Case 1:19-cv-11586-FDS Document 342 Filed 03/02/22 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`PHILIPS NORTH AMERICA LLC,
`
`v.
`
`FITBIT, INC.,
`
`Plaintiff,
`
`Defendant.
`
`Civil Action No. 1:19-cv-11586-FDS
`
`
`
`DECLARATION OF JOHN W. CUSTER IN SUPPORT OF
`PLAINTIFF’S MEMORANDUM IN SUPPORT OF ITS MOTION FOR
`PARTIAL SUMMARY JUDGMENT OF DIRECT INFRINGEMENT AND
`NO INVALIDITY ON iFIT PRIOR ART
`
`
`
`I, John W. Custer, declare as follows:
`
`1.
`
`I am an attorney at Foley & Lardner LLP, counsel to Plaintiff Philips North
`
`America, LLC (“Philips”).
`
`2.
`
`I make this declaration in support of Philips’s Motion For Partial Summary
`
`Judgment of Direct Infringement and No Invalidity of iFIT Prior Art Pursuant to Fed. R. Civ. P.
`
`37(c)(1) and Local Rule 16.6(d).
`
`3.
`
`I have personal knowledge of the facts set forth herein and, if called to testify in
`
`this matter, could and would testify to the following facts.
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`4.
`
`Attached as Exhibit A is a true and correct copy of the Amended Expert Report
`
`of Tom Martin Concerning Infringement, dated December 12, 2021.
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`5.
`
`Attached as Exhibit B is a true and correct copy of Fitbit Ionic User Manual,
`
`Version 1.1 bearing Bates Nos. PNA-FB0000149-226.
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`4882-4754-7666
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`1
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`PHILIPS NORTH AMERICA LLC,
`
`v.
`
`FITBIT, INC.,
`
`Plaintiff,
`
`Defendant.
`
`Civil Action No. 1:19-cv-11586-FDS
`
`
`
`DECLARATION OF JOHN W. CUSTER IN SUPPORT OF
`PLAINTIFF’S MEMORANDUM IN SUPPORT OF ITS MOTION FOR
`PARTIAL SUMMARY JUDGMENT OF DIRECT INFRINGEMENT AND
`NO INVALIDITY ON iFIT PRIOR ART
`
`
`
`I, John W. Custer, declare as follows:
`
`1.
`
`I am an attorney at Foley & Lardner LLP, counsel to Plaintiff Philips North
`
`America, LLC (“Philips”).
`
`2.
`
`I make this declaration in support of Philips’s Motion For Partial Summary
`
`Judgment of Direct Infringement and No Invalidity of iFIT Prior Art Pursuant to Fed. R. Civ. P.
`
`37(c)(1) and Local Rule 16.6(d).
`
`3.
`
`I have personal knowledge of the facts set forth herein and, if called to testify in
`
`this matter, could and would testify to the following facts.
`
`4.
`
`Attached as Exhibit A is a true and correct copy of the Amended Expert Report
`
`of Tom Martin Concerning Infringement, dated December 12, 2021.
`
`5.
`
`Attached as Exhibit B is a true and correct copy of Fitbit Ionic User Manual,
`
`Version 1.1 bearing Bates Nos. PNA-FB0000149-226.
`
`4882-4754-7666
`
`1
`
`
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`Case 1:19-cv-11586-FDS Document 342 Filed 03/02/22 Page 2 of 8
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`
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`6.
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`Attached as Exhibit C is a true and correct copy of Fitbit Versa User Manual,
`
`Version 1.0 bearing Bates Nos. PNA-FB0001103-1187.
`
`7.
`
`Attached as Exhibit D is a true and correct copy of Fitbit Versa2 User Manual,
`
`Version 1.0 bearing Bates Nos. PNA-FB0000959-1038.
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`8.
`
`Attached as Exhibit E is a true and correct copy of Fitbit Versa Lite Edition User
`
`Manual, Version 1.0 bearing Bates Nos. PNA-FB0001039-1102.
`
`9.
`
`Attached as Exhibit F is a true and correct copy of Fitbit Charge2 User Manual,
`
`Version 1.1 bearing Bates Nos. PNA-FB0000502-544.
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`10.
`
`Attached as Exhibit G is a true and correct copy of Fitbit Charge 3 User Manual,
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`Version 1.0 bearing Bates Nos. PNA-FB0000545-613.
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`11.
`
`Attached as Exhibit H is a true and correct copy of Fitbit Inspire User Manual,
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`Version 2.0 bearing Bates Nos. PNA-FB0000777-834.
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`12.
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`Attached as Exhibit I is a true and correct copy of Fitbit Alta Product Manual,
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`Version 1.0 bearing Bates Nos. PNA-FB000294-333.
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`13.
`
`Attached as Exhibit J is a true and correct copy of Fitbit Blaze Product Manual,
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`Version 1.1 bearing Bates Nos. PNA-FB000457-501.
`
`14.
`
`Attached as Exhibit K is a true and correct copy of excerpts from the deposition
`
`of Ryan Krems, dated January 20, 2021.
`
`15.
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`Attached as Exhibit L is a true and correct copy of the Rebuttal Expert Report of
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`Joseph A. Paradiso, dated December 22, 2021.
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`16.
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`Attached as Exhibit M is a true and correct copy of excerpts from the deposition
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`of Gilles Boccon-Gibod, dated January 22, 2021.
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`4882-4754-7666
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`2
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`Case 1:19-cv-11586-FDS Document 342 Filed 03/02/22 Page 3 of 8
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`17.
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`Attached as Exhibit N is a true and correct copy of excerpts from the deposition
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`of Joseph Paradiso, dated February 2, 2022.
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`18.
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`Attached as Exhibit O is a true and correct copy of excerpts from the deposition
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`of Thomas L. Martin, dated February 1, 2022.
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`19.
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`Attached as Exhibit P is a true and correct copy of Fitbit’s Meson Superstar Pluto
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`Pop Lookbook bearing Bates Nos. Fitbit_19-11586_00070683-70724, dated December 15, 2017.
`
`20.
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`Attached as Exhibit Q is a true and correct copy of Fitbit’s Fall 2019 Pop
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`Lookbook bearing Bates Nos. Fitbit_19-11586_70725-70752, dated May 17, 2019.
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`21.
`
`Attached as Exhibit R is a true and correct copy of Fitbit’s Atom Launch Pop
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`Lookbook bearing Bates Nos. Fitbit_19-11586_00070757-70791.
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`22.
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`Attached as Exhibit S is a true and correct copy of Fitbit’s Spring 2020 Pop
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`Lookbook Final bearing Bates Nos. Fitbit_19-11586_00070792-70826, dated January 9, 2020.
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`23.
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`Attached as Exhibit T is a true and correct copy of Fitbit’s Spring 2019 Pop
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`Lookbook bearing Bates Nos. Fitbit_19-11586_00070827-70862, dated December 20, 2018.
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`24.
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`Attached as Exhibit U is a true and correct copy of Fitbit Charge 2 brochure
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`bearing Bates Nos. Fitbit_19-11586_00051769-51770.
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`25.
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`Attached as Exhibit V is a true and correct copy of Fitbit’s Ionic document
`
`regarding getting started bearing Bates Nos. Fitbit_19-11586_00058982.
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`26.
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`Attached as Exhibit W is a true and correct copy of Fitbit Charge 3 document
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`regarding getting started bearing Bates Nos. Fitbit_19-11586_00059004.
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`27.
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`Attached as Exhibit X is a true and correct copy of Fitbit products bearing Bates
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`Nos. Fitbit_19-11586_00070678-70682.
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`4882-4754-7666
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`3
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`Case 1:19-cv-11586-FDS Document 342 Filed 03/02/22 Page 4 of 8
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`28.
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`Attached as Exhibit Y is a true and correct copy of Fitbit blog “Get a Clear
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`Snapshot of Your Fitness with the New Fitbit Cardio Fitness Level” bearing Bates Nos. PNA-
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`FB0016580-16582.
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`29.
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`Attached as Exhibit Z is a true and correct copy of Fitbit app users and devices
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`by first usage date bearing Bates Nos. Fitbit_19-11586_00087283.
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`30.
`
`Attached as Exhibit AA is a true and correct copy of Exhibit B to the Amended
`
`Expert Report of Tom Martin Concerning Infringement, dated December 12, 2021
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`31.
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`Attached as Exhibit AB is a true and correct copy of Fitbit webpage regarding
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`What Are Active Zone Minutes or active minutes on my Fitbit device? bearing Bates Nos.
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`Fitbit_19-11586_0016561-16568, dated November 1, 2021.
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`32.
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`Attached as Exhibit AC is a true and correct copy of document showing user
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`activity bearing Bates Nos. PNA-FB0000252-259.
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`33.
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`Attached as Exhibit AD is a true and correct copy of Fitbit Presentation “Fitbit
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`CSAT Survey Interim Wave” bearing Bates Nos. PNA-FB0000252-259, dated December 2016.
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`34.
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`Attached as Exhibit AE is a true and correct copy of Fitbit Presentation “Versa
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`Experience/CSAT” bearing Bates Nos. Fitbit_19-11586_00075235-75274.
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`35.
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`Attached as Exhibit AF is a true and correct copy of document showing user
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`activity bearing Bates Nos. Fitbit_19-11586_00056948-56970.
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`36.
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`Attached as Exhibit AG is a true and correct copy of excerpts from the deposition
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`of Preethi Mukundan, dated December 8, 2020.
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`37.
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`Attached as Exhibit AH is a true and correct copy of Fitbit Community page
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`bearing Bates Nos. PNA-FB0016665-16667.
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`4882-4754-7666
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`Case 1:19-cv-11586-FDS Document 342 Filed 03/02/22 Page 5 of 8
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`38.
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`Attached as Exhibit AI is a true and correct copy of Fitbit Community page
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`bearing Bates Nos. PNA-FB0016668-16671.
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`39.
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`Attached as Exhibit AJ is a true and correct copy of Fitbit Community page
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`bearing Bates Nos. PNA-FB0016689-16695.
`
`40.
`
`Attached as Exhibit AK is a true and correct copy of Fitbit Community page
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`bearing Bates Nos. PNA-FB0016696-16703.
`
`41.
`
`Attached as Exhibit AL is a true and correct copy of Assessing the ability of the
`
`Fitbit Charge 2 to accurately predict VO2max bearing Bates Nos. PNA-FB0016682-16688,
`
`dated September 7, 2019.
`
`42.
`
`Attached as Exhibit AM is a true and correct copy of article by Klepin, et al,
`
`titled ‘Validity of Cardiorespiratory Fitness Measured with Fitbit Compared to VO2max”
`
`bearing Bates Nos. PNA-FB0016672-16677.
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`43.
`
`Attached as Exhibit AN is a true and correct copy of Heathrider Softstrider S300i
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`User’s Manual bearing Bates Nos. ICON000331-360.
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`44.
`
`Attached as Exhibit AO is a true and correct copy of Heathrider Softstrider S700i
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`User’s Manual bearing Bates Nos. ICON000361-394.
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`45.
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`Attached as Exhibit AP is a true and correct copy of What is iFit.com? bearing
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`Bates Nos. ICON000316-317.
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`46.
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`Attached as Exhibit AQ is a true and correct copy of a video from
`
`https://www.youtube.com/watch?app=desktop&v=3k3DNT54NkA.
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`47.
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`Attached as Exhibit AR is a true and correct copy of a video from
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`https://www.youtube.com/watch?v=PxpxRoWmjq8.
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`4882-4754-7666
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`Case 1:19-cv-11586-FDS Document 342 Filed 03/02/22 Page 6 of 8
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`48.
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`Attached as Exhibit AS is a true and correct copy of a video from
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`https://www.youtube.com/watch?v=QDYxWeQMrAw.
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`49.
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`Attached as Exhibit AT is a true and correct copy of a video from
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`https://www.youtube.com/watch?v=aunF4Sog_UQ.
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`50.
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`Attached as Exhibit AU is a true and correct copy of File History for U.S. Patent
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`No. 8,277,377 bearing Bates Nos. PNA-FB0001473-1994, dated October 2, 2012.
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`I declare under penalty of perjury that the foregoing is true and correct.
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`51.
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`Attached as Exhibit AV is a true and correct copy of article from Fitbit’s website
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`“How do Fitbit devices sync their data?” bearing Bates Nos. PNA-FB0007451-7460, dated
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`September 24, 2020.
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`52.
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`Attached as Exhibit AW is a true and correct copy of PRD - Syncing bearing
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`Bates Nos. Fitbit_19-11586_00058796-58804.
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`53.
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`Attached as Exhibit AX is a true and correct copy of page from Fitbit’s website
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`regarding privacy policy bearing Bates Nos. PNA-FB000064-74, dated January 22, 2020.
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`54.
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`Attached as Exhibit AY is is a true and correct copy of page from Fitbit’s website
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`regarding privacy policy bearing Bates Nos. PNA-FB000112-120, dated January 22, 2020.
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`55.
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`Attached as Exhibit AZ is a true and correct copy of page from Fitbit’s website
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`regarding How do I export my Fitbit account data? bearing Bates Nos. PNA-FB0016639-42,
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`dated October 28, 2021.
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`56.
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`Attached as Exhibit BA is a true and correct copy of page from Fitbit’s website
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`regarding What is my cardio fitness score? bearing Bates Nos. PNA-FB0016597-16600, dated
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`October 28, 2021.
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`4882-4754-7666
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`Case 1:19-cv-11586-FDS Document 342 Filed 03/02/22 Page 7 of 8
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`57.
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`Attached as Exhibit BB is a true and correct copy of {DRAFT} Cardio Fitness
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`Score Test Spec bearing Bates Nos. Fitbit_19-11586_00049489-49492.
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`58.
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`Attached as Exhibit BC is a true and correct copy of page Fitbit Cardio Fitness:
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`VO2max Model Validation bearing Bates Nos. Fitbit_19-11586_00049924-49937.
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`59.
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`Attached as Exhibit BD is a true and correct copy of Fitbit’s website How do I
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`use GPS on my Fitbit device? bearing Bates Nos. PNA-FB0016645-16650.
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`60.
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`Attached as Exhibit BE is a true and correct copy of excerpts from the deposition
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`of Colleen Logan, dated September 2, 2020.
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`61.
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`Attached as Exhibit BF is a true and correct copy of printout from Fitbit’s
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`website regarding What is my cardio fitness score? bearing Bates Nos. Fitbit_19-
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`11586_00101231-101233, dated December 15, 2021.
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`I declare under penalty of perjury that the foregoing is true and correct.
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`Date: March 2, 2022
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`/s/ John W. Custer
`John W. Custer
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`4882-4754-7666
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`Case 1:19-cv-11586-FDS Document 342 Filed 03/02/22 Page 8 of 8
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing document was filed
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`with the Court through the ECF system and that a copy will be electronically served on
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`registered participants as identified on the Notice of Electronic Filing.
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`4882-4754-7666
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`By: /s/ John W. Custer
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