Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 1 of 62 PageID #: 3954
`1
`
`IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
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`)
`PELOTON INTERACTIVE, INC.,
`)
`
`
`)
`
`Plaintiff,
`) C.A. No. 19-1903(RGA)
`
`)
`v.
`
`
`)
`
`
`ECHELON FITNESS MULTIMEDIA, LLC,)
`ECHELON FITNESS, LLC, ECHELON )
`STUDIO, LLC and VIATEK CONSUMER )
`PRODUCTS GROUP, INC.,
`)
`
`Defendants.
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
`PELOTON INTERACTIVE, INC.,
`)
`Plaintiff and
`Counter-Defendant, )
`) C.A. No. 20-662(RGA)
`
`))
`
`))
`
`)
`
`) J
`
`. Caleb Boggs Courthouse
`844 North King Street
`Wilmington, Delaware
`Thursday, June 24, 2021
`9:02 a.m.
`Markman Hearing
`
`BEFORE: THE HONORABLE RICHARD G. ANDREWS, U.S.D.C.J.
`APPEARANCES:
`
`
`
`MORRIS NICHOLS ARSHT & TUNNELL, LLP
`BY: MICHAEL J. FLYNN, ESQUIRE
`-and-
`
`))
`
`))
`
`v.
`ICON HEALTH & FITNESS, INC.,
`Defendant and
`Counterclaimant.
`
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
`
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`)
`PELOTON INTERACTIVE, INC.,
`)
`
`
`)
`
`Plaintiff,
`) C.A. No. 19-1903(RGA)
`
`)
`v.
`
`
`)
`
`
`ECHELON FITNESS MULTIMEDIA, LLC,)
`ECHELON FITNESS, LLC, ECHELON )
`STUDIO, LLC and VIATEK CONSUMER )
`PRODUCTS GROUP, INC.,
`)
`
`Defendants.
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
`PELOTON INTERACTIVE, INC.,
`)
`Plaintiff and
`Counter-Defendant, )
`) C.A. No. 20-662(RGA)
`
`))
`
`))
`
`)
`
`) J
`
`. Caleb Boggs Courthouse
`844 North King Street
`Wilmington, Delaware
`Thursday, June 24, 2021
`9:02 a.m.
`Markman Hearing
`
`BEFORE: THE HONORABLE RICHARD G. ANDREWS, U.S.D.C.J.
`APPEARANCES:
`
`
`
`MORRIS NICHOLS ARSHT & TUNNELL, LLP
`BY: MICHAEL J. FLYNN, ESQUIRE
`-and-
`
`))
`
`))
`
`v.
`ICON HEALTH & FITNESS, INC.,
`Defendant and
`Counterclaimant.
`
`
`
`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 2 of 62 PageID #: 3955
`2
`
`
`APPEARANCES CONTINUED:
`LATHAM & WATKINS LLP
`BY: LAWRENCE J. GOTTS, ESQUIRE
`BY: MARC N. ZUBICK, ESQUIRE
`BY: SUSAN Y. TULL, ESQUIRE
`BY: DAVID F. KOWALSKI, ESQUIRE
`BY: JOSEPH C. AKALSKI, ESQUIRE
`
`For the Plaintiff and
`Counter-Defendant
`
`
`
`GREENBERG TRAURIG, LLP
`BY: BENJAMIN J. SCHLADWEILER, ESQUIRE
`BY: DOUGLAS R. WEIDER, ESQUIRE
`BY: JAMES L. RYERSON, ESQUIRE
`For the Echelon Defendants
`
`RICHARDS LAYTON & FINGER LLP
`BY: FREDERICK L. COTTRELL, III, ESQUIRE
`BY: CHRISTINE D. HAYNES, ESQUIRE
`
`-and-
`MASCHOFF BRENNAN
`BY: STERLING A. BRENNAN, ESQUIRE
`BY: DAVID R. WRIGHT, ESQUIRE
`BY: TAYLOR J. WRIGHT, ESQUIRE
`For the Defendant and
`Counterclaimant
`ICON Health & Fitness, Inc.
`
`
`
`*** PROCEEDINGS ***
`
`THE COURT: All right. Good morning, everyone.
`Please be seated.
`When you're presenting, you know, you can take
`your mask off. It helps everybody hear you.
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 3 of 62 PageID #: 3956
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`All right. So this is the Markman in Peloton
`vs. Echelon and Peloton vs. ICON. And I'm looking for
`somebody I know.
`Oh, is that Mr. Flynn there?
`MR. FLYNN: It is, Your Honor.
`THE COURT: So in any event, I know you. Who do
`you represent?
`MR. FLYNN: I'm here on behalf of Peloton, Your
`Honor. I'm joined today by my co-counsel from Latham &
`Watkins, Larry Gotts, Marc Zubick, Susan Tull, David
`Kowalski and Joe Akalski.
`THE COURT: All right. Well, if you present and
`you're someone other than Mr. Gotts, you'll have to remind
`me of who you are when you start. In any event, good
`morning to you all.
`On this side, is that Mr. Cottrell? You know, I
`don't know, my glasses are getting fogged up, so that and
`the fact that you're wearing a disguise is making it
`difficult.
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`But yes, good morning.
`MR. COTTRELL: Well, good morning, your Honor.
`I am tough to miss, though.
`THE COURT: Well, when you stand, yes.
`MR. COTTRELL: Right. Fred Cottrell from
`Richards Layton for ICON in 20-662, and of course, Christine
`
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 4 of 62 PageID #: 3957
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`Haynes from Richards Layton. And from Maschoff Brennan,
`Sterling Brennan, David Wright, and Taylor Wright. And
`we're pleased to say our client is here, the general counsel
`of ICON, Everett Smith.
`Thank you, Your Honor.
`THE COURT: All right. And I lost track, is
`Echelon here?
`MR. SCHLADWEILER: I am, Your Honor.
`THE COURT: Yes, Mr. Schladweiler, unlike most
`of the world, you haven't changed much since I last saw you.
`MR. SCHLADWEILER: I'm here on behalf of Echelon
`for Greenberg Traurig. And I'm joined today by Doug Weider
`and James Ryerson from our New Jersey office.
`THE COURT: All right. Well, good morning to
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`you all.
`
`So you know, when I have the opportunity, I try
`to get out to you what I'm thinking about things. I don't
`usually have the opportunity, but I did this time.
`Is there anything -- so you understand what the
`time limits are? All right. So I guess then we should
`start with you, Mr. Gotts.
`MR. GOTTS: Thank you, Your Honor. It may be
`helpful to tell you what we agreed upon in terms of what's
`going to be argued and what doesn't need to be argued, just
`to set the agenda.
`
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 5 of 62 PageID #: 3958
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`THE COURT: Okay.
`MR. GOTTS: The term classes, we, the
`plaintiffs, will stand on the brief on classes, so we do not
`intend to offer any further argument on that.
`With regard to archived exercise classes, it's
`my understanding that Defendants plan to argue that, and we
`will -- Plaintiffs will, of course, respond.
`Leader board, I believe both parties are
`standing on the papers and the construction for the Court.
`Performance data, the Court's requested
`arguments, so we'll, of course, argue that.
`And finally, on the causes movement term, the
`Plaintiffs, Peloton, would plan to argue that, and I'm
`confident that Defendants will respond.
`THE COURT: Okay.
`MR. GOTTS: So with that, I think we're turning
`to archived classes, and we'll respond to whatever argument
`defendants have on that.
`THE COURT: All right. Because even though it's
`not word for word, my proposal is essentially what you were
`asking for?
`MR. GOTTS: Correct, Your Honor.
`THE COURT: All right. That's fair enough.
`All right. Go ahead, somebody.
`MR. WRIGHT: You want me at the podium?
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 6 of 62 PageID #: 3959
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`THE COURT: No, no. As long as you speak up,
`you can stand there.
`MR. WRIGHT: Yes, so we just have a few on
`behalf of defendants, a few suggestions that we'd like the
`Court to consider. I think the Court's proposed
`construction is close, but the modification we would suggest
`is to remove the language recorded. We just have a couple
`reasons for that.
`The first is our view, the plain meaning of
`archived doesn't necessarily include that limitation of
`recorded. Really archived is more about the ability to
`store and preserve something, and you can later retrieve it
`from that archive. So the class content is just stored and
`preserved, and this recorded language seems to be adding an
`additional limitation on top of archived.
`If Peloton wanted to limit its claim to recorded
`content, it could have done so in the drafting of these
`patent claims. The main concern is that it appears that
`adding recording in, and this may not have been the Court's
`intention, but it appears to limit what the class content is
`to strictly audio or video formats only. And the scope of
`the claims, at least the independent claims, shouldn't be
`limited to just those formats of the class content.
`THE COURT: So the thing that you're saying is
`excluding would be, for example, a cartoon that's put into
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 7 of 62 PageID #: 3960
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`the system?
`MR. WRIGHT: Well, that's one example or you
`could have like a text or image-based class. And the reason
`why we're concerned about that limitation is if you look at
`dependent claim 4 of the '026 patent, and I'll just read it
`there. It says, "wherein the content of the selected
`archived exercise class comprises digital video content and
`audio content."
`So by implication, claim 1 has to be read broad
`enough that, you know, not limited to audio and video. And
`so our concern is just with that language of recorded, that
`it's going to further limit what that content for the class
`would be.
`
`THE COURT: And you said something about text
`based. I mean, you --
`MR. WRIGHT: Oh, as an example?
`THE COURT: Well, you know, first off, I will
`tell you that when I was thinking about this, you know, part
`of it was I didn't think you all were right at all, but I
`was thinking recorded, stored, or recorded and stored. You
`know, it seemed to me that there were -- it wasn't
`necessarily -- I wasn't necessarily sold on what the
`plaintiffs were proposing, though it certainly seemed to me
`a lot closer than what you were proposing.
`But now what I'm trying to do is just figure
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 8 of 62 PageID #: 3961
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`out, because I was thinking about what you were saying which
`is, you know, when I think of the word archived just in
`general, you know, it's stuff that's kept more or less --
`MR. WRIGHT: Right.
`THE COURT: And so partly, I guess I was
`wondering in the context of this patent or these patents,
`you know, whether the stuff that's kept is recorded stuff.
`And so, in any event, you said something about text. And so
`is it something that you could have -- I'm trying to imagine
`an exercise class that is text.
`MR. WRIGHT: Right. Yeah. I mean, I'm
`envisioning if you have a class content, it could be images
`that are displayed. It may be text prompts. And so there's
`not necessarily an audio or video component of the class,
`but that content could be archived and stored so that you
`could later access it from the archive and say, I want to do
`this class that's, you know, maybe a tour of some sort that
`uses images.
`THE COURT: So in other words, if you had a
`picture of a person on, let's say, a bicycle, just a still,
`a drawing, and then every -- at some rhythmic thing, the
`word pedal, pedal, pedal showed up, you'd say, Well, that
`could be archived, but it's not recorded.
`MR. WRIGHT: Yeah, I think that could be a
`archived class, and I guess it depends on what you're
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 9 of 62 PageID #: 3962
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`intending with recorded. Our concern is just that if you
`add that limitation of recorded, it seems to be modifying
`what class content can be which I think that could be broad.
`It could be -- you mentioned cartoons. There could be some
`sort of virtual rendering that maybe isn't necessarily, you
`know, your recording the class and then saving it. It could
`be, you know, there are aspects that are archived as far as
`other user performance, but that whole class experience
`maybe isn't necessarily recorded. So that's just our
`concern.
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`I guess also the closed class environment, I
`mean, I could foresee instances where that wouldn't
`necessarily be recorded, but it would be an archived class
`that you could choose from in the library of classes. So
`that's really the only issue that defendants see with the
`language. It's just --
`THE COURT: And your basic argument there is you
`sort of said some kind of version of claim differentiation
`based on this other claim you mentioned. And just that the
`word archived, at least in general, just refers to -- it's,
`what's the word, agnostic, as to what the thing is that's
`stored.
`
`MR. WRIGHT: Yeah, I think -- and I think our
`slide -- let's see. It's really -- it's not about the type
`of content. It's -- archived is just kind of saying it's
`
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 10 of 62 PageID #: 3963
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`stored so that you do it on demand. I think that's what the
`patent specification talks about. But those are our
`concerns and those are the points I just wanted to raise
`with the Court.
`THE COURT: Okay. That does seem all reasonable
`things for you to be saying. So unless there's anything
`more, let me have the other side's response because I'm
`certainly not 100 percent set on what I proposed.
`MR. GOTTS: Thank you, Your Honor. Just to put
`a little backdrop on the patent, to put the context around
`it, this patent is directed to taking the gym environment or
`live class environment and then emulating it, you know, in
`your home remotely and to replicate that environment. The
`background of the invention in the very beginning explains
`that.
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`And if I go to slide --
`THE COURT: But is there a limitation that
`requires that?
`MR. GOTTS: I was going to explain. We all --
`when we talk about archived class, Your Honor, the
`patents -- if you can go to Slide 6, Dave, uses the term
`archived and recorded repeatedly interchangeably. You'll
`see it talks about live or archived classes in the Summary
`of the Invention on Slide 6. And then it goes on later on
`in other places to talk about live or recorded.
`
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`
`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 11 of 62 PageID #: 3964
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`And you'll see consistently throughout, the
`juxtaposition is live or archived or live or recorded. And
`what's made clear throughout is that which is recorded is
`that -- which was archived is what was previously live. The
`patent is not about virtual classes which is what they
`mention on Page 19 of the combined brief. In fact, what
`they did on Page 19 is they quoted from Column 9, Lines 33
`to 37 or so where it says the various video streams.
`First of all, it starts out on Line 28 saying
`that the interface can present one or more video streams for
`a range of different sources. Right. For example, the
`video stream may be the live archived class content.
`And then it goes on to say the various video
`streams may record live or recorded instructor video or any
`other video content including one or more of the video chat
`streams. But it's clear that in every instance, the live or
`the prior stream is live or recorded video content. There's
`nothing -- they added the word virtual to virtual courses in
`their brief on Page 19, but that has nothing to do with
`virtual courses. There's no reference to virtual courses.
`It's about replicating live or recorded and as recorded is
`used interchangeably with archived.
`If I were to talk about archiving my email, what
`do I do with it? I store it or record it. Right. I store
`it or save it, and then I -- to which is recording. And
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 12 of 62 PageID #: 3965
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`then I -- it's stored afterwards. That's archived emails,
`an email which existed and is later stored. It doesn't
`include --
`
`THE COURT: But archived in the sense that
`Mr. Wright was suggesting, that is something that existed in
`the past, too, and is stored; right?
`MR. GOTTS: No, something that was created and
`stored, but it's not a live event which was then
`subsequently stored. And that's what the patent is talking
`about.
`
`THE COURT: So to put this into sort of usual
`patent claim construction lingo in the abstract, archived
`would not involve recorded, it would just involve stored;
`right? It's basically some combination of in the context of
`this patent, the broader normal meaning of archived is not
`so broad.
`
`I mean, is that a fair statement of your
`
`position?
`
`MR. GOTTS: I guess it's not unfair, but I'd
`like to elaborate.
`THE COURT: Yes. Yes.
`MR. GOTTS: The class -- the term is archived
`exercise class, right. We're not construing just the term
`archived. The archived exercise class is an exercise class,
`a live class which has then been archived, right. There's
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 13 of 62 PageID #: 3966
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`no reference anywhere in this patent to an exercise class
`that is anything but a live class except for the ones that
`are subsequently archived and stored so that you can call
`them up to replicate that experience, that live experience
`by synchronizing the data and so forth later on.
`So, yes, if you look at archive in the abstract,
`archive means store. But what are you storing? It's an
`archived exercise class, and that exercise class throughout,
`that's described in the specification, is a live exercise
`class that's been subsequently stored. And that's -- so
`it's a class that was once live, which is now archived and
`stored, recorded and stored.
`THE COURT: So to some extent then, part of your
`argument, not your whole argument, part of your argument is
`in the context of the claim which has this exercise class.
`And after all, the term that somebody, I guess, you asked to
`be construed, was archived exercise class, so you sort of
`consider at least those three words and their relationship
`to each other. And so to some extent, what you're saying is
`in the claim itself, the use of the word exercise class puts
`some limits on what archived can mean.
`MR. GOTTS: Correct. In other words, you have
`to ask what's archived, and what's archived is the exercise
`class. And the only kinds of exercise classes that are
`described within the specification are live classes, classes
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`that were at least currently live or were once live and
`subsequently recorded and stored.
`THE COURT: Okay. Anything else you'd like to
`say about this?
`MR. GOTTS: I don't believe so, Your Honor. I
`think that covers it.
`THE COURT: All right. So Mr. Wright, what do
`you think about what he just said?
`MR. WRIGHT: Yeah, it seems like Peloton
`suggested modifications are really just limiting class
`content to a live video of a class that took place, and I
`don't think that that's necessarily what the claims go to.
`If you seek a broad claim that just says archived exercise
`class and later on you say, well, that contents -- you know,
`we further limit that content to video and audio content --
`THE COURT: Well, so I think what he's saying
`is, at least in part, that exercise class is essentially --
`in the context of the patents, an exercise class was once a
`live class.
`Do you agree? I take it you don't agree with
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`that.
`
`MR. WRIGHT: I don't think it has to have been a
`live class at some point. You could create content that's
`available on demand in an archive, and it doesn't have to
`have at one time have been live. I don't think that
`
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 15 of 62 PageID #: 3968
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`that's --
`
`THE COURT: Well, of course, you can create
`content and have it available, but would that -- I guess the
`question is, is the content an exercise class if it wasn't
`at some point in the past actually an exercise class?
`MR. WRIGHT: Yeah. I mean, the patent goes on
`and on about an on demand exercise class. It doesn't say
`that you can only select those classes if they had been
`previously live scheduled. I just think that you can create
`content that's maybe not scheduled, it's customized for just
`the archived experience, however you create that content,
`whether it's limited to audio, video or some other type of
`exercise class. So --
`THE COURT: Is there anything in the
`specification that you can point me to that indicates that
`non-live classes are part of what's envisioned by the term
`exercise class?
`MR. WRIGHT: I think when the specification
`talks about there being on demand content, I don't think
`that has to be prerecorded and then now it's available.
`THE COURT: Okay. All right. Well --
`MR. WRIGHT: I don't have anything further, Your
`
`Honor.
`
`THE COURT: Mr. Gotts.
`MR. GOTTS: Yes, Your Honor, just a couple of
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 16 of 62 PageID #: 3969
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`quick points. I think now I know what they're rearguing is
`the on demand aspect. All of the on demand content is just
`simply being able to call up the previously recorded live
`classes, and there is nothing in the spec anywhere of any
`exercise class that is anything other than what was once a
`live exercise class. And the notion of virtual class finds
`no -- it doesn't appear anywhere in the patent.
`THE COURT: Okay. Well, I will take that under
`advisement and consider what you've said and get back to
`you.
`
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`MR. GOTTS: Thank you, Your Honor.
`THE COURT: All right. So if I understood what
`Mr. Gotts said at the beginning, we're now going to go on to
`causing the movement of a portion of the exercise device; is
`that right?
`MR. GOTTS: Your Honor, I don't have a
`preference on order. I think we were going to just go
`through the order of the brief which would take us next, I
`guess, to performance data.
`THE COURT: Well, that would be fine, too.
`
`Mr. Wright.
`
`MR. WRIGHT: I think for flow purposes, maybe we
`just do the cleanup because performance data is going to
`take a lot more time than --
`MR. GOTTS: That's fine.
`
`
`
`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 17 of 62 PageID #: 3970
`17
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`MR. WRIGHT: But whatever, Your Honor.
`THE COURT: Well, I kind of thought -- I don't
`think it makes all that much difference, but why don't we do
`the last one, the causing the movement because I do think
`that performance data is something that -- I think that
`would be more efficient for me.
`So who wants to go first on that?
`MR. GOTTS: I think we're the ones challenging
`or at least questioning Your Honor's construction, that
`would be us, and Ms. Tull is going to address that.
`THE COURT: And I'm sorry, you are?
`MS. TULL: Ms. Tull.
`THE COURT: Tull like T-U-L-L?
`MS. TULL: Correct, like Jethro.
`THE COURT: All right.
`MS. TULL: Thank you.
`THE COURT: I guess that's a practiced line for
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`you.
`
`Ms. Tull.
`
`MS. TULL: It is at this point.
`THE COURT: All right. Well, go ahead,
`
`MS. TULL: And Your Honor, we certainly agree
`that there's nothing within this term that requires the
`application of force which is what the Defendants proposed.
`We would like clarification on the second part of Your
`
`
`
`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 18 of 62 PageID #: 3971
`18
`
`Honor's proposed construction which stated that the claim,
`there's nothing in the claim that can be met with the
`assertion that this term is met by the action of pushing a
`button. And we agree that the claim as a whole certainly
`cannot be met by the action of pushing a button, but we
`don't believe that it is, this limitation in particular,
`that reads on that additional requirement.
`THE COURT: Well, so the way you've stated is
`kind of the way that I thought about it when I looked at it
`which is, and I don't mean any criticism to anybody here,
`but you know, envisioning my job, you know, to determine the
`scope of the patent sometimes it's hard to know which term
`you're supposed to be looking at to find this scope thing,
`even though, at least in my experience, it's always
`traditional that that's what you do. You find terms and
`when you're trying to figure out the scope, you apply it to
`some term.
`
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`So basically what I was trying to say here is
`that this term or some version of it appears three times in
`claim 1 or whatever the first patent is, the one that's in
`the brief. And you know, because of the way that I read it
`was at least maybe the second and third time it's used, it's
`apparent that it's an ongoing thing with some other part of
`the limitation. And so that's the reason why I said, you
`know, something that -- my opinion was that something that
`
`
`
`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 19 of 62 PageID #: 3972
`19
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`might literally, for the first time it appears, you know,
`arguably meet it. You have to construe this thing the same
`way for all three. And it seemed to me pretty clear that
`pushing a button to start a treadmill is not something that
`meets all of the -- you know, that would be an
`interpretation to me that wouldn't make sense for the way
`that the claim is used in the three different places.
`That's what I was trying to say.
`MS. TULL: I think we are very close, Your
`Honor. I think our question or our concern is that we think
`for -- in particular, if you look at claim 1 of the '026
`patent where we have highlighted in green, and it talks
`about a sensor operable to generate first user performance
`data based on activity by the first user, that that is the
`language that implies that there is activity by the user of
`some sort and, in fact, states it as opposed to necessarily
`the language when the first -- when the first user causes
`the movement of the portion of the exercise device. So we
`don't disagree that there needs to be an activity by the
`user. We just believe that it's not necessarily hinged upon
`the specific phrase cause the movement of the portion of the
`exercise device as opposed to the other claim language.
`THE COURT: Well, so I'm not sure that we
`disagree at all, but I guess what I'm wondering is maybe
`there's some ramification of what we're talking about that
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 20 of 62 PageID #: 3973
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`I'm not seeing. And I'm just wondering, and I don't mean
`this, again, in any critical fashion, what's the hidden
`agenda here that you all know about, and I don't?
`MS. TULL: If we could jump to Slide 47. So
`Your Honor mentioned the treadmill example, and we do
`believe that the claim as a whole would be met by it, by a
`user pushing the start button on a treadmill, then hopping
`on the treadmill, running on it. So that's performance
`data.
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`The performance parameters are generated, they
`participate in the exercise class, but they, in fact, are
`not the ones powering the motor that's driving the tread
`belt, that the movement of the belt itself is caused by the
`user, for example, pressing the incline button, or adjusting
`the resistance, or the speed on the belt. But they are
`still engaged in activity generating performance data,
`including heart rate. They're still participating in the
`class, all of the other elements of the claim. They are
`just not physically manipulating the exercise device
`themselves beyond pushing a button.
`THE COURT: Ah, so maybe the thing, because I
`hadn't -- I have actually in my life had a treadmill, so I
`understand about the incline things. As you can see, I
`don't use it anymore. But when I was thinking about this
`and trying to figure out what was going on, I hadn't thought
`
`
`
`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 21 of 62 PageID #: 3974
`21
`
`about the subsequent pushing of the button. What I imagined
`was that the dispute, that the underlying thing was could
`you push a button to start the machine and that counts for
`all these things, and I was saying -- and I guess you're not
`disagreeing that, no, that doesn't.
`But I hadn't understood the rest of what you
`just said or it just hadn't occurred to me, so that's not
`something that I have an opinion about right this minute.
`So that being said, so I -- hold on a minute. Can you put
`up claim 1 again on the screen?
`So do I take it that what you're saying or at
`least suggesting is that at some point down the road, you're
`going to say different actions of the user satisfy the
`different or at least it doesn't have to be the exact same
`action that satisfies each of the limitations?
`MS. TULL: That is correct, Your Honor. And we
`think that the limitations are directed to the user causing
`movement, but that the ones that require the user to
`participate in the class to engage in activity are different
`from the cause movement. They may appear in the same
`limitation, but we do think that there is a difference
`between requiring the sensor operable to generate first user
`performance data based on activity that's telling you how
`the sensor data is generated and that's based on activity as
`opposed to when, and that's when the first user causes the
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 22 of 62 PageID #: 3975
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`
`movement.
`
`So returning to the treadmill example, the user
`could be pushing the ramp button up and down. I'm going to
`increase my elevation, decrease my elevation in response to
`what an instructor is telling me, and I'm pushing the button
`to cause the movement to participate in the class. And the
`performance data is based on my participating in the class
`as a user, but I am not the one who is physically lifting
`the treadmill ramp or running the belt on the treadmill as
`the user.
`
`THE COURT: All right. At some level I've
`understood what you've just said. Is there anything else
`you want to say?
`MS. TULL: No, Your Honor.
`THE COURT: All right. Thank you, Ms. Tull.
`What about you all?
`MR. WRIGHT: Again, just really quick, and I
`think it may be that this isn't necessarily a claim
`construction issue, but it could be an issue after
`application of the claims for infringement. And I apologize
`if it seemed like there was some hidden agenda, but we --
`THE COURT: No, no, no. Sorry, everybody has an
`
`agenda.
`
`MR. WRIGHT: No, I know that, but I was hoping
`that it was clear that we -- our view is that maybe this
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 23 of 62 PageID #: 3976
`23
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`doesn't apply to the treadmill, but maybe other exercise
`analogies or other devices, and that was really the crux of
`our argument. And I think, as your order points out, this
`may be an issue of application to that modality rather than
`something to be resolved at claim construction.
`THE COURT: Okay. So I guess what I'm wondering
`is, because I've now lost the thread a little bit, is there
`something that either one of you wants me to do in regards
`to the proposed construction for causing the movement of a
`portion of the exercise device?
`MR. WRIGHT: We don't have any issue with
`changing the way Your Honor has proposed.
`MS. TULL: Your Honor, I think we've received
`the clarification we hoped to. Thank you.
`THE COURT: Okay. Well, that's good. All
`right. Thank you.
`So basically I think the case then is that I'm
`going to adopt what I've proposed for classes, leader board,
`and causing movement of a portion of the exercise device.
`I'm going to take archived exercise classes under
`advisement.
`And shall we go on to performance data which I
`have no -- either I was confused, or I had no opinion, or
`both, and so I'm certainly open to argument here. And I
`presume you're going to go first?
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`Case 1:20-cv-00662-RGA Document 125 Filed 06/28/21 Page 24 of 62 PageID #: 3977
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`MR. ZUBICK: Yes, please, Your Honor.
`THE COURT: And you are?
`MR. ZUBICK: Marc Zubick from Latham & Watkins.
`THE COURT: Zubick like Z-U-B-I-K?
`MR. ZUBICK: With a C before the K, otherwise
`you've got it.
`THE COURT: And what rock band are you like?
`MR. ZUBICK: Also like Jethro Tull. I had no
`line ready. So I apologize, first of all, that you were
`confused, but let me see --
`THE COURT: No, no, no, it's confusing stuff.
`I'm not -- you all spend way too much time apologizing.
`MR. ZUBICK: That may be, but I'm sorry,
`nonetheless. It did get an outside amount of attention in
`the brief, but I think what I can do today is keep the issue
`very simple, and I can give you a very simple way of
`resolving it.
`So Dave, let's go to the first slide. There are
`two terms that are involved in this dispute. One is
`performance data, obviously. The other is the term we've
`agreed upon which is performance parameters. And the
`parties, thankfully, for the length of the brief, agreed
`performance paramete
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