Case 1:19-cv-11586-FDS Document 338 Filed 03/02/22 Page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`
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`PHILIPS NORTH AMERICA LLC,
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`Plaintiff,
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`
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`v.
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`FITBIT LLC,
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`
`
`
`Defendant.
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`
`
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`Civil Action No. 1:19-cv-11586-FDS
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`DECLARATION OF DAVID J. SHAW IN SUPPORT OF DEFENDANT FITBIT LLC’S
`MOTIONS FOR SUMMARY JUDGMENT
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`I, David J. Shaw, hereby declare:
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`1.
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`I am an attorney at Desmarais LLP, counsel of record for Defendant Fitbit LLC
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`(“Fitbit”). I am admitted pro hac vice to this Court. I have personal knowledge of the facts set
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`forth herein and could competently testify to them if called as a witness.
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`2.
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`I make this declaration in support of Defendant Fitbit LLC’s Motions For Summary
`
`Judgment of (1) Noninfringement of U.S. Patent No. 8,277,377 (2) No Joint or Induced
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`Infringement of U.S. Patent No. 8,277,377, (3) Noninfringement of U.S. Patent No. 8,277,377
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`Based on Plaintiff’s Failure of Proof, and (4) Invalidity of U.S. Patent No. 8,277,377 Under 35
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`U.S.C. § 101.
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`3.
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`Attached hereto as Exhibit 1 is a true and correct copy of the CONFIDENTIAL
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`deposition transcript of Thomas L. Martin, Ph.D., dated February 1, 2022.
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`4.
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`Attached hereto as Exhibit 2 is a true and correct copy of the CONFIDENTIAL
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`[Corrected] Amended Expert Report Of Tom Martin Concerning Infringement, dated December
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`12, 2021 and served on January 21, 2022.
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`
`PHILIPS NORTH AMERICA LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`FITBIT LLC,
`
`
`
`
`Defendant.
`
`
`
`
`Civil Action No. 1:19-cv-11586-FDS
`
`
`
`
`
`
`
`
`DECLARATION OF DAVID J. SHAW IN SUPPORT OF DEFENDANT FITBIT LLC’S
`MOTIONS FOR SUMMARY JUDGMENT
`
`I, David J. Shaw, hereby declare:
`
`1.
`
`I am an attorney at Desmarais LLP, counsel of record for Defendant Fitbit LLC
`
`(“Fitbit”). I am admitted pro hac vice to this Court. I have personal knowledge of the facts set
`
`forth herein and could competently testify to them if called as a witness.
`
`2.
`
`I make this declaration in support of Defendant Fitbit LLC’s Motions For Summary
`
`Judgment of (1) Noninfringement of U.S. Patent No. 8,277,377 (2) No Joint or Induced
`
`Infringement of U.S. Patent No. 8,277,377, (3) Noninfringement of U.S. Patent No. 8,277,377
`
`Based on Plaintiff’s Failure of Proof, and (4) Invalidity of U.S. Patent No. 8,277,377 Under 35
`
`U.S.C. § 101.
`
`3.
`
`Attached hereto as Exhibit 1 is a true and correct copy of the CONFIDENTIAL
`
`deposition transcript of Thomas L. Martin, Ph.D., dated February 1, 2022.
`
`4.
`
`Attached hereto as Exhibit 2 is a true and correct copy of the CONFIDENTIAL
`
`[Corrected] Amended Expert Report Of Tom Martin Concerning Infringement, dated December
`
`12, 2021 and served on January 21, 2022.
`
`
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`
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`Case 1:19-cv-11586-FDS Document 338 Filed 03/02/22 Page 2 of 6
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`5.
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`Attached hereto as Exhibit 3 is a true and correct copy of U.S. Patent No. 8,277,377
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`to Quy, produced bearing Bates Nos. CE-FB0000451-469.
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`6.
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`Attached hereto as Exhibit 4 is a true and correct copy of the CONFIDENTIAL
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`Declaration of Gilles Boccon-Gibod in Support of Defendant Fitbit LLC’s Motions for Summary
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`Judgment, dated March 2, 2022.
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`7.
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`Attached hereto as Exhibit 5 is a true and correct copy of the CONFIDENTIAL
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`deposition transcript of Gilles Boccon-Gibod, dated January 22, 2021.
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`8.
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`Attached hereto as Exhibit 6 is a true and correct copy of the CONFIDENTIAL
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`Expert Report Of Dr. Michael P. Akemann, dated November 16, 2021.
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`9.
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`Attached hereto as Exhibit 7 is a true and correct copy of the CONFIDENTIAL
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`deposition transcript of Michael P. Akemann, Ph.D., dated January 28, 2022.
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`10.
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`Attached hereto as Exhibit 8 is a true and correct copy of the certified file history
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`of U.S. Patent No. 8,277,377, dated January 6, 2020 and produced bearing Bates Nos. PNA-
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`FB0001473-1994.
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`11.
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`Attached hereto as Exhibit 9 is a true and correct copy of the CONFIDENTIAL
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`Rebuttal Expert Report of Dr. Thomas Martin, dated December 22, 2021.
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`12.
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`Attached hereto as Exhibit 10 is a true and correct copy of the CONFIDENTIAL
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`Expert Report of Joseph A. Paradiso, Ph.D. Concerning Non-Infringement of U.S. Patent
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`8,277,377 dated December 22, 2021.
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`13.
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`Attached hereto as Exhibit 11 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0016597-600.
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`2
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`Case 1:19-cv-11586-FDS Document 338 Filed 03/02/22 Page 3 of 6
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`14.
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`Attached hereto as Exhibit 12 is a true and correct copy of a CONFIDENTIAL
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`document bearing Bates Nos. Fitbit_19-11586_00049489-492, which was marked as Exhibit 7 to
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`the January 22, 2021 deposition of Gilles Boccon-Gibod.
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`15.
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`Attached hereto as Exhibit 13 is a true and correct copy of the CONFIDENTIAL
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`deposition transcript of Roger J. Quy, dated September 1, 2020.
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`16.
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`Attached hereto as Exhibit 14 is a true and correct copy of Provisional Application
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`60/172486 produced bearing Bates Nos. Fitbit_19-11586_00000047-52.
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`17.
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`Attached hereto as Exhibit 15 is a true and correct copy of the CONFIDENTIAL
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`Expert Report of Joseph A. Paradiso, Ph.D. Regarding Invalidity Of U.S. Patent No. 8,277,377,
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`dated November 16, 2021.
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`18.
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`Attached hereto as Exhibit 16 is a true and correct copy of the deposition transcript
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`of Maria S. Redin, dated February 2, 2021.
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`19.
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`Attached hereto as Exhibit 17 is a true and correct copy of U.S. Patent No.
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`6,587,684 to Hsu et al. produced bearing Bates Nos. Fitbit_19-11586_00002582-599.
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`20.
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`Attached hereto as Exhibit 18 is a true and correct copy of a CONFIDENTIAL
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`document produced bearing Bates Nos. Fitbit_19-11586_00058796-804, which was marked as
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`Exhibit 4 to the January 22, 2021 deposition of Gilles Boccon-Gibod.
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`21.
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`Attached hereto as Exhibit 19 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0016617-626.
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`22.
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`Attached hereto as Exhibit 20 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0000294-333.
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`23.
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`Attached hereto as Exhibit 21 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0000457-501.
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`3
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`Case 1:19-cv-11586-FDS Document 338 Filed 03/02/22 Page 4 of 6
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`24.
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`Attached hereto as Exhibit 22 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0000777-834.
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`25.
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`Attached hereto as Exhibit 23 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0000149-226.
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`26.
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`Attached hereto as Exhibit 24 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0001103-1187.
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`27.
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`Attached hereto as Exhibit 25 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0000959-1038.
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`28.
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`Attached hereto as Exhibit 26 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0001039-1102.
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`29.
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`Attached hereto as Exhibit 27 is a true and correct copy of the CONFIDENTIAL
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`deposition transcript of Ryan Krems, dated January 20, 2021.
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`30.
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`Attached hereto as Exhibit 28 is a true and correct copy of a CONFIDENTIAL
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`document produced bearing Bates Nos. Fitbit_19-11586_00053545-580.
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`31.
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`Attached hereto as Exhibit 29 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0016672-677.
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`32.
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`Attached hereto as Exhibit 30 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0016682-688.
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`33.
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`Attached hereto as Exhibit 31 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0016665-667.
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`34.
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`Attached hereto as Exhibit 32 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0016689-695.
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`4
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`Case 1:19-cv-11586-FDS Document 338 Filed 03/02/22 Page 5 of 6
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`35.
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`Attached hereto as Exhibit 33 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0016696-703.
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`36.
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`Attached hereto as Exhibit 34 is a true and correct copy of a CONFIDENTIAL
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`document produced bearing Bates Nos. Fitbit_19-11586_00075235-274.
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`37.
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`Attached hereto as Exhibit 35 is a true and correct copy of a CONFIDENTIAL
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`document produced bearing Bates Nos. Fitbit_19-11586_00056948-970.
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`38.
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`Attached hereto as Exhibit 36 is a true and correct copy of a document produced
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`bearing Bates Nos. PNA-FB0000545-613.
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`39.
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`Attached hereto as Exhibit 37 is a true and correct copy of a document produced
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`bearing Bates Nos. Fitbit_19-11586_0082606-662, which was marked as Exhibit 1 to the February
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`2, 2021 deposition of Maria S. Redin.
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`I declare under penalty of perjury that the foregoing statements are true and correct to the
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`best of my knowledge.
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`Executed March 2, 2022 in Washington, DC.
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`/s/ David J. Shaw
`David J. Shaw (pro hac vice)
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`5
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`Case 1:19-cv-11586-FDS Document 338 Filed 03/02/22 Page 6 of 6
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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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`6
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