IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`Attorney Docket No.: 50095-0023IP1
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`Jeroen Poeze et al.
`In re Patent of:
`U.S. Patent No.: 10,624,564
`Issue Date:
`April 21, 2020
`Appl. Serial No.: 16/725,292
`Filing Date:
`Dec. 23, 2019
`Title:
` MULTI-STREAM DATA COLLECTION SYSTEM FOR
`NONINVASIVE MEASUREMENT OF BLOOD
`CONSTITUENTS
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`SECOND DECLARATION OF DR. THOMAS W. KENNY
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`I hereby declare that all statements made of my own knowledge are true and
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`that all statements made on information and belief are believed to be true. I further
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`declare that these statements were made with the knowledge that willful false
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`statements and the like so made are punishable by fine or imprisonment, or both,
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`under Section 1001 of the Title 18 of the United States Code.
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`Dated: October 27, 2021 By: _______________________
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`Thomas W. Kenny, Ph.D.
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`1
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`APPLE 1050
`Apple v. Masimo
`IPR2020-01713
`
`
`
`Attorney Docket No.: 50095-0023IP1
`
`Jeroen Poeze et al.
`In re Patent of:
`U.S. Patent No.: 10,624,564
`Issue Date:
`April 21, 2020
`Appl. Serial No.: 16/725,292
`Filing Date:
`Dec. 23, 2019
`Title:
` MULTI-STREAM DATA COLLECTION SYSTEM FOR
`NONINVASIVE MEASUREMENT OF BLOOD
`CONSTITUENTS
`
`SECOND DECLARATION OF DR. THOMAS W. KENNY
`
`I hereby declare that all statements made of my own knowledge are true and
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`that all statements made on information and belief are believed to be true. I further
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`declare that these statements were made with the knowledge that willful false
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`statements and the like so made are punishable by fine or imprisonment, or both,
`
`under Section 1001 of the Title 18 of the United States Code.
`
`Dated: October 27, 2021 By: _______________________
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`Thomas W. Kenny, Ph.D.
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`1
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`APPLE 1050
`Apple v. Masimo
`IPR2020-01713
`
`
`
`Table of Contents
`Introduction ....................................................................................................... 3
`Ground 1 ........................................................................................................... 5
`A. Ohsaki does not teach or require that its translucent board 8 is
`“rectangular” in shape .............................................................................. 11
`B. A POSITA would have recognized the benefits of Ohsaki’s teachings
`when applied to Aizawa’s sensor ............................................................ 15
`C. Modifying Aizawa’s sensor to include a convex cover as taught by
`Ohsaki enhances the sensor’s light-gathering ability .............................. 19
`D. A POSITA would have been motivated to select a convex cover to
`protect the optical elements ..................................................................... 36
`E. A POSITA would have combined Aizawa and Ohsaki with Goldsmith 36
`F. The claimed protrusion height in claims 16 and 17 would have been
`obvious to a POSITA ............................................................................... 37
` Ground 2 Establishes Obviousness ................................................................ 40
` Grounds 3-6 Establish Obviousness ............................................................... 43
`CONCLUSION ............................................................................................... 43
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`2
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`
`Introduction
`I have been retained on behalf of Apple Inc. to offer technical opinions
`
`1.
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`relating to U.S. Patent No. 10,624,564 (“the ’564 Patent”) in the present case
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`(IPR2020-01713). In this Second Declaration, I provide opinions related to Patent
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`Owner’s Response (Paper 24) and Dr. Madisetti’s supporting declaration (Ex. 2004).
`
`2.
`
`In addition to the materials listed in my First Declaration (APPLE-1003), I
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`have reviewed several additional documents and references including:
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` Paper 7: Institution Decision;
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` Paper 14: Patent Owner’s Response (“POR”);
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` Ex. 2004: Declaration of Dr. Madisetti;
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` Ex. 2006-2009: Transcripts of my prior depositions;
`
` APPLE-1051: Eugene Hecht, Optics (2nd Ed. 1990);
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` APPLE-1052: Eugene Hecht, Optics (4th Ed. 2002);
`
` APPLE-1053: Deposition Transcript of Dr. Vijay Madisetti in
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`IPR2020- 01536, IPR2020-01538 (August 3, 2021);
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` APPLE-1054: Deposition Transcript of Dr. Vijay Madisetti in
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`IPR2020- 01520, IPR2020-01537, IPR2020-01539, Day 1
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`(August 1, 2021);
`
` APPLE-1055: Deposition Transcript of Dr. Thomas W. Kenny in
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`IPR2020-01520, IPR2020-01536, IPR2020-01537, IPR2020-
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`01538, IPR2020-01539, Day 2 (September 18, 2021);
`
`
`
`3
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`
`
` APPLE-1056: Deposition Transcript of Dr. Vijay Madisetti in
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`IPR2020- 01520, IPR2020-01537, IPR2020-01539, Day 2
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`(August 2, 2021);
`
` APPLE-1057: “Refractive Indices of Human Skin Tissues at
`
`Eight Wavelengths and Estimated Dispersion Relations between
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`300 and 1600 nm,” H. Ding, et al.; Phys. Med. Biol. 51 (2006);
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`pp. 1479-1489 (“Ding”);
`
` APPLE-1058: “Analysis of the Dispersion of Optical
`
`Plastic Materials,” S. Kasarova, et al.; Optical Materials
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`29 (2007); pp. 1481-1490 (“Kararova”);
`
` APPLE-1059: “Noninvasive Pulse Oximetry Utilizing Skin
`
`Reflectance Photoplethysmography,” Y. Mendelson, et al.; IEEE
`
`Transactions on Biomedical Engineering, Vol. 35, No. 10,
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`October 1988; pp. 798-805 (“Mendelson-IEEE-1988”); and
`
` APPLE-1060: U.S. Pat. No. 6,198,951 (“Kosuda”).
`
`3.
`
`Counsel has informed me that I should consider these materials through the
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`lens of a person of ordinary skill in the art (POSITA) related to the '564 Patent at the
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`time of the earliest possible priority date of the '564 Patent (July 3, 2008, hereinafter
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`the “Critical Date”) and I have done so during my review of these materials. I have
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`applied the same level of ordinary skill in the art described in my prior declaration,
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`which I have been informed was also adopted by the Board in the Institution
`
`
`4
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`
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`Decision. APPLE-1003, [0021]-[0022]; Institution Decision, 11-12.
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`4.
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`I have no financial interest in the party or in the outcome of this proceeding. I
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`am being compensated for my work as an expert on an hourly basis. My
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`compensation is not dependent on the outcome of these proceedings or the content of
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`my opinions.
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`5.
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`In writing this declaration, I have considered the following: my own
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`knowledge and experience, including my work experience in the fields of mechanical
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`engineering, computer science, biomedical engineering, and electrical engineer; my
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`experience in teaching those subjects; and my experience in working with others
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`involved in those fields. In addition, I have analyzed various publications and
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`materials, in addition to other materials I cite in my declaration.
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`6.
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`My opinions, as explained below, are based on my education, experience, and
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`expertise in the fields relating to the '564 Patent. Unless otherwise stated, my
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`testimony below refers to the knowledge of one of ordinary skill in the fields as of the
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`Critical Date, or before.
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` Ground 1
`As I explained at length in my first declaration, a POSITA “would have found
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`7.
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`it obvious to modify the [Aizawa] sensor’s flat cover…to include a
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`lens/protrusion…similar to Ohsaki’s translucent board 8, so as to [1] improve
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`adhesion between the user’s wrist and the sensor’s surface, [2] improve detection
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`efficiency, [3] and protect the elements within the sensor housing.” APPLE-1003,
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`
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`5
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`
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`¶¶66-73. Rather than attempting to rebut my testimony on these points, Masimo and
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`its witness, Dr. Madisetti, responded with arguments that are technically and factually
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`flawed.
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`8.
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`Specifically, Masimo contends that “Ohsaki and Aizawa employ different
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`sensor structures (rectangular versus circular) for different measurement locations
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`(back side versus palm side of the wrist), using different sensor surface shapes
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`(convex versus flat) that are tailored to those specific measurement locations” and
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`from this concludes that “[a] POSITA would [not] have been motivated to combine
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`the references and reasonably expected such a combination to be successful.”
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`IPR2020-01713, Pap. 14 (“POR”), 1-3.
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`9.
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`In this way and as I explain in further detail, the POR avoids addressing the
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`merits of the combinations advanced in Apple’s Petition, relies on mischaracterizing
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`the prior art combinations and my testimony, and ignores the inferences and creative
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`steps that a POSITA would have taken when modifying Aizawa’s sensor to achieve
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`the benefits taught by Ohsaki and Goldsmith.
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`10.
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`Contrary to Masimo’s contentions, Ohsaki does not limit its benefits to a
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`rectangular sensor applied to a particular body location, and a POSITA would not
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`have understood those benefits as being so limited. For example, Ohsaki teaches that
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`“the detecting element and the sensor body 3 may be worn on the back side of the
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`user’s forearm” or wrist. Nowhere does Ohsaki teach that its sensor can only be
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`worn on a particular body location. APPLE-1009, [0030], [0008]-[0010], Abstract.
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`6
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`In its summary of invention and claim preambles, Ohsaki explains that the object of
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`its invention is “to provide a human pulse wave sensor which is capable of detecting
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`the pulse wave of a human body stably and has high detection probability.” APPLE-
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`1009, [0007], claims 1-8. Thus, Ohsaki’s disclosure should not be narrowly
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`understood as applying to a single location or a single embodiment. Aizawa similarly
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`reveals an embodiment in which its sensor is located on the palm side of the wrist
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`(see APPLE-1006, FIG. 2, 0002, 0009), but does not limit its sensor to being applied
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`to just the palm side of the wrist. A POSITA, based on Aizawa and Ohsaki’s
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`disclosure, would have understood that the sensors in Aizawa and Ohsaki, when
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`combined in the manner explained in my earlier declaration, would have been
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`applicable to various locations on a human body and would have improved the
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`performance of the sensor by providing the benefits described in these disclosures.
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`Indeed, a POSITA would understand that the claimed benefits of the detector
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`arrangement and the convex cover would have been useful and beneficial for
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`measurements on many other locations.
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`7
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`11.
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`In addition to the above, as shown in Ohsaki’s FIG. 2 (reproduced below),
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`Ohsaki attributes the reduction of slippage afforded by use of translucent board 8
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`(and additional related improvements in signal quality) to the fact that “the convex
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`surface of the translucent board…is in intimate contact with the surface of the
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`user’s skin”1 when the sensor is worn. APPLE-1003, ¶¶54, 68; APPLE-1009,
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`[0015], [0017], [0025], FIGS. 1, 2, 4A, 4B.
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`12.
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`APPLE-1009, FIG. 2 (annotated).
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`Notably absent from Ohsaki’s discussion of these benefits is any mention or
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`suggestion that they relate to the shape of the perimeter of translucent board 8
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`(whether circular, rectangular, ovoid, or other). Rather, when describing the
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`1 Unless otherwise noted, emphases in quotations throughout my declaration are
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`added.
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`8
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`advantages associated with translucent board 8, Ohsaki contrasts a “convex detecting
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`surface” from a “flat detecting surface,” and explains that “if the translucent board 8
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`has a flat surface, the detected pulse wave is adversely affected by the movement of
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`the user’s wrist,” but that if the board “has a convex surface…variation of the
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`amount of the reflected light…that reaches the light receiving element 7 is
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`suppressed.” APPLE-1003, ¶69; APPLE-1009, [0015], [0025].
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`13.
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`From this and related description, a POSITA would have understood that a
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`protruding convex cover would reduce the adverse effects of user movement on
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`signals obtainable by photodetectors which are positioned to detect light reflected
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`from user tissue. APPLE-1003, ¶¶107, 131, 48; APPLE-1009, [0015], [0017],
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`[0025], FIGS. 1, 2, 4A, 4B; see also APPLE-1006, [0012], [0013], [0023], [0024],
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`[0026], [0030], [0034], FIGS. 1(a), 1(b). A POSITA would expect that these benefits
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`would apply to the pulse wave sensor of Aizawa, as well as to other wearable
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`physiological monitors.
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`14.
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`In addition, as I explain with respect to the prior art figures reproduced below,
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`the POSITA would have found it obvious to improve Aizawa’s sensor based on
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`Ohsaki’s teachings, and would have been fully capable of making any inferences and
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`creative steps necessary to achieve the benefits obtainable by modifying Aizawa’s
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`cover to feature a convex detecting surface.2 See also APPLE-1008, ¶¶14-15, FIG. 1;
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`2 Nowhere in Ohsaki is the cover depicted or described as rectangular. APPLE-
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`9
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`APPLE-1015, [0012], [0024], [0033], [0035], FIG. 6. The following annotated FIG.
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`1(b) from Aizawa shows the results of the proposed combination:
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`APPLE-1006, FIG. 1(b)(annotated)
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`15.
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`And, contrary to Masimo’s contentions, the POSITA would have in no way
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`been dissuaded from achieving those benefits by a specific body location associated
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`with Ohsaki’s sensor. POR, 25-38. Indeed, a POSITA would have understood that a
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`light permeable convex cover would have provided improved adhesion as described
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`by Ohsaki in a sensor placed, for example, on the palm side of the wrist or other
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`locations on the body. APPLE-1009, [0025], Claim 3 (stating that “the detecting
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`element is constructed to be worn on a user’s wrist or a user’s forearm” without
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`specifying a back or front of the wrist or forearm), FIGS 4A, 4B; see also APPLE-
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`1021, 91.
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`1047, ¶14; APPLE-1009, [0001]-[0030]; FIGS. 1, 2, 3A, 3B, 4A, 4B.
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`10
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`16.
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`A POSITA would also have understood that certain locations present
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`anatomical features that provide for easy measurement of large reflected light signals
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`and others present anatomical features that reduce the amplitude of the reflected light
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`signals. Because of this, a POSITA would be motivated to search for features from
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`other references that can provide improved adhesion, improved light gathering,
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`reduced leakage of light from external sources, and protection of the elements within
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`the system in order to successfully detect a pulse wave signal from many locations.
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`17.
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`For these and other reasons explained below, Masimo’s arguments should be
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`rejected. The sections below address the arguments with respect to Ground 1
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`presented in Masimo’s POR and explain, in more detail, why those arguments fail.
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`A. Ohsaki does not teach or require that its translucent board 8
`is “rectangular” in shape
`In my first declaration, I explained that a POSITA would have modified
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`18.
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`Aizawa in view of Ohsaki such that Aizawa’s cover “would include a convex surface,
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`improving adhesion between a subject’s wrist and a surface of the sensor.” APPLE-
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`1003, ¶67 (citing APPLE 1009, [0025] Ohsaki explains that the “convex surface of
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`the translucent board 8” is responsible for this improved adhesion). Masimo argues
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`that it is not the “convex surface” that improves adhesion in Ohsaki, but instead the
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`“longitudinal shape” of “Ohsaki’s translucent board [8].” See POR, 10, 17-25 (citing
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`APPLE-1009, [0019]). However, the portion of Ohsaki cited does not include any
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`reference to board 8. See APPLE-1009, [0019]. Ohsaki does ascribe a “longitudinal”
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`11
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`
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`shape to a different component: “detecting element 2.” See id. Ohsaki never
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`describes the “translucent board 8” as “longitudinal,” and nowhere describes
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`“translucent board 8” and “detecting element 2” as having the same shape. See
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`generally APPLE-1009. In fact, as illustrated in Ohsaki’s FIG. 2 (reproduced below),
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`translucent board 8 (annotated yellow) is not coextensive with the entire tissue-facing
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`side of detecting element 2 (annotated green).
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`
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`APPLE-1009, FIG. 2 (annotated)
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`Based on the unsupported contention that translucent board 8 has a “very
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`19.
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`pronounced longitudinal directionality,” Masimo concludes that the translucent board
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`8 has a “rectangular” shape that is allegedly incompatible with Aizawa. See POR,
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`
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`12
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`
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`16-17. But Ohsaki never describes translucent board 8, or any other component, as
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`“rectangular”; in fact, the words “rectangular” and “rectangle” do not appear in
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`Ohsaki’s disclosure. See generally APPLE-1009.
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`20.
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`Indeed, the POR incorrectly assumes that because Ohsaki’s light emitting
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`element and the light receiving element are arranged in a longitudinal structure,
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`Ohsaki’s translucent board must have a rectangular structure. APPLE-1009, [0009],
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`[0019]; POR, 1-3, 13-25. A POSITA would have known and understood that an
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`elliptical or circular sensor or board configuration can also have a longitudinal
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`structure or appearance under a cross-sectional view. An example illustrating such an
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`understanding, contrary to POR’s flawed assumption, is shown below in US Patent
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`No. 6,198,951 (“Kosuda”)’s FIGS. 3 and 4. APPLE-1060, 8:42-56.
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`
`
`13
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`
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`APPLE-1060, FIGS 3 and 4
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`
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`21.
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`Attempting to confirm its false conclusion, Masimo asserts that “Ohsaki
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`illustrates two cross-sectional views of its board that confirm it is rectangular.” POR,
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`14 (citing Ex. 2004, [39]-[42]). Masimo identifies these “two cross-sectional views”
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`as FIGS. 1 and 2, and infers the supposed “rectangular shape” of the translucent
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`board 8 based on FIG. 1 showing the “short” side of the device, and FIG. 2 showing
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`the “long” side of the same device. See POR, 14-16. But, according to Ohsaki, FIG.
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`2 is “a schematic diagram,” not a cross-sectional view, and Ohsaki never specifies
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`that FIGS. 1 and 2 are different views of the same device. APPLE-1009, [0013].
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`Accordingly, nothing in Ohsaki supports Masimo’s inference that the “translucent
`
`
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`14
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`
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`board 8” must be “rectangular” in shape. See, e.g., APPLE-1009, [0013], [0019],
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`[0025], FIG. 2; Hockerson-Halberstadt, Inc. v. Avia Group Int’l, 222 F.3d 951, 956
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`(Fed. Cir. 2000). Further, even if it is possible for the translucent board 8 to be
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`“rectangular,” Ohsaki certainly does not teach nor include any disclosure “requiring”
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`this particular shape. Id.
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`22.
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`Section B.1 of the POR presents multiple arguments with respect to Ground 1
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`that are premised on Ohsaki requiring the translucent board 8 to be “rectangular.”
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`See POR, 17-25. Because Ohsaki discloses no such shape for the translucent board 8,
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`these arguments fail.
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`23.
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`In addition, as discussed above, even if Ohsaki’s translucent board 8 were
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`somehow understood to be rectangular, a POSITA would have been fully capable of
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`modifying Aizawa to feature a light permeable protruding convex cover to obtain the
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`benefits attributed to such a cover by Ohsaki. For example, a POSITA would have
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`found it obvious to include a circular light-permeable convex cover based on the
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`teachings of Ohsaki, and take reasonable steps to make sure that the combination of a
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`circular protruding convex cover would function with the other features present in
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`Aizawa so as to provide the benefits discussed above.
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`B. A POSITA would have recognized the benefits of Ohsaki’s
`teachings when applied to Aizawa’s sensor
`24. Masimo contends that “Ohsaki indicates that its sensor’s convex board only
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`improves adhesion when used on the back (i.e., watch) side of the wrist,” and that
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`15
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`
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`“Aizawa requires its sensor be positioned on the palm side of the wrist,” and
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`therefore reaches a conclusion that “[a] POSITA seeking to improve adhesion of
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`Aizawa’s sensor would not incorporate a feature that only improves adhesion at a
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`different and unsuitable measurement location.” POR, 25-26. But Ohsaki does not
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`describe that its sensor can only be used at a backside of the wrist, and Aizawa never
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`requires that its sensor be positioned on the palm side of the wrist. Instead, at most,
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`these disclosures simply describe these arrangements with respect to a preferred
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`embodiment. APPLE-1009, [0019].
`
`25.
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`Indeed, Ohsaki’s specification and claim language reinforce that Ohsaki’s
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`description would not have been understood as limited to one side of the wrist. For
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`example, Ohsaki explains that “the detecting element 2…may be worn on the back
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`side of the user's forearm” as one form of modification. See APPLE-1009, [0030],
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`[0028] (providing a section titled “[m]odifications”). The gap between the ulna and
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`radius bones at the forearm is even greater than the gap between bones at the wrist,
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`which is already wide enough to easily accommodate a range of sensor sizes and
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`shapes, including circular shapes. In addition, Ohsaki’s claim 1 states that “the
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`detecting element is constructed to be worn on a back side of a user’s wrist or a
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`user’s forearm.” See also APPLE-1009, claims 1-2. As another example, Ohsaki’s
`
`independent claim 5 and dependent claim 6 state that “the detecting element is
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`constructed to be worn on a user’s wrist or a user’s forearm,” without even
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`mentioning a backside of the wrist or forearm. See also APPLE-1009, Claims 6-8.
`
`
`16
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`
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`A POSITA would have understood this language to directly contradict Masimo’s
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`assertion that “[t]o obtain any benefit from Ohsaki’s board, the sensor must be
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`positioned on the backhand side of the wrist.” POR, 16. A POSITA would have
`
`understood that Ohsaki’s benefits provide improvements when the sensor is placed on
`
`either side of the user’s wrist or forearm. APPLE-1009, [0025], FIGS. 4A, 4B.
`
`26.
`
`Section B.2 of the POR presents several arguments with respect to Ground 1
`
`that are premised on Ohsaki requiring the detecting element to be worn on a back
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`side of a user’s wrist or a user’s forearm. See POR, 25-38. Because Ohsaki requires
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`no such location for the translucent board 8, these arguments fail.
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`27. Moreover, even assuming, for the sake of argument, that a POSITA would
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`have understood Aizawa’s sensor as being limited to placement on the backside of
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`the wrist, and would have understood Ohsaki’s sensor’s “tendency to slip” when
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`arranged on the front side as informing consideration of Ohsaki’s teachings with
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`respect to Aizawa, that would have further motivated the POSITA to implement a
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`light permeable convex cover in Aizawa’s sensor, to improve detection efficiency of
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`that sensor when placed on the palm side. APPLE-1009, [0015], [0017], [0023],
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`[0025], FIGS. 1, 2, 3A, 3B, 4A, 4B.
`
`28. When describing advantages associated with its translucent board, Ohsaki
`
`explains with reference to FIGS. 4A and 4B (reproduced below) that “if the
`
`translucent board 8 has a flat surface, the detected pulse wave is adversely affected by
`
`the movement of the user’s wrist,” but that if the board “has a convex
`
`
`17
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`
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`surface…variation of the amount of the reflected light…that reaches the light
`
`receiving element 7 is suppressed.” APPLE-1003, ¶¶69-70; APPLE-1009, [0015],
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`[0017], [0025].
`
`APPLE-1009, FIGS. 4A, 4B
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`
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`29.
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`Contrary to Masimo’s contentions, a POSITA would not have understood
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`these benefits of a convex surface over a flat surface to be limited to one side or the
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`other of the user’s wrist, or to any particular location. APPLE-1009, [0023]-[0025].
`
`Rather, a POSITA would have understood that, by promoting “intimate contact with
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`the surface of the user’s skin,” a light permeable convex cover would have increased
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`adhesion and reduced slippage of Aizawa’s sensor when placed on either side of a
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`user’s wrist or forearm, and additionally would have provided associated
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`improvements in signal quality. APPLE-1009, [0015], [0017], [0025]; FIGS. 1, 2,
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`4A, 4B, claims 3-8; see also APPLE-1021, 87, 91. Indeed, a POSITA would have
`
`
`18
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`
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`recognized that modifying Aizawa’s flat plate to feature a convex protruding surface,
`
`as taught by Ohsaki, would have furthered Aizawa’s stated goal of “improv[ing]
`
`adhesion between the sensor and the wrist” to “thereby further improve the detection
`
`efficiency.” APPLE-1006, [0013], [0026], [0030], [0034].
`
`30.
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`Further, the POSITA would have been fully capable of employing inferences
`
`and creative steps when improving Aizawa based on Ohsaki’s teachings, and would
`
`have expected success when applying those teachings. Indeed, a POSITA would
`
`have understood that adding a convex protrusion to Aizawa’s flat plate would have
`
`provided an additional adhesive effect that would have reduced the tendency of that
`
`plate to slip.
`
`C. Modifying Aizawa’s sensor to include a convex cover as
`taught by Ohsaki enhances the sensor’s light-gathering
`ability
`31. Masimo argues that the combined sensor “would direct light away from the
`
`detectors and thus decrease light collection and optical signal strength.” See, e.g.,
`
`POR, 38-39. As explained below, a POSITA would have understood the opposite to
`
`be true—that a cover featuring a convex protrusion would improve Aizawa’s signal-
`
`to-noise ratio by causing more light backscattered from tissue to strike Aizawa’s
`
`photodetectors than would have with a flat cover. APPLE- 1021, 52, 86, 90; APPLE-
`
`1051, 84, 87-92, 135-141; APPLE-1059, 803-805; APPLE-1006, FIGS. 1(a)-1(b).
`
`The convex cover enhances the light-gathering ability of Aizawa’s sensor.
`
`32. Masimo and its witness, Dr. Madisetti, assert that “a POSITA would have
`
`
`
`19
`
`
`
`believed that a convex surface would…direct[] light away from the periphery and
`
`towards the center of the sensor.” In so doing, POR and Dr. Madisetti fail to
`
`articulate a coherent position—e.g., whether Masimo’s position is that “all” light or
`
`only “some” light is directed “to” or “towards the center.” POR, 38-44, Ex. 2004,
`
`¶¶79-88.
`
`33.
`
`For example, Dr. Madisetti testified during deposition that “as I describe in
`
`my Declaration...if you have a convex surface...all light reflected or otherwise would
`
`be condensed or directed towards the center.” APPLE-1054, 40:4-11; see also id.,
`
`127:22-128:18; Ex. 2004, 52 (“A POSITA Would Have Understood That a Convex
`
`Cover Directs Light To The Center Of The Sensor”), ¶¶80-83. However, during the
`
`same deposition, Dr. Madisetti further stated that that a convex cover would redirect
`
`light “towards the center,” which could be “a general area at which the convex
`
`surface would be redirecting…light” or “a point,” while contrasting the phrase “to the
`
`center” from “towards the center.” APPLE-1054, 105:12-107:1, 133:19-135:11.
`
`34.
`
`In contrast, and as explained in more detail below, I have consistently testified
`
`that a POSITA would have understood that a convex cover improves “light
`
`concentration at pretty much all of the locations under the curvature of the lens,”
`
`and for at least that reason would have been motivated to modify Aizawa’s sensor to
`
`include a convex cover as taught by Ohsaki. POR, 39-43; Ex. 2006, 164:8-16.
`
`
`
`20
`
`
`
`i. Masimo ignores the well-known principle of
`reversibility
`The well-known optical principle of reversibility dispels Masimo’s claim that
`
`35.
`
`“a convex cover condenses light towards the center of the sensor and away from the
`
`periphery,” when applied to Aizawa. POR, 39; APPLE-1051, 87-92; APPLE-1052,
`
`106-111. According to the principle of reversibility, “a ray going from P to S will
`
`trace the same route as one from S to P.” APPLE-1051, 92, 84; APPLE-1052, 101,
`
`110; APPLE-1053, 80:20-82:20. Importantly, the principle dictates that rays that are
`
`not completely absorbed by user tissue will propagate in a reversible manner. In
`
`other words, every ray that completes a path through tissue from an LED to a detector
`
`would trace an identical path through that tissue in reverse, if the positions of the
`
`LED emitting the ray and the receiving detector were swapped. APPLE-1051, 92.
`
`To help explain, I have annotated Inokawa’s FIG. 2 (presented below) to illustrate the
`
`principle of reversibility applied in the context of a reflective optical physiological
`
`monitor. As shown, Inokawa’s FIG. 2, illustrates two example ray paths from
`
`surrounding LEDs (green) to a central detector (red):
`
`APPLE-1007, FIG. 2 (annotated)
`
`As a consequence of the principle of reversibility, a POSITA would have
`
`
`
`36.
`
`understood that if the LED/detector configuration were swapped, as in Aizawa, the
`
`
`
`21
`
`
`
`two example rays would travel identical paths in reverse, from a central LED (red) to
`
`surrounding detectors (green). A POSITA would have understood that, for these
`
`rays, any condensing/directing/focusing benefit achieved by Inokawa’s cover (blue)
`
`under the original configuration would be identically achieved under the reversed
`
`configuration:
`
`
`
`
`
`37. When factoring in additional scattering that may occur when light is reflected
`
`within human tissue, reversibility holds for each of the rays that are not completely
`
`absorbed; consequently, “if we’re concerned with the impact of the lens on the
`
`system, it’s absolutely reversible.” APPLE-1062, 209:19-21, 207:9-209:21 (“one
`
`could look at any particular randomly scattered path…and the reversibility principle
`
`applies to all of the pieces [of that path] and, therefore, applies to the aggregate”).
`
`
`
`38.
`
`An example of reversibility in a situation with diffuse light, such as is present
`
`when LEDs illuminate tissue, is shown below from Hecht’s Figure 4.12.
`
`
`
`22
`
`
`
`
`
`39.
`
`In this figure 4.12a, collimated light is incident on a smooth surface, and
`
`exhibits specular reflection, in which parallel light rays encounter and are reflected
`
`from the surface and remain parallel. A POSITA would certainly understand
`
`specular reflection. In the case of the reflection as shown in Figure 4.12b, the
`
`random roughness of the surface scatters the incoming rays into many directions, and
`
`the resulting light would appear to be diffuse. However, even in this circumstance,
`
`the principle of reversibility applies–each individual ray can be reversed such that a
`
`ray travelling to the surface and scattered in a random direction can be followed
`
`backwards along exactly the same path.
`
`40.
`
`In more detail, and as shown with respect to the example paths illustrated
`
`below (which include scattering within tissue), each of the countless photons
`
`travelling through the system must abide by Fermat’s principle. APPLE-1052, 106-
`
`111. Consequently, even when accounting for various random redirections and
`
`partial absorptions, each photon traveling between a detector and an LED would take
`
`the quickest (and identical) path along the segments between each scattering event,
`
`even if the positions of the detector and LED were swapped.
`
`
`
`23
`
`
`
`
`
`
`
`
`
`To better understand the effect of a convex lens on the propagation of light
`
`41.
`
`rays towards or away from the different LEDs or detectors, the first and last segment
`
`of the light path may be representative of the light propagation of the various light
`
`rays. In the figures above, starting at the upper left, there is a pink-colored light ray
`
`emerging from the green LED and passing through the convex lens and entering the
`
`tissue. On the lower left, there is a pink-colored light ray leaving the tissue and
`
`entering the convex lens. As drawn, these rays are the same in position and
`
`orientation, except that the direction is exactly reversed. This illustration is
`
`consistent with the Principle of Reversibility as applied to this pair of possible light
`
`rays. According to the principle of reversibility, the upper light path from the LED to
`
`the first interaction with a corpuscle is exactly reversed. This same behavioral
`
`pattern applies to all of the segments of the many light paths that cross the interface at
`
`the surface of the convex lens. Importantly, in this example, the convex lens does not
`
`refract the incoming ray in a different direction from the outgoing ray, e.g., in a
`
`
`
`24
`
`
`
`direction towards the center different from the outgoing ray. As required by the
`
`principle of reversibility, this incoming ray follows the same path as the outgoing ray,
`
`except in the reverse direction. This statement is true for every segment of these light
`
`paths that crosses the interface between the tissue and the convex lens. Any ray of
`
`light that successfully traverses a path from the LED to the detector, that path already
`
`accounts for the random scattering as that scattering is what allowed the ray to go
`
`from the LED to a detector along the path to thereby be subsequently detected by the
`
`detector. A POSITA would have understood that the path is an aggregation of
`
`multiple segments and that the path is reversible as each of its segments would be
`
`reversible, consistent with Fermat’s principle.
`
`42.
`
`The statement about the reversibility of the segments of the light path which
`
`cross the interface between tissue and convex lens is consistent with the well-known
`
`and well-established Snell’s law, which provides a simple algebraic relation between
`
`the angles of incidence and refraction as determined by the two indices of refraction.
`
`And Snell’s law supports the basic understanding that the path of the light rays
`
`to/from a scattering event across the interface to/from the convex lens and on to/from
`
`the LED or photodetector must be reversible.
`
`43.
`
`Based on this understanding of light rays and Snell’s law, a POSITA would
`
`have understood that the positions of the emitt
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