
`the court finds that the [disputed] terms are not subject to analysis under 35 U.S.C. §
`112 ¶ 6 and are therefore not indefinite.” Typemock, Ltd. v. Telerik, Inc., No. 17‐10274‐
`RGS, 2018 WL 4189692 at *8 (D. Mass. Aug. 31,2018); Gemalto S.A. v. HTC Corp., No.
`6:10‐CV‐561 LED‐JDL, 0212 WL 2505745 at *23‐24 (E.D. Tex. June 28, 2012); Signal IP v.
`Am. Honda Motor Co., No. LA CV14‐02454 JAK (JEMx), 2015 WL 5768344 at *40 (C.D.
`Cal. Apr. 17, 2015)
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`5
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 6 of 25
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`‘007: Structure – POSITA
`• Not meaningfully contested by Fitbit; no expert declaration
`provided
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`6
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 7 of 25
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`‘007: “athletic performance feedback data”
`
`• Dr. Tom Martin, PhD
`– Prof. of Electrical and Computer Engineering at Virginia Tech
`– “[T]he specification and claims also sufficiently discloses an
`algorithm for computing elapsed distance, current or average
`speed, or current or average pace from a series of time‐
`stamped GPS waypoints.” (Ex. 5, Martin Decl. ¶ 18)
`– Would be understood by someone with high‐school level
`understanding of math. (Ex. 5, Martin Decl. ¶ 18)
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`7
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 8 of 25
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`‘007: “athletic performance feedback data”
`
`• Dr. Martin’s
`Testimony: Algorithm
`Disclosed
`
`8
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`Martin Dep. 42:5‐22
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 9 of 25
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`‘007: “athletic performance feedback data”
`
`• Dr. Martin’s Testimony: Algorithm Disclosed
`
`Martin Dep. 41:9‐42:4
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`9
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 10 of 25
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`‘007: “athletic performance feedback data”
`
`• Patent provides sufficient algorithmic disclosure if a POSITA
`would know to apply a well‐known or basic formula to achieve
`the recited function.
`– See Alfred E. Mann Found. for Sci. Research v. Cochlear Corp.,
`841 F.3d 1334, 1345 (Fed. Cir. 2016) (finding sufficient
`disclosure of an algorithm for calculating impedance as a
`POSITA would know how to apply Ohm’s law, even though it
`was not expressly disclosed in the specification).
`• “[T]he patentee need not disclose details of structures well
`known in the art.” Default Proof Credit Card System, Inc. v. Home
`Depot USA, Inc., 412 F.3d 1291, 1302 (Fed. Cir. 2005) (suggesting
`expert testimony appropriate to shed light on the disclosure)
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`10
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 11 of 25
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`‘007: “athletic performance feedback data”
`
`• The scope of the claimed function matters:
`
`– See Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus. Inc., 145 F.3d
`1303, 1308‐09 (Fed. Cir. 1998); Asyst Tech., Inc. v. Empak, Inc., 268 F.3d 1364,
`1370 (Fed. Cir. 2001)
`• Claimed function is not error correction.
`
`11
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 12 of 25
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`‘007: “athletic performance feedback data”
`
`• Proposed Construction: “determining any of the following from a
`series of time‐stamped waypoint obtained by said GPS receiver
`during an exercise session: elapsed distance of an athlete; current
`or average speed of an athlete; current or average pace of an
`athlete.”
`• Does not include calories.
`
`12
`
`‘007: Abstract
`
`‘007: 2:8‐12
`
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 13 of 25
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`‘007: “athletic performance feedback data”
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`‘007: 7:40‐50.
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`13
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 14 of 25
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`‘007: “athletic performance feedback data”
`
`• Does not include time remaining and miles remaining unless
`determined from a series of time stamped waypoints
`
`Fig. 11
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`14
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 15 of 25
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`‘007: “means for suspending and resuming…”
`
`• Proposed Construction: “a processor (and equivalents thereof)
`that 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.”
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`15
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 16 of 25
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`‘007: “means for suspending and resuming…”
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`• “Smart” algorithm not required for claimed function:
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`‘007: 8:5‐10.
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`16
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 17 of 25
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`U.S. Patent No.
`7,088,233
`(Menard)
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`17
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 18 of 25
`
`‘233: “governing information transmitted…”
`
`• Proposed Construction: “controlling the transmission of
`information between the first personal device and the second
`device.”
`• Encryption alone does not govern information transmitted.
`– While a form of “security,” does not involve control over the information.
`• Notice of Allowance:
`
`Dkt. 73‐6 at 165:3‐18
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`18
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 19 of 25
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`‘233: “governing information transmitted…”
`
`• Dr. Martin’s Testimony:
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`19
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`Dkt. 77‐1 at 165:3‐18
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 20 of 25
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`‘233: “first personal device”
`
`• No Construction Necessary / Alternatively: “a device for private
`use by a person.”
`
`20
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`‘233 at
`Abstract
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 21 of 25
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`‘233: “first personal device”
`
`• “personal device” not used as “shorthand” in the specification—
`the specification uses “PMD” for that.
`• “personal medical device” simply recites an intended use and
`would not be limiting.
`– See In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) (language purporting
`to limit claim to an intended use should be given no weight)
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`21
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 22 of 25
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`‘233: “wireless communication”
`
`• Proposed Construction: “an over‐the‐air communication (e.g.
`using radiofrequency (RF), infrared, or optical techniques)”
`• Not covered: communicating an electrical signal via an electrical
`conductor
`• Covered: communicating via radiofrequency with implantable
`device.
`• Fitbit seeks no construction, yet has argued that “wireless”
`means simply “without wires” and that use of the human body as
`a conductor would qualify.
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`22
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 23 of 25
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`U.S. Patent No.
`8,277,377
`(Quy)
`
`23
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 24 of 25
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`‘377: “indicating a physiological status…”
`
`• No construction necessary
`
`• Fitbit seeks to argue that data
`received while exercising
`“must be current data.” (Dkt.
`78 at 20).
`• Fitbit: current = now, no delay
`• The claim is clear, the data
`need only be partially
`received while the subject is
`exercising.
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`24
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`Case 1:19-cv-11586-IT Document 84-1 Filed 08/07/20 Page 25 of 25
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`Case 1:19-cv-11586—IT Document 84-1 Filed 08/07/20 Page 25 of 25
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`PHILIPS
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`f
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`25
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