Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 1 of 15
`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page1of 15
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`EXHIBIT 6
`EXHIBIT 6
`
`
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 2 of 15
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`Plaintiff,
`
`
`
`v.
`
`PHILIPS NORTH AMERICA LLC,
`
`
`
`
`
`FITBIT, INC.
`
`
`
`
`
`Defendant.
`
`C.A. No. 1:19-cv-11586-IT
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`PLAINTIFF PHILIPS NORTH AMERICA LLC’S FIRST SET OF
`INTERROGATORIES TO FITBIT, INC. (NOS. 1-8).
`
`Pursuant to Rules 33 of the Federal Rules of Civil Procedure, Plaintiff Philips North
`
`America LLC (“Philips”) serves the following interrogatories to be answered separately and in
`
`writing under oath by Defendant Fitbit, Inc. (“Fitbit”) within thirty (30) days of service,
`
`supplemented thereafter as required by Rule 26(e), in accordance with the Federal Rules of Civil
`
`Procedure, the Local Rules, and the definitions and instructions below.
`
`INSTRUCTIONS
`
`1. Defendant must provide written responses to these Interrogatories within 30 days.
`
`2. Defendant is required to respond to these interrogatories by drawing upon all materials in
`
`its possession, ownership, custody, or control, actual or constructive, including materials that
`
`Defendant has a right or ability to secure from any other source. These sources include, but are
`
`not limited to, Defendant’s employees, agents, managing agents, attorneys, accountants,
`
`investment bankers, consultants, advisers, officers, directors, or representatives of any type
`
`whatsoever. These sources further include, but are not limited to, Defendant’s predecessors,
`
`successors, parents, subsidiaries, affiliates, divisions, and their respective employees, agents,
`
`
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 3 of 15
`
`
`
`managing agents, attorneys, accountants, investment bankers, consultants, advisers, officers,
`
`directors, or representatives of any type whatsoever.
`
`3. If, in responding to these interrogatories, Defendant claims that any request, or a
`
`definition or instruction applicable thereto, is ambiguous, Defendant shall not use such claim as a
`
`basis for refusing to respond, but rather shall set forth as part of the response the language it
`
`claims is ambiguous and the interpretation it used to respond to the individual request.
`
`4. In the event that Defendant files a proper and timely objection to any portion of any
`
`individual interrogatory presented herein, Defendant is required to respond to all other portions
`
`of that interrogatory that do not fall within the ambit of its objection.
`
`5. Whenever an interrogatory requests you to identify an individual or person, state, to the
`
`extent known, the person's full name, present or last known address, and, when referring to a
`
`natural person, the present or last known place of employment, and the present or last known title
`
`or occupation. Once a person has been identified in accordance with this subparagraph, only the
`
`name of that person need be listed in response to subsequent discovery requesting the
`
`identification of that person.
`
`6. Whenever an interrogatory requests you to identify a document, state, to the extent
`
`known, the type of document, the general subject matter, the date of the document, the Bates
`
`number (if applicable), and the author(s), addressee(s), and recipient(s).
`
`7. If any document or tangible thing responsive to an interrogatory herein is withheld in
`
`whole or in part, for any reason whatsoever, including, but not limited to, any claim of privilege
`
`or work product, then Defendant must promptly provide a privilege log which states with respect
`
`to each such document, tangible thing, or withheld portion thereof: (a) the privilege or other legal
`
`basis under which it is being withheld; (b) the type of document or tangible thing (e.g., memo,
`
`2
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 4 of 15
`
`
`
`letter, e-mail); (c) a description of the subject matter thereof, including the existence and identity
`
`of any attachments to the document; (d) the identity of its author or creator; (e) the identity of all
`
`persons to whom it is addressed and all persons to whom copies thereof ever have been
`
`furnished; (f) the date thereof; (g) the present custodian and location thereof; and (h) the
`
`interrogatory herein to which the document responds.
`
`8. If there do not exist documents or tangible things responsive to a specific interrogatory
`
`herein, then Defendant must indicate that fact in its written response hereto.
`
`9. Whenever an interrogatory calls upon you to “identify all factual and legal bases” of or
`
`for a particular claim, assertion, allegation, or contention, you shall:
`
`a.
`
`identify each and every document (and, where pertinent, the section,
`
`article or subparagraph thereof), which forms any part of the source of your information
`
`regarding the alleged facts or legal conclusions referred to by the interrogatory;
`
`b.
`
`identify each and every communication which forms any part of the
`
`source of your information regarding the alleged facts or legal conclusions referred to by
`
`the interrogatory;
`
`c.
`
`state separately the acts or omissions to act on the part of any person
`
`(identifying the acts or omissions to act by stating their nature, time, and place and
`
`identifying the person involved) which form any part of your information regarding the
`
`alleged facts or legal conclusions referred to by the interrogatory;
`
`d.
`
`state separately any other fact or allegation which forms the basis of your
`
`information regarding the alleged facts or legal conclusions referred to by the
`
`interrogatory.
`
`3
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 5 of 15
`
`
`
`10. All information to be produced should be produced in the same file or other
`
`organizational environment in which it is maintained. For example, a Document that is part of a
`
`file, docket, or other grouping, should be produced together with all other Documents from said
`
`file, docket, or grouping in the same order or manner as arranged in the original. File folders
`
`with tabs or labels identifying Documents should be produced intact with such Documents.
`
`11. Any Electronically Stored Information (“ESI”) must be produced in a form that maintains
`
`all meta-data or dynamic data associated with ESI. When producing ESI, do not recreate or move
`
`files so as to eliminate the record of file creation date and any modification history associated
`
`with the file by the operating system. Said metadata should also reflect the organization structure
`
`of documents, including directory structures. All metadata and dynamic data must be maintained
`
`and available for review.
`
`12. ESI should be produced with two separate load files: 1.) an OPT file for identifying
`
`images and document breaks, and 2.) a DAT file containing native file links as well as extracted
`
`text/OCR and metadata fields. All ESI should be produced with an accompanying OCR text
`
`information and all available metadata.
`
`13. All documents or tangible things produced pursuant hereto are to be delivered to the
`
`offices of Foley & Lardner LLP, located at 111 Huntington Avenue, Suite 2500, Boston, MA
`
`02199-7610, or at such other locations and times as counsel for the parties may agree.
`
`14. The interrogatories herein shall be deemed continuing, and it is requested that
`
`supplemental responses and production be provided as additional information or documents
`
`become available, in accordance with Federal Rule of Civil Procedure 26(e).
`
`
`
`4
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 6 of 15
`
`
`
`DEFINITIONS
`
`1. “Fitbit,” “Defendants,” “You,” or “Your” means Fitbit, Inc. and any predecessors,
`
`subsidiaries, affiliates, contractors, officers, directors, employees, agents, and consultants
`
`thereof.
`
`2. The terms “Plaintiff,” or “Philips,” means plaintiff Philips North America LLC and any
`
`related companies (including Koninklijke Philips N.V. and Philips Electronics North America
`
`Corporation), subsidiaries, divisions, parents, subsidiaries, past or present, and the directors,
`
`officers, employees, agents, contractors, consultants, or attorneys thereof.
`
`3. The term “Liquid Spark” means Liquid Spark, LLC and any related companies,
`
`subsidiaries, divisions, parents, subsidiaries, past or present, and the directors, officers,
`
`employees, agents, contractors, consultants, or attorneys thereof.
`
`4. The term “Royal Thoughts” means Royal Thoughts, LLC and any related companies,
`
`subsidiaries, divisions, parents, subsidiaries, past or present, and the directors, officers,
`
`employees, agents, contractors, consultants, or attorneys thereof.
`
`5. The term “Q-Tec Systems” means Q-Tec Systems LLC and any related companies,
`
`subsidiaries, divisions, parents, subsidiaries, past or present, and the directors, officers,
`
`employees, agents, contractors, consultants, or attorneys thereof.
`
`6. The term “Axiom Navigation” means Axiom Navigation, Inc. and any related companies,
`
`subsidiaries, divisions, parents, subsidiaries, past or present, and the directors, officers,
`
`employees, agents, contractors, consultants, or attorneys thereof.
`
`7. The term “Brunswick New Technologies” means Brunswick New Technologies Asia
`
`PTE, LTD. and any related companies, subsidiaries, divisions, parents, subsidiaries, past or
`
`5
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 7 of 15
`
`
`
`present, and the directors, officers, employees, agents, contractors, consultants, or attorneys
`
`thereof.
`
`8. The term “Sportbug.com” means Sportbug.com, Inc. and any related companies,
`
`subsidiaries, divisions, parents, subsidiaries, past or present, and the directors, officers,
`
`employees, agents, contractors, consultants, or attorneys thereof.
`
`9. The term “U.S. Traxsis” means U.S. Traxsis, Inc. and any related companies,
`
`subsidiaries, divisions, parents, subsidiaries, past or present, and the directors, officers,
`
`employees, agents, contractors, consultants, or attorneys thereof.
`
`10. The term “this litigation,” “this lawsuit,” “the lawsuit” or “the litigation” refers to the
`
`present lawsuit as captioned at the top of this document.
`
`11. The conjunctions “and” and “or” shall be interpreted either conjunctively or disjunctively
`
`as necessary to give them the broadest possible meaning and shall not be interpreted to exclude
`
`any information otherwise within the scope of the request.
`
`12. The term “document” or “documents” or “tangible things” shall be understood in the
`
`broadest sense permitted by the Federal Rules of Civil Procedure and means any papers of all
`
`kinds, electronically stored materials, writings or records of any type, source or authorship in
`
`Defendant’s possession, custody or control, or of which Defendant has knowledge, wherever
`
`located, however produced or reproduced or whether a draft, original or copy, and whether or not
`
`claimed to be privileged or exempt from production for any reason. A draft is a separate
`
`document from the final text and each non-identical copy is a separate document. For avoidance
`
`of doubt, the term “document” or “tangible things” shall include: includes, without limitation,
`
`advertising and marketing literature; agreements, bank records or statements; blueprints, books;
`
`account records; booklets; brochures; calendars; charts; checks; circulars; computer printouts;
`
`6
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 8 of 15
`
`
`
`specifications; data in computer readable format; contracts; copies; correspondence; databases;
`
`diaries; displays; drafts of any document; drawings; e-mails; films; files; notebooks; journals;
`
`transparencies; flyers; forecasts; graphs; indexes; instructions; manuals; invoices; job
`
`requisitions; letters; licenses; data stored on any magnetic media, such as computer disks or
`
`audio or video tapes; computer software and supporting documentation; flow charts; comments;
`
`complaints; pseudocode; data flow diagrams; control flow diagrams; product specifications; and
`
`engineering documents.
`
`13. The term “non-identical copy” as used herein shall mean any document or tangible thing
`
`that, but-for markings, additions, deletions, signatures, modifications of any kind (including, but
`
`not limited to, notations on the backs or margins of pages thereof, blind carbon copy notations,
`
`attachments, alterations, amendments, or mark-ups) would otherwise be identical to other
`
`documents or tangible things responsive to any production request herein. Each non-identical
`
`copy constitutes a distinct document or tangible thing and must be produced in response hereto.
`
`14. The terms “relates to” or “relating to” or “refers to” shall be understood to mean, without
`
`limitation, constitutes, comprises, composes, contains, comments on, mentions, embodies,
`
`identifies, states, pertains directly to, pertains indirectly to, is in any way relevant to, or reflects.
`
`15. The term “any” shall mean “any and all.” The term “all” as used herein also shall mean
`
`“any and all.”
`
`16. The singular form of a noun or pronoun shall be considered to include within its meaning
`
`the plural form of the noun or pronoun so used, and vice versa; the use of the masculine form of
`
`a pronoun also includes within its meaning the feminine form of the pronoun so used, and vice
`
`versa; and the use of any tense of any verb includes also within its meaning all other tenses of the
`
`verb so used.
`
`7
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 9 of 15
`
`
`
`17. The term “person” as used herein shall mean any natural person or any business, legal, or
`
`governmental entity or association.
`
`18. The term “communication” as used herein means the transmittal of information (in the
`
`form of facts, ideas, inquiries, or otherwise).
`
`19. The term “concerning” as used herein shall mean referring to, describing, evidenceing, or
`
`constituting.
`
`20. The term “identify” as used herein in reference to a person means to state: the person’s
`
`full name; the employer or other business affiliation of the person; the residence or business
`
`address of the person; and the residence or business telephone number of the person.
`
`21. The term “identify” as used herein in reference to a company or entity means to state: the
`
`full legal name of the company or entity and all trade or assumed names under which it does
`
`business or otherwise operates; the address and telephone number of the principal place of
`
`business of the company or entity; and to identify each person at the company or entity with
`
`whom You dealt and their position in the company or entity.
`
`22. The term “identify” as used herein in reference to any document means to: describe the
`
`type of document; state the date of the document and/or the date the document was prepared;
`
`identify the author or preparer of the document; identify the person to whom or for whom the
`
`document was addressed, directed or prepared; state the current location of the original and any
`
`copy of the document; identify the persons having possession of the original or any copy of the
`
`document; and, if the document has been produced in this litigation, state the Bates numbers of
`
`that document.
`
`8
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 10 of 15
`
`
`
`23. The term “identify” as used herein when referring to an oral communication means to set
`
`forth by whom and to whom each such communication was made, the names of all persons
`
`present, and the date and place at which it was made.
`
`24. The term “Asserted Patents” as used herein shall mean, collectively, any patent asserted
`
`by Plaintiff in the above caption litigation, including but not limited to U.S. Patent Nos.
`
`6,013,007 (the ’007 Patent), 7,088,233 (the ’233 Patent); 8,277,377 (the ’377 Patent); and
`
`6,976,958 (the ’958 Patent). The term “Asserted Patents” shall also include any patents
`
`otherwise asserted, or to be asserted in the future, in the above captioned matter.
`
`25. The term “Fitbit App” as used herein means the software made available by Fitbit for use
`
`on a variety of mobile devices and which is available from various sources, including the Google
`
`Play Store, the Apple App Store, and the Windows Store (as explained at
`
`https://www.fitbit.com/app.)
`
`26. The term “Accused Products” as used herein shall mean any of the activity tracker
`
`products offered by Fitbit that are capable of wirelessly communicating data, including all
`
`products sold under the names “Surge,” “Charge,” “Flex,” “Ionic,” “Versa,” “Alta,” “Inspire,”
`
`and “Blaze,” as well as any software products related to, associated with, or used in conjunction
`
`with said activity tracker products (regardless of whether such software runs on the activity
`
`tracker itself, a mobile device, desktop/laptop computer, server, or other computing device). For
`
`example, the Accused Products include at least the following specific products as well as any
`
`software applications associated with the below devices (such as the Fitbit App for use on mobile
`
`devices, any software intended for installation on a desktop computer, or any software running
`
`on a server (e.g. software that enables the Fitbit Dashboard or that supports the Fitbit App or
`
`other related software products.):
`
`9
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 11 of 15
`
`
`
`Fitbit One
`
`Fitbit Force
`
`Fitbit Charge 2
`
`Fitbit Flex 2
`
`Fitbit Ace
`
`Fitbit Versa
`
`Fitbit Inspire HR
`
`
`Exemplary Accused Products
`
`Fitbit Zip
`
`Fitbit Charge
`
`Fitbit Surge
`
`Fitbit Alta
`
`Fitbit Charge 3
`
`Fitbit Versa 2
`
`Fitbit Flex
`
`Fitbit Charge HR
`
`Fitbit Blaze
`
`Fitbit Alta HR
`
`Fitbit Ionic
`
`Fitbit Inspire
`
`Fitbit Versa Lite Edition
`
`
`
`27. The term “Accused Products” shall also include any additional activity tracker products
`
`released in the future that may include wireless communication capabilities as well as any
`
`additional products that Plaintiff otherwise accuses of infringement in the above captioned case.
`
`
`
`
`
`10
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 12 of 15
`
`
`
`Interrogatory No. 1:
`
`INTERROGATORIES
`
`
`
`Identify the complete factual and legal bases for each of Fitbit’s defenses and
`
`counterclaims in this action (excluding disclosures otherwise required by the local rules).
`
`Interrogatory No. 2:
`
`
`
`Identify the date of, and facts and circumstances surrounding, Fitbit’s first awareness of
`
`each of the Asserted Patents, including the identity of the individual(s) involved and who were
`
`first aware of each Asserted Patent.
`
`Interrogatory No. 3:
`
`Identify any investigation into Fitbit’s potential infringement of the Asserted Patent
`
`and/or with respect to whether the Asserted Patents are valid and enforceable, including any
`
`actions Fitbit undertook to avoid infringing each of the Asserted Patents and whether Fitbit
`
`sought and/or obtained any opinion(s) of counsel regarding the Asserted Patents.
`
`Interrogatory No. 4:
`
`
`
`Identify all bases for demand of the Accused Products, including any feature, marketing,
`
`or pricing factors having an impact on sales of the Accused Products, and identify all documents
`
`that refer or relate to such bases for demand and any other documents used in responding to this
`
`interrogatory.
`
`Interrogatory No. 5:
`
`
`
`Describe in detail the contribution of each person who conceived, reduced to practice,
`
`designed, developed, or tested any portion of the Accused Products and the date and location of
`
`such contribution and identify all documents and things relating or referring to the conception,
`
`reduction to practice, design, development or testing of the Accused Products.
`
`11
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 13 of 15
`
`
`
`Interrogatory No. 6:
`
`
`
`For each of the Accused Products or Services, identify all sources of direct and indirect
`
`revenue (including, without limitation, intangible benefits) and/or cost savings related to, or
`
`resulting from, the Accused Products, including without limitation any associated sales revenue,
`
`services revenue, maintenance revenue, subscription revenues, premium service revenues,
`
`leasing revenue, support revenue, advertising revenue, usage charges, and/or other commercial
`
`arrangements, and identify any documents used in responding to this interrogatory.
`
`Interrogatory No. 7:
`
`
`
`For each Accused Product and associated derivative or accessory products (including
`
`wrist bands for any activity tracker that is an Accused Product, clips for any activity tracker that
`
`is an Accused Products, chargers for any activity tracker that is an Accused Product, and Fitbit
`
`Premium subscriptions); identify, for global sales revenue on a national basis, on a month-by-
`
`month basis, and on a product-by-product basis, the global sales volume of such product or
`
`service, total revenue received, and total costs (direct and indirect) associated with the product or
`
`service, for the time during which each such product or service has been sold, available for
`
`purchase, or in use.
`
`Interrogatory No. 8:
`
`
`
`Identify the make and model of each type of mobile device on which the Fitbit App either
`
`a.) has been installed or b.) was contemplated by Fitbit as a mobile device on which the Fitbit
`
`App would be installed (whether during design, testing, or marketing).
`
`
`
`
`
`
`
`12
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 14 of 15
`
`
`
`Dated: January 10, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully Submitted,
`
`
`
`
` /s/ Ruben J. Rodrigues
`Lucas I. Silva (BBO 673,935)
`Ruben J. Rodrigues (BBO 676,573)
`FOLEY & LARDNER LLP
`111 Huntington Avenue
`Suite 2500
`Boston, MA 02199-7610
`Phone: (617) 342-4000
`Fax: (617) 342-4001
`lsilva@foley.com
`
`
`
`Eley O. Thompson (pro hac vice to be filed)
`FOLEY & LARDNER LLP
`321 N. Clark Street
`Suite 2800
`Chicago, IL 60654-5313
`Phone: (312) 832-4359
`Fax: (312) 832-4700
`ethompson@foley.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`Counsel for Plaintiff
` Philips North America LLC
`
`
`
`
`
`
`
`13
`
`

`

`Case 1:19-cv-11586-FDS Document 319-6 Filed 02/23/22 Page 15 of 15
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a true and correct copy of the above document was
`
`served on January 10, 2020 on counsel for Defendant via electronic mail.
`
`
`
`
`
`
`/s/ Ruben J. Rodrigues
`
`
`
`
`14
`
`