Case 1:19-cv-11586-FDS Document 321-2 Filed 02/23/22 Page 1 of 5
`Case 1:19-cv-11586-FDS Document 321-2 Filed 02/23/22 Page1of5
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`EXHIBIT 2
`EXHIBIT 2
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`Case 1:19-cv-11586-FDS Document 321-2 Filed 02/23/22 Page1of5
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`EXHIBIT 2
`EXHIBIT 2
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`Case 1:19-cv-11586-FDS Document 321-2 Filed 02/23/22 Page 2 of 5
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`CONFIDENTIAL SOURCE CODE - ATTORNEYS’ EYES ONLY INFORMATION
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`PHILIPS NORTH AMERICA LLC,
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`v.
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`FITBIT, INC.,
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`Plaintiff,
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`Defendant.
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`Civil Action No. 1:19-cv-11586-FDS
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`EXPERT REPORT OF TOM MARTIN CONCERNING INFRINGEMENT
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`Case 1:19-cv-11586-FDS Document 321-2 Filed 02/23/22 Page 3 of 5
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`CONFIDENTIAL SOURCE CODE - ATTORNEYS’ EYES ONLY INFORMATION
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`Conclusion
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`D.
`278. For the reasons stated above, it is my opinion that the Asserted Claims of the ’377
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`Patent provided multiple inventive concepts. It is also my opinion that a POSITA would
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`understand that the claims of the ’377 patent do not pre-empt any field, but instead provide
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`improvements to devices for monitoring exercise with wireless internet connectivity. Indeed, the
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`’377 Patent acknowledges that health data is collected, analyzed and stored in different ways from
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`the asserted claims of the ’377 Patent, 1:45-2:40, while also describing the deficiencies that are
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`addressed by the patent.
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`IX. Comparison of Patents
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`A.
`279.
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`Technical Comparability of the ’377 Patent with U.S. Patent No. 6,602,191
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`I have been asked by counsel to provide an opinion as to the technical comparability
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`of the technology of the ’377 Patent with U.S. Patent No. 6,602,191 (the “’191 Patent”) that was
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`licensed by Philips to Lifescan, Inc. (“Lifescan”) in 2013 and Symcare in 2009. See PNA-
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`FB0003484; PNA-FB0004196.
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`280. Having reviewed the ’191 Patent thoroughly I conclude that it is technically
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`comparable with the ’377 Patent. I base this conclusion on three main reasons.
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`281. First, both patents are from the same family, as the ’377 Patent is a continuation of
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`Application No. 09/738,270, which became the ’191 Patent. I also note that they have the same
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`named inventor, Mr. Roger J. Quy.
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`282. Second, the specifications of the two patents are nearly identical in both text and
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`drawings. The only difference between them that I was able to find was that the ’377 patent uses
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`the term “IEEE 802.11 protocols” and the ’191 Patent just uses the term “802.11” as well as
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`stylistic differences (e.g., shading) in the figures.
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`169
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`Case 1:19-cv-11586-FDS Document 321-2 Filed 02/23/22 Page 4 of 5
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`CONFIDENTIAL SOURCE CODE - ATTORNEYS’ EYES ONLY INFORMATION
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`283. Finally, the claims of both patents are directed to the same type of technology,
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`namely monitoring health and/or exercise parameters of a user via sensors, sending those
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`parameters to an internet-enabled wireless web device, using a server to make calculations on these
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`parameters, and providing the response to the internet-enabled wireless web device. For instance,
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`as shown below, Claims 14 and 18 of the ’191 Patent each claim a wireless health-monitoring
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`system that include:
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`284. 1. An internet-enabled wireless web device (comparable to the web-enabled
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`wireless phone claimed by Claim 1 of the ’377 Patent)
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`285. 2. Having a health parameter related to a fitness/exercise (claim 14) or disease
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`(claim 18) state/condition of a patient determined by a health parameter determining means
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`(comparable to receiving the data indicating a physiologic status and data indicating an amount of
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`exercise performed from the device which provides exercise-related information as claimed by
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`Claim 1 of the ’377 Patent)
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`286. 3. An application (comparable to the application as claimed by Claim 1 of the ’377
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`Patent)
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`287. 4. A server application that receives the health parameter, calculates a response,
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`and provides the response to the internet-enabled wireless web device (comparable to sending the
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`exercise-related information to an internet server and receiving a calculated response from the
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`server as claimed by Claim 1 of the ’377 Patent)
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`170
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`Case 1:19-cv-11586-FDS Document 321-2 Filed 02/23/22 Page 5 of 5
`Case 1:19-cv-11586-FDS Document 321-2 Filed 02/23/22 Page5of5
`CONFIDENTIAL SOURCE CODE - ATTORNEYS’ EYES ONLY INFORMATION
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`SOMprising:
`sease
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`deviec,
`the internet-
`An iyvemet-enabled wireless web
`enabled wireless web device including a first commu-
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`nications port having a generic wireless input outpul
`port and a seccond comnmnications port having a circuit
`tor wircless communications with a network,
`the
`internet-enabied wireless web device configured to
`store:
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`
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`n. and
`pphic
`2 user interface; and
`residing on a compuler readable
`medium and disposed on a server in communication
`with the wireless network,
`for causingthe serverto:
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`based in part on the determined
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`
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`health parameter; andBea to the internet-enabled wireless web
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`14. A wireless health-monitoring system for health man-
`agement of 2 patient or subject, comprising:
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`the internet-
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`enabled wireless web device including, a first commu-
`fications port having a generic wireless inputoutput
`port and a second communications port having a circuit
`for wireless communications with a nctwork,
`the
`inlernct-enabled wireless web device configured to
`store:
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`
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`application: an
`an
`a User interface; and
`Aseresepeiiaion residing on a compnier readable
`medium and disposed on a server in communication
`with the wireless neowork, for causing the server to:
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`csponse based in part on the determined
`ieulate
`health parameter, and
`to the intemet-coabled wireless web
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`device.
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`device.
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`U.S. Patent No. 6,602,191 at claims 14, 18 (highlighting added).
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`288.
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`Thus, I conclude that these two patents are technologically similar to each other.
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`Reservation
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`289.
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`I expressly reserve the right to modify or supplement this report based upon any
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`additional information produced or presented to me in this Investigation and/or based upon any
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`alternative or supplemental claim interpretation rulings by the Court.
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`wiMuarL..Mod
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`Date: November 16, 2021
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`Dr. Thomas L. Martin, Ph.D
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`171
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