Cellspin Soft, Inc. v. Fitbit LLC, Nike, Inc., Under Armour, Inc., Fossil Group, Inc., Misfit, Inc., Nikon…

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CELLSPIN SOFT, INC.,
Plaintiff-Appellant
v.
FITBIT LLC, NIKE, INC., UNDER ARMOUR, INC.,
FOSSIL GROUP, INC., MISFIT, INC., NIKON
AMERICAS, INC., NIKON INC., GARMIN
INTERNATIONAL, INC., GARMIN USA, INC.,
Defendants-Appellees
______________________
2022-2025, 2022-2028, 2022-2029, 2022-2030, 2022-2032,
2022-2037
______________________
Appeals from the United States District Court for the
Northern District of California in Nos. 4:17-cv-05928-YGR,
4:17-cv-05931-YGR, 4:17-cv-05932-YGR, 4:17-cv-05933-
YGR, 4:17-cv-05934-YGR, 4:17-cv-05936-YGR, Judge
Yvonne Gonzalez Rogers.
______________________
Decided: November 1, 2024
______________________
MICHAEL SCOTT FULLER, Garteiser Honea, PLLC,
Tyler, TX, argued for plaintiff-appellant. Also represented
by RANDALL T. GARTEISER, CHRISTOPHER A. HONEA.
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CELLSPIN SOFT, INC. v. FITBIT LLC 2
KARIM ZEDDAM OUSSAYEF, Desmarais LLP, New York,
NY, argued for defendants-appellees Fitbit LLC, Fossil
Group, Inc., Garmin International, Inc., Garmin USA, Inc.,
Misfit, Inc., Nike, Inc. Fitbit LLC also represented by
JAMIE KRINGSTEIN; ADAM STEINMETZ, Washington, DC.
SETH W. LLOYD, Morrison & Foerster LLP, Washington,
DC, argued for defendants-appellees Nikon Americas, Inc.,
Nikon Inc., Under Armour, Inc. Nikon Americas, Inc. and
Nikon Inc. also represented by BRIAN ROBERT MATSUI;
JACK WILLIFORD LONDEN, San Francisco, CA; YUKA
TERAGUCHI, Tokyo, Japan.
STANLEY JOSEPH PANIKOWSKI, III, DLA Piper LLP (US),
San Diego, CA, for defendant-appellee Nike, Inc. Also
represented by RICHARD T. MULLOY.
DAVID UTYKANSKI, Harness, Dickey & Pierce, PLC,
Troy, MI, for defendant-appellee Under Armour, Inc. Also
represented by MICHAEL DOERR; MICHAEL PATRICK KELLA,
St. Louis, MO.
RICARDO BONILLA, Fish & Richardson P.C., Dallas, TX,
for defendants-appellees Fossil Group, Inc., Misfit, Inc.
Also represented by NOEL F. CHAKKALAKAL, NEIL J.
MCNABNAY.
RACHAEL D. LAMKIN, Baker Botts LLP, for defendants-
appellees Garmin International, Inc., Garmin USA, Inc.
______________________
Before PROST, REYNA, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
In 2017, Cellspin Soft, Inc. brought patent-
infringement actions in the Northern District of California
against the following companies: Fitbit LLC; Nike, Inc.;
Under Armour, Inc.; Fossil Group, Inc. and Misfit, Inc.
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CELLSPIN SOFT, INC. v. FITBIT LLC 3
(collectively, Fossil); Nikon Americas, Inc. and Nikon, Inc.
(collectively, Nikon); and Garmin International, Inc. and
Garmin USA, Inc. (collectively, Garmin). The actions were
not consolidated but were litigated in conjunction with
each other, along with several other actions not at issue
here. As now relevant, Cellspin alleged infringement of
various claims of three of its patents. The district court
granted summary judgment of noninfringement for all
defendants. Cellspin appeals. We affirm.
I
A
The patents at issue are Cellspin’s U.S. Patent Nos.
8,738,794; 8,892,752; and 9,749,847, which have a common
specification and a common title: “Automatic Multimedia
Upload for Publishing Data and Multimedia Content.”
The patents address issues associated with distributing
multimedia content. ’794 patent, col. 1, lines 48–54. Under
the prior art, the specification says, a user might use one
device (e.g., a camera) to take a photograph, use a memory
device (e.g., a memory stick) to transfer the image to an
internet-capable device (e.g., a personal computer), and
then manually upload the image to a website. Id., col. 1,
lines 37–47. The patents, generalizing from images to
data, describe automating the distribution process: The
data-capture device (e.g., a camera) connects directly to the
mobile device (e.g., a phone) via a paired, wireless
Bluetooth connection, id., col. 2, lines 10–13; and the
mobile device automatically publishes the new content to
the internet, id., col. 2, lines 35–54.
Independent claim 1 of the ’794 patent recites:
A method for acquiring and transferring data from
a Bluetooth enabled data capture device to one or
more web services via a Bluetooth enabled mobile
device, the method comprising:
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CELLSPIN SOFT, INC. v. FITBIT LLC 4
providing a software module on the Bluetooth
enabled data capture device;
providing a software module on the Bluetooth
enabled mobile device;
establishing a paired connection between the
Bluetooth enabled data capture device and
the Bluetooth enabled mobile device;
acquiring new data in the Bluetooth enabled data
capture device, wherein new data is data acquired
after the paired connection is established;
detecting and signaling the new data for transfer
to the Bluetooth enabled mobile device, wherein
detecting and signaling the new data for transfer
comprises:
determining the existence of new data for
transfer, by the software module on the
Bluetooth enabled data capture device; and
sending a data signal to the Bluetooth
enabled mobile device, corresponding to
existence of new data, by the software
module on the Bluetooth enabled data
capture device automatically, over the
established paired Bluetooth connection,
wherein the software module on the
Bluetooth enabled mobile device listens for
the data signal sent from the Bluetooth
enabled data capture device, wherein if
permitted by the software module on the
Bluetooth enabled data capture device, the
data signal sent to the Bluetooth enabled
mobile device comprises a data signal and
one or more portions of the new data;
transferring the new data from the Bluetooth
enabled data capture device to the Bluetooth
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enabled mobile device automatically over the
paired Bluetooth connection by the software
module on the Bluetooth enabled data capture
device;
receiving, at the Bluetooth enabled mobile device,
the new data from the Bluetooth enabled data
capture device;
applying, using the software module on the
Bluetooth enabled mobile device, a user
identifier to the new data for each destination
web service, wherein each user identifier
uniquely identifies a particular user of the
web service;
transferring the new data received by the
Bluetooth enabled mobile device along with a user
identifier to the one or more web services, using the
software module on the Bluetooth enabled mobile
device;
receiving, at the one or more web services, the new
data and user identifier from the Bluetooth
enabled mobile device, wherein the one or more
web services receive the transferred new data
corresponding to a user identifier; and
making available, at the one or more web services,
the new data received from the Bluetooth enabled
mobile device for public or private consumption
over the internet, wherein one or more portions of
the new data correspond to a particular user
identifier.
’794 patent, col. 11, line 48, through col. 12, line 38
(emphases added).
Independent claim 1 of the ’752 patent recites:
A method for transferring data from a Bluetooth
enabled data capture device to a remote internet
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server via a Bluetooth enabled mobile device
comprising:
performing at the data capture device:
establishing a secure paired Bluetooth
connection between the Bluetooth enabled
data capture device and the Bluetooth
enabled mobile device, wherein the secure
paired Bluetooth connection uses a
cryptographic encryption key;
acquiring new data in the Bluetooth
enabled data capture device, wherein new
data is data acquired after the secure
paired Bluetooth connection is established;
detecting and signaling the new data for
transfer, to the Bluetooth enabled mobile
device, wherein detecting and signaling the
new data for transfer comprises:
receiving a message from the
Bluetooth enabled mobile device,
over the established secure paired
Bluetooth connection, to enable
event notifications, corresponding
to new data for transfer, on the
Bluetooth enabled data capture
device;
enabling event notification on
Bluetooth enabled data capture
device, corresponding to new data
for transfer;
determining existence of the new
data for transfer; and
sending an event notification to the
Bluetooth enabled mobile device,
corresponding to existence of new
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CELLSPIN SOFT, INC. v. FITBIT LLC 7
data for transfer, over the
established secure paired
Bluetooth connection, wherein the
Bluetooth enabled mobile device is
configured to listen for the event
notification sent from the
Bluetooth enabled data capture
device;
encrypting, using the cryptographic
encryption key, the new data acquired in
the Bluetooth enabled data capture device;
and
transferring the encrypted data from the
Bluetooth enabled data capture device to
the Bluetooth enabled mobile device, over
the established secure paired Bluetooth
connection, wherein the Bluetooth enabled
mobile device has access to the internet,
wherein the Bluetooth enabled mobile
device is configured to receive the
encrypted data and obtain the new data
from the encrypted data using the
cryptographic encryption key, wherein the
Bluetooth enabled mobile device is
configured to attach a user identifier,
an action setting and a destination
web address of a remote internet server
to the obtained new data, wherein the
user identifier uniquely identifies a
particular user of internet service
provided by the remote internet server,
wherein action setting comprises one of a
remote procedure call (RPC) method and
hypertext transfer protocol (HTTP)
method, and wherein the Bluetooth
enabled mobile device is configured to send
the obtained new data with the attached
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CELLSPIN SOFT, INC. v. FITBIT LLC 8
user identifier, an action setting and a
destination web address to a remote
internet server.
’752 patent, col. 11, line 48, through col. 12, line 37
(emphases added).
Independent claim 1 of the ’847 patent recites:
A system comprising:
a Bluetooth enabled data capture device,
comprising:
a first memory device;
a first processor coupled to the first memory device;
a first Bluetooth communication device configured
to establish a paired Bluetooth wireless connection
between the Bluetooth enabled data capture device
and a Bluetooth enabled cellular phone, wherein
the Bluetooth enabled data capture device is
configured to cryptographically authenticate
identity of the Bluetooth enabled cellular phone
when the first Bluetooth communication device
establishes the paired Bluetooth wireless
connection;
a data capture circuitry;
said first processor configured to acquire
new-data using the data capture circuitry
after the paired Bluetooth wireless connection
between the Bluetooth enabled data capture
device and the Bluetooth enabled cellular
phone is established;
said first processor configured to store the
acquired new-data in the first memory device;
and said first processor configured to send an
event notification and the acquired new-data
to the cryptographically authenticated
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Bluetooth enabled cellular phone over the
established paired Bluetooth wireless
connection, wherein the event notification
corresponds to the acquired new-data and
comprises sending a signal to the cryptographically
authenticated Bluetooth enabled cellular phone;
a mobile application in the Bluetooth enabled
cellular phone comprising executable instructions
that, when executed by a second processor inside
the Bluetooth enabled cellular phone controls the
second processor to:
detect and receive the acquired new-data,
comprising:
listen for the event notification, sent from the
Bluetooth enabled data capture device, over the
established paired Bluetooth wireless connection,
wherein the event notification corresponds to the
acquired new-data; and
receive the event notification and the acquired
new-data, from the Bluetooth enabled data capture
device, over the established paired Bluetooth
wireless connection, wherein receiving the event
notification comprises receiving the signal sent by
the Bluetooth enabled data capture device
corresponding to the acquired new-data;
store the new-data received over the established
paired Bluetooth wireless connection, in a second
memory device of the Bluetooth enabled cellular
phone before transfer to a website; and
use HTTP to transfer the new-data received
over the established paired Bluetooth wireless
connection, along with user information
stored in the second memory device of the
cryptographically authenticated Bluetooth
enabled cellular phone, to the website, over the
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CELLSPIN SOFT, INC. v. FITBIT LLC 10
cellular data network; wherein the mobile
application further comprises executable
instructions to control the processor to provide a
graphical user interface (GUI) for the new-data.
’847 patent, col. 12, line 13, through col. 13, line 3
(emphases added).
B
In April 2018, the district court dismissed several of the
actions before it under Federal Rule of Civil Procedure
12(b)(6), concluding that the asserted claims of the three
patents (and of one other patent) were invalid under 35
U.S.C. § 101 for claiming ineligible subject matter. But this
court vacated the dismissal in 2019 and remanded the case
to the district court. Cellspin Soft, Inc. v. Fitbit, Inc., 927
F.3d 1306, 1320 (Fed. Cir. 2019).
In April 2021, the district court issued a claim-
construction order. Cellspin Soft, Inc. v. Fitbit, Inc., No.
4:17-cv-05928, 2021 WL 1417419 (N.D. Cal. Apr. 14, 2021)
(Claim Construction Order). The court there construed
“Bluetooth enabled data capture device” to require a device
“separate and apart from the mobile device.” Id. at *5.
Relying on a prosecution disclaimer, the court also
construed “paired connection” to require a connection that
is “established and maintained on a continuous basis.” Id.
at *9.
In January 2022, Fitbit, Nike, Under Armour, Fossil,
Nikon, and Garmin moved for summary judgment of
noninfringement. The claims in the case were: claims 1, 2–
4, 7, 9, 16, 17, 18, 20, and 21 of the ’794 patent; claims 1, 2,
4, 5, and 12–14 of the ’752 patent; and claims 1–3 of the
’847 patent. The district court granted all six motions,
addressing them in a single opinion explaining all six
“orders.” Cellspin Soft, Inc. v. Fitbit, Inc., No. 4:17-cv-
05928, 2022 WL 2784467 (N.D. Cal. June 15, 2022)
(Summary Judgment Opinion).
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CELLSPIN SOFT, INC. v. FITBIT LLC 11
The court addressed the asserted grounds for summary
judgment defendant by defendant and ground by ground.
But not all the court’s determinations need to be
summarized here. Certain defendants shared certain
grounds for summary judgment. A limited subset of the
court’s determinations suffices to support the bottom-line
grants of summary judgment.
Notably, for Fitbit, Fossil, and Garmin, the district
court granted summary judgment because they each had
shown the absence of a genuine dispute of material fact
regarding whether the accused products had the claimed
“user identifier” or “user information” required to be
attached to the data. Id. at *10–11, *32–33, *39. For Nike,
the district court granted summary judgment because it
had shown the absence of a genuine dispute of material fact
regarding whether the “user identifier” is attached by the
mobile device and whether a first processor performs the
claimed trio of functions (acquiring new data, storing said
data, and sending an event notification). Id. at *17–20.
For Under Armour and Nikon, the district court granted
summary judgment because each had shown the absence
of a genuine dispute of material fact regarding whether a
paired connection is maintained on a continuous basis. Id.
at *24–26, *41–43.
On June 15, 2022, the district court entered judgments
of noninfringement for all six defendants. (As noted infra,
that judgment was not then final in three of the cases.)1
1 The district court amended its judgment in
Garmin’s case on July 19, 2022—not in substance but only
to make clear that it was issued under Federal Rule of Civil
Procedure 54(b), reflecting the fact that it applies only to
the ’794, ’752, and ’847 patents that were the subject of the
Summary Judgment Opinion and not to another patent
that was asserted against Garmin in the case but was not
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CELLSPIN SOFT, INC. v. FITBIT LLC 12
Cellspin filed notices of appeal for the six judgments by
July 15, 2022, within the time allowed by 28 U.S.C.
§ 2107(a), and the six appeals were consolidated for
briefing in this court.
II
The appeals before us are from the district court’s
judgments, in June 2022, that Fitbit, Nike, Under Armour,
Fossil, Nikon, and Garmin do not infringe the ’794, ’752,
and ’847 patents. We have jurisdiction over the appeals if
and only if the decisions appealed are “final decisions.” 28
U.S.C. § 1295(a). Final decisions are “decisions that end
litigation on the merits and leave nothing for the court to
do but execute the judgment.” Amgen Inc. v. Amneal
Pharmaceuticals LLC, 945 F.3d 1368, 1374 (Fed. Cir. 2020);
see also Robert Bosch, LLC v. Pylon Manufacturing Corp.,
719 F.3d 1305, 1308 (Fed. Cir. 2013) (en banc) (“This court’s
jurisdiction is governed by the final judgment rule.”).
The judgments of noninfringement in the cases against
Nike, Under Armour, and Nikon were final judgments,
there being no outstanding counterclaims. But the
judgments in the cases against Fitbit, Fossil, and Garmin,
when issued, were not final. Those three defendants had
filed counterclaims against Cellspin that remained
outstanding after the district court’s June 2022 summary-
judgment orders, as they were not addressed in those
orders and some of them remained unadjudicated after an
April 2021 ruling on a motion for summary judgment of
ineligibility under 35 U.S.C. § 101, see Cellspin Soft, Inc. v.
Fitbit, Inc., No. 4:17-cv-05928, 2021 WL 1421612, at *18
the subject of that opinion or another adjudication. We and
the parties see no need for a new or amended notice of
appeal in this circumstance. See State Contracting &
Engineering Corp. v. State of Florida, 358 F.3d 1329, 1334–
35 (Fed. Cir. 2001).
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CELLSPIN SOFT, INC. v. FITBIT LLC 13
(N.D. Cal. Apr. 14, 2021). “[A] judgment that does not
dispose of pending counterclaims is not a final judgment.”
Nystrom v. TREX Co., Inc., 339 F.3d 1347, 1351 (Fed. Cir.
2003) (quoting Pandrol USA, LP v. Airboss Railway
Products, Inc., 320 F.3d 1354, 1362 (Fed. Cir. 2003)).
At oral argument before this court, however, counsel
representing Fitbit, Fossil, and Garmin volunteered to
dismiss the remaining counterclaims without prejudice,
and Cellspin agreed. Oral Arg. at 7:51–8:41,
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=22
-2025_10072024.mp3. That representation cures the
jurisdictional defect and renders the district court’s
judgment a final decision that is reviewable within our
jurisdiction. See Amgen, 945 F.3d at 1374 (finding
jurisdiction where party “represented that it would ‘give
up’ its invalidity defense and claim”); Synchronoss
Technologies, Inc. v. Dropbox, Inc., 987 F.3d 1358, 1365–66
(Fed. Cir. 2021) (finding jurisdiction where party “agreed
to give up its invalidity counterclaims” at oral argument);
Atlas IP, LLC v. Medtronic, Inc., 809 F.3d 599, 604–05 (Fed.
Cir. 2015) (determining that “a consented-to dismissal
without prejudice” of counterclaims “produces a final
decision under § 1295(a)(1)”). Accordingly, we have
jurisdiction over all six appeals under § 1295(a)(1).
III
We decide the correctness of the district court’s grant of
summary judgment de novo, following Ninth Circuit law
and asking if there is no genuine dispute of material fact,
such that the movant is entitled to judgment as a matter of
law when the evidence is viewed in the light most favorable
to the non-movant. Treehouse Avatar LLC v. Valve Corp.,
54 F.4th 709, 714 (Fed. Cir. 2022) (citing Fed. R. Civ. P.
56(a)); San Diego Police Officers’ Association v. San Diego
City Employees’ Retirement System, 568 F.3d 725, 733 (9th
Cir. 2009); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 257 (1986). We review the district court’s
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CELLSPIN SOFT, INC. v. FITBIT LLC 14
application of the local court rules for any abuse of
discretion. SanDisk Corp. v. Memorex Products, Inc., 415
F.3d 1278, 1292 (Fed. Cir. 2005). Thus, we uphold the
district court’s application of the local rules unless it was
(1) clearly unreasonable, arbitrary, or fanciful; (2) based on
erroneous conclusions of law; (3) clearly erroneous; or (4)
unsupported by any evidence. Id.
Our discussion below addresses four issues. Finding
no error in the district court’s decision as to those issues
suffices for us to affirm the grant of summary judgment of
noninfringement. We need not and do not address other
rulings of the district court.
A
In seeking summary judgment of noninfringement,
Fitbit, Fossil, and Garmin argued that the evidence did not
permit a reasonable finding of satisfaction of the claim
element “user identifier” or “user information,” which the
parties treat as indistinguishable and which (in one form
or the other) are present in all asserted claims of the ’794,
’752, and ’847 patents, with particular roles to be played by
that element. Cellspin responded by relying on a product
feature called “OAuth” as satisfying that element. But the
district court barred Cellspin’s reliance on “OAuth” as too
late. Summary Judgment Opinion, at *10–11, *32–33, *39.
Under the local patent-case procedural rules of the
Northern District of California, Cellspin was required to
serve a “Disclosure of Asserted Claims and Infringement
Contentions” containing a “chart identifying specifically
where and how each limitation of each asserted claim is
found within each Accused Instrumentality.” Patent Local
Rules 3-1(c). Cellspin served a disclosure of its
infringement contentions on Fitbit, Fossil, and Garmin on
June 9, 2020. Notice of Compliance, Cellspin Soft, Inc. v.
Fitbit LLC, No. 4:17-cv-05928 (N.D. Cal. June 22, 2020),
ECF No. 137; Notice of Compliance, Cellspin Soft, Inc. v.
Fossil Group, Inc., No. 4:17-cv-05933 (N.D. Cal. June 22,
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CELLSPIN SOFT, INC. v. FITBIT LLC 15
2020), ECF No. 165; Notice of Compliance, Cellspin Soft,
Inc. v. Garmin International, Inc., No. 4:17-cv-05934 (N.D.
Cal. June 22, 2020), ECF No. 114. But in those
infringement contentions, Cellspin did not identify OAuth
as the infringing “user identifier” or “user information”;
instead, it said that the element was found in a “username
or email address, or information based off of a user or the
user’s associated wearable device,” J.A. 10005, 10285, and
“information relating to the user, such as a username/email
address, and/or a code identifying the user or the [accused
device],” J.A. 10452.
The district court correctly determined that Cellspin’s
infringement contentions did not disclose that Cellspin was
relying on OAuth to meet the claim element, and the
district court did not abuse its discretion under the local
rules in barring Cellspin from later reliance on OAuth.
Cellspin referred to OAuth for the first time in its opening
expert reports filed in September 2021—at the close of fact
discovery. Cellspin could have sought to amend its
infringement contentions: The relevant local rule allows
such amendment with a “timely showing of good cause” and
notes that the “[r]ecent discovery of nonpublic information
about the Accused Instrumentality which was not
discovered, despite diligent efforts, before the service of the
Infringement Contentions” can provide the requisite
showing. Patent Local Rules 3-6. Yet Cellspin did not seek
to amend its contentions, and so whether the standards for
amendment would have been met (in complex, related
cases, involving claims having numerous claim limitations
asserted against a variety of different products) was never
tested.
In these circumstances, we cannot find an abuse of
discretion by the district court in excluding the OAuth
assertion. In opposing summary judgment, Cellspin did
not present evidence of any other product feature as
satisfying the “user identifier” or “user information”
element (in the various claim limitations). It follows that
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CELLSPIN SOFT, INC. v. FITBIT LLC 16
the district court correctly granted summary judgment of
noninfringement because Cellspin did not create a genuine
dispute of material fact as to whether Fitbit, Fossil, and
Garmin’s products “apply,” “attach,” or “store” a “user
identifier” or “user information.” On that basis, we affirm
the grant to Fitbit, Fossil, and Garmin of summary
judgment of noninfringement of the ’794, ’752, and ’847
patents.2
B
The asserted claims of the ’752 and ’794 patents require
that the mobile device “apply[]” or “attach[]” the “user
identifier” to new data it receives from the data capture
device. The district court granted Nike summary judgment
of noninfringement of those patents on the ground that
Cellspin’s evidence did not allow a reasonable finding that
those requirements were satisfied. Summary Judgment
Opinion, at *17–19. Cellspin challenges that ruling, but
we reject Cellspin’s challenge.
The district court’s claim construction, which Cellspin
does not dispute, distinguishes the mobile device, which
attaches the user identifier, from the data capture device,
2 For Garmin, the district court granted summary
judgment on this basis only as to the ’752 and ’794 patents,
but Garmin noted in its brief to us that the district court’s
conclusion about the “user identifier”/“user information”
issue requires summary judgment of noninfringement by
Garmin on the ’847 patent as well, Brief for Appellee
Garmin at 15 n.2, and Cellspin acknowledged at oral
argument that “there’s no distinction” regarding the
applicability of this ground across the three asserted
patents—all of which recite a “user identifier” or “user
information.” Oral Arg. at 19:46–58,
https://oralarguments.cafc.uscourts.gov/default
.aspx?fl=22-2025_10072024.mp3.
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CELLSPIN SOFT, INC. v. FITBIT LLC 17
which acquires the new data. Claim Construction Order,
at *5. Nike presented evidence that when the Apple Watch
Nike—which is the accused data capture device—is used to
acquire activity data, the Apple Watch Nike attaches “an
identifier associated with the user” when it packages the
activity data for transmission. J.A. 15689–91. It is the
data capture device, not the mobile device, that attaches
the identifier; indeed, the Apple Watch Nike can send data
directly to the cloud without connecting to a mobile phone.
J.A. 15691. Cellspin failed to rebut this clear evidence of
noninfringement, as Cellspin’s evidence establishes at
most that a user identifier is associated with the data—not
that the mobile phone attaches a user identifier to the data.
Thus, we see no error in the district court’s ruling that
Cellspin did not establish a genuine issue of material fact
as to whether Nike satisfies an element of the asserted
claims of the ’752 and ’794 patents. Accordingly, we affirm
the grant to Nike of summary judgment of
noninfringement of those two patents.
C
Regarding the ’847 patent, the district court granted
Nike summary judgment of noninfringement on a different
ground. The asserted claims of the ’847 patent require a
“first processor” configured to do three things—acquire
new data, store the acquired new data, and send an event
notification and the acquired new data to the mobile phone.
The district court ruled that the evidence would not permit
a reasonable jury to find that requirement satisfied by the
accused Nike product. Summary Judgment Opinion, at
*19–20. We agree with the district court.
To argue that Nike practices the “first processor”
limitation, Cellspin cites its expert’s testimony generally
asserting that “the presence of a first processor is evident
based upon the functionality of the Accused Devices and
the fact that there is operating code.” Cellspin’s Opening
Brief at 93 (citing J.A. 615 ¶ 86, 617–21 ¶¶ 90–93). The
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CELLSPIN SOFT, INC. v. FITBIT LLC 18
evidence cited by Cellspin, however, does not show that the
“first processor” limitation is practiced, as Cellspin’s expert
identified a “first processor” but did not demonstrate that
the identified processor was configured to perform each of
the claim-specified functions. J.A. 9445–48, 9475–9509.
Although the Apple Watch Nike contains multiple
processors, Cellspin did not point to any evidence that any
one of them was configured to perform all the claim-
required functions. J.A. 8912–13.
For those reasons, we affirm the district court’s grant
to Nike of summary judgment of noninfringement of the
’847 patent.
D
For Nikon and Under Armour, a dispositive issue
involves the requirement of “a paired connection”
(sometimes a “paired Bluetooth connection”), which is
recited in each of the asserted claims for the ’794, ’752, and
’847 patents. The district court’s claim construction, which
Cellspin does not appeal, requires that the “paired
connection” be “established and maintained on a
continuous basis.” Claim Construction Order, at *9. The
district court concluded that the evidence would not allow
a reasonable finding that the requirement was met by
Nikon’s or Under Armour’s accused products. Summary
Judgment Opinion, at *22–26, *41–45. We reject Cellspin’s
challenge to that conclusion.
Nikon uses a two-connection process: First, the Nikon
products use a low-speed connection to signal to the mobile
phone that there are new images ready to transfer. Then,
the mobile phone detects that transfer request and
disconnects the low-speed connection before initiating a
high-speed connection. As the district court correctly
identified, this two-connection process is not “maintained
on a continuous basis,” and Cellspin did not present
evidence permitting a contrary finding.
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CELLSPIN SOFT, INC. v. FITBIT LLC 19
Cellspin’s arguments focus on the pairing between the
Nikon products and the mobile phone rather than the
connection between the Nikon products and the mobile
phone. During prosecution, however, Cellspin
differentiated “establishing a pairing” from “establishing a
constant connection,” using this distinction to avoid the
prior art and asserting that “having a constant connection
would be the key.” J.A. 8177 (emphasis added). Thus,
Cellspin’s arguments relating to pairing through the
exchange of link keys provide no basis for finding that a
continuous connection is maintained.
The Under Armour products use a connection that
activates for a short period of time before going to sleep and
disconnecting until the next connection event. J.A. 14717–
27. That disconnecting feature saves power and makes the
Bluetooth connection “Low Energy.” J.A. 14639–40,
14717–19. Cellspin failed to provide evidence contrary to
Under Armour’s evidence of this noncontinuous
connection. Instead, Cellspin repeats its pairing
arguments, asserting that “the condition of having an
exchanged link key” constitutes a continuous connection—
an assertion at odds with the district court’s claim
construction. J.A. 720 ¶ 69.
Given this record, we affirm the district court’s grant
to Nikon and Under Armour of summary judgment of
noninfringement of the ’794, ’752, and ’847 patents.
III
As discussed above, we do not address the remaining
aspects of the district court opinion. Our conclusions on
the four issues reviewed here suffice to support summary
judgment as to all claims and all parties. We therefore
affirm the district court’s grant of summary judgment of
noninfringement of the ’794, ’752, and ’847 patents.
AFFIRMED
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