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`Apple, Inc. v. Masimo Corp.
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`Dr. Brian Anthony
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` UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`APPLE, INC.
`Petitioner,
`v.
`MASIMO CORPORATION,
`Patent Owner.
`____________________
`
`Case IPR2020-01526
`U.S. Patent 6,771,994
`
`VIRTUAL VIDEOTAPED DEPOSITION OF
`DR. BRIAN W. ANTHONY
`Tuesday, June 1, 2021
`11:05 a.m. Eastern Daylight Time
`
`REPORTER: Dawn A. Jaques, CSR, CLR
`______________________________________________________
`DIGITAL EVIDENCE GROUP
`1730 M Street, NW, Suite 812
`Washington, D.C. 20036
`(202) 232-0646
`
`MASIMO 2003
`Apple v. Masimo
`IPR2020-01526
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
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`202-232-0646
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`Dr. Brian Anthony
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`APPEARANCES:
`
`On behalf of the Petitioner, Apple, Inc.:
` DANIEL D. SMITH, ESQ. (Dallas)
` Fish & Richardson
` 1000 Maine Avenue, SW
` Washington, D.C. 20024
` PHONE: (214) 292-4071
` EMAIL: dsmith@fr.com
`
`On behalf of the Patent Owner, Masimo
`Corporation:
` SHANNON H. LAM, ESQ.
` JOHN GROVER, ESQ.
` BEN J. EVERTON, ESQ.
` Knobbe, Martens, Olson & Bear, LLP
` 2040 Main Street, 14th Floor
` Irvine, California 92614
` PHONE: (949) 760-0404
` EMAIL: shannon.lam@knobbe.com
` john.grover@knobbe.com
` ben.everton@knobbe.com
`
`VIDEOGRAPHER AND EXHIBIT TECHNICIAN:
` Henry Marte, Digital Evidence Group
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` I-N-D-E-X
`WITNESS: PAGE:
`DR. BRIAN W. ANTHONY
` Examination by Ms. Lam 5
`
` E-X-H-I-B-I-T-S
`ANTHONY DEPOSITION EXHIBIT: PAGE:
`Exhibit 1001 U.S. Patent 6,771,994 B2
` Kiani, et al. 110
`Exhibit 1003 Declaration of Dr. Brian W.
` Anthony 10
`Exhibit 1006 U.S. Patent, 5,638,818
` Diab, et al. 128
`Exhibit 1007 U.S. Patent 4,015,595
` Benjamin, Jr. 143
`Exhibit 1008 U.S. Patent 5,254,388
` Melby, et al. 175
`Exhibit 1009 International Application
` WO 96/41566 (Fine, et al.) 198
`Exhibit 1010 Textbook Medical Science Series
` Design of Pulse Oximeters
` (150 pages) 231
`Exhibit 1010 Excerpts from Medical Science
` Series, Design of Pulse Oximeters
` (113 pages) 231
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` P R O C E E D I N G S
` THE VIDEOGRAPHER: We are now on the
`record. My name is Henry Marte, videographer on
`behalf of Digital Evidence Group. Today's date
`is June 1st, 2021, and the time is 11:05 a.m.
`Eastern Time.
` This deposition is being held by
`Remote Zoom in the matter of Apple Inc. versus
`Masimo Corporation. The deponent today is
`Dr. Brian W. Anthony.
` All parties to this deposition are
`appearing remotely and have agreed to the witness
`being sworn in remotely. All appearances also
`noted on the stenographic record.
` Will the court reporter please
`administer the oath to the witness?
` THE REPORTER: Raise your right hand,
`please.
` (The witness was administered the oath.)
` THE VIDEOGRAPHER: Ms. Lam, you may
`begin.
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`Whereupon,
` BRIAN W. ANTHONY, Ph.D.
` was called as a witness, after having been
` first duly sworn by the Notary Public,
` was examined and testified as follows:
` EXAMINATION BY COUNSEL FOR THE
` PATENT OWNER MASIMO CORPORATION
` BY MS. LAM:
` Q Good morning, Dr. Anthony.
` A Good morning.
` Q Can you please state your full name
`for the record?
` A Brian W. Anthony.
` Q Have you been deposed before?
` A Yes, I have.
` Q Were those patent cases?
` A Yes, they were IPR cases.
` Q And do you recall what the subject
`matter of those IPRs was?
` A Many of them have been related to
`physiological monitors.
` Q What types of physiological monitors?
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` A Wearable physiological monitors:
`pulse ox, photoplethysomographs.
` Q Were the wearable monitors able to
`monitor any other parameters?
` MR. SMITH: Objection, form.
` THE WITNESS: They were -- so light
`optical -- light-based optical techniques to
`measure physiological aspects of the body.
` BY MS. LAM:
` Q Have you provided testimony in any
`other proceedings?
` A I'm sorry, in other proceedings?
` Q Right, trial proceedings.
` A I have not.
` Q So you understand that you are under
`oath as though you are in a courtroom today?
` A Yes, I understand that.
` Q Is there any reason why you would be
`unable to give truthful and accurate testimony
`today?
` A No.
` Q Are you taking any medications that
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`might affect your testimony today?
` A No.
` Q So I'll ask you questions today.
`Please wait until I have completed the question
`before answering. Please let me know if you
`don't understand the questions, otherwise I will
`assume that you understand the questions.
` The court reporter is here to take
`down questions and answers, so please speak
`clearly and respond verbally to any questions so
`the answers can be recorded.
` And you may take a break at any time;
`however, if there is a pending question, please
`answer the question before taking a break.
` Does that all make sense?
` A Makes sense. Understood.
` Q Okay. And do you understand that
`this is a deposition for an IPR proceeding
`related to U.S. patent number 6,771,994?
` A Yes, I do. I think of it as the
`'994. I'll trust you on that, on the earlier
`numbers.
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` Q So today we'll refer to the patent as
`the '994 patent then. Is that okay?
` A That is fine.
` Q So how did you prepare for your
`deposition today?
` A I reviewed my declaration, reviewed
`the '994 patent, and the various patents that I
`used in the discussion in my declaration.
` Q And who did you meet with?
` A I met with Dan -- and I'm sorry, I'm
`drawing a blank on Dan's last name -- and
`Vivian Lu.
` Q About how long did you meet with
`them?
` A I'd say approximately 5 hours.
` Q And do you have any notes with you
`today?
` A I do not.
` Q Do you have any technology running
`that would allow you to communicate with anyone?
` A I have my cell phone here, but I'm
`not communicating with anybody.
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` Q So as we go through the deposition
`today, I will refer to exhibits and documents.
`Those exhibits will be pulled up on the computer
`screen, but I believe we also provided hard
`copies for those exhibits. Did you receive them?
` A I have this package. I'm assuming
`this is what you're --
` Q Yes. Feel free to open it now and
`refer to the hard copies. They should just be
`clean copies of the documents from the IPR.
` A Hold on a second. Yeah, the binder
`is squished. Hold on. I think it got trampled
`in the shipping. The binds are a little bent. I
`may have to take documents out, but that's okay.
` Q So separately you should be able to
`download any exhibits. According to the these
`proceedings, you have access to that link.
` A There was a link in the Zoom, but
`apparently there's nothing -- as I recall, there
`was nothing there when I clicked on it.
` Q Yes. As I introduce documents, they
`should get moved to the link and you should be
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`able to download them.
` A Okay.
` Q You submitted a declaration in this
`IPR proceeding, correct?
` A Yes, I did.
` Q So I'd like to introduce
`Exhibit 1003.
` Do you recognize this exhibit,
`Dr. Anthony?
` A I'm looking at the paper version.
` Yes, this is my declaration.
` Q This is the declaration submitted in
`the IPR for the '994 patent, correct?
` A Yes, that is correct.
` Q And you submitted this declaration on
`behalf of Apple?
` A Yes, that is correct.
` Q And this is a true and accurate copy
`of your declaration?
` A The paper version that I'm looking at
`in front of me, yes.
` Q And approximately how much time did
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`you spend preparing this declaration?
` A I would estimate approximately
`40 hours.
` Q And does your declaration set forth
`all of your opinions regarding the '994 patent?
` A My declaration summarizes my opinions
`with regard to the -- to claim 15 of the
`'994 patent. Let me find claim 15.
` Q Have you formed any opinions
`regarding the '994 patent other than with respect
`to claim 15?
` A My opinions are expressed in the
`declaration. All of my opinions with respect to
`the '994 patent are in the declaration.
` Q So have you formed any other opinions
`that are not found in the declaration related to
`the '994 patent?
` MR. SMITH: Objection, form.
` THE WITNESS: All of my opinions with
`respect to this case and the '994 patent are in
`my declaration.
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` BY MS. LAM:
` Q Let's turn to paragraph 11 of the
`declaration. In paragraph 11 of your
`declaration, you state that you reviewed the
`listed materials, correct?
` A That's correct, I reviewed the listed
`documents: the Diab patent, the Benjamin patent,
`Melby, Fine, Webster, Tremper, Mendelson,
`Bronzino, and Konig.
` Q Is this a complete list of the
`materials you reviewed?
` A These are the materials that were
`relevant to the declaration. There were
`certainly other documents that I'm familiar with
`that form my understanding of the space of pulse
`oximeters and wearable physiological monitors.
` Q During this deposition, I am going to
`refer to these references by the shorthand names
`you provided in this paragraph. Is that okay?
` A That is fine.
` Q Then I'd like to turn to page 84 of
`your declaration. There's a section titled
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`Legal Background. Do you see that?
` A "LEGAL STANDARDS"? Yes, I see that.
` Q Yes, "LEGAL STANDARDS."
` Does this section, which includes I
`believe paragraphs 152 to 168, set forth all of
`the legal standards that you relied upon in this
`IPR?
` A These are the legal standards, as I
`understand them, from my conversations with
`counsel that were used in forming my declaration.
` Q So I'd like to talk a little bit
`about your background now.
` Have you designed any physiological
`sensors?
` A Yes, I have.
` Q What type of physiological sensors?
` A I've designed wearable devices for
`monitoring of motion. I've designed noncontact
`sensors for measuring of vibrations on the skin.
`I've designed both wearable and noncontact
`sensors using both light and sound for
`characterizing tissue properties: tissue
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`stiffness, tissue perfusion, blood perfusion.
` Q Can you talk a little bit more about
`the sensors that you worked on regarding blood
`perfusion?
` A So we've used a combination of both
`high frequency, ultrasound, and light to
`characterize both things like the pulse rate, the
`blood pressure; and using energy transmitted into
`the body, reflected off of boundaries in the
`body, whether those be optical boundaries or
`acoustic boundaries, and then interpreting those
`reflected signals to analyze the tissue
`that the -- the energy, light and sound that
`propagated through.
` I've also designed sensors that
`transmit energy through the body, both light and
`sound, to map out not just local physiological
`properties, but create maps of vasculature, maps
`of tissue stiffness, maps of the properties,
`acoustic and optical properties of the tissue
`through which the energy is propagating.
` Q And why did you use a combination of
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`light and sound?
` A Different modalities --
` MR. SMITH: Object to form.
` THE WITNESS: Different modalities
`reveal different aspects of the properties. So
`you can't use sound directly, for example, to
`interrogate for the optical properties of skin,
`and vice versa.
` Although we do have a paper out,
`we're the first in the world to demonstrate the
`combined use of both light and sound to
`interrogate both optical and acoustic properties
`remotely.
` So we use two lasers, two different
`wavelengths of lasers: one a continuous wave
`laser, one a pulse laser that shines on the
`tissue and generates a thermal elastic wave, so
`it propagates the sound. The transduction of
`that light-to-sound relies on the local
`properties of the skin, including the local
`quantity of blood in the tissue.
` And then, for example, that sound
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`then propagates into the body, reflects back, and
`then we use a continuous wave laser to detect the
`vibrations of the skin; which when we then scan
`these optical sources, light sources, over the
`body, we're able to construct at a distance of,
`for example, a meter, a fully noncontact image of
`the body, embodying both the optical
`characteristics of the skin and the near -- sort
`of near depth of the skin, and the acoustic
`properties that go deeper.
` BY MS. LAM:
` Q When you mentioned the use of light,
`were you -- did you evaluate the absorption of
`the light?
` A I'm sorry, did I evaluate the -- I
`missed that part.
` Q When you described the use of light
`in your system, did you evaluate the absorption
`of light at certain wavelengths?
` A Yes. Yeah, we actually have looked
`at the many wavelengths, sort of across the human
`skin, to identify things that will -- light is
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`absorbed in the human body as a function of
`wavelength. Some light propagates deeply and is
`absorbed, and some reflects.
` So we rely on that variable
`absorption to be able to extract information at
`different depths, sort of get transduction
`phenomena that happen at different depths within
`the tissue.
` Q I believe you mentioned skin. Have
`you used light to evaluate the absorption of
`light in the blood?
` A That is -- so the blood is the
`combination of perfused tissue. So blood in
`tissue is what will be the dominant absorber or
`reflector for many wavelengths of light, so yes.
` Q What specific physiological
`parameters did you evaluate using the light
`absorption?
` A The -- what specific physiological
`parameters?
` Q Yes.
` A Okay. So the absorption of light
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`allows you to reveal the amount of blood that's
`present. And from that, we're able to back out,
`for example, the flow of blood, we're able to
`back out the blood pressure, the local perfusion
`state, and the dynamic response of blood going
`into a region.
` In particular, looking at it for
`healing. You want good perfusion of tissue,
`that's even in surgically repaired or surgically
`altered, and as well using those variable
`absorption spectra to transduce from light to
`sound.
` Q Did you use the light absorption
`information to evaluate pulse rate?
` A Yes, that was one of the things that
`we were able to extract.
` Q Did you use the light absorption
`material to evaluate oxygen saturation?
` A We weren't directly looking at it for
`oxygen saturation. We were using it for more of
`the local perfusion state of the tissue.
` Q And this system you were describing,
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`was it a noncontact system?
` A We've done both contact and
`noncontact.
` Q And for the contact system, what part
`of the body was the system contact?
` A I looked at thyroid area, neck
`region, I've looked at abdomen region.
`Previously we've done some things on the fingers
`and the hand, legs.
` Q Anything else?
` A Kidneys, hands, abdomen, chest,
`fingers, thyroid. I think that captures most of
`it.
` Q Do you have any experience with
`noninvasive sensors specifically to evaluate
`SpO2?
` A Specifically to focus just on SpO2?
` Q Yes.
` A No, we've not just focused on just
`SpO2.
` Q Have you done any work studying SpO2
`at all?
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` A So we've not been directing our work
`specifically studying SpO2, but we're able to,
`from the extracted signals, get the relative
`oxygenation, but that was not the intent of the
`work.
` So the intent of the work is not to
`design an SpO2 sensor, but to broadly use
`optical-based techniques to extract physiological
`signals from the body.
` Q So you have not done any work
`specific to pulse oximeter sensors, correct?
` A Not specifically and only for pulse
`oximetry.
` Q Can you explain how a pulse oximeter
`sensor works?
` MR. SMITH: Objection, form.
` THE WITNESS: As I described in
`the -- in my declaration.
` BY MS. LAM:
` Q Are you able to explain how a pulse
`oximeter sensor works without referring to your
`declaration?
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`202-232-0646
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`Dr. Brian Anthony
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` MR. SMITH: Objection, form.
` THE WITNESS: The declaration is the
`basis for the background necessary to form my
`opinions with respect to the '994 patent, so I
`captured a description of how pulse oximeters
`work in my declaration, and that starts on page 7
`at paragraph 16, and it continues through
`page 14, paragraph 29. If you'd like me to read
`from it, I certainly can.
` BY MS. LAM:
` Q Just sitting here today, can you
`describe high level in your own words how a
`pulse oximeter sensor works?
` MR. SMITH: Objection, form.
` THE WITNESS: So my own words are in
`the declaration.
` So, for example, paragraph 24 on
`page 11, photoplethysmography works by directing
`light into a person's tissue and measuring that
`light that's reflected back through or
`transmitted through the tissue. Different
`components of blood or tissue absorb different
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
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`202-232-0646
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`Dr. Brian Anthony
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`Page 22
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`wavelengths of light. By measuring how much
`light is absorbed by the tissue and how the
`absorption changes over time, a device can
`calculate parameters that are related to the
`properties of the tissue or the blood.
` And then paragraph 25. "For example,
`hemoglobin ... reflects more red light when it is
`more oxygenated than when it is deoxygenated; it
`absorbs more red light when it is deoxygenated.
`Hemoglobin reflects the same amount of infrared
`light whether oxygenated or deoxygenated. [So]
`if a device measures the absorbed red and IR
`light multiple times [per second], the device can
`determine multiple things: the ratio of
`oxygenated to deoxygenated hemoglobin (oxygen
`saturation), and how the volume of blood in the
`tissue changes over time, allowing detection of a
`person's pulse."
` BY MS. LAM:
` Q How did you prepare the description
`that you just read to us?
` MR. SMITH: Objection, form.
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
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`202-232-0646
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`Dr. Brian Anthony
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`Page 23
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` THE WITNESS: Based on my --
` MR. SMITH: Sorry.
` THE WITNESS: No, understood.
` I'm sorry, Shannon, please can you
`repeat the question?
` BY MS. LAM:
` Q Did you prepare the description that
`you just read to us yourself?
` MR. SMITH: Objection, form.
` THE WITNESS: My declaration captures
`my opinions and explanation of how
`photoplethysmography works.
` BY MS. LAM:
` Q And did you prepare that description
`on your own?
` A I prepared my declaration also in
`conversation with counsel. The declaration is my
`opinion. Reviewing documents and in
`conversations with counsel, the declaration
`captures my -- my opinion in the case.
` Q Do you have any other understanding
`of how a pulse oximeter sensor works other than
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
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`Apple, Inc. v. Masimo Corp.
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`Dr. Brian Anthony
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`Page 24
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`what is written in your declaration?
` MR. SMITH: Objection, form,
`relevance.
` THE WITNESS: My understanding that
`was sufficient for forming my opinions is
`captured in my declaration.
` BY MS. LAM:
` Q Do you have knowledge of how a
`pulse oximeter works beyond what is described in
`this declaration?
` MR. SMITH: Objection, form.
` THE WITNESS: The knowledge that I
`needed to form my opinions in my declaration are
`captured in my declaration.
` BY MS. LAM:
` Q In paragraph 24, in that last
`sentence you recite the device can calculate
`parameters that are related to the properties of
`the tissue or blood. Do you see that?
` A "By measuring how much light is
`absorbed by the tissue and how the absorption
`changes over time, a device can calculate
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`Dr. Brian Anthony
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`Page 25
`parameters that are related to the properties of"
`blood -- "of the tissue or blood," yes.
` Q Can you explain how the device
`calculates the parameters?
` MR. SMITH: Objection, form.
` THE WITNESS: In paragraph 25, it
`describes the variable absorption and reflection
`of deoxygenated or oxygenated blood.
` And then furthermore, in
`paragraph 29, summarizes -- or in paragraphs 28
`and 29, for example, explains how detected
`signals can be processed to extract -- to
`calculate the properties of the tissue or blood.
` BY MS. LAM:
` Q Can you explain in your own words how
`the detecting signals can be processed?
` MR. SMITH: Objection, form.
` THE WITNESS: My own words are in,
`for example, paragraph 28.
` "The detected signal may include
`signal and noise from, for example, ambient light
`or motion induced artifacts. It has long been
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`Dr. Brian Anthony
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`Page 26
`recognized that noise sources such as stray and
`ambient light and movement --
` THE REPORTER: Doctor, when you're
`reading, can you please slow down a little bit?
`I know it's natural to, but it's hard to keep up.
`Thank you.
` THE WITNESS: Certainly. My
`apologies.
` So in paragraph 28, it's been
`recognized that noise sources, such as stray
`and ambient light and movements of the subject,
`corrupt the information that is obtained from the
`optical biosensors.
` Motion artifacts arise from kinematic
`variations, variable mechanical forces, changes
`in the coupling of the sensor to the subject,
`local variation in patient anatomy, optical
`properties of the tissue due to geometric
`realignment or compression, or combinations of
`these effects.
` And then paragraph 29 goes on to
`describe there are various well-known techniques
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`Page 27
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`used to reduce the amount of noise in the
`detected signal and improve the signal-to-noise
`ratio. For example, the light source is often
`modulated with a known periodicity or pattern.
`The known periodicity or pattern increases the
`signal detectability, and therefore improves
`signal to noise.
` The detector may use synchronized
`lock-in amplifier detection that isolates signals
`that occur at the modulation frequency to improve
`signal-to-noise ratio by extracting information
`encoded at the modulation frequency, thereby
`reducing the impact of noise at other frequencies
`in the detected signal.
` Commonly, methods for reducing noise
`or extracting information from a signal involved
`calculating and processing the spectral content
`or frequency domain representation of the
`signals.
` The traditional technique for that is
`the fast Fourier transform, used to determine a
`signal's spectral or frequency domain components.
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
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`202-232-0646
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`Apple, Inc. v. Masimo Corp.
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`Dr. Brian Anthony
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`Page 28
` Other processing techniques include
`removing the artifacts by generating two
`independent measurements with two light sources
`or detectors performing a subtraction, or others
`through signal averaging.
` BY MS. LAM:
` Q So Dr. Anthony, you just described
`methods of reducing the amount of noise. What
`happens after the processor reduces the noise?
` MR. SMITH: Objection, form.
` THE WITNESS: So as I explained here
`back in paragraph -- let's see, where did it go?
` Back in paragraph 25, describing the
`relative absorption of oxygenated and
`deoxygenated blood used to calculate the ratio of
`hemoglobin and things like the volume of blood
`changing in the tissue over time.
` Many of the innovations in noise
`reduction -- or in many of the issues associated
`with getting a good signal is associated with
`signal-to-noise -- improving the signal-to-noise
`ratio. So the techniques are described in 25 and
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`Dr. Brian Anthony
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`Page 29
`26, and in 28 and 29, highlighting the need to
`make sure that you have strong signal relative to
`the noise.
` BY MS. LAM:
` Q Do you have any understanding of
`signal processing in pulse oximeter sensors that
`does not appear in this declaration?
` MR. SMITH: Objection, form.
` THE WITNESS: I do have an
`understanding. What was my -- the opinions that
`were necessary to form my opinions are captured
`in my declaration.
` BY MS. LAM:
` Q So you've talked about reducing noise
`and the signal-to-noise ratio.
` How do you convert the electrical
`signal into a physiological measurement of oxygen
`saturation?
` MR. SMITH: Objection, form.
` THE WITNESS: In forming my opinions
`for this declaration, it wasn't necessary to
`fully articulate my understanding and all the
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`Dr. Brian Anthony
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`Page 30
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`background on how that is done. The opinions
`that were necessary are captured in my
`declaration.
` BY MS. LAM:
` Q Sitting here today, can you explain
`how the electrical signals are converted into
`physiological measurements of oxygen saturation?
` A The details on that were not
`necessary in forming my opinions for this.
` The declaration captures my opinions
`that were necessary in forming my opinions.
` Q Sitting here today, you cannot
`explain how the signals from a pulse oximeter
`sensor are converted into physiological
`parameters?
` MR. SMITH: Objection, form.
` THE WITNESS: Sitting here today, it
`was my understanding that the intent was to
`provide defense, if you will, of my declaration,
`of the opinions that are in the declaration, not
`to opine significantly on other aspects of the
`various techniques that could be used for
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`calculating the signals with various specific
`algorithms. That was not necessary to capture
`those details in this declaration.
` BY MS. LAM:
` Q That wasn't my question.
` Sitting here today, are you able to
`explain how electrical signals are converted into
`physiological parameters of oxygen saturation?
` MR. SMITH: Objection, form.
` THE WITNESS: So for example, in
`paragraph 27, as I do have in the declaration,
`the light from the light sources is directed
`through a lens or other light-guiding structure
`onto a sample. The sample or tissue reflects
`back the light, which is filtere