throbber
8 S
`
`I
`
`_
`
`._
`‘‘
`
`_H_.
`-
`
`K
`
`,
`
`.
`
`__
`
`I
`
`V
`
`_
`
`'
`
`November 2, 2015
`
`Gibson, Dunn & Crutcher LLP
`200 Park Avenue
`New York, NY 101660193
`Tel 212.351.4000
`www.gibsondunn.com
`
`Josh Krevitt
`Direct: +1 212.351.2490’
`Fax: +1 212.351.6390
`JKrevitt@gibsondunn.com
`
`VIA COURIER
`
`The Honorable Lisa R. Barton
`
`Secretary
`United States International Trade Commission
`
`a
`500 E. Street, S.W.
`Washington, D.C. 20436
`
`Re: In the Matter of Certain Wearable Activity Tracking Devices, Systems, and Components
`Thereof‘ Inv. N0. 33 7-TA-
`'
`
`Dear Secretary Barton:
`
`Inc. against proposed
`filing on behalf of Complainant Fitbit,
`Enclosed for
`(collectively, “Proposed
`Respondents AliphCom d/b/a Jawbone and B'odyMedia,
`Inc.
`Respondents”) are documents in support of Complainant’s request that the Commission
`commence an investigation pursuant to Section 337 of the Tariff Act of 1930, as amended.
`Pursuant
`to the Commission Rules of Practice and Procedure, request for confidential
`treatment of Fitbit’s Complaint and Confidential Exhibits 38C-40C is
`transmitted
`concurrently with this submission.
`
`Accordingly, Complainant Fitbiti submits the following documents for filing:
`
`1. An original and eight (8) copies of the verified Non-Confidential Complaint and the
`Public Interest Statement, one (1) CD of the accompanying Non-Confidential
`exhibits. (19 CFR §§ 201 .6(c), 210.4(f)(2), 210.8(a)(1)(i), and 210.8(b).)
`
`2. An original and eight (8) copies of the verified Confidential Complaint and the
`Public Interest Statement, one (1) CD of the accompanying Confidential Exhibits
`38C-40C. (19 CFR §§ 201.6(c), 210.4(t)(2), 210.8(a)(1)(i), and 210.8(b).)
`
`3. Two (2) additional copies of both the verified Non-Confidential Complaint and the
`Public Interest Statement and two (2) CDs of the Non-Confidential exhibits, one (1)
`each
`for
`service upon each of-
`the Proposed “Respondents.
`(19 CFR
`§§ 2 l 0.8(a)(l)(iii).)
`
`4. Two (2) additional copies of the verified Confidential Complaint and the Public
`Interest Statement and two (2) CDs of the Confidential Exhibits 38C-40C, one (1)
`
`Beijing - Brussels - Century City - Dallas - Denver - Dubai - Hong Kong - London ' Los Angeles ~ Munich
`New York - Orange County - Palo Alto - Paris - San Francisco - S50 Paulo - Singapore - Washington. D.(:.
`
`

`
`ozesgoiw Bowl
`
`The Honorable Lisa R. Barton
`
`November 2, 2015
`
`Page 2
`
`service upon each of
`for
`each
`§§ 210.8(a)(l)(iii).)
`
`the Proposed Respondents.
`
`(19 CFR
`
`5. The original certified copies of U.S. Patent No. 8,920,332 (“the ’332 patent”), U.S.
`Patent No. 8,868,377 (“the ’377" patent”), and US. Patent No. 9,089,760 (“the ’760
`patent”) (collectively, “the Patents at Issue” or “Fitbit’s Patents”); and three (3)
`additional copies of the patents on CD, cited in the Complaint as Exhibits 1-3 (19
`CFR §§ 2l0.8(a)(l)(iii)t and 210.12(a)(9)(i).)
`
`6. The original certified copies of the assignments for the Patents at Issue and three (3)
`additional copies of the assignments for the Patents at Issue on CD, cited in the
`Complaint as Exhibits 4-6. (19 CFR §§ 210.8(a)(l)(iii) and 210.l2(a)(9)(ii).)
`
`7. The original certified copies of the prosecution histories of the Patents at Issue
`included in the Complaint as Appendices A, C, and E, and three (3) additional copies
`of each on separate CDs. (19 CFR § 2l0.12(c)(1).)
`
`8. Four (4) copies on separate CDs of patent and technical reference documents
`identified in each of the prosecution histories of the Patents at Issue, included in the
`Complaint as Appendices B, D, and F. (19 CFR § 210.12(c)(2).)
`
`Thank you for your attention to this matter. Please contact me if you have any questions.
`
`Sincerely,
`
`Josh Krevitt
`
`JK/jcf
`
`Enclosures:
`
`

`
`E
`
`C
`
`p
`
`_
`
`I
`
`/
`
`Gibson, Dunn & Crutcher LLP
`
`200 Park Avenue
`New York, NY 101660193
`Tel 212.351.4000
`www.gi1>sondunn.com 5
`
`Josh Krevitt
`Direct: +1 212.351.2490
`Fax: +1 212.351.6390
`JKrevitt@gibsondunn.com
`
`November 2, 2015
`
`VIA COURIER
`
`The Honorable Lisa R. Barton
`
`Secretary
`United States International Trade Commission
`
`500 E. Street, S.W.
`
`Washington, D.C. 20436
`
`Re: In the Matter of Certain Wearable Activity Tracking Devices, Systems, and Components
`Thereof‘ Inv. No. 33 7'-TA-
`'
`
`Dear Secretary Barton:
`
`In accordance with Commission Rules 210.6 and 210.5, 19 CFR §§ 201.01 and
`210.5, Complainant Fitbit requests confidential
`treatment of the business information
`contained in its Complaint and Confidential Exhibits 38C-40C. A certification is provided
`below pursuant to 19 C.F.R. §§ 201.06 and 210.5 requesting confidential treatment of Fitbit’s
`Complaints and Confidential Exhibits 38C-40C.
`
`._
`
`The information for which confidential treatment is sought is proprietary commercial
`information not otherwise publicly available. Specifically, the Complaint and Confidential
`Exhibits 38C-40C (which contain sworn declarations of Fitbit’s CFO and CTO and a list of
`licensed entities for the Patents-at-Issue) contain proprietary and confidential business and
`technical
`information of Complainant Fitbit and Fitbit’s investments in the domestic
`— industry.
`
`"'”’"‘I"l1e information described above qualifies as confidential business information pursuant to
`Commission Rule 210.6 because:
`
`a)
`
`It is not available to the public;
`
`b) Unauthorized disclosure of such information could cause substantial harm to the
`competitive position of Fitbit; and
`
`c)
`
`Its disclosure could impair the Commissions’ ability to obtain information necessary
`to perform its statutory function.
`
`Beijing ~ Brussels - Century City ~ Dallas - Denver - Dubai ~ Hong Kong ~ London - Los Angeles - Munich
`New York - Orange County - Palo Alto ~ Paris - San Francisco - S50 Paulo - Singapore - Washington. 0.C.
`
`

`
`G§%§@N DUNN
`
`The Honorable Lisa R. Barton
`
`November 2, 2015
`
`Page 2
`
`Thank you for your attention to this matter. Please contact me if you have any questions.
`
`Sincerely,
`
`Josh Krevitt
`
`Jlfljcf
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C.
`
`Investigation No.
`
`
`
`CERTAIN WEARABLE ACTIVITY
`TRACKING DEVICES, SYSTEMS, AND
`COMPONENTS THEREOF
`
`In the'Matter of
`
`COMPLAINANT FITBIT, INC.’S STATEMENT ON THE PUBLIC INTEREST I
`
`In support of its Complaint, filed on October 30, .2015 and titled “In the Matter of Certain
`
`Wearable Activity Tracking Devices, Systems, and Components Thereof,” Complainant Fitbit,
`Inc. (“Fitbit”) respectfillly submits this Statement of Public Interest, as required by 19 CPR.‘
`
`.§ 2l0.8(b) for the commencement of an investigation directed to -proposed Respondents
`
`AliphCom d/b/a Jawbone and BodyMedia, Inc. (collectively, “Jawbone”).
`
`The present statement addresses the four public interest factors that must be considered
`
`before issuing an exclusion order pursuant to 19 U.S.C. § l337(d)(1): (1) public health and
`welfare in the United States, (2) competitive conditions in the United States economy, (3) the
`production of like or directly competitive articles in the United States, and (4) United States.
`
`consumers. As discussed below, none of the four statutorily-enumerated public interest factors
`
`counsels against the issuance of an exclusion order directed to proposed Respondents’ infringing
`
`wearable fitness and activity hackers identified in the Complaint (the “Accused Products”).
`Indeed, The Commission has found that
`exclusion order would violate the public
`
`interest only in a limited number of cases in which “inadequate supply [of the articles at issue]
`within the United States—by both the patentee and the domestic licensees—meant that an
`exclusion order would deprive the public of products necessary for some important health or
`
`welfare need: energy efiicient automobiles, basic scientific research, or hospital equipment.”
`
`Spansion, Inc. v. Int ’l Trade Comm ’n, 629 F.3d 1331, 1360 (Fed. Cir. 2010). See, e.g., Fluidized
`Supporting Apparatus,‘ 337-TA—l82/188, 1984 WL 63741 (Oct. 1984) (no therapeutically
`
`

`
`comparable product available to» hospital bed for burn patients); Inclined-Field Acceleration
`Tubes, 337-TA—67, 0080 WL 594319 (Dec. 1980) (no high-quality domestic alternatives to
`
`imported tubes used in nuclear research); Automatic Crankpin Grinders, 337-TA—60, 0079 WL
`
`419349 (Dec. 1979) (no timely supply of parts for automakers to meet congressionally mandated
`
`fuel-efliciency standards).
`This investigation does not raise public interest concerns ofthe type and severity at issue
`
`in the aforementioned cases. The ways in which the Accused Products are used as well as the
`
`anticipated effects of an exclusion order on each public interest factor are set forth separately
`
`below.
`
`1.
`
`The Requested Remedies Relate To Wearable Fitness and Activity
`Trackers
`
`The Accused Products are wearable fitness and activity trackers, which are electronic
`
`devices used to monitor various indicia of health and fitness. For example—and depending on
`
`the version or model of the device used—-individuals may wear such devices on their person in
`
`order to track the number of steps they have taken in a given period of time, the amount of
`
`calories they have burnt, the duration and quality oftheir sleep, or their heart rate.
`
`On information and belief, Jawbone designs the Accused Products, which are then
`
`assembled in China.
`
`H
`
`The Accused Products compete directly with Fitbit’s own product line of wearable fitness
`
`and activity trackers. Fitbit requests a limited exclusion order and a cease-and-desist order.
`
`2.
`
`The Requested Remedies Do Not Raise Any Significant Public Health,
`Safety, or Welfare Concerns
`
`The requested remedies would have no impact on public health and welfare within the
`
`meaning of 19 C.F.R. § l337(d), (e), and (I) and 19 C.F.R. §210.8(b). As an initial matter, the (
`
`Accused Products provide simply a valuable aid to individual users who wish to monitor their
`
`health and fitness—they are not an irreplaceable tool for the improvement of individual fitness,
`
`nor would their absence be detrimental to individual or public health. Further, even if fitness and
`
`activity trackers were indispensable to public health and welfare in general, there are numerous
`
`

`
`alternatives to Jawbone’s specific Accused Products that could fill any void created by an
`
`exclusion order.
`
`Indeed, there are numerous substitutes for the Accused Products available on
`
`the market, most of which provide similar if not identical benefits. Thus, an exclusion order
`
`would not adversely impact public health and welfare.
`
`3.
`
`The Requested Remedies Would Not Adversely Affect Competitive
`Conditions in the United States Economy
`
`The requested remedies would not affect competitive conditions in the United States
`
`economy, as the market for wearable fitness and activity trackers is highly competitive. Indeed,
`
`an exclusion order would likely have minimal—if any—effects on the supply and availability of
`like products, because several substitutes are available to replace Jawbone’s devices on the
`market. For example, Fitbit, whose own product line includes at least six different like devices‘
`
`that are directly competitive to Jawbone’s Accused Products, would stand ready to meet any
`
`additional consumer demand for its devices in the event of an exclusion order. Further, a host of
`
`companies that compete directly with Jawbone (e.g., Nike, Adidas, Garmin, Samsung, LG, Sony,
`Microsofi, Apple, TomTom, Basis, Jaybird, Polar, Withings, Misfit, Striiv, llazer, LifeTrak,
`Moov, Runstatic, Mio, Basis, Philips) offer acceptable substitutes for the Accused Products and
`
`also should have the capacity to fill any void in supply created by an exclusion order.
`
`For the same reasons, an exclusion order would likely have minimal—if any—effects on
`
`the price of like products. The relevant market is highly competitive, as shown by the large .
`
`number of competitors offering substitutes for Jawbone’s devices, and——given a robust supply~——
`
`it is unlikely that an exclusion order would cause a surge in the prices of similar products.
`
`Lastly, an exclusion order would not hamper innovation in the industry at large. There is
`
`substantial consumer demand for such products, which ensures adequate economic incentives to
`
`counteract any deterrent effects an exclusion order might have on either potential" market entrants
`
`or active market participants.
`
`‘ The Fitbit Zip, Fitbit One, Fitbit Flex, Fitbit Charge, Fitbit Charge HR, and the Fitbit Surge.
`
`3
`
`

`
`4.
`
`The Requested Remedies Would Not Adversely Affect the Production
`" of Like or Directly Competitive Articles in the United’ States
`
`The requested remedies will not adversely affect the production of like or directly
`competitive articles in the United States." The accused Jawbone articles are manufactured in
`
`China, and Fitbit is not aware of any manufacturing operations in the United States that would be
`
`impacted by the issuance of a limited exclusion order. Further, to the best of Fitbit’s knowledge,
`the accused Jawbone articles do not contain any components manufactured in the United States.
`
`Therefore, an exclusion order would not have a negative impact on any manufacturing operations
`
`in the United States.
`
`5.
`
`The Requested Remedies Would Not Adversely Impact Consumers
`
`Neither an exclusion order nor a cease and desist order would have an adverse impact on
`
`consumers. Given the number of directly competitive products available to, replace the Accused-
`
`Products, an exclusion order would have—at most———marginal impact on the availability and
`
`price of such devices. Further, Fitbit submits that the devices at issue are sufficiently similar to
`
`their substitutes—in terms of fimctionality, overall quality, and performance—that substitution
`
`of like devices for Jawbone’s devices would not affect consumers on the whole.
`
`

`
`Dated: October 28, 2015
`
`Respectfully submitted,
`
`
`
`Beatrice Hahn
`
`George Stamatopoulos
`GIBSON, DUNN & CRUTCHER LLP
`200 Park Avenue
`
`New York, New York 10166
`Telephone: (212) 351-4000
`Facsimile: (212) 351-4035
`
`Wayne Barsky
`GIBSON, DUNN & CRUTCHER LLP
`2029 Century Park East, Suite 4000
`Los Angeles, CA 90067-3026
`"Tel: (310) 552-8500
`-
`Fax: (310)551-8741
`
`Jason Lo
`
`.
`
`Jennifer Rho
`
`GIBSON, DUNN & CRUTCHER LLP
`333 South Grand Ave
`
`Los Angeles, CA 90071-3197
`Tel: (213) 229-7153
`Fax: (213)229-6153
`
`Neema Jalali
`
`GIBSON, DUNN & CRUTCHER LLP
`
`555 Mission Street, Suite 3000
`
`_ San Francisco, CA 94105-0921
`Tel: (415) 393-8258
`Fax: (415) 374-8409
`
`Frederick S. Chung
`Stuart M. Rosenberg‘
`Alison Watkins
`
`Quincy Lu
`Christina Chandler Kogan
`Zachary Wood
`Ryan Iwahashi
`GIBSON, DUNN & CRUTCHER LLP
`1881 Page Mill Road
`Palo Alto, California 94304
`
`

`
`Telephone: (650) 849-5300
`Facsimile: (650)849-5333
`
`Andrew Lin
`
`GIBSON, DUNN & CRUTCHER LLP
`2100 McKinney Avenue, Suite 1100
`Dallas, TX 75201-6912
`
`- Tel: (214) 698-3100
`Fax: (214) 571-2900
`
`Counselfor Complainant Fitbit, Inc.
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C.
`
`Investigation No.
`
`
`
`
`CERTAIN WEARABLB ACTIVITY TRACKING
`
`In the Matter of
`
`DEVICES, SYSTEMS, AND COMPONENTS
`THEREOF
`
`
`
`
`VERIFIED. COMPLAINT OF FITBIT, INC. UNDER
`SECTION 337 OF THE TARIFF ACT OF 1930, AS AMENDED
`
`
`‘Proposed R§_sp_o_ndents:
`
`A1iphCom d/b/a Jawbone
`99 Rhode Island Street
`3"‘ Floor
`San Francisco, CA 94103
`Telephone: (714) 812-8200
`
`BodyMedia, Inc.
`Union Trust Building
`501 Grant Street, Suite 1075
`
`Pittsburgh, PA 15219
`Telephone: (412) 288-9901
`
`Complainant:
`
`Fitbit, 1nc.-
`405 Howard Street
`San Francisco, CA 94105
`Telephone: (877) 623-4997
`
`'
`
`Counsel for Complainant
`Josh Krevitt
`
`, Beatrice Hahn
`George Stamatopoulos
`GIBSON, DUNN & CRUTCHER LLP
`200 Park Avenue
`
`New York, New York 10166
`Telephone: (212) 351-4000
`Facsimile: (212) 351-4035
`
`Wayne Barsky
`GIBSON, DUNN & CRUTCHER LLP
`2029 Century Park East, Suite 4000
`Los Angeles, CA 90067-3026
`
`

`
`Tel: (310) 552-8500
`Fax: (310) 551-8741
`
`1 JasonLo
`Jennifer Rho
`GIBSON, DUNN & CRUTCHER LLP
`333 South Grand Ave
`Los Angeles, CA 90071-3197
`Tel: (213)229-7153
`Fax: (213) 229-6153
`
`Neema Jalali
`GIBSON, DUNN & CRUTCHER LLP
`555 Mission Street,»Suite 3000
`San Francisco, CA 94105-0921
`Tel: (415) 393-8258
`Fax: (415) 374-8409
`
`Frederick S. Chung
`Stuart M. Rosenberg
`Alison Watkins
`
`Quincy Lu
`Christina Chandler Kogan
`Zachary Wood
`Ryan Iwahashi
`GIBSON, DUNN & CRUTCHER LLP
`1881 Page Mill Road
`Palo Alto, California 94304
`Telephone: (650) 849-5300
`Facsimile: (650) 849-5333
`
`Andrew Lin
`GIBSON, DUNN & CRUTCHER LLP
`2100 McKinney Avenue, Suite 1100
`Dallas, TX 75201-6912
`Tel: (214) 698-3100
`Fax: (214) 571-2900
`
`

`
`TABLE OF EXHIBITS
`
` .
`
`Certified Copy of United States Patent Number 8,920,332 (the “’332 Patent”)
`Certified Copy of United States Patent Number 8,868,377 (the “’377 Patent”)
`Certified Copy of United States Patent Number 9,089,760 (the “’760 Patent”)
`Certified Copy of Assignment Papers for the ’332 Patent
`Certified Copy of Assignment Papers for the ’377 Patent
`“ Certified Copy of Assignment Papers for the ’76O Patent
`Infringement Claim Chart Comparing the ’332 Patent with the Jawbone UP3
`E Infringement Claim Chart Comparing the ’332 Patent with the Jawbone UP4
`“ Infringement Claim Chart Comparing the ’377 Patent with the Jawbone UP Move
`Infringement Claim Chart Comparing the ’377 Patent with the'Jawbone UP2
`
`12.
`
`'13.
`
`14.
`
`15.
`
`16.
`
`17.
`
`18.
`
`19.
`
`20.
`
`21.
`
`22.
`
`23.
`
`24.
`
`25.
`
`26.
`
`27.
`
`Infringement Claim Chart Comparing the ’377 Patent with the Jawbone UP3
`
`’
`
`Infringement Claim Chart Comparing the ’377 Patent with the Jawbone UP4
`
`Infringement ‘Claim Chart Comparing the ’76O Patent with the Jawbone UP Move
`
`Domestic Industry Claim Chart Comparing the ’332 Patent With the Fitbit Surge
`
`Domestic Industry Claim Chart Comparing the ’332 Patent With the Fitbit Charge HR
`
`Domestic Industry Claim Chart Comparing the ’377 Patent With the Fitbit Surge‘
`
`Domestic Industry Claim Chart Comparing the ’377 Patent With the Fitbit Charge HR A
`
`Domestic Industry Claim Chart Comparing the ’377 Patent With the Fitbit Charge
`
`Domestic Industry Claim Chart Comparing the ’377 Patent With the Fitbit Flex
`
`Domestic Industry Claim Chart Comparing the ’377 Patent With the Fitbit One '
`
`Domestic Industry Claim Chart Comparing the ’377 Patent With the Fitbit Zip
`
`Domestic Industry Claim Chart Comparing the ’760 Patent With the Fitbit Flex
`
`Domestic Industry Claim Chart Comparing the ’760 Patent With the Fitbit One
`
`Domestic Industry Claim Chart Comparing the ’760 Patent With the Fitbit Zip
`
`List of Foreign Counterparts to the Patents-at-Issue
`
`Copies of Receipts from Purchase of Representative Accused Products
`
`Copies of Photographs of Jawbone Products
`
`(a) UP move
`
`
`
`

`
`
`
`(b) UP2
`
`(c) UP3
`
`(d). UP4
`
`Sales Web Pages fiom Jawbone.com
`
`Copies of Support and Information Web Pages for the UP Move
`
`Copies of Support and Information Web Pages for
`
`the UP2
`
`Copies of Support and Information Web Pages for the UP3
`
`Copies of Support and Information Web Pages for the UP4
`
`Videos from Jawbone.com Support Pages
`
`Fitbit Registration Statement — Amendment No. 4 to Form S-1
`
`Fitbit Quarterly Report — Form 10-Q
`
`Jawbone Company Information
`
`BodyMedia Company Information and Acquisition Press Release
`
`Declaration of William Zerella (Confidential)
`
`Declaration of Eric N. Friedman (Confidential)
`
`List of Licensed Entities for the Patents-at—Issue (Confidential)
`
`_
`
` 2
`
`
`C
`
`9C
`
`0
`
`C
`
`3 3 4
`
`8 9 0 I
`
`2 3
`
`.
`
`2 3
`3 3 3
`
`4
`
`35
`
`36
`
`37
`
`

`
`
`
`TABLE OF PHYSICAL EXHIBITS
`
`
`
`Jawbone UP2
`
`Jawbone UP3
`
`Jawbone UP4
`
`Fitbit Surge
`
`Fitbit Charge HR
`
`Fitbit Charge
`
`Fitbit Flex
`
`Fitbit One
`
`Fitbitziv
`
`

`
`APPENDIX OF ADDITIONAL MATERIALS
`
`Appendix A: Certified File History of U.S. Patent No. 8,920,332
`
`Appendix B: Technical References Cited During Prosecution of U.S. Patent No. 8,920,332
`
`Appendix C: Certified File History of U.S.'Patent No. 8,868,377
`
`Appendix D: Technical References Cited During Prosecution of US; Patent No. 8,868,377
`
`Appendix E: Certified File History of U.S. Patent No. 9,089,760
`
`Appendix F: Technical References Cited During Prosecution of U.S. Patent No. 9,089,760
`
`iv
`
`

`
`TABLE OF CONTENTS
`
`VERIFIED COMPLAINT OF FITBIT, INC. UNDER SECTION 337 OF THE TARIFF ACT ...i
`
`TABLE OF EXHIBITS ......
`
`..........................................................................{......
`
`........................i
`
`TABLE OF PHYSICAL EXHIBITS ..................................................................... ._. .................... .. iii
`
`APPENDIX OF ADDITIONAL MATERIALS .......................................
`
`..............
`
`................... iv
`
`TABLE OF CONTENTS..............;..................
`
`.....................................
`
`........'.......................... v
`
`I.
`
`H.
`
`INTRODUCTION ............................................................................................................ .. 1
`
`COMPLAINANT .................;..................;.......................................................................... 3
`
`III.
`
`PROPOSED RESPONDENTS ................................................................................;........ .. 4
`
`A.
`
`B.
`
`A1iphCom, Inc. d/b/a Jawbone................. ._. ............................................................ ..4
`
`BodyMedia, Inc............... .I.......................................................................................5
`
`IV.
`
`THE PRODUCTS-AT-ISSUE .......................................................................................... .. 5
`
`V.
`
`THE PATENTS-AT-ISSUE ......'........................................................
`
`............................... 5
`
`A.
`
`The ’332 Patent ........................................................................................................6
`
`B.
`
`The ’377 Patent ...................................................................................................... ..8
`
`C.
`
`The ’76O Patent ...................................................................................................... ..9
`
`D.
`
`Licenses.......... .._ ....................................................................................................Q10
`
`VI.
`
`UNLAWFUL AND UNFAIR ACTS OF THE PROPOSED RESPONDENTS .............. 10
`
`E.
`
`Patent Claims at Issue .......................................................................................... ..13
`
`VII.
`
`SPECIFIC INSTANCES OF UNFAIR IMPORTATION AND SALE ......................... .. 13
`
`VIII. HARMONIZED TARIFF SCHEDULE ITEM NUMBERS ....................................... .. 14
`
`

`
`DOMESTIC INDUSTRY ........................................ ., ......................
`
`............................. .. 14
`
`A.
`
`Fitbit’s Articles Protected by the Patents-at-Issue
`
`...........................................14
`
`B.
`
`. Fitbit’s Investment in the Domestic Industry............ .; ....... ., ................................ ..15
`
`?<
`
`RELATED LITIGATION ................................
`
`............................................................... 19
`
`' RELIEF REQUESTED ................................................................................................... .. 19
`
`vi
`
`

`
`I.
`
`INTRODUCTION
`
`1.
`
`Fitbit,
`
`Inc.
`
`(“Fitbit” or “Complainant”)
`
`requests
`
`that
`
`the United States
`
`International Trade Commission (“the Commission”) institute an investigation into violations of
`
`Section 337 ofthe Tariff Act of 1930, as amended, 19 U.S.C. § 1337, by Respondents AliphCom
`
`d/_b/a Jawbone (“Jawbone”) and BodyMedia, Inc. (“BodyMedia”) (collectively, “Respondents”)
`2.
`Fitbit brings this Complaint in order to. protect its domestic industry from the
`
`widespread, willful, and destructive unfair competition caused by the patent infringement of
`
`Respondents, which develops and distributes the infringing UP Move, UP2, UP3,and UP4, as
`
`well as the UP App.
`
`3.
`
`This Complaint
`
`is
`
`on the Respondents’ unlawful and unauthorized
`
`importation into the United States, sale for importation, and/or. sale within the United States afier
`
`importation of wearable fitness and activity tracker devices.
`
`4.
`
`Fitbit
`
`is a company that helps people lead healthier, more active lives by
`
`empowering them with data, inspiration, and guidance to reach their goals. Fitbit is an innovator
`
`in the health and fitness market, addressing key needs with advanced technology embedded in
`
`cutting-edge but simple-to—use products and services. Since 2007, Fitbit has led the way in
`
`health and fitness in both the U.S. and abroad, growing rapidly into a leading global health and
`
`fitness brand. Fitbit has built an extensive and acclaimed domestic industry and holds the
`
`leading position in the US.‘ connected activity tracker market.
`
`5.
`‘Fitbit welcomes competition, as it has always worked
`to find new and better
`ways to build the best products for consumers.
`Jawbone, by contrast, has continually played
`
`catchup to Fitbit, emulating Fitbit and infiinging Fitbit’s patents.
`
`

`
`6.
`Respondents’ products infringe, either ‘literally or under
`the doctrine. of
`I equivalents, at least one or more claimsof U.S. PatentNo. 8,920;332 (“the ‘332 paten ”),
`
`Patent No. 8,868,377 (“the ‘377 paten ”), and U.S. Patent No. 9,089,760 (“the ‘760 patent”)
`(collectively, the “patents-at-issue” or the “Fitbit Patents”). The patents-at-issue axe valid and
`
`enforceable United States Patents.
`
`7.
`
`The Fithit Patents relate. to technology used in wearable fitness and activity
`
`‘tracker devices to monitor and
`
`health and wellness metnics.
`
`8.
`
`On information and belief, Respondents’ activity tracker devices infringe at least
`
`the following exemplaiy claims ofthe patents-at—issue:
`
`_
`
`_
`.-.
`
`
`
`
`
`’
`$3‘
`
`austfiffj
`
`
`1, 45, 13-15 8,920,332
`
`
`,
`
`8,868,377
`
`9,089 760
`
`1, 2—4, 7-9, 10, 11, 16, 25, and 27-28
`
`V
`
`1, 2-12, 13, 14-15, 18-21
`
`.
`
`9.
`
`A certified copy of the ’332ppatent accompanies this complaint as Exhibit 1.
`
`Fitbit owns by assignment the entire right, title, and interest in this patent.
`10.
`A certified copy of the ’377 patent accompanies this complaint as Exhibit 2.
`
`' Fitbit owns by assignment the entire right, title, and interest in this patent E
`
`‘
`
`11.
`
`A certified copy of the ’760 patent accompanies this complaint as Exhibit 3.
`
`Fitbit owns by assignment the entire right, title, and interest in this patent
`
`
`
`1 Claims in bold are independent claims.
`
`

`
`12.
`
`The Respondents’ activities with respect to the importation into the United States,
`
`the sale,for importation into the United States, and/or the sale within the United States afier
`
`importation of certain wearable fitness and activity tracker devices, described more fully infra,
`
`are unlawful under 19 U.S.C. § l337(a)(l)(B)(i) in that they constitute infringement of the valid
`and enforceable patents-at-issue.
`S
`
`13.
`
`Accordingly, Fitbit seeks relief from the Commission in the form of a limited
`
`exclusion order excluding from entry into the United States activity tracking devices, systems,
`and components thereofthat infringe the asserted patents. Fitbit further seeks a cease and desist
`
`order halting the importation, sale, offer for sale, marketing, advertising, or soliciting of activity
`
`tracking devices, systems, and components thereof owned, held, or stored by the Respond_ents
`
`and their related companies that infringe the valid and enforceable Fitbit patents.
`
`14.
`
`_As required by Section 337(a)(2) and defined by Section 337(a)(3), an industry in
`
`the United" States relating to the patents-at—issue exists by virtue of at least Fitbit’s investment in
`
`plant and equipment, employment of labor and capital, and/or investment in the exploitation with
`
`respect to the patents-at-issue.
`
`11.
`
`COMPLAINANT
`
`S
`
`15.
`
`Fitbit is a United States company organized and existingas a corporation under
`
`the laws of Delaware. Fitbit maintains its principal place of business at 405 Howard Street, San
`
`Francisco, California 94105.
`
`16.
`
`Fitbit is the owner by assignment of all right, title, and interest in and to the ’332
`
`patent; ’377 patent, and ’760 patent. (See Exhibits 4-6.)
`
`17.
`
`Fitbit designs, develops, markets, and sells or licenses: (i) the Fitbit Surge; (ii) the
`
`Fitbit ChargeHR, (iii) the Fitbit Charge, (iv) the Fitbit Flex; (v) the Fitbit One; and (vi) the Fitbit’
`
`

`
`Zip.‘ Fitbit sells or licenses its products in the United States, and worldwide, including through
`
`its online store, its corporate wellness offering, distributors, and retailers.
`
`18.
`
`Fitbit developed the technology that is protected by the patents-at-issue through
`
`its own extensive research and development efforts. Fitbit has made and continues to make
`
`significant investment in the research, design, and development of products protected by the
`
`patents-at-issue, including the "Fitbit Surge, Fitbit ChargeHR, Fitbit Charge, Fitbit Flex, Fitbit
`
`One, and Fitbit Zip, among others, in the United States.
`
`19.
`
`Fitbit’s registration statement, including a prospectus describing the activities of
`
`the company, is attached as Exhibit 34. Fitbit’s Quarterly Report, Form 10—Q, is attached as
`Exhibit 35.
`1
`
`III.
`
`PROPOSED RESPONDENTSS
`
`A.
`
`20.
`
`AliphCom, Inc. d/b/a Jawbone
`
`Jawbone is a corporation organized and -existing under the laws of California and
`
`has its principal place of business at 99 Rhode Island Street, 3rd Floor, San Francisco, CA
`
`94103.
`
`p
`
`21.
`lawbone either by itself, through its subsidiaries (such as BodyMedia), or through
`third-parties acting on its behalf develops, manufactures or has manufactured, markets, sells,
`
`sells for importation, and imports the UP system and the UP activity trackers——including the UP
`
`Move, UP2, UP3, and UP4—which infringe Fitbit’s patents.
`
`Jawbone markets its wearable
`
`fitness and activity tracker devices to consumers in the United States through major distribution
`
`

`
`chains like Best Buy, Wal-Mart, and various online resellers.
`(See Exhibit 27 Accused Products
`Photographs); Exhibit 26 (Amazon.com Receipt.for Accused Products)).
`22.
`Additional information regarding Jawbone is attached as Exhibit 36.
`
`B.
`
`V
`
`BodyMedia, Inc.
`
`23.
`
`‘ BodyMedia is a wholly owned subsidiary of Jawbone, and is organized and
`
`existing under the laws of Delaware with its principal place of business at Union Trust Building,
`501 Grant Street, Suite 1075, Pittsburgh, PA 15219.
`A
`
`24.
`AliphCom acquired BodyMedia,
`Inc.
`in April 2013
`and
`incorporated
`BodyMedia’s “multi-sensor approach” to physiological data collection and other BodyMedia
`technology into subsequent «products.
`Products incorporating multiple sensors, such as
`temperature sensors and bioimpedance sensors,
`include at
`least the
`and UP4. On
`information and belief, BodyMedia has contributed to the design, development, manufacture,
`
`marketing, and/or sale ofat least the UP Move, UP3, and UP4 devices.
`
`25.
`
`Additional
`
`information regarding BodyMedia and the press release regarding
`
`Jawbone’s acquisition of BodyMedia is attached -as Exhibit 37.
`
`IV.
`
`THE PRODUCTS-AT-ISSUE
`
`26.
`Respondents’
`infringing products include the following wearable fitness and
`activity tracking devices and activity tracking device systems: (1) Jawbone UP4, (2) Jawbone
`
`UP3, (3) Jawbone UP2, (4) Jawbone UP Move, and (5) Jawbone UP App (collectively, the
`“Jawbone Infringing Products”).
`(See Exhibits 29-32). Jawbone’s Infringing Products are the
`
`kind of tracking devices sold in the market which can gather data on movement, activity, sleep,
`and other parameters. ‘Examples ofthese infringing products are identified below and in Exhibits
`
`29-32 and are described" in- the infringement claim charts of Exhibits 7-13. Photographs of
`
`

`
`certain examples of the Jawbone Infringing Products, along with receipts showing their purchase
`
`in the United States, are attached as Exhibits 26-27.
`
`27.
`
`The Jawbone Infringing Products are imported into and sold within the United
`
`States by or on behalf of Respondents. On information and belief, Respondents maintain
`commercially significant volumes ofthe infringing products in inventory in the United States.
`28.
`The products enumerated above are merely illustrative of the types and classes of
`
`infringing products that Respondents manufacture and import into the United States, sell for
`
`importation into the United States, and/or sell within the United States after importation in
`
`violation of Section 337. Discovery may reveal additional products or product categories that
`
`infiinge the asserted claims, additional claims that are infringed by the Jawbone Infiinging
`
`Products, and/or additional
`
`instances of indirect
`
`infringement
`
`through inducement or
`
`contributory infringement. The identification of a specific model, trade name, or typeof acfivity
`
`tracking device is not intended to limit the scope ofthis investigation.
`
`V.
`
`THE PATENTS-AT-ISSUE
`
`A.
`
`The ’332 Patent
`
`1.
`
`Identification and ownership of the ’332 patent
`
`29.
`
`U.S. Patent No. 8,920,332, entitled “Wearable Heart Rate Monitor,” issued on
`
`December 30, 2014, to inventors Jung Ook Hong and Shelten Gee Jao Yuen. The ’332 patent
`
`remains in full force and effect, and Fitbit is the owner of all

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket