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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. 24:
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`DENYING RESPONDENT APPLE’S MOTION IN LIMINE NO. 3
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`(March 23, 2022)
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`Respondent Apple, Inc. (“Apple”) filed motion in limine no. 3 (“MIL 3” (Mot. 1266-024))
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`on March 7, 2022. Complainant AliveCor, Inc. (“AliveCor”) timely filed an opposition (“MIL 3
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`Oppo.”), and the Commission’s Office of Unfair Import Investigations (“Staff”) filed an omnibus
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`response (“Staff Resp.”).
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`In MIL 3 Apple requests that AliveCor be precluded from advancing an allegedly “newly
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`disclosed construction” of a particular claim term. MIL 3 at 1. Claim 12 of U.S. Patent No.
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`10,638,941 (“941 patent”) recites a smartwatch comprising a processor programmed to “determine
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`if a discordance is present between the activity level value of the [smartwatch] user and [a sensed]
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`heart rate parameter of the user.” The accused articles include various models of the Apple Watch,
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`and AliveCor asserted in its infringement claim charts that the determination is made by
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`thresholding rather than by direct comparison: “if the condition is sedentary and heart rate is above
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`the 120 bpm threshold, it turns on a flag [and] determin[es] that a discordance is present.” RX-
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`0796C at 30; see id. at 31-33, 95-97. To be sure, this contention was presented in the context of
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`claim 1 of the 941 patent, but that claim’s language is very similar and the discussion of claim 1
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`was cross-referenced in the discussion of claim 12. See id. at 96 (“See limitations 1.2, 1.3, 1.4,
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`and 1.5, above.”). AliveCor also asserted doctrine of equivalents infringement, involving a
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`1
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`particular Apple Watch feature called HHRN, under the theory that “once the high heart rate
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`feature is triggered, the PPG sensors record heart rate parameters, which are compared to the
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`measured activity level to determine if there is a discordance.” Id. at 97.
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`In its Prehearing Brief (“CPB”) AliveCor again relies on thresholding, asserting that if
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`activity level is below a threshold for a period of time and heart rate is above a threshold for a
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`period of time, then the system “flags” or notifies the user. See CPB at 30-35. AliveCor apparently
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`no longer asserts that this element is met under the doctrine of equivalents. See id.
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`Apple asserts that “AliveCor never contended that ‘determin[ing] if a discordance is
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`present’ merely requires the system to (1) measure activity level, and (2) separately measure a
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`heart rate parameter, without any comparison of those two values.” MIL 3 at 4. This is incorrect;
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`as explained above, and as the Staff observes, AliveCor has “consistently maintained its position
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`since the filing of the Complaint.” Staff Resp. at 10. Moreover, AliveCor’s position does not
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`present a claim construction issue, because it simply argues that the Apple Watch satisfies the
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`claim element, not that the claim element has a particular meaning.
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`This finding resolves the dispute as presented by Apple. There is, however, a fair amount
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`of discussion in the moving papers that is seemingly beside the point, and that has not been
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`addressed. For instance, Apple argues that a comparison of activity level and heart rate parameter
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`is required by the claim language, a point not squarely addressed by AliveCor. See MIL 3 at 1-2;
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`see generally MIL 3 Oppo. As another example, AliveCor argues that “determin[ing]” a
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`discordance does not require that activity level and heart rate parameter be captured or compared
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`“at the same moment in time.” See MIL 3 Oppo. at 6 (emphasis omitted). The relevance of this
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`argument is unclear, because it does not appear that Apple contends otherwise. See MIL 3 Oppo.,
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`Ex. L at ¶ 146; Apple Prehearing Brief (“RPB”) at 48-51. Nor does it appear to be disputed that
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`2
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`the IRN feature of the Apple Watch only functions when the user is still. Compare Staff Resp. at
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`9 with RPB at 49 (“if the IRN feature starts to measure, and . . . the user starts to move, then the
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`IRN determination stops”). To the extent any of these collateral issues present claim construction
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`questions, they have not been fulsomely briefed and must wait to be answered until after the
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`hearing.
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`Therefore, MIL 3 (Mot. 1266-024) is 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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`3
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