UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
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`Before the Honorable Charles E. Bullock
`Chief Administrative Law Judge
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`Inv. No. 337-TA-963
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`In the Matter of
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`CERTAIN ACTIVITY TRACKING DEVICES,
`SYSTEMS, AND COMPONENTS THEREOF
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`COMMISSION INVESTIGATIVE STAFF’S INITIAL MARKMAN BRIEF
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`Pursuant to Order No. 5 setting the procedural schedule, the Commission Investigative
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`Staff (the “Staff”) hereby submits its initial claim Markman brief.
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`I.
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`PROCEDURAL HISTORY
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`Complainants AliphCom d/b/a Jawbone and BodyMedia, Inc. (“Complainants”) and
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`Respondents Fitbit, Inc.; Flextronics International Ltd. and Flextronics Sales and Marketing (A-P)
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`Ltd. (collectively, “Respondents”) filed their initial claim construction briefs on November 17,
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`2015. This investigation is based on a complaint filed by Complainants on July 8, 2015 under
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`Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337, accusing the Respondents of
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`violating Section 337 based upon the importation into the United States, the sale for importation,
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`and sale within the United States after importation of certain activity tracking devices, systems,
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`and components thereof by reason of infringement of certain claims of U.S. Patent No. 8,446,275;
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`U.S. Patent No. 8,529,811; U.S. Patent No. 8,793,522; U.S. Patent No. 8,961,413; U.S. Patent No.
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`8,073,707; and U.S. Patent No. 8,398,546. The parties have identified a total of three disputed
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`claim terms for construction and agreed to give all other terms their plain and ordinary meaning.
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`FITBIT EXHIBIT 1007
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`1 of 13
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`II.
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`LEGAL STANDARDS
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`Claim construction is a matter of law. Markman v. Westview Instruments Inc., 52 F.3d
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`969, 976 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370, 116 S. Ct. 1384 (1996). “When the
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`parties present a fundamental dispute regarding the scope of a claim term, it is the court’s duty to
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`resolve it.” O2 Micro Int’l Limited v. Beyond Innovation Technology Co., 521 F.3d 1351, 1362
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`(Fed. Cir. 2008). The ordinary and customary meaning of the language of a claim to one of
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`ordinary skill in the art at the time of the invention is the starting point for the analysis. Phillips v.
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`A.W.H. Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc). The ordinary meaning of a
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`claim term as understood by a person of ordinary skill in the art may, in some circumstances, be
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`readily apparent to laymen. Brown v. 3M, 265 F.3d 1349, 1352 (Fed. Cir. 2001). Every term in a
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`claim is presumed to have meaning and any construction that would render a claim term
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`superfluous is discouraged. Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381
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`F.3d 1111, 1119 (Fed. Cir. 2004) (“While not an absolute rule, all claim terms are presumed to
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`have meaning in a claim.”); Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 296 F.3d 1106, 1115
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`(Fed. Cir. 2002) (“An alternative construction would render the first monitoring term meaningless.
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`That construction is therefore improper; this court will not rewrite claims.”). In short, “[t]he
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`claims themselves provide substantial guidance as to the meaning of particular claim terms.”
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`Phillips, 415 F.3d at 1314; ACTV, Inc. v. The Walt Disney Co., 346 F.3d 1082, 1088 (Fed. Cir.
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`2003) (“the context of the surrounding words of the claim also must be considered in determining
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`the ordinary and customary meaning of those terms”).
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`Additionally, “the person of ordinary skill in the art is deemed to read the claim term not
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`only in the context of the particular claim in which the disputed term appears, but in the context of
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`the entire patent, including the specification.” Phillips, 415 F.3d at 1313. In construing the
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`claims, the court should also consider the specification and “the patent’s prosecution history, if it is
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`in evidence.” Markman, 52 F.3d at 976, 980.
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`The specification may act as a dictionary, explaining the invention and defining the terms
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`used in the claims, and a patentee may act as his or her own lexicographer by clearly giving special
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`definition to words in the specification. Markman, 52 F.3d at 1316; Vitronics v. Conceptronic, 90
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`F.3d 1576, 1582-83 (Fed. Cir. 1996). But, the specification (and prosecution history) should not
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`“enlarge, diminish or vary” the limitations of the claims. Vitronics, 90 F.3d at 1582-83;
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`Markman, 52 F.3d at 979–80; Intel Corp. v. U.S. Int’l Trade Comm’n, 946 F.2d 821, 836 (Fed. Cir.
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`1991) (“Where a specification does not require a limitation, that limitation should not be read from
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`the specification into the claims.”).
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`In addition, the prosecution history “provides evidence of how the PTO and the inventor
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`understood the patent.” Phillips, 415 F.3d at 1317. As such, “it may inform the meaning of the
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`claim language by demonstrating how the inventor understood the invention and whether the
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`inventor limited the invention in the course of prosecution, making the claim scope narrower than
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`it would otherwise be.” Id.; Vitronics, 90 F.3d at 1582-83; see also Chimie v. PPG Indus., Inc.,
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`402 F.3d 1371, 1384 (Fed. Cir. 2005) (“The purpose of consulting the prosecution history in
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`construing a claim is to exclude any interpretation that was disclaimed during prosecution.”).
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`Extrinsic evidence may also be considered, if needed, to assist in determining the meaning
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`or scope of technical terms in the claims. Phillips, 415 F.3d at 1317-18. Expert testimony may
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`be useful to “provide background on the technology at issue, to explain how an invention works, to
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`ensure that the court’s understanding of the technical aspects of the patent is consistent with that of
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`a person of skill in the art, or to establish that a particular term in the patent or the prior art has a
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`particular meaning in the pertinent field.” Phillips, 415 F.3d at 1318. However, it remains the
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`intrinsic record, including the specification and prosecution history, which is the most significant
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`evidence and thus determinative for interpreting the legally operative meaning of patent claim
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`language. Id. at 1317. Indeed, “[e]xpert testimony at odds with the intrinsic evidence must be
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`disregarded.” Network Commerce, Inc. v. Microsoft Corp., 422 F.3d 1353, 1361 (Fed. Cir. 2005)
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`(holding that unsupported conclusions concerning patent claims provide little support for
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`suggested claim construction).
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`III. DISCUSSION
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`A. Level of Ordinary Skill in the Art
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`Complainants did not address the level of ordinary skill in the art in their initial brief.
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`Respondents’ summarized the private parties’ positions on the level of ordinary skill in the art as
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`follows:
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`Complainants argue that that person would have had a four-year degree in electrical
`engineering, computer science, computer engineering, or the equivalent, while
`Respondents contend that person would have needed only two years of
`college-level coursework. Beyond this dispute, all parties generally agree that the
`person of ordinary skill in the art must have one to two years of post-education
`relevant work experience.
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`Respondents’ Initial Brief at 2-3. Respondents also argue that the dispute would not, however,
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`affect the construction of any of the disputed claim terms. Id. at 3.
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`The Staff supports Complainants’ description of the level of ordinary skill in the art except
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`with regard to U.S. Patent No. 8,529,811 (“the ’811 patent”). The ’811 patent deals with
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`manufacturing techniques, such as the application of protective coatings and overmolding, for
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`wearable devices. Thus, the Staff believes that the person of ordinary skill in the art with respect
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`to the ’811 patent should be defined separately.
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`B. Disputed Claim Term from the Asserted ’811 Patent Claims: “forming a
`molding”1
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`Complainants’ Proposed
`Construction
`No construction necessary. If
`the term is construed, the proper
`construction is “making with a
`mold.”
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`Respondents’ Proposed
`Construction
`using a . . . mold to apply
`material
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`Staff’s Proposed Construction
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`No construction necessary. If
`the term is construed, the proper
`construction is “making with a
`mold . . . a molding.”
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`U.S. Patent No. 8,529,811 (“the ’811 Patent) is entitled “Component Protective
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`Overmolding Using Protective External Coatings,” and generally relates to “techniques for
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`[electronic] component protective overmolding using protective external coatings.” See ’811
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`Patent, col.1 ll.19-25.
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`After reviewing the private parties’ initial briefs, the Staff continues to believe that this
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`phrase requires no construction and that the proposed constructions add no clarity to the plain
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`language of the claims. The essential point appears to be that “forming” a “molding” requires that
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`the formation process used in claimed methods must involve use of a mold in order for the
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`resulting coverings to qualify as “molding[s].” But there does not appear to be any dispute among
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`1 The term “forming . . . a molding” appears in asserted claim 1 of the ’811 Patent as part of the
`limitations “forming a first inner molding that covers all or substantially all of the at least one
`covering, the plurality of elements, and the framework,” “forming a second inner molding that
`covers all or substantially all of the first inner molding,” and “forming an outer molding of the
`wearable device, the outer molding covering all or substantially all of the second inner molding.”
`Asserted claim 16 of the ’811 Patent includes the similar limitations “forming one or more inner
`moldings substantially over a subset or all of the framework, the at least one protective material
`and the plurality of elements” and “forming an outer molding of the wearable device that covers
`all or substantially all of the one or more inner moldings.” ’811 Patent, Complaint Ex. 3 (also
`Ex. 1 to Respondents’ Initial Brief).
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`the parties as to this issue. See Complainants’ Initial Brief at 10 (alternative proposed
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`construction “making with a mold”); Respondents’ Initial Brief at 6 (re “point of agreement by
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`Staff and the parties”). It is the Staff’s view that this meaning is apparent from the plain and
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`ordinary meaning of the language given the use of the word “molding.” The Staff therefore
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`believes that the plain and ordinary meaning of these terms should apply, and the parties are in
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`agreement that the use of the word “molding” requires use of a mold in the process.
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`In the event that the CALJ determines that it is necessary to construe these terms, the Staff
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`believes that “forming . . . a molding” should be construed as “making with a mold . . . a molding.”
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`The Staff acknowledges Respondents’ argument that the Staff’s earlier proposed construction
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`(“making with a mold”) cannot be literally be substituted in the claim language without altering its
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`meaning due to the lack of a direct object in the Staff’s prior proposed construction.2 The
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`important fact is that using the word “molding” places a limitation on the “forming” limitation, and
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`the Staff believes that its modified proposed construction reflects the clarification required to
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`adress the parties’ discussion of the issue without distorting the language of the asserted claims.
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`The plain and ordinary meaning of “molding,” whether or not explicitly stated as a
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`construction, is consistent with the usage of the term in the ’811 Patent specification. Describing
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`the embodiment of Figure 3, the specification states that “Types of materials that may be used for
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`inner molding 312 include plastics, thermoplastics, thermoplastic elastomers, polymers,
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`elastomers, or any other organic or inorganic material that can molded in mold cavity 302.” ’811
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`2 The Staff notes that the Respondents’ proposed construction similarly cannot be substituted into
`the claims because of resulting problems with surrounding language and the placement of
`modifiers. Because Respondents do not appear to have ascribed any particular meaning to the
`word “apply” in their proposed construction in their Initial Brief, the Staff has no other specific
`objection to Respondents’ proposed construction.
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`Patent, col.5 ll.19-23. The specification’s use of “molding” is in contrast to different language
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`encompassing other types of processes:
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`Here, the start of process 600 includes forming a protective layer on, for example,
`framework 102 (FIG. 1) (602). . . . Examples of material that may be used to form a
`protective layer include UV curable materials such as those described above,
`including coatings, adhesives, liquids, gels, and others that cure when exposed to
`ultraviolet radiation in various concentrations and exposure levels without
`limitation. After forming a protective layer (e.g., protective coating 208), an inner
`molding (e.g., inner molding 312 (FIG. 3)) is formed (604).
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`’811 Patent col.6 ll.42-55.
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`For the foregoing reasons, the “forming . . . a molding” limitations do not require
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`construction, but, if construed, should have the construction “making using a mold . . . a molding.”
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`C. Disputed Claim Term from the Asserted ’522 Patent Claims: “band”3
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`Complainants’ Proposed
`Construction
`data-capable device that may
`be worn as a strap or band
`around an arm, leg, ankle, or
`other bodily appendage or
`feature
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`Respondents’ Proposed
`Construction
`No construction necessary.
`Plain and ordinary meaning.
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`Staff’s Proposed Construction
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`No construction necessary.
`Plain and ordinary meaning. If
`construed, the proper
`construction is “a substantially
`flat encircling strip.”
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`
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`United States Patent No. 8,793,522 (“the ’522 Patent”) is entitled “Power Management in a
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`Data-capable Strapband” and generally relates to “power-related functions in a data-capable
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`wearable or carried device that can be, for example, worn on or carried by a user’s person.” ’522
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`Patent, col.1 ll.26-29.
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`As set forth more fully below, the Staff believes that the claim term “band,” which appears
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`in the preamble of asserted claim 2 of the ’522 Patent, is a limitation on claim 2, but requires no
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`3 The term “band” appears in asserted claim 2 of the ’522 Patent. ’522 Patent, Complaint Ex. 4
`(also Ex. 4 to Respondents’ Initial Brief).
`.
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`construction because it is used with its plain and ordinary meaning. The Federal Circuit
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`summarized its case law as to preamble limitations in American Medical Systems, Inc. v. Biolitec,
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`Inc., 618 F.3d 1354, 1358-59 (Fed. Cir. 2010):
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`Whether to treat a preamble term as a claim limitation is “determined on the facts of
`each case in light of the claim as a whole and the invention described in the patent.”
`Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 831 (Fed. Cir. 2003). While
`there is no simple test for determining when a preamble limits claim scope, we have
`set forth some general principles to guide that inquiry. “Generally,” we have said,
`“the preamble does not limit the claims.” Allen Eng’g Corp. v. Bartell Indus., Inc.,
`299 F.3d 1336, 1346 (Fed. Cir. 2002). Nonetheless, the preamble may be
`construed as limiting “if it recites essential structure or steps, or if it is ‘necessary to
`give life, meaning, and vitality’ to the claim.” Catalina Mktg. Int'l, Inc. v.
`Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002), quoting Pitney Bowes,
`Inc. v. Hewlett–Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999). A preamble is
`not regarded as limiting, however, “when the claim body describes a structurally
`complete invention such that deletion of the preamble phrase does not affect the
`structure or steps of the claimed invention.” Catalina, 289 F.3d at 809. If the
`preamble “is reasonably susceptible to being construed to be merely duplicative of
`the limitations in the body of the claim (and was not clearly added to overcome a
`[prior art] rejection), we do not construe it to be a separate limitation.” Symantec
`Corp. v. Computer Assocs. Int'l, Inc., 522 F.3d 1279, 1288–89 (Fed. Cir. 2008).
`We have held that the preamble has no separate limiting effect if, for example, “the
`preamble merely gives a descriptive name to the set of limitations in the body of the
`claim that completely set forth the invention.” IMS Tech., Inc. v. Haas
`Automation, Inc., 206 F.3d 1422, 1434–35 (Fed. Cir. 2000).
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`The Staff believes the preamble term “band” of claim 2 of the ’522 Patent presents a close
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`question within the guidance provided by the Federal Circuit, but believes it should be construed
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`as a limitation. The term “band” cannot be considered to be “merely duplicative of the limitations
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`in the body” of claim 2—which recite electronic components, software, and a power source but no
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`unifying structure encompassing the recited elements. The term “band” is also not simply a name
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`or intended use for the elements recited in the body of the claim (in contrast to a hypothetical term
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`such as ‘power management system’). Finally, the term “band” does give some additional
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`meaning and structure—though minimal—to the claim body’s listing of electronic components.
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`However, the Staff believes that Complainants’ proposed construction goes too far,
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`incorporating and reciting limitations that are a part (“merely duplicative”) of the body of claim 2.
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`For example, Complainants’ proposed construction includes the words “data-capable device,” but
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`this is largely duplicative of the first two limitations of claim 2 that recite “a subset of sensors” and
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`“a controller coupled to the subset of sensors.” The words “data-capable device” introduce
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`additional ambiguity that should be avoided during claim construction. In other words, the
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`preamble term “band” is only necessary to the body of claim 2 to the extent that it recites a vessel
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`or structure that holds/contains the recited electronic components and adds some meaning or life to
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`the body of the claim.
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`With this understanding of the term “band” and its role in claim 2 in mind, no further
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`construction of “band” is necessary. As a structure or shape, the word “band” simply has its plain
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`and ordinary meaning. In the event that the Chief Administrative Law Judge (“CALJ”)
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`determines that a construction of “band” is necessary, it should be construed as a “substantially flat
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`encircling strip.” This construction best reflects the plain and ordinary meaning of “band”
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`without imposing undue limitation. The words “substantially flat” are meant to reflect the
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`commonly understood shape of a band and would apply, for example, to a watch band that has
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`thickness and potentially some rounding but would still be understood by one of ordinary skill in
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`the art to be a band.
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`For the foregoing reasons, the term “band” in the preamble of claim 2 is a limitation.
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`However, no construction of “band” is necessary. If the CALJ does decide the term should be
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`construed, it should have the construction “substantially flat encircling strip.”
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`D. Disputed Claim Term from the Asserted ’546 Patent Claims: “contextual data of
`the individual”4
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`Complainant’s Proposed
`Construction
`data relating to the individual’s
`activity state, environment,
`surroundings, or location
`
`Respondents’ Proposed
`Construction
`non-physiological information
`regarding the individual’s activity
`state, environment, surroundings
`or location
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`Staff’s Proposed Construction
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`information relating to the
`individual’s activity state,
`environment, surroundings, or
`location
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`United States Patent No. 8,398,546 (“the ’546 Patent”) is entitled “System for Monitoring
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`and Managing Body Weight and Other Physiological Conditions Including Iterative and
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`Personalized Planning, Intervention and Reporting Capability” and generally addresses “an
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`apparatus used in conjunction with a software platform for monitoring caloric consumption and/or
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`caloric expenditure of an individual” as part of a “weight control system.” ’546 Patent, col.1
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`ll.23-29.
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`The Staff’s proposed construction of “contextual data of the individual” as “information
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`relating to the individual’s activity state, environment, surroundings, or location” best comports
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`with the intrinsic evidence. The term “contextual data of the individual” appears in asserted claim
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`1 of the ’546 Patent as part of the limitation “derive physiological and contextual data of the
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`individual from data detected by said sensor device.” The Staff’s construction uses the word
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`“information” rather than “data” to help distinguish the “contextual data” from the “data detected
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`by said sensor device” from which it is “derive[d],” but both the original data and derived data fall
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`within the specification’s description of data. See ’546 Patent, col.10 ll.30-35
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`The term “contextual data” is defined in the ’546 Patent specification by reference to the
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`4 The term “contextual data of the individual” appears in asserted claim 1 of the ’546 Patent as part
`of the limitation “derive physiological and contextual data of the individual from data detected
`by said sensor device.” ’546 Patent, Complaint Ex. 7 (also Ex. 5 to Respondents’ Initial Brief).
`.
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`similar term “contextual parameters.” “Contextual parameters as used herein means parameters
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`relating to activity state or to the environment, surroundings and location of the individual,
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`including, but not limited to, air quality, sound quality, ambient temperature, global positioning
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`and the like.” ’546 Patent, col.10 ll.5-9; see also id. at col.13 ll.1-7. The Staff agrees with
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`Respondents that “contextual data” is generally described as a separate category in parallel with
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`“physiological” data. For example, the specification states that “[a] digital signal or signals
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`representing certain physiological and/or contextual characteristics of the individual user may be
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`used by microprocessor 20 to calculate or generate data indicative of physiological and/or
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`contextual parameters of the individual user.” Id. at col.13 ll.30-34. And similarly the
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`description of physiological data differentiates it from contextual data:
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`Sensor device 10 generates data indicative of various physiological parameters of
`an individual, such as the individual's heart rate, pulse rate, beat-to-beat heart
`variability, EKG or ECG, respiration rate, skin temperature, core body temperature,
`heat flow off the body, galvanic skin response or GSR, EMG, EEG, EOG, blood
`pressure, body fat, hydration level, activity level, oxygen consumption, glucose or
`blood sugar level, body position, pressure on muscles or bones, and UV radiation
`exposure and absorption.
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`Id. at col.10 ll.22-30.
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`However, it is also necessary to consider the ’546 Patent’s description of “activity
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`state”—one of the contextual parameters. The ’546 Patent specification distinguishes “activity
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`states” from “sleep states” and provides as examples “exercising, sitting, traveling in a motor
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`vehicle, and lying down.” Id. at col.50 ll.24-34. The specification also states that such
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`parameters can be derived in part with information from, for example, a skin temperature sensor
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`and a heart rate sensor—indicating that the contextual activity state parameter may be derived in
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`part from data supplied by physiological sensors. See id. It is for this reason that the Staff
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`opposes the negative limitation “non-physiological information” in Respondents’ proposed
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`construction. The Staff believes that the appropriate construction for “contextual data” in view of
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`its usage in the specification (as compared to physiological data), without imposing any undue
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`limitations, is to delimit “contextual data” using the identified categories of information for
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`contextual data in the specification (i.e., data relating to activity state, environment, surroundings,
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`or location).
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`For the foregoing reasons, “contextual data of the individual” should be construed as
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`“information relating to an individual’s activity state, environment, surroundings, or location.”
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`IV. CONCLUSION
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`For the foregoing reasons, the Staff believes that the disputed claim terms of the asserted
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`patents should be construed as set forth above.
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`Submitted,
`
`
`/s/ Peter J. Sawert
`Margaret D. Macdonald, Director
`Jeffrey T. Hsu, Supervisory Attorney
`Peter J. Sawert, Investigative Attorney
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`OFFICE OF UNFAIR IMPORT INVESTIGATIONS
`U.S. International Trade Commission
`500 E Street, S.W., Suite 401
`Washington, D.C. 20436
`(202) 205-3228
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`(202) 205-2158 (facsimile)
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`November 20, 2015
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`CERTIFICATE OF SERVICE
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`I, Peter J. Sawert, certify that on November 20, 2015 the foregoing COMMISSION
`INVESTIGATIVE STAFF’S INITIAL MARKMAN BRIEF to be served by hand upon
`Chief Administrative Law Judge Charles E. Bullock (2 copies) and served upon the parties (1
`copy each) in the manner indicated below:
`
`
`Via E-mail:
`Jawbone-TT@lists.susmangodfrey.com
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`
`Via E-mail:
`Flextronics@dentons.com
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`
`
`Via E-mail:
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`Fitbit337TA963@gibsondunn.com
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`/s/ Peter J. Sawert
`Peter J. Sawert
`Investigative Attorney
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`501 E Street, SW
`Washington, D.C. 20436
`(202)205-3228
`(202)205-2158 (fax)
`
`Counsel for Complainants AliphCom d/b/a Jawbone and
`BodyMedia, Inc.
`
`Kalpana Srinivasan, Esq.
`SUSMAN GODFREY L.L.P.
`1901 Avenue of the Stars, Suite 950
`Los Angeles, CA 90067-6029
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`Counsel for Respondents Flextronics International Ltd.
`and Flextronics Sales & Marketing (A-P) Ltd.
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`Mark L. Hogge, Esq.
`DENTONS US LLP
`1301 K Street, NW
`East Tower, Ste. 600
`Washington, DC 20005
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`Counsel for Respondent Fitbit, Inc.
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`Josh A. Krevitt, Esq.
`GIBSON, DUNN & CRUTCHER LLP
`200 Park Avenue
`New York, NY 10166
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`– 13 –
`Staff’s Initial Markman Brief
`
`13 of 13