`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`OMNI MEDSCI, INC.,
`Patent Owner.
`
`______________
`
`
`U.S. Patent No. 9,651,533
`
`IPR Case No.: IPR2019-00916
`
`
`______________
`
`
`
`PATENT OWNER’S NOTICE OF APPEAL TO THE
`U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`
`
`
`
`
`
`
`Case No.: IPR2019-00916
`Patent No.: 9,651,533
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`
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`Atty. Dkt. No.: OMSC0110IPR2
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`Notice is given, pursuant to 35 U.S.C. §§ 141 and 319 and 37 C.F.R. § 90.2(a),
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`that Omni MedSci, Inc. (“Omni”) appeals to the United States Court of Appeals for
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`the Federal Circuit from the Final Written Decision (“FWD”) entered on October
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`14, 2020 (Paper 39, attached) and from all underlying orders, decisions, rulings and
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`opinions that are adverse to Patent Owner, including, without limitation, those within
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`the Decision on Institution of Inter Partes Review, entered October 18, 2019 (Paper
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`16). In accordance with 37 C.F.R. § 90.2(a)(3)(ii), Omni further indicates that the
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`issues on appeal include, without limitation, the following issues.
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`First, the Board erred when it rewrote the challenged claims from a “light
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`source configured to increase signal to noise ratio . . . by increasing a pulse rate” to
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`“one of the light emitting diodes is capable of having its pulse rate increased to
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`increase a signal-to-noise ratio” as the Board held. (Paper No. 39 at 10.) The claims
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`and specification confirm that the “light source” is “configured to” perform the
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`claimed function, not merely that the “light emitting diodes” are “capable of” doing
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`so. The Board’s rewrite and broadening of the claims is improper under Federal
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`Circuit law. See Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335,
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`1349 (Fed. Cir. 2012); Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1380
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`(Fed. Cir. 2011).
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`Second, the Board erred when it invalidated the challenged claims based on
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`an argument Petitioner did not make, and that Omni had no opportunity to respond
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`to. For the first time in the FWD, the Board asserted that a passage of the Lisogurski
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`Atty. Dkt. No.: OMSC0110IPR2
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`reference disclosed the “light source configured to increase signal to noise ratio . . .
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`by increasing a pulse rate” limitation. Petitioner had neither cited that passage nor
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`made the Board’s new argument because the Board’s new argument is unfounded.
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`The Board erred when it created this new argument, and reached its conclusion sua
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`sponte, without giving Omni an opportunity to respond. 5 U.S.C. §554(b)(3); In re
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`Magnum Oil Tools Int'l, Ltd., 829 F.3d 1364, 1380-81 (Fed. Cir. 2016); In re
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`NuVasive, Inc., 841 F.3d 966, 971-72 (Fed. Cir. 2016).
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`Third, the Board erred when it combined the prior art Lisogurski reference
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`with Carlson’s teaching of modulation at 1000 Hz to minimize ambient noise.
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`Lisogurski already discloses modulating the light source at 1000 Hz to minimize
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`ambient noise. Carlson thus adds nothing and there is no reason to combine the
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`references. Neither reference, taken alone or in combination, teaches or suggests the
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`claimed “light source configured to increase signal to noise ratio . . . by increasing a
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`pulse rate.”
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`
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`Fourth, the Board lacked constitutional authority to render its FWD and
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`revoke Omni’s patent rights. In Arthrex Inc. v. Smith & Nephew Inc., 941 F.3d 1320
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`(Fed. Cir. 2019), the Federal Circuit held that APJs are principal officers who must
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`be, but were not, appointed by the President with the advice and consent of the
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`Senate, rendering IPRs under the America Invents Act (“AIA”) a violation of U.S.
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`2
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`Case No.: IPR2019-00916
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`Const. art. II, § 2, cl. 2. The Federal Circuit’s alleged remedy, severing the tenure
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`Atty. Dkt. No.: OMSC0110IPR2
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`protections afforded to APJs, left APJs vulnerable to termination for policy
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`disagreements, political reasons, or no reason at all. As stated in Arthrex, Inc.’s June
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`30, 2020 Petition for Writ of Certiorari (Supreme Court Docket No. 19-1458), the
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`Federal Circuit’s attempt to resolve the unconstitutional aspects of AIA was both
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`improper and insufficient.
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` Pursuant to 37 C.F.R. § 90.2(a)(1) and (a)(2), and as reflected in the attached
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`Certificate of Service, this Notice of Appeal is being electronically filed with the
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`Patent Trial and Appeal Board through the PRPS System and the United States Court
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`of Appeals for the Federal Circuit through the CM/ECF System along with the
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`requisite filing fee. A copy is also being mailed to the Office of the General Counsel
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`at the U.S. Patent and Trademark Office.
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`
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`Dated: November 12, 2020
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`
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`Respectfully submitted,
`
`
`
`
`
` /Thomas A. Lewry/
`Thomas A. Lewry (Reg. No. 30,770)
`John S. LeRoy (Reg. No. 48,158)
`Robert C. J. Tuttle (Reg. No. 27,962)
`John M. Halan (Reg. No. 35,534)
`Christopher C. Smith (Reg. No. 59,669)
`Andrew B. Turner (Reg. No. 63,121)
`BROOKS KUSHMAN P.C.
`1000 Town Center, Twenty-Second Floor
`Southfield, Michigan 48075
`Telephone: (248) 358-4400
`
`Attorneys for Omni MedSci, Inc.
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`Case No.: IPR2019-00916
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`Atty. Dkt. No.: OMSC0110IPR2
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`CERTIFICATE OF FILING AND SERVICE
`
`The undersigned hereby certifies that on November 12, 2020 a complete and
`entire copy of PATENT OWNER’S NOTICE OF APPEAL was served by
`correspondence email address to IPRnotices@sidley.com, which delivers to the
`following lead and back-up counsel:
`
`
`LEAD COUNSEL
`Jeffrey P. Kushan (Reg. No.
`43,401)
`SIDLEY AUSTIN LLP
`1501 K Street NW
`Washington, DC 20005
`(202) 736-8914
`
`BACK-UP COUNSEL
`Ching-Lee Fukuda (Reg. No. 44,334)
`Sidley Austin LLP
`787 Seventh Avenue
`New York, NY 10019
`(212) 839-7364
`
`Thomas A. Broughan III (Reg. No. 66,001)
`Sharon Lee (to be admitted pro hac vice)
`Sidley Austin LLP
`1501 K Street NW
`Washington, DC 20005
`(202) 736-8314
`
`
` I
`
` also certify that in addition to being filed electronically with the Board
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`through its PRPS System, the original of the foregoing Notice of Appeal is being
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`sent, pursuant to 37 C.F.R. § 104.2, via first-class mail on November 12, 2020 to the
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`United States Patent and Trademark Office at the following address:
`
`Office of the General Counsel
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`Case No.: IPR2019-00916
`Patent No.: 9,651,533
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`Atty. Dkt. No.: OMSC0110IPR2
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`I further certify that a copy of the foregoing Notice of Appeal was filed via
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`CM/ECF on November 12, 2020, with the United States Court of Appeals for the
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`Federal Circuit.
`
`
`Dated: November 12, 2020
`
`
`
`
`
`
`
`
`
` /Thomas A. Lewry/
`Thomas A. Lewry (Reg. No. 30,770)
`John S. LeRoy (Reg. No. 48,158)
`Robert C. J. Tuttle (Reg. No. 27,962)
`John M. Halan (Reg. No. 35,534)
`Christopher C. Smith (Reg. No. 59,669)
`Andrew B. Turner (Reg. No. 63,121)
`BROOKS KUSHMAN P.C.
`1000 Town Center, Twenty-Second Floor
`Southfield, Michigan 48075
`Telephone: (248) 358-4400
`
`Attorneys for Omni MedSci, Inc.
`
`
`5
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`
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`Paper No. 39
`Date: October 14, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`OMNI MEDSCI, INC.,
`Patent Owner.
`____________
`
`Case IPR2019-00916
`Patent 9,651,533 B2
`____________
`
`
`Before GRACE KARAFFA OBERMANN, JOHN F. HORVATH, and
`SHARON FENICK, Administrative Patent Judges.
`
`PER CURIAM
`
`Opinion Concurring filed by Administrative Patent Judge HORVATH
`
`
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`
`IPR2019-00916
`Patent 9,651,533 B2
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`
`I. INTRODUCTION
`
`A. Background
`Apple Inc. (“Petitioner”) filed a Petition requesting inter partes review
`of claims 5, 7–10, 13, and 15–17 (“the challenged claims”) of U.S. Patent
`No. 9,651,533 B2 (Ex. 1001, “the ’533 patent”). Paper 1 (“Pet.”), 3. Omni
`MedSci Inc. (“Patent Owner”), filed a Preliminary Response. Paper 10
`(“Prelim. Resp.”). Upon consideration of the Petition and Preliminary
`Response, we instituted inter partes review of all challenged claims on all
`grounds raised. Paper 16 (“Dec. Inst.”).
`Patent Owner filed a Response to the Petition (Paper 23, “PO Resp.”),
`Petitioner filed a Reply (Paper 28, “Pet. Reply”), and Patent Owner filed a
`Sur-Reply (Paper 32, “PO Sur-Reply”). An oral hearing was held on July
`16, 2020, and the hearing transcript is included in the record. See Paper 37
`(“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6(b). This is a Final Written
`Decision under 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73. For the reasons
`set forth below, we find Petitioner has shown by a preponderance of
`evidence that claims 5, 7–10, 13, and 15–17 of the ’533 patent are
`unpatentable.
`B. Related Matters
`Petitioner and Patent Owner identify the following as matters that can
`affect or be affected by this proceeding: pending U.S. Patent Application
`Nos. 10/188,299, 10/172,523, 15/594,053, 16/015,737, and 16/241,628;
`Apple Inc. v. Omni MedSci Inc., IPR2019-00913 (PTAB); and Omni MedSci
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`2
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`IPR2019-00916
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`Inc. v. Apple Inc., 2-18-cv-00134-RWD (E.D. Tex.).1 See Pet. x; Paper 7, 1–
`2.
`
`C. Evidence Relied Upon2
`
`Date
`
`Exhibit
`
`Reference
`Mannheimer
`
`U.S. 5,746,206
`
`May 5, 1998
`
`Carlson
`
`U.S. 2005/0049468 A1 Mar. 3, 2005
`
`Lisogurski
`
`U.S. 9,241,676 B2
`
`May 31, 20123
`
`
`
`1008
`
`1009
`
`1011
`
`D. Instituted Grounds of Unpatentability
`Claims Challenged
`Basis
`References
`5, 7–10, 13, and 15–17
`§ 103(a)
`Lisogurski and Carlson
`Lisogurski, Carlson, and
`8, 9, 16, and 17
`§ 103(a)
`Mannheimer
`II. ANALYSIS
`
`A. The ’533 Patent
`The ’533 patent was filed on October 6, 2015, and claims priority to a
`utility application filed on December 17, 2013, and a provisional application
`filed on December 31, 2012. Ex. 1001, codes (22), (60), (63), 1:10–14. The
`’533 patent is directed toward a wearable physiological measurement
`
`
`1 This case was transferred to the Northern District of California. See Paper
`11, 1; Paper 13, 1; Ex. 1058, 9.
`2 Petitioner also relies upon the Declaration of Brian Anthony, Ph.D.,
`(Ex. 1003).
`3 Petitioner relies on the filing date of Lisogurski to establish its status as
`prior art. See Pet. 21.
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`system. Id. code (57). The system is depicted in Figure 24 of the ’533
`patent, which is reproduced below.
`
`
`
`Figure 24 is a schematic illustration of a physiological measurement system
`that includes wearable measurement device 2401, personal device 2405, and
`cloud based server 2407. Id. at 7:7–10, 26:49–27:20.
`The “wearable measurement device [is] for measuring one or more
`physiological parameters.” Id. at 5:35–37. A schematic illustration of such
`a device is shown in Figure 18 of the ’533 patent, which is reproduced
`below.
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`Figure 18 is a schematic diagram of a wearable physiological measurement
`device to “subtract out (or at least minimize the adverse effects of) light
`source fluctuations.” Id. at 18:43–46. The device includes light source 1801
`made from a plurality of light emitting diodes that output an optical beam at
`one or more wavelengths, including at least one wavelength between 700
`and 2500 nanometers. Id. at 5:37–43, 18:46–48. The device includes a
`plurality of lenses that receive a portion of the output optical beam from the
`light source and deliver an analysis beam to a sample. Id. at 5:47–50,
`18:46–55. The device includes a receiver that receives at least a portion of
`the analysis beam that has been reflected from or transmitted through the
`sample, and processes that signal to generate an output signal. Id. at 5:51–
`54, 18:55–59.
`
`Light source 1801 “is configured to increase signal-to-noise ratio by
`increasing a light intensity from at least one of the plurality of semi-
`conductor sources [e.g., LEDs] and by increasing a pulse rate of at least one
`of the plurality of semiconductor sources.” Id. at 5:43–47. For example,
`light source 1801 can be “an active illuminator” that allows “higher signal-
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`to-noise ratios [to] be achieved.” Id. at 16:54–58. This can be done, for
`example, “us[ing] modulation and lock-in techniques” in which the “light
`source may be modulated, and then the detection system [is] synchronized
`with the light source.” Id. at 16:58–62. “[N]arrow band filtering around the
`modulation frequency may be used to reject noise outside the modulation
`frequency.” Id. at 16:64–65.
`The physiological measurement system also includes personal device
`2405 having a wireless receiver, a wireless transmitter, a display, a
`microphone, a speaker, one or more buttons or knobs, a microprocessor and
`a touch screen. Id. at 5:54–59, 27:3–7. Personal device 2405 receives and
`processes at least a portion of the output signal generated by wearable
`measurement device 2401, and stores and displays the processed output
`signal. Id. at 5:59–61, 27:10–12. Personal device 2405 also transmits at
`least a portion of the processed output signal over a wireless transmission
`link to a remote device such as an internet or “cloud” based server. Id. at
`5:61–63, 26:30–34, 27:12–15. Personal device 2405 can be “a smart phone,
`tablet, cell phone, PDA, or computer,” or some “other microprocessor-based
`device.” Id. at 26:37–40, 26:49–55.
`The physiological measurement system also includes remote device
`2407 that receives the portion of the processed output signal transmitted by
`personal device 2405 as an output status. Id. at 5:63–66, 26:30–42, 27:12–
`15. Remote device 2407 processes the output status to generate and store
`processed data, and stores a history of the output status over a period of
`time. Id. at 5:66–6:1–3, 27:21–29, 27:34–37.
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`B. Illustrative Claim
`Claim 13 of the ’533 patent is an independent and representative
`claim, and is reproduced below.
`13. A measurement system comprising:
`a wearable measurement device for measuring one
`or more physiological parameters, including a light
`source comprising a plurality of semiconductor
`sources that are light emitting diodes, the light
`emitting diodes configured to generate an output
`optical beam with one or more optical
`wavelengths, wherein at least a portion of the one
`or more optical wavelengths is a near-infrared
`wavelength between 700 nanometers and 2500
`nanometers,
`the light source configured to increase signal-to-
`noise ratio by increasing a light intensity from at
`least one of the plurality of semiconductor sources
`and by increasing a pulse rate of at least one of the
`plurality of semiconductor sources;
`the wearable measurement device comprising a
`plurality of lenses configured to receive a portion
`of the output optical beam and to deliver an
`analysis output beam to a sample;
`the wearable measurement device further
`comprising a receiver configured to receive and
`process at least a portion of the analysis output
`beam reflected or transmitted from the sample and
`to generate an output signal, wherein the wearable
`measurement device receiver is configured to be
`synchronized to pulses of the light source;
`a personal device comprising a wireless receiver, a
`wireless transmitter, a display, a microphone, a
`speaker, one or more buttons or knobs, a
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`microprocessor and a touch screen, the personal
`device configured to receive and process at least a
`portion of the output signal, wherein the personal
`device is configured to store and display the
`processed output signal, and wherein at least a
`portion of the processed output signal is
`configured to be transmitted over a wireless
`transmission link; and
`a remote device configured to receive over the
`wireless transmission link an output status
`comprising the at least a portion of the processed
`output signal, to process the received output status
`to generate processed data and to store the
`processed data and wherein the remote device is
`capable of storing a history of at least a portion of
`the received output status over a specified period
`of time.
`Ex. 1001, 30:46–31:20.
`Claim 5 is an independent claim that recites a measurement system
`that is substantially similar to the measurement system recited in claim 13,
`except that claim 5 is broader because it does not require (a) the light source,
`plurality of lenses, and receiver to be components of a wearable
`measurement device, (b) measurement of one or more physiological
`parameters, or (c) the remote device to be capable of storing a history of at
`least a portion of the received output status over a specified period of time.
`Compare id. at 29:43–30:10, with id. at 30:46–31:20. Claims 7–10 depend
`from claim 5, and claims 15–17 depend from claim 13. Id. at 30:15–37,
`32:1–18.
`C. Level of Ordinary Skill in the Art
`Petitioner, relying on the testimony of Dr. Anthony, identifies a
`person of ordinary skill in the art (“POSITA”) as someone who “would have
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`[had] a good working knowledge of optical sensing techniques and their
`applications, and familiarity with optical system design and signal
`processing techniques.” Pet. 16; Ex. 1003 ¶ 35. Such a person would have
`obtained such knowledge through “an undergraduate education in
`engineering (electrical, mechanical, biomedical, or optical) or a related field
`of study, along with relevant experience studying or developing
`physiological monitoring devices . . . in industry or academia.” Id. Patent
`Owner does not dispute this. See PO Resp. 8.
`We find Petitioner’s undisputed definition of the person of ordinary
`skill in the art to be consistent with the problems and solutions disclosed in
`the patent and prior art of record, and adopt it as our own. See, e.g., In re
`GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995).
`D. Claim Construction
`In inter partes reviews, we interpret a claim “using the same claim
`construction standard that would be used to construe the claim in a civil
`action under 35 U.S.C. 282(b).” 37 C.F.R. § 42.100(b) (2019). Under this
`standard, we construe the claim “in accordance with the ordinary and
`customary meaning of such claim as understood by one of ordinary skill in
`the art and the prosecution history pertaining to the patent.” Id. Only claim
`terms which are in controversy need to be construed and only to the extent
`necessary to resolve the controversy. See Nidec Motor Corp. v. Zhongshan
`Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017).
`1. Beam, plurality of lenses, pulse rate
`Petitioner requests construction of the terms “beam,” “plurality of
`lenses,” and “pulse rate.” See Pet. 18–20. We declined to expressly
`construe these terms in our Institution Decision because their construction
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`was not needed to resolve any dispute between the parties. See Dec. Inst. 9.
`Neither party disputes that initial determination, which we maintain here.
`See PO Resp. 8–13; Pet. Reply 2–9.
`2. Personal device
`We expressly construed this term in our Institution Decision to resolve
`a dispute between the parties. See Dec. Inst. 11–12. Specifically, we
`construed the term to include, but not be limited to, “a computer or
`microprocessor-based device having a wireless receiver, a wireless
`transmitter, a display, a microphone, a speaker, one or more buttons or
`knobs, a microprocessor, and a touch screen.” Id. Neither party disputes
`that construction, which we maintain here. See PO Resp. 8–13; Pet. Reply
`2–9.
`3. Light source
`In our Institution Decision, we expressly construed “a light source
`comprising a plurality of semiconductor sources that are light emitting
`diodes . . . configured to increase signal-to-noise ratio by . . . increasing a
`pulse rate of at least one of the plurality of semiconductor sources.” Dec.
`Inst. 9–11. In doing so, we noted the scant support for this term in the
`Specification, which twice repeats the same phrase with no explanation of its
`meaning. Id. at 10. We further noted the Specification and claims were
`amended at the same time to include this phrase, with no indication of how
`the phrase was supported by the originally filed Specification. Id. at 10, n.4.
`Nonetheless, we construed the phrase to mean “a light source containing two
`or more light emitting diodes (semiconductor sources), wherein at least one
`of the light emitting diodes is capable of having its pulse rate increased to
`increase a signal-to-noise ratio.” Id. at 10.
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`Patent Owner disputes this construction, arguing it “eliminat[es] the
`claimed ‘actor’ that increases the pulse rate, i.e., the device,” and
`erroneously “replaces the claim term ‘configured to’ with the broader phrase
`‘is capable of.’” PO Resp. 9. Patent Owner argues the correct construction
`of this term is “a light source, containing two or more light emitting diodes
`(semiconductor sources), where the light source is configured to increase the
`pulse rate of at least one of the light emitting diodes to increase signal-to-
`noise ratio.” 4 Id. at 13. Patent Owner argues the Specification supports this
`construction by disclosing “‘use of an active illuminator, [whereby] a
`number of advantages may be achieved’ including ‘high signal-to-noise
`ratios.’” Id. at 12 (quoting Ex. 1001, 16:54–58).
`We are not persuaded by Patent Owner’s arguments. First, the
`limitation does not recite a “device” or “actor” configured to increase signal-
`to-noise by increasing LED pulse rate. Instead, it recites a “light source
`comprising a plurality of . . . light emitting diodes,” where the light source
`itself—i.e., the plurality of LEDs—is “configured to increase signal-to-noise
`ratio by increasing . . . a pulse rate of at least one of the plurality of [LEDs].”
`Ex. 1001, 16:48–50, 16:56–60. That is, the limitation recites a plurality of
`LEDs that are configured to increase signal-to-noise by increasing the pulse
`rate of at least one of the LEDs. No “device” or “actor” is recited to increase
`the pulse rate of the LEDs. Thus, the only reasonable construction is that the
`
`
`4 We note here that Patent Owner contradicts this proposed construction in
`its Sur-Reply, where Patent Owner argues “[t]he claim requires a light
`source ‘configured to increase SNR,’ not a light source ‘configured to
`increase a pulse rate.’” PO Sur-Reply 4.
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`LEDs are “capable” of having their pulse rate increased to increase signal-
`to-noise, as we initially construed this phrase.
`Patent Owner argues that our construction is incorrect because
`“capable of” is a broader term than “configured to” and, therefore,
`“configured to” does not mean “capable of.” PO Resp. 10 (citing Aspex
`Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335, 1349 (Fed. Cir.
`2012)). In the context of these claims, we disagree. First, we note that
`Aspex Eyewear did not consider and did not construe “configured to.” See
`Aspex Eyewear, 672 F.3d at 1348–49. Instead, the term “magnetic members
`adapted to extend” was construed to mean “magnetic members . . . made to
`extend.” Id. at 1348 (emphases added). By contrast, the proper construction
`of “configured to” was considered in Superior Industries, Inc. v. Masaba,
`Inc., 650 Fed. App’x. 994 (Fed. Cir. 2016). In Superior Industries, the
`Federal Circuit considered and approved a district court’s construction of a
`“support frame . . . configured to support an end of an earthen ramp” to
`mean “the support frame be capable of supporting an earthen ramp.” Id. at
`996, 998 (emphases added).
`Accordingly, for these reasons, we maintain our construction of this
`limitation to mean “a light source containing two or more light emitting
`diodes (semiconductor sources), wherein at least one of the light emitting
`diodes is capable of having its pulse rate increased to increase a signal-to-
`noise ratio.”
`E. Overview of the Prior Art
`1. Lisogurski
`Lisogurski discloses a “physiological monitoring system [that]
`monitor[s] one or more physiological parameters of a patient . . . using one
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`or more physiological sensors.” Ex. 1011, 3:44–46. The physiological
`sensors may include a “pulse oximeter [that] non-invasively measure[s] the
`oxygen saturation of a patient’s blood.” Id. at 3:62–64. The pulse oximeter
`includes “a light sensor that is placed at a site on a patient, typically a
`fingertip, toe, forehead, or earlobe.” Id. at 4:6–7. The light sensor “pass[es]
`light through blood perfused tissue and photoelectrically sense[s] the
`absorption of the light in the tissue.” Id. at 4:8–11. The light sensor emits
`“one or more wavelengths [of light] that are attenuated by the blood in an
`amount representative of the blood constituent concentration,” including red
`and infrared (IR) wavelengths of light. Id. at 4:42–48.
`Figure 3 of Lisogurski is reproduced below.
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`Figure 3 of Lisogurski is “a perspective view of an embodiment of a
`physiological monitoring system.” Id. at 2:23–25. The system includes
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`sensor 312, monitor 314, and multi-parameter physiological monitor
`(“MPPM”) 326. Id. at 17:35–36, 18:44–45. Sensor 312 includes “one or
`more light sources 316 for emitting light at one or more wavelengths” and
`detector 318 for “detecting the light that is reflected by or has traveled
`through the subject’s tissue.” Id. at 17:37–42. Sensor 312 may have “[a]ny
`suitable configuration of light source 316 and detector 318,” and “may
`include multiple light sources and detectors [that] may be spaced apart.” Id.
`at 17:42–45. Light source 316 may include “LEDs of multiple wavelengths,
`for example a red LED and an IR [LED].” Id. at 19:25–27. Sensor 312 may
`be “wirelessly connected to monitor 314.” Id. at 17:57–59.
`
`Monitor 314 “calculate[s] physiological parameters based at least in
`part on data relating to light emission . . . received from one or more sensor
`units such as sensor unit 312.” Id. at 17:59–62. Monitor 314 includes
`“display 320 . . . to display the physiological parameters,” and “speaker 322
`to provide an audible . . . alarm in the event that a subject’s physiological
`parameters are not within a predefined normal range.” Id. at 18:3–10.
`Monitor 314 is communicatively coupled to MPPM 326, with which it “may
`communicate wirelessly.” Id. at 18:58–61. Monitor 314 may also be
`“coupled to a network to enable the sharing of information with servers or
`other workstations.” Id. at 18:62–65.
`MPPM 326 may “calculate physiological parameters and . . . provide
`a display 328 for information from monitor 314.” Id. at 18:49–52. MPPM
`326 may also be “coupled to a network to enable the sharing of information
`with servers or other workstations.” Id. at 18:62–65. The remote network
`servers may “be used to determine physiological parameters,” and may
`display the parameters on a remote display, display 320 of monitor 314, or
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`display 328 of MPPM 326. Id. at 20:53–58. The remote servers may also
`“publish the data to a server or website,” or otherwise “make the parameters
`available to a user.” Id. at 20:58–60.
`Lisogurski discloses the monitoring system shown in Figure 3,
`described above, “may include one or more components of physiological
`monitoring system 100 of FIG. 1.” Id. at 17:32–35. Lisogurski further
`discloses that although “the components of physiological monitoring system
`100 . . . are shown and described as separate components. . . . the
`functionality of some of the components may be combined in a single
`component,” and “the functionality of some of the components . . . may be
`divided over multiple components.” Id. at 15:66–16:9. Figure 1 of
`Lisogurski is reproduced below.
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`Figure 1 of Lisogurski is a “block diagram of an illustrative physiological
`monitoring system.” Id. at 2:11–13. The system includes “sensor 102 and
`monitor 104 for generating and processing physiological signals of a
`subject.” Id. at 10:44–46. Sensor 102 includes “light source 130 and
`detector 140.” Id. at 10:48–49. Light source 130 includes “a Red light
`emitting light source and an IR light emitting light source,” such as Red and
`IR emitting LEDs, with the IR LED emitting light with a “wavelength [that]
`may be between about 800 nm and 1000 nm.” Id. at 10:52–58. Detector
`140 “detect[s] the intensity of light at the Red and IR wavelengths,” converts
`them to an electrical signal, and “send[s] the detection signal to monitor 104,
`where the detection signal may be processed and physiological parameters
`may be determined.” Id. at 11:9–10, 11:20–23.
`Monitor 104 includes user interface 180, communication interface
`190, and control circuitry 110 for controlling (a) light drive circuitry 120,
`(b) front end processing circuitry 150, and (c) back end processing circuitry
`170 via “timing control signals.” Id. at 11:33–38, Fig. 1. Light drive
`circuitry 120 “generate[s] a light drive signal . . . used to turn on and off the
`light source 130, based on the timing control signals.” Id. at 11:38–40. The
`light drive signal “control[s] the intensity of light source 130 and the timing
`of when the light source 130 is turned on and off.” Id. at 11:50–54. Front
`end processing circuitry 150 “receive[s] a detection signal from detector 140
`and provides one or more processed signals to back end processing circuitry
`170.” Id. at 12:42–45. Front end processing circuitry 150 “synchronize[s]
`the operation of an analog-to-digital converter and a demultiplexer with the
`light drive signal based on the timing control signals.” Id. at 11:43–46.
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`Backend processing circuitry 170 “use[s] the timing control signals to
`coordinate its operation with front end processing circuitry 150.” Id. at
`11:46–49. Backend processing circuitry 170 includes processor 172 and
`memory 174, and “receive[s] and process[es] physiological signals received
`from front end processing circuitry 150” to “determine one or more
`physiological parameters.” Id. at 14:56–57, 14:60–64. Backend processing
`circuitry 170 is “communicatively coupled [to] use[r] interface 180 and
`communication interface 190.” Id. at 15:16–18. User interface 180 includes
`“user input 182, display 184, and speaker 186,” and may include “a
`keyboard, a mouse, a touch screen, buttons, switches, [and] a microphone.”
`Id. at 15:19–22. Communication interface 190 allows “monitor 104 to
`exchange information with external devices,” and includes transmitters and
`receivers to allow wireless communications. Id. at 15:43–44, 15:48–57.
`
`Lisogurski teaches the physiological monitoring system may modulate
`the light drive signal to have a “period the same as or closely related to the
`period of [a] cardiac cycle.” Id. at 25:49–51. Thus, “[t]he system may vary
`parameters related to the light drive signal including drive current or light
`brightness, duty cycle, firing rate, . . . [and] other suitable parameters.” Id.
`at 25:52–55. Lisogurski further teaches “the system may alter the cardiac
`cycle modulation technique based on the level of noise, ambient light, [and]
`other suitable reasons.” Id. at 9:46–48. Thus, “[t]he system may increase
`the brightness of the light sources in response to [any] noise to improve the
`signal-to-noise ratio.” Id. at 9:50–52. The system may also “change from a
`modulated light output to a constant light output in response to noise, patient
`motion, or ambient light.” Id. at 9:57–60.
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`2. Carlson
`Carlson discloses an “optical pulsoximetry [device] used for non-
`invasive measurement of pulsation and oxygen saturation in arterial human
`or animal blood.” Ex. 1009 ¶ 2. The device measures the light “absorption
`of reduced (Hb)—and oxidized (HbO2) h[e]moglobin at two optical
`wavelengths