`
`Exhibit 1
`
`
`
`Case 1:19-cv-11586-FDS Document 250-1 Filed 10/14/21 Page 2 of 2
`
`Eric Speckhard
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`Attachments:
`
`David Shaw
`Monday, October 4, 2021 10:00 PM
`Rodrigues, Ruben J.
`BOST - F - Philips - Fitbit; Fitbit Philips DC Service
`RE: Philips v. Fitbit (D. Mass) - Motion for Leave to File a Reply Brief
`2021-10-05 Fitbit Am. Answer to Philips 2nd Am. Compl. (redline).docx
`
`Hi Ruben,
`
`We have a couple additional points to add.
`
`First, as discussed on Friday, we disagree with Philips’s argument that Fitbit’s infectious unenforceability allegation “was
`not made in the pleadings.” However, we are willing to amend our answer tomorrow to moot the dispute. A proposed
`amended answer is attached with redlines shown. We believe that we can file this by right under Rule
`15(a)(1)(B). However, if you disagree, then we ask for Philips to provide written consent to us filing the attached under
`Rule 15(a)(2). Please also confirm that this amendment will moot Philips’s argument that Fitbit’s infectious
`unenforceability allegation “was not made in the pleadings.” We understand Philips will still argue that the allegation is
`“incorrect as a matter of law,” although we disagree. And as also discussed Friday, we can agree that the filing of this
`amended answer will not reset briefing deadlines on the motion to strike—the parties would still finish briefing Philips’s
`motion to strike as proposed, with Philips replying on Wednesday 10/6 and Fitbit sur-replying on Wednesday 10/13.
`
`Second, I’m sure you saw that the PTAB found that all remaining asserted claims of the ’233 Patent are unpatentable
`earlier today. Given that finding, we assume that the parties can agree not to address the ’233 Patent in any upcoming
`expert discovery, just as we previously agreed not to address the ’007 Patent in expert discovery given Judge Saylor’s
`invalidity finding for that patent in the claim construction order. In other words, expert reports served on November 12
`would only need to address the ’377 Patent.
`
`If these are acceptable to Philips, then we have an agreement. If you’d like to discuss, I’m generally free tomorrow
`morning. Otherwise please send over a draft joint request/stipulation as proposed in your email below.
`
`Thank you,
`David
`
`David J. Shaw
`Desmarais LLP
`1701 Pennsylvania Avenue, NW
`Suite 200
`Washington, DC 20006
`T: (202) 451-4900 | F: (202) 451-4901
`D: (202) 451-4913 | E: dshaw@desmaraisllp.com
`
`From: Rodrigues, Ruben J. <RRodrigues@foley.com>
`Sent: Monday, October 4, 2021 5:02 PM
`To: David Shaw <DShaw@desmaraisllp.com>
`Cc: BOST - F - Philips - Fitbit <BOSTFPhilipsFitbit@foley.com>; Fitbit Philips DC Service
`<FitbitPhilipsDCService@desmaraisllp.com>
`Subject: [Ext] RE: Philips v. Fitbit (D. Mass) - Motion for Leave to File a Reply Brief
`
`
`1
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`
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