Case 1:19-cv-11586-FDS Document 295 Filed 02/04/22 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`PHILIPS NORTH AMERICA LLC,
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`Plaintiff,
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`v.
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`FITBIT LLC,
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`Defendant.
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`Civil Action No. 1:19-cv-11586-FDS
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`DEFENDANT FITBIT LLC’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO
`STRIKE, IN PART, THE INFRINGEMENT EXPERT REPORT
`AND OPINIONS OF DR. TOM MARTIN PURSUANT TO
`FED. R. CIV. P. 37(c)(1) AND LOCAL RULE 16.6(d)
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`Case 1:19-cv-11586-FDS Document 295 Filed 02/04/22 Page 2 of 15
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`III.
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`IV.
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`PHILIPS DID NOT DISCLOSE ITS JOINT INFRINGEMENT THEORY. .....................1
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`PHILIPS’ CONTENTIONS DID NOT ACCUSE RUN CARDIO FITNESS
`SCORE .................................................................................................................................3
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`PHILIPS TACITLY ADMITS ITS REPRESENTATIVE PRODUCT THEORY
`IS NEW, BUT MISDIRECTS IN AN EFFORT TO OBSCURE THAT FACT. ...............7
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`PHILIPS’ LATE DISCLOSURES WERE NOT SUBSTANTIALLY JUSTIFIED
`OR HARMLESS. .................................................................................................................9
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`CONCLUSION ..............................................................................................................................10
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`i
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`Case 1:19-cv-11586-FDS Document 295 Filed 02/04/22 Page 3 of 15
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`TABLE OF AUTHORITIES
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`CASES
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`Page(s)
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`Abiomed, Inc. v. Maquet Cardiovascular LLC, No. 16-10914-FDS, 2020 WL 4201187
`(D. Mass. July 22, 2020) ............................................................................................. 10, 11
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`Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir. 2015) ......................... 1
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`KlausTech, Inc. v. Google LLC, 792 F. App'x 954 (Fed. Cir. 2020) .............................................. 6
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`KlausTech, Inc. v. Google LLC, No. 10-cv-05899-JSW (DMR), 2018 WL 5109383 (N.D.
`Cal. Sept. 14, 2018)............................................................................................................. 6
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`Medline Indus., Inc. v. C.R. Bard, Inc., 511 F. Supp. 3d 883 (N.D. Ill. 2021) ....................... 5, 6, 8
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`Pulse Elecs., Inc. v. U.D. Elec. Corp., No. 3:18-cv-00373-BEN-MSB, 2021 WL 981123
`(S.D. Cal. Mar. 16, 2021).............................................................................................. 9, 10
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`U.S. v. Williams, 553 U.S. 285 (2008) ............................................................................................ 7
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`35 U.S.C. § 112 ............................................................................................................................... 7
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`STATUTES
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`RULES
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`Fed. R. Civ. P. 26(e) ....................................................................................................................... 4
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`Fed. R. Civ. P. 37(c)(1) ............................................................................................................. 1, 11
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`L.R. 16.6(d) ............................................................................................................................ passim
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`ii
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`Case 1:19-cv-11586-FDS Document 295 Filed 02/04/22 Page 4 of 15
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`Philips’ Opposition (Dkt. 286) fails to explain how it adequately disclosed the new theories
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`in the Martin Report. Philips also makes no attempt to show its late disclosures were substantially
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`justified or, with one minor exception, harmless. Preclusion under Rule 37 is warranted.
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`I.
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`PHILIPS DID NOT DISCLOSE ITS JOINT INFRINGEMENT THEORY.
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`Beyond performance of the claimed method, there are two other essential elements that
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`Philips must prove in order to show that Fitbit is liable for joint infringement—that Fitbit: (1)
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`conditions the receipt of a benefit on its users’ performance of any method steps they allegedly
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`perform, i.e., the user cannot obtain the benefit without performing the method step(s), and (2)
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`determines the manner or timing of its users’ performance of those method steps. Akamai Techs.
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`v. Limelight Networks, Inc., 797 F.3d 1020, 1022-1023 (Fed. Cir. 2015). Neither Philips’ L.R.
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`16.6(d) contentions nor its Interrogatory No. 9 response disclosed its contention for either element.
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`Philips claims that it “adequately disclosed its allegations of joint infringement in its
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`infringement disclosures and in its response to Fitbit’s Interrogatory No. 9, which incorporated
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`Philips’s infringement disclosures.” (Dkt. 286 at 10-11 (quoting Dkt. 270-10 at 9 of 14).) The
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`one paragraph of text Philips cites and quotes from its March 17, 2020 infringement contentions
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`does not allege or explain either of the aforementioned essential elements of divided infringement,
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`much less how Fitbit meets them, as required by Akamai. Thus, Philips’ March 17, 2020
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`infringement contentions do not respond to Interrogatory No. 9.1
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`Like its May 15, 2020 operative contentions, the quoted text from Philips’ March 17, 2020
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`contentions also never identifies which party performs which claim steps—as called for by
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`Interrogatory No. 9 and Local Rule 16.6(d)(1)(A)(vii)’s requirement to disclose each party’s “role”
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`in the alleged infringement. The “roles” Philips identifies only obfuscate Philips contentions.
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`1 Philips also fails to address that its March 17, 2020 infringement contentions were superseded
`by its subsequent May 15, 2020 infringement contentions.
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`1
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`For example, Philips identified Fitbit as “provid[ing] the accused activity tracker devices
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`and the Fitbit App” and “maintain[ing] control and supervision [sic] requiring its users to maintain
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`authorized accounts,” and identified Fitbit users as “us[ing] the Fitbit system, App, and services
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`through their account.” (Dkt. 286 at 12.) But those generic allegations do not relate to any step in
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`claim 1, as required by Interrogatory No. 9 and the Local Rules. (See Dkt. 270-17 at claim 1.)
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`Even now, Philips cannot articulate who it alleges performs claim step 1.c—“rendering a
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`user interface on the web-enabled wireless phone.” Philips argues that it adequately disclosed that
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`the user “render[s] a user interface,” via its contentions’ passive tense statement that “the user
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`interface is rendered…via the Fitbit App” and generic allegation that Fitbit customers “us[e] the
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`Fitbit system, App, and services.” (Dkt. 286 at 12.) These statements, Philips asserts, “clearly
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`demonstrate that this limitation is performed when the Fitbit customer uses the Fitbit App, which
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`renders the user interface.” (Id.) But this argument acknowledges that the “Fitbit App…renders
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`the user interface,” just like Philips’ contentions, which state that “the user interface is
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`rendered…via the Fitbit App,” plainly suggesting that Fitbit renders the user interface via its app.
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`Philips muddies the waters even further, arguing that Dr. Martin opined that the Fitbit App “does
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`the actual rendering” and the user does not “literally” render a user interface. (Id. at 13.) But that
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`interpretation is directly at odds with the Martin Report’s ultimate opinion that the user performs
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`step 1.c and every other claim step in directly infringing ’377 patent claim 1. (Dkt. 270-2 at 154-
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`160 (section of the Martin Report titled “Fitbit’s Customers Practice the Claimed Invention”).)
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`The fact that Philips still cannot settle on who it thinks performs ’377 patent claim step 1.c today
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`highlights the inadequacy of Philips’ disclosure in contentions served almost two years ago.
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`Philips’s claim that its Local Rule 16.6(d) default disclosures adequately responded to
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`Interrogatory No. 9 (Dkt. 286 at 14) also ignores that Interrogatory No. 9 calls for more information
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`2
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`than Local Rule 16.6(d). This District, like many others, has adopted patent Local Rules designed
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`to streamline discovery by requiring parties to make certain routine disclosures. But the Local
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`Rules do not limit the scope of discovery. L.R. 16.6(d)(8) (“In addition to the automatic
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`disclosures, any party may conduct other forms of discovery, including interrogatories….”).
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`While Local Rule 16.6(d)(1)(A)(vii) required Philips to automatically disclose “the role of each
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`party” in joint infringement, Interrogatory No. 9 sought additional information, including Philips’
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`contention regarding the other aforementioned essential elements of joint infringement. (See Dkt.
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`270-3 at 3.) As explained above, Philips never provided this information. Thus, even assuming
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`Philips’ contentions complied with Local Rule 16.6(d), they did not answer Interrogatory No. 9.
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`Philips also argues that, if its response to Interrogatory No. 9 was incomplete, it “deferred
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`the rest of its answer…to its expert testimony” and objected that the interrogatory called for expert
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`testimony. (Dkt. 286 at 14.) But that is the point of Fitbit’s Motion—Philips cannot “defer” fact
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`discovery until expert reports to conceal its contentions. Philips was required to fully respond to
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`Interrogatory No. 9 during fact discovery and failed to do so. Fed. R. Civ. P. 26(e).
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`Finally, Philips asserts that the consequences of its failure to disclose its joint infringement
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`theory during fact discovery rest with Fitbit because Fitbit “could have moved to compel prior to
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`the close of fact discovery.” (See Dkt. 286 at 15.) Whether or not Fitbit moved to compel does
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`not absolve Philips of its affirmative discovery obligations under the Federal and Local Rules.
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`Fitbit reminded Philips of these obligations numerous times with respect to Interrogatory No. 9.
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`(See Dkt. 269 at 5-6; Dkt. 270-4; Dkt. 270-8.) The consequence of Philips’ failure is preclusion
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`of its undisclosed joint infringement theory. (See Dkt. 269 at 3 (collecting cases).)
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`II.
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`PHILIPS’ CONTENTIONS DID NOT ACCUSE RUN CARDIO FITNESS SCORE
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`There are two different types of Cardio Fitness Scores with two different names calculated
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`by two different formulas with two different sets of inputs to the calculations. (Dkt. 269 at 11-12.)
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`Every single image and citation in Philips’ contentions referred to Resting Heart Rate Cardio
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`Fitness Score (see Dkt. 270-12); every single image and citation in Philips’ Opposition referring
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`to Run Cardio Fitness Score comes from somewhere other than Philips’ contentions (see Dkt. 286).
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`Indeed, while Philips stresses that it “provided over three hundred pages of infringement
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`contentions” (Dkt. 286 at 1), it omits the fact that nowhere in those three hundred pages is there
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`any depiction or mention of Run Cardio Fitness Score. Philips attempts to explain away this fact
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`by asserting that the screenshots in its contentions just “happened to [exclusively] show a Cardio
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`Fitness Score using the RHR method.” (Dkt. 286 at 8.2) But such a glaring omission cannot be
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`explained by mere happenstance. Rather than accuse Run Cardio Fitness Score—which Philips
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`knew was meaningfully different for purposes of infringement—it chose to repeatedly and
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`exclusively depict RHR Cardio Fitness Score. Under the Local Rules, Philips was required to
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`disclose “with as much specificity as reasonably possible from publicly available information or
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`other information within the patentee’s possession, custody, or control…an element-by-element
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`description of where and how each element of each asserted claim is found in each accused product
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`or method.” L.R. 16.6(d)(1)(A)(iii). Indeed, the Martin Report separately analyzes RHR and Run
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`Cardio Fitness Score for infringement, citing to different evidence for each. (See Dkt. 270-12 at
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`¶¶ 140-50 (RHR), ¶¶ 151-61 (Run).) The Martin Report does so precisely because RHR and Run
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`Cardio Fitness Scores are so meaningfully different for purposes of infringement. It is those
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`differences that required Philips to explicitly accuse Run Cardio Fitness Scores of infringement.
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`Medline Indus. v. C.R. Bard, Inc. is informative. 511 F. Supp. 3d 883 (N.D. Ill. 2021). At
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`2 Philips argues that these screenshots where “plainly meant to demonstrate how Cardio Fitness
`Scores (however calculated) are accessed and displayed on the Fitbit App” under claim element
`1.i (“using the application, displaying the response”). (Dkt. 286 at 8.) But Philips ignores that
`these screenshots were also included for element 1.h (“receiving a calculated response from the
`server…), indicating that RHR Cardio Fitness Score was the only accused “calculated response.”
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`issue in Medline were two accused products: the “Bag SureStep kit” and the “Meter SureStep kit.”
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`Id. at 899. Plaintiff’s contentions accused the defendant’s “SureStep System,” which it broadly
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`defined to include both the Bag and Meter products, but for claim 7, Plaintiff’s contentions only
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`included photographs of the Bag SureStep kit. Id. Plaintiff’s expert nevertheless opined that the
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`Meter SureStep kit also infringed claim 7, and defendants moved to strike. Id. Plaintiff raised all
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`of the same arguments Philips raises here—each was rejected. Specifically, though the court
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`acknowledged that “SureStep System” was broad enough to include the Meter SureStep kit, it
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`found that plaintiff failed to identify the product with the necessary specificity with respect to
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`claim 7—even despite the fact that the product was identified by name and photograph elsewhere
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`in the plaintiff’s contentions. Id. at 899-900. The court reasoned that plaintiff was on notice of
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`the distinction between the two products but failed to identify it with clarity in the claim 7
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`contentions, while plaintiff’s expert discussed the two products separately in his report. Id. at 900.
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`The court also rejected plaintiff’s assertion that the defendant should have realized the MeterStep
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`kit was accused of infringing claim 7 given the plaintiff’s other disclosures. Id. “Suspecting that
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`[plaintiff] might contend that the Meter tray infringes claim 7 and knowing for certain that
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`[plaintiff] was making this contention are two different things, and the rules governing Final
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`Infringement Contentions are intended to establish the latter.” Id. (citing KlausTech, 2018 WL
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`5109383, at *4). The same is true here. Fitbit was not required to speculate whether Run Cardio
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`Fitness Score was accused, Philips was required to explicitly identify that feature—particularly
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`when Philips exclusively referred to the meaningfully distinct RHR Cardio Fitness Score. See
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`KlausTech, Inc. v. Google LLC, No. 10-cv-05899-JSW (DMR), 2018 WL 5109383, at *4 (N.D.
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`Cal. Sept. 14, 2018) (“Implicit disclosures are contrary to the purpose of the local patent rules,
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`which require parties to disclose the basis for their contentions in order to make them explicit.”).
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`Philips’ reliance on uncontroversial case law indicating that the disclosure of an exemplary
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`accused feature is sufficient to accuse similar features is not to the contrary. (See Dkt. 286 at 7.)
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`Those cases are predicated on the commonsense notion that a collection of features may be
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`adequately identified by a single example when each example in the collection shares the
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`characteristics relevant to infringement. But when, as here, the alleged “example” is distinct for
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`infringement purposes—as evidenced by Philips’ own expert report—the principle does not apply.
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`Fitbit does not deny that the words “Cardio Fitness Score” appear in Philips’ contentions
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`and that there are two types of Cardio Fitness Scores—RHR (resting heart rate) and Run Cardio
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`Fitness Scores. (See Dkt. 269 at 9-11.) Philips is incorrect, however, that the mere presence of
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`these words fairly disclosed that both RHR and Run Cardio Fitness Scores were accused. Instead,
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`Philips gave every indication that only RHR Cardio Fitness Score was accused. For example, in
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`fixating on the phrase “Cardio Fitness Score,” Philips ignores that its contentions focus on heart
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`rate. Specifically, Philips contended that “[t]he method of the Accused Product involves
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`receiving…calculated responses…(such as cardio fitness score, heart rate zones, and resting heart
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`rate),” (Dkt. 270-12 at 20), associating “Cardio Fitness Score” with “heart rate zones, and resting
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`heart rate.” Thus, Philips’ contentions again made clear that Philips specifically accused RHR
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`Cardio Fitness Score. See, e.g., U.S. v. Williams, 553 U.S. 285, 294 (2008) (“[T]he commonsense
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`canon of noscitur a sociis…counsels that a word is given more precise content by the neighboring
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`words with which it is associated.”). That understanding was confirmed by the rest of Philips’
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`contentions, which exclusively depicted RHR Cardio Fitness Score. (See Dkt. 270-12.)
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`Finally, Philips argues that it adequately disclosed its new accusation against Run Cardio
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`Fitness Score by pointing to a single screenshot buried within its hundreds of pages of contentions
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`that mentions “GPS” in what amounts to fine print. (See Dkt. 286 at 9-10.) This disclosure is
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`inadequate to support the central role that Run Cardio Fitness Score now plays in the Martin
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`Report. L.R. 16.6(d) (contentions must provide “as much specificity as reasonably possible”).
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`And Philips’ failure to disclose the Run Cardio Fitness Score theory is not without
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`consequence. In particular, the ’377 patent does not provide any written description of whether
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`and how GPS data may be used in connection with the claimed method, particularly as of the
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`alleged 1999 priority date, when GPS technology was nascent and unreliable. Philips’ new
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`accusation of GPS-based Run Cardio Fitness Scores therefore raises potential written description
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`and enablement issues under 35 U.S.C. § 112 that Fitbit did not raise because Fitbit did not know
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`that Philips would read the ’377 patent so broadly as to capture GPS data.
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`Philips possessed all the information necessary to specifically accuse Run Cardio Fitness
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`Score, but failed to do so and proffered no substantial justification for that failure. Accordingly,
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`the Martin Report’s infringement theory based on Run Cardio Fitness Score should be stricken.
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`See, e.g., Medline Indus., Inc. v. C.R. Bard, Inc., 511 F. Supp. 3d 883, 900 (N.D. Ill. 2021) (striking
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`expert opinions regarding insufficiently accused product where there was “no burden or
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`impracticality preventing [plaintiff] from specifically identifying the [product]”).
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`III.
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`PHILIPS TACITLY ADMITS ITS REPRESENTATIVE PRODUCT THEORY IS
`NEW, BUT MISDIRECTS IN AN EFFORT TO OBSCURE THAT FACT.
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`Philips admits that “Dr. Martin concluded that the results of his tests on the four products
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`he tested were exemplary of the other five accused products.” (Dkt. 286 at 3-4 (citations and
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`quotations omitted).) This is a representative product theory that Philips did not disclose in
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`contentions. Philips’ Opposition ignores this fundamental crux of Fitbit’s argument, instead
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`attributing claims to Fitbit that Fitbit never made, and then rebutting those strawmen.
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`Specifically, Philips argues that “Fitbit claims…that Philips should have disclosed in its
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`contentions that Dr. Martin might only physically test some of the accused products.” (Dkt. 286
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`at 1). Philips similarly argues that “Fitbit cites to no authority that a patent holder is required to
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`disclose the testing strategy of its infringement expert prior to the opening expert reports.” (Dkt.
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`286 at 4.) But Fitbit’s argument has nothing to do with Dr. Martin’s “testing strategy”; rather it
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`addresses Philips’ failure to disclose its representative product theory at all.
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`Philips also claims that “Fitbit appears to argue that by providing more disclosure in its
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`infringement contentions than just charting representative products, Philips somehow waived its
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`right to have its expert determine that, based on the evidence, the products operate in similar
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`fashion.” (Dkt. 286 at 4.) Philips’ disclosures regarding how each individual product allegedly
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`infringes are irrelevant to whether it disclosed a representative product theory. By failing to
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`disclose a representative product theory, Philips waived its right for its expert to determine, based
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`on the evidence, that some accused products are representative of others for infringement purposes.
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`Proving representativeness is different than proving infringement. In order to prove that
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`multiple products infringe via a representative product theory, a patentee must satisfy two different
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`burdens of proof; it is not a matter of just “charting representative products” as Philips intimates.
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`First, the patentee must prove that the allegedly representative product is, indeed, representative
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`of the other products with respect to the features relevant to infringement. See e.g., Pulse Elecs.,
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`Inc. v. U.D. Elec. Corp., 18-cv-373, 2021 WL 981123, at *19 (N.D. Cal. Mar. 16, 2021). Second,
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`and only after proving representativeness, the patentee must prove that the representative product
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`infringes and thus, the other products must infringe as well. Id. Philips’ contentions entirely
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`skipped the first step of disclosing the theory of representativeness. Thus, Fitbit had no opportunity
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`to develop counter-arguments regarding the fundamental differences between the accused
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`products. This is significant because the accused products indisputably have numerous
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`differences, including with respect to infringement under Philips’ new Run Cardio Fitness Score
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`theory. (See Dkt. 269 at 13.) Had Philips timely disclosed this representative product theory,
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`Fitbit could and would have taken additional fact discovery and developed additional defenses.
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`Nor can Fitbit adequately interrogate the issue at this late stage. For example, while Philips
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`asserts that the Martin Report’s conclusion that some Fitbit products are representative of others
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`is based on technical documentation indicating that the accused products infringe in substantially
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`the same manner (Dkt. 286 at 3-4), neither Philips nor the Martin Report identify that “technical
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`documentation” or how the Fitbit products infringe in “substantially the same manner.”
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`Thus, Philips’ untimely and conclusory representative product theory should be stricken.
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`IV.
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`PHILIPS’ LATE DISCLOSURES WERE NOT SUBSTANTIALLY JUSTIFIED OR
`HARMLESS.
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`Though Philips bears the burden to show that its late disclosures were substantially justified
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`or harmless, Philips fails to meaningfully address these issues. Indeed, Philips does not even
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`attempt to argue that the timing of its disclosures was substantially justified, and merely concludes
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`that the introduction of these new theories was harmless without addressing the specific prejudice
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`Fitbit identified. (See Dkt. 286 at 15-16; Dkt. 269 at 14-20.)
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`As an initial matter, Philips misstates the law by claiming that “relief under Rule 37(c)(1)
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`cannot be granted if the failure [to timely disclose] is harmless.” (Dkt. 286 at 15 (citing Abiomed,
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`Inc. v. Maquet Cardiovascular, No. 16-10914, 2020 WL 4201187, at *3 (D. Mass July 22, 2020)
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`(Saylor, J.)).) Abiomed only says that “preclusion” is not “mandatory” if the failure to disclose
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`was harmless; Abiomed at 3; the fact that preclusion is not mandatory does not imply that it cannot
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`be granted, nor does it imply that other relief under Rule 37(c)(1) is not available. In any event,
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`Philips’ late disclosure was anything but harmless. (See Dkt. 269 at 16-19.)
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`Though Fitbit set forth numerous ways in which Philips’ late disclosures of three new
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`theories prejudice Fitbit, Philips addresses Fitbit’s prejudice for only one part of one new theory.
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`In particular, Philips argues that Fitbit had the opportunity to investigate Philips’ then-undisclosed
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`allegation that Fitbit determines the manner or timing of users’ alleged performance of step 1.a of
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`claim 1 (“downloading an application to a web-enabled wireless phone directly from a remote
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`server over the internet”) because Philips’ contentions included images from Fitbit user manuals
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`stating that the Fitbit app can be downloaded. (Dkt. 286 at 15-16.) First, even if Philips is correct,
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`this would only amount to a disclosure of how Fitbit allegedly determines the manner and timing
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`of its users’ performance of claim element 1.a, but not claim elements 1.b, 1.c, 1.d, 1.e, 1.f, 1.g,
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`1.h, or 1.i. (See Dkt. 270-17 at claim 1.) Second, even with respect to element 1.a, Philips’
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`contentions fail to allege or even suggest that Fitbit determines the “manner or timing” by which
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`users download the Fitbit app (as required for joint infringement). (See Dkt. 270-12 at 3-4 of 27.)
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`Finally, Philips again attempts to shift the blame for its late disclosures to Fitbit, arguing
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`that “Fitbit had the opportunity to explore [Philips’ new joint infringement allegations]…during
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`fact and expert discovery” and that Fitbit’s alleged “failure to do so cannot be pinned on any
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`alleged ‘delay’ on Philips’s part.” (Dkt. 286 at 15.) But Philips’ stonewalling is precisely the
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`cause. Philips omits that exploring Philips’ joint infringement allegations in fact discovery is
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`precisely what Fitbit attempted to do via Interrogatory No. 9, which Philips refused to fully answer
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`for over a year between the time it was served and the close of fact discovery. How could Fitbit
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`explore a theory during fact discovery that was never disclosed during fact discovery? And in fact,
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`Fitbit even requested additional time to investigate Philips’ new theories during expert discovery
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`in an effort to mitigate prejudice, but Philips refused. (See Dkt. 269-1 at 1.)
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`For the foregoing reasons and those set forth in Fitbit’s Opening Brief, Fitbit respectfully
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`CONCLUSION
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`requests that the Court grant Fitbit’s Motion.
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`Case 1:19-cv-11586-FDS Document 295 Filed 02/04/22 Page 14 of 15
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`Dated: February 4, 2022
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`By:
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`/s/ David J. Shaw
`David J. Shaw (pro hac vice)
`dshaw@desmaraisllp.com
`DESMARAIS LLP
`1701 Pennsylvania Ave., NW, Suite 200
`Washington, D.C. 20006
`Telephone: (202) 451-4900
`Facsimile: (202) 451-4901
`
`Karim Z. Oussayef (pro hac vice)
`koussayef@desmaraisllp.com
`Leslie M. Spencer (pro hac vice)
`lspencer@desmaraisllp.com
`Brian D. Matty (pro hac vice)
`bmatty@desmaraisllp.com
`Henry L. Ard (pro hac vice)
`hard@desmaraisllp.com
`Eric G. Speckhard
`especkhard@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`Telephone: (212) 351-3400
`Facsimile: (212) 351-3401
`
`Ameet A. Modi (pro hac vice)
`amodi@desmaraisllp.com
`DESMARAIS LLP
`101 California Street
`San Francisco, CA 94111
`Telephone: (415) 573-1900
`Facsimile: (415) 573-1901
`
`Gregory F. Corbett (BBO #646394)
`Elizabeth A. DiMarco (BBO #681921)
`WOLF, GREENFIELD & SACKS, P.C.
`600 Atlantic Avenue
`Boston, MA 02110
`Telephone: (617) 646-8000
`Facsimile: (617) 646-8646
`gcorbett@wolfgreenfield.com
`edimarco@wolfgreenfield.com
`
`Attorneys for Defendant Fitbit LLC
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`Case 1:19-cv-11586-FDS Document 295 Filed 02/04/22 Page 15 of 15
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`CERTIFICATE PURSUANT TO LOCAL RULE 7.1(A)(2)
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`The undersigned hereby certifies that counsel for Fitbit conferred with counsel for Philips
`and attempted in good faith to resolve or narrow the issues in dispute, but was unable to do so.
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`/s/ David J. Shaw
`David J. Shaw
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`CERTIFICATE PURSUANT TO LOCAL RULE 37.1
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`The undersigned hereby certifies that counsel for Fitbit has complied with the provisions
`of Local Rule 37.1.
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`/s/ David J. Shaw
`David J. Shaw
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`CERTIFICATE OF SERVICE
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`I certify that this document is being filed through the Court’s electronic filing system,
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`which serves counsel for other parties who are registered participants as identified on the Notice
`of Electronic Filing (NEF). Any counsel for other parties who are not registered participants are
`being served by first class mail on the date of the electronic filing.
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`/s/ Elizabeth A. DiMarco
`Elizabeth A. DiMarco
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