Cellspin Attempt at Recusal in Case Against Fitbit Falls Flat at CAFC

In a loss for Cellspin Soft, Inc., the U.S. Court of Appeals for the Federal Circuit (CAFC) issued two separate decisions today affirming a district court’s grant of summary judgment of noninfringement and denial of a motion for recusal in favor of Fitbit LLC and a number of other defendants. The decisions were authored by Judge Taranto.

In one decision, the CAFC affirmed the U.S. District Court for the District of Northern California’s grant of summary judgment of noninfringement of Cellspin’s U.S. Pat. No. 8,738,794 (the ’794 patent), U.S. Pat. No. 8,892,752 (the ’752 patent), and U.S. Pat. No. 9,749,847 (the ’847 patent). The patents are directed to issues with distributing multimedia content. In 2019, the Federal Circuit vacated the district court’s dismissal of the case under Rule12(b)(6) due to its determination that the patents were ineligible under Section 101, finding that the district court misconstrued precedent from both Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121 (Fed. Cir. 2018) and Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018).

On remand, the district court performed claim construction and the defendants—which include Fitbit, Nike, Nikon, Under Armour, Fossil and Garmin—moved for summary judgment of noninfringement. The district court ultimately granted summary judgment for all defendants and the Federal Circuit affirmed its analyses, finding no error or abuse of discretion.

In the second decision issued today, the CAFC affirmed the denial of Cellspin’s motion under 28 U.S.C. § 455, which it filed seven months after the summary judgment ruling, contending that Judge Yvonne Gonzalez Rogers should recuse herself due to an alleged business relationships between Gonzalez Rogers’s husband and Google, Fitbit’s parent company. Cellspin argued the summary judgment decision should be vacated under the Federal Circuit’s 2022 decision in Centripetal Networks, Inc. v. Cisco Systems, Inc., in part due to the judge’s financial interests in Google, which included investments in Vanguard Fund holdings totaling anywhere from $9.4 million to $43.6 million, according to a 2020 financial disclosure filed by Gonzalez Rogers. However, all three funds are managed by third parties and consist of a wide range of companies across the stock market, making them fall under a safe harbor exemption, determined the judge.

Cellspin also argued that Judge Gonzalez Rogers’ husband, Matt Rogers, served as senior partner for McKinsey & Company, and that McKinsey and Google had partnered to improve refinery performance for a McKinsey client in the oil and gas industry. McKinsey also used Google Cloud services and architecture to aid an energy sector client in addressing power outages associated with forest fires in California. Cellspin alleged the substantial business ties between Google and McKinsey created an objective appearance that Judge Gonzalez Rogers would be biased in favor of Google due to her husband’s business ties.

The Federal Circuit found that the district court properly dismissed the motion with respect to the allegation regarding Rogers’ financial interests as untimely. Cellspin knew about Fitbit’s acquisition by Google by February 3, 2021, but did not seek recusal until January 2023, “well after it had lost on the summary judgment motion,” wrote the CAFC. “The timing raises obvious concerns of lack of equity and strategic misuse of recusal.” The panel similarly found the allegations regarding the judge’s husband’s collaborations with McKinsey were also not presented in a timely manner.

Rogers’ position as operating partner at Ajax Strategies, a private equity firm that operates several startups receiving significant financial support from Google, was presented as a separate basis for recusal. Cellspin’s motion for recusal included several exhibits demonstrating that global imaging company Planet Labs, hydropower developer Natel Energy, and vegan dairy alternative producer Ripple Foods each raised millions in seed funding from Google while those startups were overseen by Ajax Strategies. It also detailed the use of Google software platforms in five other companies operated by Ajax.While the CAFC acknowledged this basis “raises a different timeliness issue, at least because the relationship of Mr. Rogers with Ajax seemingly did not begin until March 2022,” and therefore “may well have been less publicly available to Cellspin than were facts relating to the asserted bases for recusal discussed above,” the appellate court said any error made by the district court on this point was harmless because the risk of injustice to the parties by denying vacatur was precluded by the CAFC’s separate affirmance of the summary judgment decision.

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