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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE INC.,
`Petitioner,
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`v.
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`MASIMO CORPORATION,
`Patent Owner.
`____________
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`Case IPR2020-01538
`Patent 10,588,554
`____________
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`PETITIONER’S OBJECTIONS TO EVIDENCE
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`Case No. IPR2020-01538
`Attorney Docket: 50095-0013IP1
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner hereby submits the following
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`objections to evidence filed with Patent Owner’s Response of June 8, 2021.
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`Evidence
`Exhibit 2004
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`Exhibit 2006
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`Objections
`Petitioner objects to the admissibility of Exhibit 2004 under
`FRE 702 and 703, because it contains opinions that are
`conclusory, do not disclose supporting facts or data, are
`based on unreliable facts, data, or methods, and/or include
`testimony outside the scope of Dr. Madisetti’s specialized
`knowledge (to the extent he has any such knowledge) that
`will not assist the trier of fact. As an example, Dr.
`Madisetti possesses no experience or training relevant to
`his opinion that “a POSITA would have believed that a
`convex surface directs light to a more central location
`relative to a flat surface. . . .” Exhibit 2004 at ¶ 63; see also
`id. at ¶¶ 71-76, 84. Accordingly, at least part of Dr.
`Madisetti’s declaration is unreliable insomuch as it relies
`on his understanding of how a convex lens works. Patent
`Owner also objects to Exhibit 2004 as containing opinions
`that are irrelevant, confusing, and presenting the danger of
`unfair prejudice under FRE 401, 402, and 403.
`Petitioner objects to the admissibility of Exhibit 2006 under
`FRE 401, 402, and 403 at least insofar as the Patent Owner
`Response does not establish the relevance of the statements
`cited, and at least insofar as the cited statements are
`potentially misleading when taken out of context.
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`Additionally, Petitioner incorporates the real-time
`objections made by Petitioner’s counsel reflected in Exhibit
`2006, to the extent that such objections relate to the cited
`portions of Exhibit 2006.
`Petitioner objects to the admissibility of Exhibit 2007 under
`FRE 401, 402, and 403 at least insofar as the Patent Owner
`Response does not establish the relevance of the statements
`cited, and at least insofar as the cited statements are
`potentially misleading when taken out of context.
`Additionally, Petitioner incorporates the real-time
`objections made by Petitioner’s counsel reflected in Exhibit
`2007, to the extent that such objections relate to the cited
`portions of Exhibit 2007.
`Petitioner incorporates the real-time objections made by
`Petitioner’s counsel reflected in Exhibit 2008, to the extent
`that such objections relate to portions of Exhibit 2008 that
`are cited in Patent Owner’s Response.
`Petitioner incorporates the real-time objections made by
`Petitioner’s counsel reflected in Exhibit 2009, to the extent
`that such objections relate to portions of Exhibit 2009 that
`are cited in Patent Owner’s Response.
`Petitioner objects to Exhibit 2010 under FRE 901, as Patent
`Owner has not submitted evidence that the document is
`authentic, nor that the document is self-authenticating. Of
`note, there is insufficient support in the Exhibit 2010 to
`show that the document was publically available before the
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`Exhibit 2007
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`Exhibit 2008
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`Exhibit 2009
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`Exhibit 2010
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`Case No. IPR2020-01538
`Attorney Docket: 50095-0013IP1
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`priority date of the patent. See, e.g., Microsoft Corp. v.
`Corel Software, LLC, IPR2016-01300 (P.T.A.B. Jan. 4,
`2017) (Denial of Institution); ServiceNow, Inc. v. Hewlett-
`Packard Co., IPR2015-00716, Paper No. 13 at 2-3, 10-18
`(P.T.A.B. Aug. 26, 2015). Petitioner further objects to
`Exhibit 2010 under FRE 801 and 802 as inadmissible
`hearsay.
`Petitioner objects to Exhibit 2013 under FRE 802, 901, as
`the exhibit includes out-of-court statements that
`are offered for the truth of the matter asserted
`and are asserted by a declarant who lacks
`personal knowledge.
`Petitioner objects to Exhibit 2014 under FRE 802, 901, as
`the exhibit includes out-of-court statements that
`are offered for the truth of the matter asserted.
`Petitioner objects to Exhibit 2015 under FRE 401, 403 as
`providing an irrelevant and misleading characterization of
`the knowledge in the art as of the priority date of the patent,
`as the report was published 5 years after the priority date of
`the patent, and therefore confuses the issues in the case.
`Petitioner objects to Exhibit 2016 under FRE 401 as
`irrelevant and under FRE 403. Specifically, any probative
`value it may have is substantially outweighed by a danger
`of unfair prejudice, confusing the issues, and/or being
`misleading. The article, written in 2020 (over a decade
`after the alleged priority date of the patent), does not
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`Exhibit 2013
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`Exhibit 2014
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`Exhibit 2015
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`Exhibit 2016
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`Attorney Docket: 50095-0013IP1
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`provide any information relevant to the priority date of the
`patent. Additionally, Petitioner objects to Exhibit 2016
`under FRE 901, as Patent Owner has not submitted
`evidence that the document is authentic, nor that the
`document is self-authenticating. Of note, there is
`insufficient support in the Exhibit 2016 to show that the
`document was publically available before the priority date
`of the patent. See, e.g., Microsoft Corp. v. Corel Software,
`LLC, IPR2016-01300 (P.T.A.B. Jan. 4, 2017); ServiceNow,
`Inc. v. Hewlett-Packard Co., IPR2015-00716, Paper No. 13
`at 2-3, 10-18 (P.T.A.B. Aug. 26, 2015). Petitioner further
`objects to Exhibit 2016 under FRE 801 and 802 as
`inadmissible hearsay.
`Petitioner objects to Exhibit 2017 under FRE 901, as Patent
`Owner has not submitted evidence that the document is
`authentic, nor that the document is self-authenticating. Of
`note, there is insufficient support in the Exhibit 2017 to
`show that the document was publically available before the
`priority date of the patent. See, e.g., Microsoft Corp. v.
`Corel Software, LLC, IPR2016-01300 (P.T.A.B. Jan. 4,
`2017); ServiceNow, Inc. v. Hewlett-Packard Co., IPR2015-
`00716, Paper No. 13 at 2-3, 10-18 (P.T.A.B. Aug. 26,
`2015). Petitioner further objects to Exhibit 2017 under
`FRE 801 and 802 as inadmissible hearsay.
`Petitioner objects to Exhibit 2018 under FRE 401, 403 as
`providing an irrelevant and misleading characterization of
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`Exhibit 2017
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`Exhibit 2018
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`Attorney Docket: 50095-0013IP1
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`the knowledge in the art as of the priority date of the patent,
`as the article was purportedly published 8 years after the
`priority date of the patent, and therefore confuses the issues
`in the case. Petitioner additionally objects to Exhibit 2018
`under FRE 901, as Patent Owner has not submitted
`evidence that the document is authentic, nor that the
`document is self-authenticating. Of note, there is
`insufficient support in the Exhibit 2018 to show that the
`document was publically available before the priority date
`of the patent. See, e.g., Microsoft Corp. v. Corel Software,
`LLC, IPR2016-01300 (P.T.A.B. Jan. 4, 2017); ServiceNow,
`Inc. v. Hewlett-Packard Co., IPR2015-00716, Paper No. 13
`at 2-3, 10-18 (P.T.A.B. Aug. 26, 2015). Petitioner further
`objects to Exhibit 2018 under FRE 801 and 802 as
`inadmissible hearsay.
`Petitioner objects to the admissibility of Exhibit 2019 under
`FRE 401, 402, and 403 at least insofar as the Patent Owner
`Response does not establish the relevance of the statements
`cited, and at least insofar as the cited statements are
`potentially misleading when taken out of context.
`Petitioner objects to the admissibility of Exhibit 2020 under
`FRE 401, 402, and 403 at least insofar as the Patent Owner
`Response does not establish the relevance of the statements
`cited, and at least insofar as the cited statements are
`potentially misleading when taken out of context.
`Petitioner objects to the admissibility of Exhibit 2021 under
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`Exhibit 2019
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`Exhibit 2020
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`Exhibit 2021
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`Case No. IPR2020-01538
`Attorney Docket: 50095-0013IP1
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`FRE 401, 402, and 403 at least insofar as the Patent Owner
`Response does not establish the relevance of the statements
`cited, and at least insofar as the cited statements are
`potentially misleading when taken out of context.
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`For at least these reasons, Petitioner objects to Exhibits 2004-2010, and
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`2013-2021. Petitioner reserves the right to move to exclude Exhibits 2004, 2006-
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`2010, and 2013-2021.
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`Dated: June 15, 2021
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`Respectfully submitted,
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` /Andrew B. Patrick/
`W. Karl Renner, Reg. No. 41,265
`Andrew B. Patrick, Reg. No. 63,471
`Fish & Richardson P.C.
`3200 RBC Plaza, 60 South Sixth Street
`Minneapolis, MN 55402
`T: 202-783-5553
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`Case No. IPR2020-01538
`Attorney Docket: 50095-0013IP1
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR §§ 42.6(e)(4)(i) et seq., the undersigned certifies that on
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`June 15, 2021, a complete and entire copy of this Petitioner’s Objections to
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`Evidence was provided by electronic mail to the Patent Owner by serving the
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`correspondence e-mail address of record as follows:
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`Joseph R. Re
`Stephen W. Larson
`Jarom D. Kesler
`Jacob L. Peterson
`William R. Zimmerman
`Jeremiah S. Helm, Ph. D.
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`Knobbe, Martens, Olson, & Bear, LLP
`2040 Main St., 14th Floor
`Irvine, CA 92614
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`Email: AppleIPR2020-1538-554@knobbe.com
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`/Edward G. Faeth/
`Edward G. Faeth
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`(202) 626-6420
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