Case 1:19-cv-11586-FDS Document 319-10 Filed 02/23/22 Page 1 of 10
`Case 1:19-cv-11586-FDS Document 319-10 Filed 02/23/22 Page 1 of 10
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`EXHIBIT 10
`EXHIBIT 10
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`Case 1:19-cv-11586-FDS Document 319-10 Filed 02/23/22 Page 1 of 10
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`EXHIBIT 10
`EXHIBIT 10
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`Case 1:19-cv-11586-FDS Document 319-10 Filed 02/23/22 Page 2 of 10
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY
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`Page 1
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` IN THE UNITED STATES DISTRICT COURT
`
` FOR THE DISTRICT OF MASSACHUSETTS
`
` PHILIPS NORTH AMERICA )
`
` LLC, )
`
` )
`
` Plaintiff, )
`
` )
`
` vs. ) Case No.
`
` ) 1:19-cv-11586-IT
`
` FITBIT, INC., )
`
` )
`
` Defendant. )
`
` CONFIDENTIAL - ATTORNEYS' EYES ONLY
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` Videotaped Deposition of
`
` THOMAS L. MARTIN, Ph.D.
`
` Conducted Remotely
`
` Tuesday, February 1, 2022
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` 8:59 a.m. EST
`
`Job No. CS5029507
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`800-567-8658
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`973-410-4098
`
`Veritext Legal Solutions
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`Case 1:19-cv-11586-FDS Document 319-10 Filed 02/23/22 Page 3 of 10
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY
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`Page 135
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` phone were not able to receive that at
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` least -- receive that physiologic status at
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` least partially while the subject is
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` exercising, then it wouldn't meet this claim
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` element.
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` BY MR. SHAW:
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` Q. That's what I'm asking. So let
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` me just ask that so we get a clean question
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` and answer.
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` So if a web-enabled wireless
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` phone were not able to receive the
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` physiologic status at least partially while
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` the subject is exercising, then that would
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` not meet claim 1. Right?
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` MR. CUSTER: Objection. Calls
`
` for a legal conclusion.
`
` A. So, yes, if the phone couldn't
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` receive the physiologic status at least
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` partially while the subject was exercising,
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` it wouldn't meet the requirements of
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` claim 1.f.
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` THE DEPONENT: Actually, I'd
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` just like to point out: It's 12:30, and we
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` had said earlier we would break for lunch
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`800-567-8658
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`973-410-4098
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`Veritext Legal Solutions
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`Case 1:19-cv-11586-FDS Document 319-10 Filed 02/23/22 Page 4 of 10
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY
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`Page 146
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` for a legal conclusion.
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` A. So 1.h. does say that the
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` calculated response is from the server and
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` the calculation performed by the server.
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` BY MR. SHAW:
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` Q. And so you agree with me, then,
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` that if a calculated response is associated
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` with a calculation -- let me start over.
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` You would agree with me, then,
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` that if a calculated response is associated
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` with only calculations performed by devices
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` that are not servers, then that would not
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` practice claim element 1.h.
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` MR. CUSTER: Objection to form.
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` Calls for a legal conclusion.
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` A. So if the calculation were
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` performed by something other than a server,
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` then it wouldn't meet the -- it wouldn't be
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` what's stated in 1.h.
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` BY MR. SHAW:
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` Q. And you agree with me that the
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` Fitbit wearable devices accused of
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` infringement in this case are not servers.
`
` Right?
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`Case 1:19-cv-11586-FDS Document 319-10 Filed 02/23/22 Page 5 of 10
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY
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`Page 147
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` A. I'm sorry David. Can you
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` repeat that question?
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` Q. Yeah.
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` You agree with me that the
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` Fitbit wearable devices accused of
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` infringement in this case are not servers.
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` Right?
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` A. Right. The word "wearable"
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` dropped out of that. I was trying to figure
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` out what devices you were talking about.
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` So the -- I would not consider
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` the Fitbit wearable device to be a server.
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` Q. Okay. So turning to '377,
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` claim element 1.i., which reads, "using the
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` application, displaying the response."
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` And I just want to confirm
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` something that I think you said before, which
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` is: It's the mobile phone that uses the
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` application to display the response in '377,
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` element 1.i. Right?
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` A. It's the -- yes, the
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` web-enabled wireless phone, using the
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` application, displays the response.
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` Q. Right.
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`Case 1:19-cv-11586-FDS Document 319-10 Filed 02/23/22 Page 6 of 10
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY
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`Page 148
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` And so if the calculated
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` response is displayed on a device that is not
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` a web-enabled wireless phone, then that
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` wouldn't practice claim element 1.i. Right?
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` MR. CUSTER: Objection. Calls
`
` for a legal conclusion. Incomplete
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` hypothetical.
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` A. Yeah, since you're posing a
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` hypothetical question, could you spell it out
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` a little more clearly, please, David?
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` BY MR. SHAW:
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` Q. So I have an Apple watch here.
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` If I used my Apple watch to display a
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` calculated response, that wouldn't practice
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` claim element 1.i. right?
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` MR. CUSTER: Objection. Calls
`
` for a legal conclusion.
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` A. So since the watch is not the
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` web-enabled wireless phone and the watch is
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` not running the application that's been
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` downloaded to the phone, then displaying the
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` response on your Apple watch would not meet
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` the -- what's stated in claim 1.i.
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` So I kind of wonder about
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`Case 1:19-cv-11586-FDS Document 319-10 Filed 02/23/22 Page 7 of 10
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY
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`Page 238
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` Fitbit App without viewing their Cardio
`
` Fitness Score or Cardio Fitness Level. True?
`
` A. Yes. That's correct.
`
` Q. And the excerpt on the top of
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` page 116 of Exhibit 1 titled What is my
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` Cardio Fitness Score? that tells you, in
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` part, how to open the Cardio Fitness Score in
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` the Fitbit App. Right?
`
` A. Yes. That screenshot is
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` showing the users how to open the Cardio
`
` Fitness Score.
`
` Q. And so in order for a Fitbit
`
` user to view their Cardio Fitness Score and
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` Cardio Fitness Level, they have to open the
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` Fitbit App, tap the Today tab, tap the Heart
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` Rate tile, and then swipe right. Correct?
`
` A. So, yes, to view the Cardio
`
` Fitness Score in the app, you have to follow
`
` those steps.
`
` Q. Doctor, stepping back for a
`
` second. In the opinions you offered to date
`
` in this case, you have not opined that the
`
` use of a Fitbit device with a tablet to view
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` a Cardio Fitness Score infringes the
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`973-410-4098
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`Case 1:19-cv-11586-FDS Document 319-10 Filed 02/23/22 Page 8 of 10
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY
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`Page 239
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` '377 patent asserted claims. Correct?
`
` A. No, I have not accused using a
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` tablet.
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` Q. And, similarly, in the opinion
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` you've offered to date, you have not opined
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` that the use of a Fitbit device with a
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` Windows 10 PC to view a Cardio Fitness Score
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` or Cardio Fitness Level infringes the
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` '377 patent asserted claims. Correct?
`
` A. That's correct.
`
` Q. And let me just step back,
`
` because I left one part out of the prior
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` question.
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` In the opinions you've offered
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` to date in this case, you have not opined
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` that the use of a Fitbit device with a tablet
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` to view a Cardio Fitness Score or Cardio
`
` Fitness Level infringes the '377 patent
`
` asserted claims. True?
`
` A. I'm sorry, David. Would you
`
` repeat that all again?
`
` So --
`
` Q. Let me --
`
` A. -- you have the --
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`Case 1:19-cv-11586-FDS Document 319-10 Filed 02/23/22 Page 9 of 10
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY
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`Page 240
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` Q. Let me just repeat it for you
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` so we've got a clean record.
`
` A. Okay.
`
` Q. In the opinions you've offered
`
` to date in this case, you have not opined
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` that the use of a Fitbit device with a tablet
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` to view the Cardio Fitness Score or Cardio
`
` Fitness Level infringes the '377 patent
`
` asserted claims. Right?
`
` A. No, I have not.
`
` Q. And you're also aware that for
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` the Fitbit smartwatches, a user can view
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` their Cardio Fitness Score or Cardio Fitness
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` Level on the smartwatch itself. Right?
`
` MR. CUSTER: Objection. Form.
`
` A. So, yes, on the devices like
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` the Ionic and the Versa 2, the smartwatches,
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` you can view the Cardio Fitness Score there.
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` BY MR. SHAW:
`
` Q. And in the opinions you've
`
` offered to date, you have not opined that the
`
` use of a Fitbit device to view Cardio Fitness
`
` Score or Cardio Fitness Level on the face of
`
` the Fitbit device itself infringes the
`
`800-567-8658
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`Case 1:19-cv-11586-FDS Document 319-10 Filed 02/23/22 Page 10 of 10
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY
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`Page 241
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` '377 patent asserted claims. Right?
`
` A. So viewing it on the face of
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` those devices by itself would not infringe.
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` But I would like to point out that there's a
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` lot less information available just because
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` of the smaller real estate of the watch than
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` on the phone.
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` So that information -- for
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` instance, the screenshots we were discussing
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` earlier that are included in -- with
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` paragraph 171, that level of detail is not
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` provided on the watch. So it's a much more
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` minimal interface because of the size of the
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` display.
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` Q. But you agree with me that
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` viewing a Cardio Fitness Score or Cardio
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` Fitness Level on the face of a smartwatch
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` doesn't infringe the '377 asserted claims.
`
` Right?
`
` MR. CUSTER: Objection. Calls
`
` for a legal conclusion.
`
` A. So viewing it by itself on the
`
` watch display and not on the application
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` would not infringe.
`
`800-567-8658
`
`973-410-4098
`
`Veritext Legal Solutions
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