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`UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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`In the Matter of
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`CERTAIN WEARABLE ELECTRONIC
`DEVICES WITH ECG FUNCTIONALITY
`AND COMPONENTS THEREOF
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`Inv. No. 337-TA-1266
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`ORDER NO. 22:
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`DENYING COMPLAINANT ALIVECOR’S MOTIONS IN LIMINE
`NOS. 1 AND 2
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`(March 22, 2022)
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`Complainant AliveCor, Inc. (“AliveCor”) filed motions in limine nos. 1 (“MIL 1” (Mot.
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`1266-017)) and 2 (“MIL 2” (Mot. 1266-020)) on March 7, 2022. Respondent Apple, Inc.
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`(“Apple”) timely filed oppositions (“MIL 1 Oppo.” and “MIL 2 Oppo.,” respectively), and the
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`Commission’s Office of Unfair Import Investigations (“Staff”) filed an omnibus response (“Staff
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`Resp.”).
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`A. MIL 1
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`MIL 1 seeks to preclude Apple from presenting certain claim construction arguments. By
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`way of background, the claims in suit include claim 1 of U.S. Patent No. 10,595,731 (“731 patent”)
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`and claim 12 of U.S. Patent No. 10,638,941 (“941 patent”), both of which require an indication of
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`cardiac arrhythmia, and an electrocardiogram (“ECG”) to “confirm the presence of the arrythmia.”
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`During the claim construction process the parties disputed the meaning of this clause, and the
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`dispute focused on whether a comparison was needed between the arrhythmia indication and the
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`ECG. See generally Order No. 12 at 20-26 (“Markman Order”). The claims were construed to
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`not require such a comparison, and were otherwise accorded their plain and ordinary meaning. See
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`id. at 22, 26.
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`1
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` It is often the situation that claims are not fully construed during the Markman process,
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`and this case is no exception. AliveCor’s expert, Dr. Roozbeh Jafari, seemingly opined in his
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`expert report that the plain and ordinary meaning of “confirm the presence of the arrhythmia”
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`requires an ECG reading “taken in relative [temporal] proximity to” the indication. MIL 1 Oppo.,
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`Ex. 4 at 210:16-211:19. Apple’s expert, Dr. Rosalind Picard, opined in her expert report that the
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`plain and ordinary meaning requires “significant overlap in the recording of [indication data] and
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`ECG to ensure the system was analyzing the same relevant event,” and that “confirm” specifically
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`means “verify the correctness or accuracy.” MIL 1, Ex. B at ¶¶ 304, 311. Both “relative temporal
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`proximity” and “significant overlap in the recording” present an interpretive issue focusing not on
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`data comparison, an issue that has already been addressed, but on closeness in time, an issue that
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`has not already been addressed. So there is no conflict with the Markman Order as AliveCor
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`suggests. MIL 1 at 5-7. And contrary to Apple’s argument, how the claim term is construed is
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`relevant to evaluating infringement and the technical prong of domestic industry, so the experts’
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`disagreement on the term’s plain and ordinary meaning presents a claim construction dispute. See
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`MIL 1 Oppo. at 8.
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`AliveCor also argues that both the “significant overlap” interpretation and the “verify the
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`correctness or accuracy” interpretation should be precluded for untimely disclosure; the Staff
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`opposes the motion. See MIL 1 at 7-8; Staff Resp. at 1-2. As to the first interpretive issue, the
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`experts’ differing constructions were both presented in their expert reports, and AliveCor deposed
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`Dr. Picard at length on her understanding of the claim term. See, e.g., MIL 1 Oppo., Ex. 5 at 224:8-
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`231:11. More to the point, “parties should reasonably expect expert reports to contain opinions
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`that are more detailed than a party’s contention interrogatory responses,” and so long as those
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`opinions are not “wholly outside the scope” of the contentions, they are permissible. See Certain
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`2
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`Touch-Controlled Mobile Devices, Computers, and Components Thereof, Inv. No. 337-TA-1162,
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`Order No. 23 at 3-4 (Jan. 23, 2020) (citation omitted). Apple’s contentions state that the ECG
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`readings by the accused articles do not infringe because they are “independent and separate” from
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`the indication readings. E.g., MIL 1, Ex. A at 42. Dr. Picard’s opinion expressly states that the
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`various functions of the accused articles “are entirely independent features,” and then elaborates
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`on that by emphasizing the features’ relative timing. MIL 1, Ex. B at ¶ 304. Such an opinion is
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`not wholly outside the scope of Apple’s contentions.
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`As to the second interpretive issue, Apple does not explicitly dispute that “verify the
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`correctness or accuracy” is a newly proposed construction not fairly within the scope of its
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`contentions. See generally MIL 1 Oppo. Nonetheless, it is not clear that it really is a newly
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`proposed construction. As previously observed, the specification of the 731 patent (but not of the
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`941 patent) seemingly uses the term “confirm” interchangeably with the terms “identify” and
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`“verify.” See Markman Order at 21, 25. Nor does any party cite any evidence that Dr. Jafari
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`disagrees with Dr. Picard’s interpretation. So the dispute over “verify the correctness or accuracy”
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`may not present a claim construction dispute at all; certainly it would be premature to strike Dr.
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`Picard’s opinion on this point.
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`Therefore, MIL 1 (Mot. 1266-017) is denied.
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`B. MIL 2
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`AliveCor seeks to preclude Apple’s assertion of three obviousness arguments pertaining to
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`the 941 and 731 patents. See MIL 2 at 1. The basis of the motion is alleged discrepancies between
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`Apple’s contention interrogatory responses, including its claim charts served in November 2021,
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`and the report of its expert, Dr. Collin Stultz. See generally id. The Staff opposes the motion.
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`Staff Resp. at 2-3.
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`3
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`The relevant documents – Apple’s claim charts, expert report, and Prehearing Brief – do
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`not substantiate the alleged discrepancies. First, AliveCor seeks to preclude the theory that what
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`Dr. Stultz labels element 12[f] of the 941 patent, “based on the presence of the discordance,
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`indicate to the user a possibility of an arrhythmia being present,” would have been obvious over
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`the combination of two references, Tran and Libbus. See MIL 2 at 5. Apple’s claim chart asserts
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`that Tran alone or the combination of “Tran with . . . Libbus” renders all claims of the 941 patent
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`obvious (MIL 2, Ex. 5 at 1-2), and more specifically that Tran teaches element 12[f] or renders it
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`obvious (id. at 100-02), and Apple’s Prehearing Brief (“RPB”) argues that Tran discloses this
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`element or renders it obvious, and further asserts that “a POSITA would have also looked to the
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`teachings of Libbus” (RPB at 85). By contrast, Dr. Stultz opines that Tran discloses this element
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`or renders it obvious, but does not mention Libbus. See MIL 2, Ex. 4 at ¶ 821.
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`Second, AliveCor seeks to preclude the theory that claim 13 of the 941 patent, which
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`depends from claim 12 and adds the requirement that “the heart rate parameter comprises an
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`indication of a heart rate variability, and wherein the arrhythmia is atrial fibrillation,” would have
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`been obvious over the combination of two references, AMON and Almen. See MIL 2 at 5. Apple’s
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`claim chart asserts that AMON alone or the combination of AMON and Almen renders all claims
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`of the 941 patent obvious (MIL 2, Ex. 6 at 1-2), and more specifically that AMON teaches or
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`renders obvious the element added in claim 13 (id. at 155-56), and Apple’s Prehearing Brief argues
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`that AMON invalidates claim 13 alone and alternatively in combination with Almen (RPB at 78).
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`Dr. Stultz merely opines that AMON discloses the additional element of claim 13, or renders it
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`obvious, and does not expressly mention Almen. See MIL 2, Ex. 4 at ¶ 722.
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`Third, AliveCor seeks to preclude the theory that what Dr. Stultz labels element 1[h] of the
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`731 patent, “confirm the presence of the arrhythmia based on the ECG data,” would have been
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`4
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`obvious over the combination of Tran and another reference, Thomsen. See MIL 2 at 5. Apple’s
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`claim chart asserts that Tran alone or the combination of “Tran with Thomsen and/or Libbus”
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`renders all claims of the 731 patent obvious (MIL 2, Ex. 7 at 1-2), and more specifically that Tran
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`teaches element 1[h] or renders it obvious (id. at 36-39), Dr. Stultz opines that Tran discloses this
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`element or renders it obvious, and additionally that the combination of Tran and Thomsen renders
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`it obvious (MIL 2, Ex. 4 at ¶¶ 530-36), and Apple’s Prehearing Brief essentially reiterates Dr.
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`Stultz’ opinion (RPB at 127).
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`In short, Apple’s contentions are consistent with its Prehearing Brief, Dr. Stultz’ opinions
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`regarding the 941 patent claims at issue are narrower than Apple’s contentions or Prehearing Brief,
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`and all three documents are consistent regarding claim element 1[h] of the 731 patent. MIL 2
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`(Mot. 1266-020) is accordingly denied.
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`Within seven days of the date of this document, the parties shall submit to the Office of the
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`Administrative Law Judges a joint statement as to whether or not they seek to have any portion of
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`this document deleted from the public version. If the parties do seek to have portions of this
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`document deleted from the public version, they must submit to this office a copy of this document
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`with red brackets indicating the portion or portions asserted to contain confidential business
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`information. The submission may be made by email and/or hard copy by the aforementioned date
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`and need not be filed with the Commission Secretary.
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`SO ORDERED.
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`_____________________________
`Cameron Elliot
`Administrative Law Judge
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