Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 1 of 76
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`______________________________________
`PHILIPS NORTH AMERICA LLC,
`Plaintiff,
`
`))))))))))
`
`v.
`FITBIT LLC,
`Defendant.
`______________________________________
`
` Civil Action No.
` 1:19-cv-11586-FDS
`
`BEFORE THE HONORABLE F. DENNIS SAYLOR, CHIEF DISTRICT JUDGE
`
`MOTION HEARING BY VIDEOCONFERENCE
`
`Friday, June 24, 2022
`2:08 p.m.
`
`John J. Moakley United States Courthouse
`One Courthouse Way
`Boston, Massachusetts
`
`Robert W. Paschal, RMR, CRR
`Official Court Reporter
`rwp.reporter@gmail.com
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`1
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`______________________________________
`PHILIPS NORTH AMERICA LLC,
`Plaintiff,
`
`))))))))))
`
`v.
`FITBIT LLC,
`Defendant.
`______________________________________
`
` Civil Action No.
` 1:19-cv-11586-FDS
`
`BEFORE THE HONORABLE F. DENNIS SAYLOR, CHIEF DISTRICT JUDGE
`
`MOTION HEARING BY VIDEOCONFERENCE
`
`Friday, June 24, 2022
`2:08 p.m.
`
`John J. Moakley United States Courthouse
`One Courthouse Way
`Boston, Massachusetts
`
`Robert W. Paschal, RMR, CRR
`Official Court Reporter
`rwp.reporter@gmail.com
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 2 of 76
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`A P P E A R A N C E S
`
`On behalf of the Plaintiff:
`FOLEY & LARDNER LLP
`BY: ELEY O. THOMPSON
`321 North Clark Street
`Suite 2800
`Chicago, IL 60654
`(312) 832-4500
`ethompson@foley.com
`
`FOLEY & LARDNER LLP
`BY: RUBEN J. RODRIGUES
` JOHN CUSTER
`111 Huntington Avenue
`Suite 2500
`Boston, MA 02199
`(617) 342-4000
`rrodrigues@foley.com
`jcuster@foley.com
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 3 of 76
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`On behalf of the Defendant:
`DESMARAIS LLP
`BY: DAVID J. SHAW
`1701 Pennsylvania Avenue NW
`Suite 200
`Washington, DC 20006
`(212) 351-3400
`dshaw@desmaraisllp.com
`
`DESMARAIS LLP
`BY: HENRY LASSISTER ARD
`230 Park Avenue
`26th Floor
`New York, NY 10169
`(212) 351-3400
`hard@desmaraisllp.com
`
`PAUL HASTINGS LLP
`BY: DAVID BECKWITH
`1117 S. California Avenue
`Palo Alto, CA 94304
`(650) 320-1800
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 4 of 76
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`P R O C E E D I N G S
`(In open court at 2:08 p.m.)
`THE DEPUTY CLERK: Court is now in session in the
`matter of Philips North America LLC versus Fitbit LLC, Civil
`Action Number 19-11586.
`Participants are reminded that photographing,
`recording, and rebroadcasting of this hearing is prohibited
`and may result in sanction.
`Will counsel please identify themselves for the
`record, starting with the plaintiff.
`MR. THOMPSON: Good afternoon, Your Honor. Eley
`Thompson on behalf of Philips. And I also have with me Ruben
`Rodrigues, who is on video, and also John Custer.
`THE COURT: All right. Good afternoon.
`MR. SHAW: Good afternoon, Your Honor. David Shaw
`from Desmarais LLP on behalf of Fitbit. I have with me Henry
`Ard from my firm; David Beckwith, our co-counsel; and Timur
`Engin, who is an in-house counsel with Google.
`THE COURT: All right. Good afternoon.
`All right. I'll start by apologizing. You have a
`little glimpse into my tech world here. It took me seven
`minutes to log into a Zoom call, which probably cost your
`clients collectively about a thousand dollars. But, anyway,
`here I am.
`So this is a hearing on multiple motions. I don't
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 5 of 76
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`know if you've talked about whether there's a sensible order.
`And if you haven't, since Fitbit is -- has filed most of the
`motions, I guess, I will probably, Mr. Shaw, turn it over to
`you and let you proceed as you see fit. What I would like to
`do is take each one of these in turn, in other words, you
`know, hear one side and then the --
`MR. SHAW: Sure, Your Honor. And --
`THE COURT: -- the other. And just to let everyone
`know the time frame that we have here, so I have a change of
`plea that has been pushed back many multiple times at
`three o'clock. So we're going to interrupt at 3:00 for that.
`That ought to take 20 minutes to half an hour.
`And then I have a case that's on trial that I'm
`meeting with the parties at 4:30. So we have from 2:00 to
`3:00, and then, you know, whatever, until 4:20, let's say,
`and then we just have to make it fit into that slot. That's
`all I have.
`So -- all right. Mr. Shaw, the floor is yours.
`MR. SHAW: Sure, Your Honor.
`So what I was actually thinking -- and we haven't
`discussed among the parties -- but you might recall that
`Philips requested summary judgment of direct infringement,
`and a number of our motions are basically predicated on the
`same arguments that we made in opposition to their summary
`judgment motion for direct infringement.
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 6 of 76
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`THE COURT: Okay.
`MR. SHAW: So I was thinking that we could address
`all of those arguments as a group so that the parties only
`need to speak about them once to the extent we're going to,
`rather than, you know, repeating ourselves in the context of
`multiple motions.
`THE COURT: Okay. If I didn't know better, I would
`accuse you all of trying to evade the page limit by filing
`multiple summary judgment motions, but --
`So, Mr. Thompson, do you want to go first?
`MR. THOMPSON: Yes. I'm happy to do that. By the
`way, I do agree, also, that I think that makes sense.
`THE COURT: Okay.
`MR. THOMPSON: There will be -- I suppose as we go
`through this, there will be instances where I don't address a
`point that they want to make, and it's because I think that
`the briefing is complete enough that, you know, it doesn't --
`given the amount of time that we have, I'm not sure that it
`would be all that beneficial to the Court, again, within the
`time constraints that we have.
`THE COURT: Okay.
`MR. THOMPSON: So if I may, I think what I would
`like to do is share my screen. This will take just one
`second to get set up properly.
`Okay. And so since we're starting -- well, by the
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 7 of 76
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`way, our motion for summary judgment has invalidity in it as
`well. But I think, perhaps, just to -- for the flow of
`things, I'll focus on infringement at first. And so if we
`need to do -- switch to the iFIT part, then we can do that
`perhaps as a second phase. I think it makes sense to do it
`that way.
`MR. SHAW: That's fine with us too.
`MR. THOMPSON: Okay. So let me -- let me turn to a
`summary page. Also, may I confirm that you guys are seeing
`this slide okay?
`THE COURT: Yes.
`MR. THOMPSON: Okay. Well, Your Honor, there are a
`number of sort of issues that are -- were raised in response.
`So it's a little odd for us to put this together this way,
`but I think it's efficient from the standpoint of the Court
`being able to sort of address the salient issues. So we
`listed them here.
`We also put some docket numbers, like Mr. Shaw had
`referred to, where they have a separate motion that -- while
`they raise it in opposition, they also filed a separate
`motion.
`
`So, for example, if you take that first bullet
`there, or the first -- the Number 1, the Docket 364 is their
`opposition. That's a citation to their opposition. And then
`the 330 is their motion. So we do that just for the
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 8 of 76
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`convenience of the Court, because we submitted the slides or
`will submit the slides. And we thought that that might be
`helpful later.
`So there are a few points. Obviously, there are
`several here that I would like to address. And I think, from
`a contextual standpoint, it would be beneficial if I start
`with the last point, which is the evidence of infringement.
`And so let me switch to a slide that relates to that.
`We think that the primary case that the Court
`should look at is the Toshiba case as far as setting the law
`and how to look at the evidence. In the Toshiba case, the
`District Court actually had granted a noninfringement, a
`summary judgment noninfringement, and that the Court of
`Appeals there reversed the District Court.
`The Court of Appeals, federal circuit, identified
`what the question is. And the question is -- we've
`highlighted it there. Sometime during the relevant period --
`and that's four plus years here -- there was more than likely
`than not that one person somewhere in the U.S. did the
`method.
`
`And here there's 36 million people. And so one
`person out of 36 million people would run the process, will
`go through the evidence, and that would be -- a shorthand of
`it will be displaying cardio fitness on their phone where the
`phone had synched during exercise.
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 9 of 76
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`Now, one of the main things that happened in that
`case is that the Court -- the Court adopted a viewpoint that
`was presented by the defendants that they were noninfringing
`uses.
`
`So basically that argument goes like this. It
`goes, well, Your Honor, it's not that -- their proof doesn't
`show that it's used every time or all the time. It's not
`good enough. There may be times when -- or there are many
`times, perhaps, even where there's noninfringing operation,
`and the Court bought that in the Toshiba case and got
`reversed for it.
`And so the question -- it goes back to that point I
`was making. The question isn't whether, like in the Toshiba
`case, whether there's a multisession noninfringing mode. The
`question is whether one of the users of the system has
`infringed and whether the evidence shows that. So let me run
`through that a bit with that in mind, the evidence that we
`have.
`
`So I should say at this point, if there are folks
`on the call who are not under the protective order, at this
`point, we'll probably be getting into details of protective
`order -- of -- sorry -- of Fitbit confidential information.
`So I turn it over to you, Mr. Shaw, of how you want
`to handle that.
`THE COURT: Hold on. The -- I can't see everyone.
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`There were some people who are my clerks and interns. I
`don't know if there's any --
`THE DEPUTY CLERK: Judge, we're all set. The one
`person from the public just left.
`THE COURT: Okay.
`Okay. Go ahead, then.
`MR. THOMPSON: Okay. And let me check with my
`
`team.
`
`Okay. Yeah, we don't know who everybody is, but as
`far as the people that we know that would be in the public,
`they have logged off.
`So, Your Honor, the evidence that is presented in
`the materials falls into seven big categories of information.
`We have surveys by Fitbit showing its users. The collective
`
`way. We have studies from Fitbit where the devices are used.
`We have testimonials from the Fitbit website. We have videos
`of evidence of encouraging the use.
`We have a deposition of Fitbit's representative, an
`engineer, Krems, who used the device in that way. We have
`advertisements from Fitbit teaching its customers to do that
`and user manuals and help pages. It's a tremendous amount of
`evidence, but I won't go through all of it because of that.
`I'd like to highlight some of the items, so -- just to give
`you a bit of a narrative so you can appreciate a little bit
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`what's going on.
`So one thing to bear in mind -- I was talking about
`the Toshiba case and the position that Fitbit has taken.
`Fitbit actually doesn't, in their statement of facts, their
`response, which is Docket 367, doesn't actually deny
`infringement.
`What they do is they say that it doesn't happen
`every time the device is operated or that, in essence, there
`can be a noninfringing use. And I think this is really
`important, because I think the Court can look at the
`statement of facts and their responses, and because they
`didn't deny it, the Court could enter summary judgment. And
`so here's a, you know, cataloging of the times.
`So, you know, they deny, but only that it's the
`only way that the device will operate or they -- or that it
`can only be used to infringe or that every device does it.
`That's the sum of their denials.
`The other thing is that, if you look at a lot of
`their responses, they don't cite any countervailing evidence.
`So they don't generate a genuine issue of material fact for
`those. So that's another sort of source that we believe
`could be used to support finding of infringement here.
`Now, by way of context, just to give a little bit
`about how these devices work, the Fitbit devices are set to
`automatically sync every 15 minutes. And that's called an
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 12 of 76
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`"all day sync" feature, and there's a couple of references
`that are here to that.
`There are also features that Fitbit has that
`require the pairing with the smart phone, which is, of
`course, the only thing that Fitbit really teaches to its
`customers, and, of course, anybody who has ever seen a Fitbit
`device knows that. But there's the connected GPS, which is
`used for runs. The connected GPS is -- uses the GPS on the
`phone while you're running to collect the data that then is
`automatically synced back to get the cardio fitness
`information.
`And then there's music control sets when you use
`your wearable to control your phone, live dash notifications,
`and some others here. All of those are -- sort of interplay
`between the wearable and the -- your phone.
`So this is just a -- this, again, is just sort of
`getting into the context of this. This is a -- this is an
`advertisement. The citation here is an advertisement where
`Fitbit's releasing the cardio fitness level.
`And then they talk about how it's automatically
`provided, this cardio fitness level. There's going to be --
`by the way, I'm going to show you lots of evidence of surveys
`and extensive use by all the customer base. But that is sort
`of the introduction just to sort of get into the aspects of
`this.
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`We submitted, Your Honor, a video, and I think that
`you have this video. It's also on the web, so you can, from
`this slide or -- and from our materials, just click on it.
`What it shows -- these are a couple of screenshots. What it
`shows is it's teaching the Fitbit users how to use the
`connected GPS. So in the series, it goes -- the person's
`running, so you run. So say, "Okay. Run." Use connected
`GPS. Here is 25 minutes. The sync happens every 15 minutes.
`And then it shows above the map where the GPS --
`that's, by the way, downtown San Francisco. And you can
`enlarge it and see it for yourself. And then they say --
`then look at the cardio fitness level. And they say that's
`shown in the Fitbit app, both those, the one where the person
`is holding the phone on the left and the one on the right.
`And, of course, this is -- this is how all -- if
`you look at the advertisements and the instructions and all
`that, it's always sort of with the wearable, with the phone.
`That's the combination. That's the system that Fitbit has.
`Then there's another video that we submitted here,
`and this video, it shows the person's active. So he's
`wearing the watch. He's on a beach. He's playing
`volleyball. The screenshot there shows he's been active for
`19 minutes. And then, of course, it syncs every 15.
`The video shows that he is -- you know, playing
`volleyball, but he's not next to -- that picture on the
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`bottom left there, that's his phone sitting on a towel and
`the volleyball on the beach. It shows -- and that dash line
`coming kind of diagonally out, it's shown in the video to be
`the syncing. And then it says it's going to sync while
`you're exercising, and that's what the "syncing complete"
`screenshot shows. So if you watch these videos, you'll see
`these aspects being taught and shown by -- shown as occurring
`by Fitbit.
`There's another video that -- and I'm not hitting
`every video that we did, but I just want to highlight a few
`of these, because they give a bit of the context.
`This particular video, it shows that the woman
`there -- so the map is sort of that red line where she's
`running. She's doing connected GPS. She's doing about a
`7- or 8-minute mile for 3½ miles. That's the 20 minutes,
`right, if you just do the math. And that, of course, syncs
`every 15 minutes, so it's syncing.
`And then on the left, it shows how they want the
`users to be wearing their phone while they're exercising.
`And so all of this is showing, I guess, the sort of
`unremarkable aspect that Fitbit expects its users to have
`their phone and for the device to sync while they're
`exercising and then also the cardio fitness being used, which
`comes from that exercise-related information.
`This -- so this is evidence of the users actually
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`using this stuff. So this is a survey which we included that
`Fitbit ran on its customer base. And you can see there that
`they're checking the cardio fitness level, and it's the
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`using the -- according to Fitbit's own surveys, the cardio
`fitness, the cardio fitness functionality.
`There's a -- here's another survey of the customer
`base for various of the products accused. This one
`identifies the value in use. It has cardio fitness. Smart
`phone notifications, notice that, at the top of the list, as
`also being a use that its customers are making of it, which,
`again, is not surprising since this is what they expect, and
`the pace and distance using the GPS. That's the connected
`GPS.
`
`So all of those things are occurring. They're
`surveying their customers. The customers are doing what
`they've been instructed to do, which is use their phone while
`they're exercising with their wearable and then get the
`cardio fitness response.
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`likely use this. And here, they've -- they're showing that
`
`be the smart phone -- call, text, and apps, which require the
`use of it together, and the cardio fitness level.
`Now, one of the things that Fitbit said, you may
`notice in the statement of facts, they say, well, you know,
`this is from 2016. And so we added that clip there, "Users
`as of 8/15/2018," just as a response to that. There's just
`no merit to the positions, the position that Fitbit took
`relative to this. That's on page 2, I think, of the survey.
`It's right in the main bullet points.
`There's also studies. So this one's talking about
`a study. There was a study, the Klepin study. And the box
`there -- 75 and 76, actually, is the -- is the statement of
`facts, the response from Fitbit. They admitted this.
`So they admitted that the participants are using
`the Charge 6 devices, just as we alleged, with a Fitbit app
`and the GPS and that they're doing the cardio fitness. So
`these two things, you know, they're admitting infringement on
`these. They couldn't contest it.
`They say, well, you know, it might not be on a
`phone; but the article itself, as we clipped and highlighted
`there, says they found the smart phone application easy to
`use. So that's exactly what it shows. I don't think that's
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`a legitimate -- their denial without any evidence, by the
`way, I didn't put that, but the next column, if you go and
`actually look at this document, you're not going to find any
`evidence next to 76. So they're not creating a genuine issue
`of fact.
`We sort of put -- highlight -- put this in here as
`an example of where the testimonials -- people are talking
`about using the cardio fitness score. And then this person
`here is a Fitbit moderator responding and saying, hey, you
`should run at least 10 minutes, and that'll get you your pace
`and your heart rate, and it will give you a more accurate
`score. So this is just an example of the various
`testimonials that we have.
`One other thing I'll say on this one very briefly
`is that the Fitbit app actually will notify people and say,
`okay, you need to fix the connection to your phone. So
`that's -- that's going to show up as they go through it.
`So let me go to this. I want to talk here -- now,
`this is the direct infringement by Fitbit itself. One of the
`things that Fitbit said in its reply, which is kind of
`puzzling, they say -- and I quoted it here -- "Philips did
`not preserve the allegation that Fitbit directly infringes."
`That's in their reply, and we put the citation there.
`But so while we thought we should share -- this
`topic has been presented to you before, and it's in our
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 18 of 76
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`complaint, that we have alleged all along that Fitbit
`directly infringes by its testing of the products, and
`there's a couple of highlighted instances. So I'm not sure
`that there's any real basis for them to say that.
`Now, the testimony comes from their engineer, a
`doctor -- Mr. Krems. And he was deposed, and he testified
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`for the Court to look at from these slides. It's also in our
`briefs.
`
`Here's the part, you know, where he's talking about
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`And indeed, it is on, always.
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`Now, they say, you know, okay, well, we don't know
`if he used it on a mobile phone. But he testified -- and I
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`that's what the evidence shows. And so I thought I would
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 19 of 76
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`highlight that as well.
`So that's a bit -- there's much more in our
`briefing, but that, I think, maybe gives you a sense of
`all -- some of the evidence that goes to infringement. And
`then I thought what I would do now is maybe address a couple
`of specific noninfringement positions that they've raised,
`sort of claim construction issues. And so let me switch here
`to this slide.
`So one of the arguments that Fitbit makes is in
`regard to -- first off, let me -- for context, just so you
`have this -- those citations at the bottom are meant to help
`you find where in the briefs you can see this argument of
`theirs. It's in the response to our motion for summary
`judgment. They also filed a motion.
`So the issue here for the Court is they say that
`the reference here in the claim to an Internet server and the
`server, that means there can only be one physical box. And
`so we wanted to address that some. And this next slide sort
`of does that.
`So let me explain first. The -- in patent
`drawings, these dotted lines, you know, they don't -- they
`don't indicate a physical box in general. So they're broken,
`dotted lines. And so as the specification explains, the
`server, 22, includes things that are not in the same box.
`And as an example, as we cited there, the
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 20 of 76
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`external -- external data source, 74, which you can see there
`in Figure 4, is actually external. And the reason for that
`is the servers are arrays. That's what's taught in the
`claim. So where it says "a server," that means sort of one
`or more physical things acting as a server.
`And the specification there at Column 8, 45 through
`51, makes this explicit. And if there was any doubt
`whatsoever, the specification again, at Column 13, says that
`when it refers to an element as "a" in singular, that that
`does not mean one and only one. And that is exactly what
`Fitbit is arguing. They say it doesn't mean that. It means
`it can be one or more.
`And then you look at Column 8, the part on the
`left; and sure enough, it's explaining exactly why that's in
`there. And Fitbit is suggesting that the Court should just
`ignore this and add a limitation which the specification
`teaches against. And so there's that point that I wanted to
`make.
`
`Oh, one other thing is what the specification says
`actually matches the federal circuit law. So the Baldwin
`case -- there's a number of cases that are cited in our
`brief, Docket 291 at 3 to 6. All those fit together and say
`exactly what I just said and the specification says.
`Fitbit relies on a FotoMedia case as it's sort of
`case that says, oh, no, no, no. "A" refers to only one, in
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 21 of 76
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`spite of the Baldwin case.
`And in that decision, the magistrate judge is
`looking at the context of it, and it's distinguishable
`because the circumstances were different. In that case, as I
`quoted here, they said -- the judge said, "The specification
`does not suggest or teach the concept of a distributed system
`anywhere."
`So it doesn't say a server is an array of devices
`or a server is an array of servers. It didn't say that, when
`we refer to the singular, we mean that there can be more than
`one physical items. It didn't have the teachings that the
`patent here does. And, in fact, it was because of that fact
`that the judge noted there that the -- that the Court felt
`that it could not -- it was able not to follow the Baldwin
`decision.
`So one thing, in this regard, relative to this
`claim interpretation, is that once that is -- that that's
`
`
`
`added those citations of fact so the Court can rely on those
`in finding infringement.
`There's another point too, which is that there
`is -- even if you were to say there needs to be one server,
`there is one server that's doing these calculations, and they
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 22 of 76
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`don't deny that. And what additionally occurs is that there
`can be intermediate servers between them.
`And the courts have made clear -- and I'll switch
`to the next one -- in a whole bunch of cases that when you
`say something is sent or received, it doesn't mean that it's
`direct. It can be indirect. So there can be other things in
`between.
`And these cases here, among a whole bunch of
`others, stand for that proposition. So when something says
`that you're -- like here. There's a placing of a telephone
`call or to send or receiving. That doesn't mean that it has
`to be directly. It can be received directly or indirectly,
`and each one of those cases stands for that proposition.
`So I'd like to then -- then the next thing that
`they have argued relates to the response and what it's -- how
`it -- what it relates to. And then -- so the claim -- I'll
`put the element up there -- is receiving a calculated
`response from a server where the response is associated with
`a calculation, and the calculation is based on
`exercise-related information.
`So they changed that to ignore the "associated
`with" and the "based on," and say, no, it has to be
`responses, the direct product of exercise information. And
`the specification actually says that the -- that the
`calculation can be -- "based" means entirely or at least part
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 23 of 76
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`on the exercise-related information.
`And in the drawing, which is Figure 5, you can sort
`of see it, at least one example -- of course, the
`specification is not limiting -- but one example where the
`parameters come in. They're processed. Additional
`information can be added. That's 141. And then there's some
`more calculations, and then there's a sending and then, in
`130, the response is displayed. But none of that requires
`that it has to be sort of a one-to-one kind of relationship.
`And so let me explain what happens.
`
`information. That's the exercise-related information. So
`
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`that is sent as a package of material.
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`value. And if there was a cardio fitness run, they'll
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`that the cardio fitness level and score for each one of them.
`And that comes back to the device.
`And that -- so that response -- so now looking at
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 24 of 76
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`the claim language, that response is certainly associated
`with a calculation that was based on exercise-related
`information that was received. That's exactly -- this is the
`
`what comes out is the cardio fitness level and score.
`And the thing that Fitbit argues is they say,
`well -- they don't argue it so much with the run, because the
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`that.
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`And so that is how the system works, and we submit
`that that is a response that is associated with a calculation
`that was based upon the exercise-related information. The
`claim is not nearly as strict as they would ask the Court to
`interpret it.
`So one other thing -- I just note this briefly.
`This is a little bit about the run. I had mentioned how it
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`Case 1:19-cv-11586-FDS Document 410 Filed 12/09/22 Page 25 of 76
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`and this is just a citation for it. And we added the
`formulation, but that's -- that's in a lot of the materials.
`
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