Cellspin Soft, Inc. v. Fitbit LLC, Nikon Americas, Inc., Nikon Inc.

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CELLSPIN SOFT, INC.,
Plaintiff-Appellant
v.
FITBIT LLC, NIKON AMERICAS, INC., NIKON
INC.,
Defendants-Appellees
______________________
2023-1526
______________________
Appeal 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.
ADAM STEINMETZ, Desmarais LLP, Washington, DC,
argued for defendant-appellee Fitbit LLC. Also
represented by RAYMOND N. HABBAZ, JAMIE KRINGSTEIN,
Case: 23-1526 Document: 67 Page: 1 Filed: 11/01/2024

-- 1 of 12 --

CELLSPIN SOFT, INC. v. FITBIT LLC 2
KARIM ZEDDAM OUSSAYEF, New York, NY.
SETH W. LLOYD, Morrison & Foerster LLP, Washington,
DC, argued for defendants-appellees Nikon Americas, Inc.,
Nikon Inc. Also represented by BRIAN ROBERT MATSUI;
JACK WILLIFORD LONDEN, San Francisco, CA; YUKA
TERAGUCHI, Tokyo, Japan.
______________________
Before PROST, REYNA, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
Cellspin Soft, Inc., alleging infringement of several of
its patents, brought separate actions against Fitbit LLC
and other companies, including Nikon Americas, Inc. and
Nikon, Inc. (collectively, Nikon), in the District Court for
the Northern District of California. In June 2022, after
years of litigation before Judge Gonzalez Rogers, the
district court granted summary judgment of
noninfringement to Fitbit, Nikon, and others in their
separate actions (which were not consolidated but were
litigated in conjunction with each other). Today, we affirm
the summary judgment rulings in the several cases, which
include cases against Fitbit and Nikon and (as will be
relevant here) against Fossil Group, Inc. and Misfit, Inc.
(collectively, Fossil) and Garmin International, Inc. and
Garmin USA, Inc. (collectively, Garmin), among others.
Cellspin Soft, Inc. v. Fitbit LLC, Fed. Cir. Nos. 2022-2025,
2022-2028 to -2030, 2022-2032, 2022-2037 (Summary
Judgment Appeal Decision).
Seven months after the district court entered summary
judgment in June 2022, Cellspin filed a motion under 28
U.S.C. § 455 arguing that Judge Gonzalez Rogers should
recuse herself from the case and that the summary
judgment should be vacated because the grounds for
disqualification existed at the time it was entered. The
several arguments for recusal rested on the fact that, in
Case: 23-1526 Document: 67 Page: 2 Filed: 11/01/2024

-- 2 of 12 --

CELLSPIN SOFT, INC. v. FITBIT LLC 3
February 2021, Fitbit had become a subsidiary of Google
LLC (itself an indirect subsidiary of Alphabet Inc., a
publicly traded company). Judge Gonzalez Rogers denied
the motion. Cellspin Soft, Inc. v. Fitbit, Inc., 2023 WL
2176758 (Feb. 15, 2023) (Recusal Opinion). Cellspin timely
appealed.
We first dismiss the appeal in the case against Nikon
because Cellspin failed to file a notice of appeal in the
Nikon case. That dismissal leaves only the appeal in the
case against Fitbit. We conclude that the bulk of the
recusal motion was properly denied by the district court as
untimely. We also conclude that, even if there was error as
to the remaining part (an issue we do not decide), any such
error was harmless. We reach that conclusion because the
outcome of Cellspin’s infringement case against Fitbit
could not be altered by Judge Gonzalez Rogers’s recusal
from that case, given that we have affirmed the summary
judgment of noninfringement in the Fossil and Garmin
cases—as to which Cellspin has not preserved a recusal
challenge—on a ground directly applicable to the case
against Fitbit. We therefore dismiss the appeal as to Nikon
and affirm as to Fitbit.
I
Cellspin filed its complaint against Fitbit, along with
complaints against Nikon, Fossil, Garmin, and others,
asserting infringement of U.S. Patent Nos. 8,738,794,
8,892,752, and 9,749,847, in October 2017. The Fitbit case
and others were assigned to Judge Yvonne Gonzalez Rogers
on October 31, 2017, and deemed to be related for
coordinated treatment. Extensive litigation in the cases
ensued. In February 2021, Fitbit amended its corporate
disclosure statement to reflect the completion of its
acquisition by Google (an indirect subsidiary of Alphabet),
an acquisition that had been announced publicly months
earlier. From that time, Google and Alphabet (collectively,
Google) were owners of Fitbit, a party to Cellspin’s case.
Case: 23-1526 Document: 67 Page: 3 Filed: 11/01/2024

-- 3 of 12 --

CELLSPIN SOFT, INC. v. FITBIT LLC 4
Nearly a year later, in January 2022, Fitbit and other
defendants moved for summary judgment of
noninfringement in their respective cases. Cellspin did not
raise any issue of recusal based on Google’s ownership of
Fitbit since February 2021. The district court granted
summary judgment in June 2022. Cellspin Soft, Inc. v.
Fitbit, Inc., No. 4:17-cv-05928, 2022 WL 2784467, at *1
(N.D. Cal. June 15, 2022). We have today affirmed that
decision. See Summary Judgment Appeal Decision, supra.
In the meantime—in January 2023, months after the
grant of summary judgment and the filing of notices of
appeal from that grant—Cellspin filed a motion to recuse
Judge Gonzalez Rogers. Cellspin presented several
arguments tied to Google concerning investments she and
her husband had and concerning certain of her husband’s
business activities. Cellspin sought vacatur of the district
court’s summary-judgment ruling under Federal Rule of
Civil Procedure 60 because the investments and activities
pre-dated that ruling. Cellspin sought recusal and vacatur
not just in its case against Fitbit (a subsidiary of Google
since February 2021) but also in the cases against other
defendants, the latter on the asserted ground that
determinations regarding Fitbit may have infected
determinations regarding other defendants.
The district court denied the motion to recuse and
vacate on several grounds. Recusal Opinion, supra. First,
the district court concluded that it would lack authority to
vacate the summary judgment decisions because of
Cellspin’s pending appeals from those decisions. Id. at *3–
4. Second, the district court determined that the motion
was untimely. Id. at *4–6. Third, the district court denied
the motion to recuse on the merits. Id. at *6–11. Cellspin
timely filed an appeal.
Case: 23-1526 Document: 67 Page: 4 Filed: 11/01/2024

-- 4 of 12 --

CELLSPIN SOFT, INC. v. FITBIT LLC 5
II
We first address Nikon’s presence before us. To appeal
the district court’s denial of the recusal motion in Nikon’s
case, Cellspin was required to file a notice of appeal in the
Nikon docket designating the appealed judgment under
Federal Rule of Appellate Procedure 3(a)(1). See Smith v.
Barry, 502 U.S. 244, 248 (1992) (“Rule 3’s dictates are
jurisdictional in nature, and their satisfaction is a
prerequisite to appellate review.”). Cellspin did not do so.
Cellspin filed its notice of appeal—listing Fitbit as the
only defendant—only in the Fitbit docket. J.A. 2167–68.
Cellspin’s argument that its single notice of appeal should
apply to a separate case is unconvincing. Cellspin’s cases
against Fitbit and Nikon were docketed separately by the
district court, Cellspin Soft, Inc. v. Fitbit, Inc., No. 4:17-cv-
05928 and Cellspin Soft, Inc. v. Nikon Americas, Inc., No.
4:17-cv-05936, and the district court entered an order
denying Cellspin’s recusal motion in each action. Order
Denying Motion for Recusal, Cellspin Soft, Inc. v. Nikon
Americas, Inc., No. 4:17-cv-05936 (N.D. Cal. Feb. 15, 2023),
ECF No. 260; Order Denying Motion for Recusal, Cellspin
Soft, Inc. v. Fitbit, Inc., No. 4:17-cv-05928 (N.D. Cal. Feb.
3, 2023), ECF No. 376.1
Because Cellspin did not file a notice of appeal from the
district court’s denial of the recusal motion as it relates to
1 Nikon’s opposition to Cellspin’s recusal motion was
initially added to the Fitbit docket instead of the Nikon
docket, which resulted in Nikon’s temporary addition to the
Fitbit docket. See J.A. 2226; Opposition to Motion for
Recusal, Cellspin Soft, Inc. v. Fitbit, Inc., No. 4:17-cv-05928
(N.D. Cal. Feb. 3, 2023), ECF No. 374. Nikon has since
been removed from the Fitbit docket. Order Granting
Nikon’s Request, Cellspin Soft, Inc. v. Fitbit, Inc., No. 4:17-
cv-05928 (N.D. Cal. May 4, 2023), ECF No. 381.
Case: 23-1526 Document: 67 Page: 5 Filed: 11/01/2024

-- 5 of 12 --

CELLSPIN SOFT, INC. v. FITBIT LLC 6
Nikon, we do not have jurisdiction over Cellspin’s appeal
against Nikon. We dismiss the appeal as to Nikon.
III
Regarding the case against Fitbit, we have jurisdiction
under 28 U.S.C. § 1295(a)(1). Cellspin appeals only insofar
as it seeks, based on recusal, to vacate the summary
judgment ruling in favor of Fitbit; it does not identify any
prospective decisions still to be made in the case.
Accordingly, as the district court indicated, Recusal
Opinion, at *4, the motion to recuse and vacate is properly
viewed as a motion for relief from the judgment under
Federal Rule of Civil Procedure 60(b). (The summary
judgment from which relief is sought is final, as explained
in our Summary Judgment Appeal Decision.) A district
court has authority to deny a Rule 60(b) motion, as the
district court did, even while an appeal is pending. See
Fed. R. Civ. P. 62.1, Advisory Committee Note (“After an
appeal has been docketed and while it remains pending,
the district court cannot grant a Rule 60(b) motion without
a remand. But it can entertain the motion and deny it
. . . .”). A denial of such a motion is final and appealable.
See, e.g., CEATS, Inc. v. Continental Airlines, Inc., 755 F.3d
1356, 1360 (Fed. Cir. 2014); 15B Charles A. Wright, Arthur
R. Miller, & Edward H. Cooper, Federal Practice &
Procedure § 3916 (2d ed.).
We review the district court’s denial of the motion for
recusal according to the law of the regional circuit—here,
the Ninth Circuit. See Baldwin Hardware Corp. v.
FrankSu Enterprise Corp., 78 F.3d 550, 556 (Fed. Cir. 1996)
(“In reviewing [a] . . . denial of recusal, which raises
substantive and procedural issues not within our exclusive
jurisdiction, we are guided by the law of the regional
circuit.”). The Ninth Circuit reviews the denial of motions
for recusal under 28 U.S.C. § 455 for abuse of discretion.
See In re Marshall, 721 F.3d 1032, 1039 (9th Cir. 2013) (“We
review the denial of a § 455(a) motion for recusal for abuse
Case: 23-1526 Document: 67 Page: 6 Filed: 11/01/2024

-- 6 of 12 --

CELLSPIN SOFT, INC. v. FITBIT LLC 7
of discretion.”). We have adopted the same standard of
review in recusal matters that are subject to our own
circuit’s law. See Shell Oil Co. v. United States, 672 F.3d
1283, 1288 (Fed. Cir. 2012).
A
Two bases for Cellspin’s argument for recusal are
(a) certain financial-investment holdings of Judge
Gonzalez Rogers and her husband (Mr. Rogers) and
(b) certain collaborations between Google and the
consulting firm McKinsey when Mr. Rogers worked there
for many years. As to the former, the allegations do not
concern direct ownership of Google stock by the judge or
her husband, but rather, participation in large
independently managed multi-company funds such as
mutual funds (Cellspin focusing on funds that do or would
be expected to have Google stock in their portfolios). As to
the latter, the allegations seem to focus on McKinsey’s
general offering of Google cloud or other services to
McKinsey clients, not any direct work by Mr. Rogers (who
focused on energy firms) for Google as a consulting client.
We do not thoroughly probe the specifics, however, because
for these asserted bases for recusal, we find no abuse of
discretion in Judge Gonzalez Rogers’s conclusion that
Cellspin’s motion was untimely. Recusal Opinion, at *4–6.
Section 455 sets no specific time limit on seeking
recusal, but timeliness is a well-established consideration
in application of the statute. “In deciding motions to vacate
orders issued by an allegedly disqualified judge, the courts
have used ‘untimely’ as a synonym for ‘unfair’ when the
circumstances, like those present here, are such that a
grant of the motion would produce a result inequitable,
unjust, and unfair.” Polaroid Corp. v. Eastman Kodak Co.,
867 F.2d 1415, 1419 (Fed. Cir. 1989); see, e.g., Kolon
Industries Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d
160, 170–72 (4th Cir. 2014); United States v. Rogers, 119
F.3d 1377, 1380–83 (9th Cir. 1997). Recusal motions must
Case: 23-1526 Document: 67 Page: 7 Filed: 11/01/2024

-- 7 of 12 --

CELLSPIN SOFT, INC. v. FITBIT LLC 8
be filed with reasonable promptness after the ground for
such a motion is ascertained, i.e., known to the movant. E.
& J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295
(9th Cir. 1992) (citing Preston v. United States, 923 F.2d
731, 733 (9th Cir. 1991)). The Ninth Circuit has found
“untimeliness” when “unexplained delay in filing a recusal
motion suggests that the recusal statute is being misused
for strategic purposes.” United States v. Mikhel, 889 F.3d
1003, 1026 (9th Cir. 2018) (citing E. & J. Gallo, 967 F.2d
at 1296) (internal quotation marks omitted).
Here, Cellspin did not seek recusal until January 2023,
well after it had lost on the summary judgment motion.
Yet Cellspin is charged with knowing of Fitbit’s acquisition
by Google by February 3, 2021, a year and a half earlier,
when Fitbit updated its corporate disclosures. Amended
Corporate Disclosure Statement, Cellspin Soft, Inc. v.
Fitbit, Inc., No. 4:17-cv-05928 (N.D. Cal. Feb. 3, 2021), ECF
No. 165. The timing raises obvious concerns of lack of
equity and strategic misuse of recusal. Recusal Opinion, at
*5.
Concerning the McKinsey-related basis: Cellspin’s
recusal motion cited Judge Gonzalez Rogers’s 2011 Senate
Judiciary Committee Questionnaire, which has been
publicly available since 2011, to establish Mr. Rogers’s
employment with McKinsey (which lasted until March
2021). For the McKinsey-Google collaboration, Cellspin
cited to one undated source, J.A. 930, and to a McKinsey
webpage, J.A. 112–13, that, when checked by following the
Cellspin-provided uniform resource locator address,
reveals that it was published on March 7, 2022. J.A. 112–
13. Cellspin did not remotely establish that the
information it relies on was unavailable with reasonable
diligence substantially before the summary judgment
ruling issued and the recusal motion was filed.
Concerning the investment-related basis: Cellspin was
similarly untimely in raising its concerns. Cellspin argued
Case: 23-1526 Document: 67 Page: 8 Filed: 11/01/2024

-- 8 of 12 --

CELLSPIN SOFT, INC. v. FITBIT LLC 9
that Judge Gonzalez Rogers’s investments in certain
Vanguard funds and a “Special Situations Fund” managed
by the McKinsey Investment Office merit recusal because
the funds contain interests in Google among their many
assets. For these grounds, Cellspin drew upon Judge
Gonzalez Rogers’s 2020 financial disclosures, which were
filed on October 27, 2021, according to Cellspin. J.A. 2137.
Judge Gonzalez Rogers noted that “the investments at
issue in the motion have been publicly known since the
2012 Financial Disclosure and have not changed,” and
Cellspin does not argue otherwise. Recusal Opinion, at *5
(emphasis in original). As discussed above, Cellspin was
aware of Fitbit’s acquisition by Google by February 3, 2021.
Therefore, Judge Gonzalez Rogers’s investments and the
alleged connection to Google were available to Cellspin by
October 27, 2021, at the latest—a few months before
summary judgment was sought, half a year before
summary judgment was granted, and more than a year
before Cellspin sought recusal.
The Ninth Circuit has affirmed determinations of
untimeliness underlying denials of recusal motions in
similar circumstances. See Mikhel, 889 F.3d at 1027
(affirming denial of recusal motion where movant learned
of grounds during trial but did not file recusal motion until
after jury verdict); E. & J. Gallo, 967 F.2d at 1295
(affirming denial of recusal motion where movant learned
of grounds upon case transfer but did not seek
disqualification until after final judgment). For the
grounds discussed here—the bulk of the Cellspin’s asserted
grounds for recusal—we affirm the denial of the recusal
motion for untimeliness in the present matter.
B
Cellspin’s separate asserted basis for recusal involves
Mr. Rogers’s “Operations Partner” role at Ajax Strategies
Venture Capital, which is allegedly a venture-capital firm
funded in part by Google that makes investments in start-
Case: 23-1526 Document: 67 Page: 9 Filed: 11/01/2024

-- 9 of 12 --

CELLSPIN SOFT, INC. v. FITBIT LLC 10
up firms. See Recusal Opinion, at *7. As Judge Gonzalez
Rogers noted, this basis raises a different timeliness issue,
at least because the relationship of Mr. Rogers with Ajax
seemingly did not begin until March 2022. See Recusal
Opinion, at *2, *5, *7. The facts relating to this
relationship, and to Google’s relationship with Ajax, which
remain unclear on the record before us even now, may well
have been less publicly available to Cellspin than were
facts relating to the asserted bases for recusal discussed
above.
But we need not and do not further pursue the specific
facts bearing on timeliness of Cellspin’s assertion of this
ground. The same is true regarding the specific facts
bearing on assessment of the Ajax relationships on the
merits. It is relevant to note that, given what Cellspin has
put forward, the assessment seems to call for application of
28 U.S.C. § 455(a), and not the brighter-line rules of
§ 455(b), and for consideration of, e.g., the multi-factor
approach set forth in the U.S. Judicial Conference
Committee on Codes of Conduct’s Advisory Opinion 107:
Disqualification Based on Spouse’s Business
Relationships, which elaborates on standards of Canon
3C(1) of the Code of Conduct for United States Judges that
are closely related to those of 28 U.S.C. § 455. But we need
not and do not make further inquiry into those matters
because, even if we were to conclude that Judge Gonzalez
Rogers abused her discretion in this respect, an issue we do
not reach, that conclusion would not warrant vacating the
summary judgment for Fitbit under the harmless-error
standards set forth in Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 864 (1988). See also
Centripetal Networks, Inc. v. Cisco Systems, Inc., 38 F.4th
1025, 1034–39 (Fed. Cir. 2022); Shell Oil, 672 F.3d at 1292–
94.
Under Liljeberg, when deciding whether a judgment
should be vacated for violation of § 455, we are to consider
“the risk of injustice to the parties in the particular case,
Case: 23-1526 Document: 67 Page: 10 Filed: 11/01/2024

-- 10 of 12 --

CELLSPIN SOFT, INC. v. FITBIT LLC 11
the risk that the denial of relief will produce injustice in
other cases, and the risk of undermining the public’s
confidence in the judicial process.” 486 U.S. at 864. Here,
and most critically, the risk of injustice to the parties from
denying vacatur would be essentially nonexistent. As we
hold today in the Summary Judgment Appeal Decision,
Judge Gonzalez Rogers did not abuse her discretion by
barring Cellspin’s “OAuth” theory of infringement for the
two separate defendants, Garmin and Fossil, and our
holding in that respect—which is not subject to any
Cellspin-preserved recusal objection for those
defendants—has preclusive effect and resolves against
Cellspin its infringement assertions against Fitbit.
To elaborate slightly: Although Cellspin filed its
recusal motion in the dockets for Garmin and Fossil as well
as Fitbit, Cellspin did not appeal the denial of the recusal
motions in the cases against Garmin and Fossil. J.A. 2167–
68. Accordingly, Cellspin no longer has any argument that
the district court’s grants of summary judgment for
Garmin and Fossil were tainted by a lack of recusal. In our
Summary Judgment Appeal Decision, we today uphold the
district court’s barring of Cellspin from presenting its
OAuth theory of infringement. Our affirmance of the
district court’s decision on that issue does not rest on any
Fitbit-specific analysis, and in that appeal, Cellspin
addressed its OAuth theory as a single issue uniformly
applicable to Fitbit, Garmin, and Fossil. See Cellspin’s
Opening Brief in Summary Judgment Appeal Decision at
65, 73 (“Cellspin hereby adopts and incorporates by
reference all arguments made supra concerning Fitbit.”).
It follows that our affirmance of the OAuth bar for Garmin
and Fossil decides the issue in favor of Fitbit as well.
Vacating the June 2022 grant of summary judgment
therefore could not properly alter the ultimate outcome of
Cellspin’s case against Fitbit (if transferred to another trial
judge): Cellspin still would be barred from presenting its
OAuth theory, which means that Cellspin still would not
Case: 23-1526 Document: 67 Page: 11 Filed: 11/01/2024

-- 11 of 12 --

CELLSPIN SOFT, INC. v. FITBIT LLC 12
have evidence that Fitbit infringes the asserted claims of
the three patents.
Under Liljeberg, a decision to affirm the denial of
Cellspin’s recusal motion would create no risk of injustice
to Cellspin. See 486 U.S. at 864. At the same time, we see
no risk of injustice in other cases, and we see no risk of
undermining the public’s confidence in the judicial process.
Neither Liljeberg nor our Centripetal and Shell Oil cases
involved circumstances similar to the ones here, such as a
focus only on a § 455(a) ground not subject to a bright-line
rule, a significant delay in bringing forth the ground, and
a collection of related cases among which are several in
which the decisive merits issue in the case has been
conclusively decided (without a § 455 taint) against the
recusal-seeking party. We therefore affirm the district
court’s denial of the motion to recuse on the Ajax ground
without reaching the merits.
III
For the foregoing reasons, we dismiss the appeal as to
Nikon, and we affirm the district court’s denial of Cellspin’s
motion to recuse and to vacate as to Fitbit.
Costs to Nikon and Fitbit.
DISMISSED IN PART AND AFFIRMED IN PART
Case: 23-1526 Document: 67 Page: 12 Filed: 11/01/2024

-- 12 of 12 --