IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Jeroen Poeze et al.
`In re Patent of:
`10,631,765
`U.S. Patent No.:
`April 28, 2020
`Issue Date:
`Appl. Serial No.: 16/725,478
`Filing Date:
`December 23, 2019
`Title:
`MULTI-STREAM DATA COLLECTION SYSTEM FOR
`NONINVASIVE MEASUREMENT OF BLOOD
`CONSTITUENTS
`
`Attorney Docket No.: 50095-0024IP2
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`DECLARATION OF JACOB ROBERT MUNFORD
`
`1
`
`APPLE 1045
`Apple v. Masimo
`IPR2020-01715
`
`
`
`Jeroen Poeze et al.
`In re Patent of:
`10,631,765
`U.S. Patent No.:
`April 28, 2020
`Issue Date:
`Appl. Serial No.: 16/725,478
`Filing Date:
`December 23, 2019
`Title:
`MULTI-STREAM DATA COLLECTION SYSTEM FOR
`NONINVASIVE MEASUREMENT OF BLOOD
`CONSTITUENTS
`
`Attorney Docket No.: 50095-0024IP2
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`DECLARATION OF JACOB ROBERT MUNFORD
`
`1
`
`APPLE 1045
`Apple v. Masimo
`IPR2020-01715
`
`
`
`
`
`
`
`
`
`
`
`1. My name is Jacob Robert Munford. I am over the age of 18, have personal
`
`knowledge of the facts set forth herein, and am competent to testify to the
`
`same.
`
`2. I earned a Master of Library and Information Science (MLIS) from the
`
`University of Wisconsin-Milwaukee in 2009. I have over ten years of
`
`experience in the library/information science field. Beginning in 2004, I
`
`have served in various positions in the public library sector including
`
`Assistant Librarian, Youth Services Librarian and Library Director. I have
`
`attached my Curriculum Vitae as Appendix A.
`
`3. During my career in the library profession, I have been responsible for
`
`materials acquisition for multiple libraries. In that position, I have cataloged,
`
`purchased and processed incoming library works. That includes purchasing
`
`materials directly from vendors, recording publishing data from the material
`
`in question, creating detailed material records for library catalogs and
`
`physically preparing that material for circulation. In addition to my
`
`experience in acquisitions, I was also responsible for analyzing large
`
`collections of library materials, tailoring library records for optimal catalog
`
`1
`
`2
`
`
`
`search performance and creating lending agreements between libraries
`
`during my time as a Library Director.
`
`
`
`4. I am fully familiar with the catalog record creation process in the library
`
`sector. In preparing a material for public availability, a library catalog record
`
`describing that material would be created. These records are typically
`
`written in Machine Readable Catalog (herein referred to as “MARC”) code
`
`and contain information such as a physical description of the material,
`
`metadata from the material’s publisher, and date of library acquisition. In
`
`particular, the 008 field of the MARC record is reserved for denoting the
`
`date of creation of the library record itself. As this typically occurs during
`
`the process of preparing materials for public access, it is my experience that
`
`an item’s MARC record indicates the date of an item’s public availability.
`
`
`
`5. Typically, in creating a MARC record, a librarian would gather various bits
`
`of metadata such as book title, publisher and subject headings among others
`
`and assign each value to a relevant numerical field. For example, a book’s
`
`physical description is tracked in field 300 while title/attribution is tracked in
`
`field 245. The 008 field of the MARC record is reserved for denoting the
`
`creation of the library record itself. As this is the only date reflecting the
`
`
`
`2
`
`3
`
`
`
`inclusion of said materials within the library’s collection, it is my experience
`
`that an item’s 008 field accurately indicates the date of an item’s public
`
`availability.
`
`
`
`6. This declaration is being drafted as of May 2021. Public and university
`
`libraries in my area have been closed for months due to the COVID-19
`
`pandemic. My state, Pennsylvania, has a travel advisory, which has affected
`
`my ability to travel. In my experience, library catalog records are accurate
`
`descriptions of a library’s collection and my lack of physical access to
`
`libraries at this time creates no doubt in my determinations of authenticity or
`
`availability of the exhibits noted below.
`
`
`
`7. I have reviewed Exhibit 1010, a copy of an article entitled “A Wearable
`
`Reflectance Pulse Oximeter for Remote Physiological Monitoring” by Y.
`
`Mendelson, R. J. Duckworth, and G. Comtois, as published in the
`
`Proceedings of the 28th Annual International Conference of the IEEE
`
`Engineering in Medicine and Biology Society, August 30 – September 3,
`
`2006 (hereinafter referred to as “2006 IEEE conference publication”).
`
`
`
`
`
`3
`
`4
`
`
`
`8. Attached hereto as Appendix MENDELSON02 is a true and correct copy of
`
`the MARC record for the 2006 IEEE conference publication, as held by
`
`Cornell University’s library. I secured this record myself from the library’s
`
`public catalog.
`
`
`
`9. The MARC record contained within Appendix MENDELSON02 accurately
`
`describes the title, author, publisher, and ISBN number of the 2006 IEEE
`
`conference publication. In comparing the listed fields in Appendix
`
`MENDELSON02 to Exhibit 1010, it is my determination that Exhibit 1010
`
`is a true and correct copy of the “A Wearable Reflectance Pulse Oximeter
`
`for Remote Physiological Monitoring” article, and that the copy of the 2006
`
`IEEE conference publication in Cornell University’s library includes the
`
`article in Exhibit 1010.
`
`
`
`10. The 008 field of the MARC record noted on page 1 of Appendix
`
`MENDELSON02 indicates that the 2006 IEEE conference publication was
`
`first cataloged by Cornell University’s library as of December 26, 2007.
`
`Based on this information and considering the dates of the conference, it is
`
`my determination that the 2006 IEEE conference publication, which
`
`
`
`4
`
`5
`
`
`
`included the article published as Exhibit 1010, was made available to the
`
`public by Cornell University at least as of December 26, 2007.
`
`11. Additionally, I accessed a copy of the 2006 IEEE conference publication
`
`through the Pennsylvania State University’s online library catalog portal.
`
`12. Attached hereto as Appendix MENDELSON06 is a true and correct copy of
`
`the catalog entry for the 2006 IEEE conference publication as maintained by
`
`the Pennsylvania State University. I secured this record myself from the
`
`library’s public catalog.
`
`13. Attached hereto as Appendix MENDELSON07 is a true and correct copy of
`
`the table of contents for the 2006 IEEE conference publication. I secured this
`
`record, as provided by the Pennsylvania State University’s library through
`
`the catalog entry for the 2006 IEEE conference publication as shown in
`
`Appendix MENDELSON06, myself.
`
`14. I have reviewed Appendix MENDELSON10, a copy of an article entitled “A
`
`Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
`
`5
`
`6
`
`
`
`published in the 2006 IEEE conference publication. I secured this document
`
`myself through the table of contents for the 2006 IEEE conference
`
`publication as shown in Appendix MENDELSON07.
`
`
`
`15. Attached hereto as Appendix MENDELSON05 is a true and correct copy of
`
`the MARC record for the 2006 IEEE conference publication, as held by the
`
`Pennsylvania State University’s library in its online catalog indicated by the
`
`catalog entry as shown in Appendix MENDELSON06. The Pennsylvania
`
`State University’s online library catalog entry as shown in Appendix
`
`MENDELSON06 directs the user to a portal page within the IEEE’s online
`
`repository, IEEE Xplore, for an article entitled “A Wearable Reflectance
`
`Pulse Oximeter for Remote Physiological Monitoring” by Y. Mendelson, R.
`
`J. Duckworth, and G. Comtois. I secured this record myself from the
`
`library’s public catalog through the table of contents listing as captured in
`
`Appendix MENDELSON07.
`
`
`
`16. The MARC record contained within Appendix MENDELSON05 accurately
`
`describes the title, author, publisher, and ISBN number of the 2006 IEEE
`
`conference publication. In comparing the listed fields in Appendix
`
`MENDELSON05 to Appendix MENDELSON10, it is my determination
`
`
`
`6
`
`7
`
`
`
`that (1) Appendix MENDELSON10 is a true and correct copy of the “A
`
`Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`Monitoring” article by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
`
`published in the 2006 IEEE conference publication, that (2) the digital copy
`
`of the 2006 IEEE conference publication in the Pennsylvania State
`
`University’s library catalog includes the article in Appendix
`
`MENDELSON10, and that (3) the digital copy of the 2006 IEEE conference
`
`publication in the Pennsylvania State University’s library catalog is the same
`
`as the “A Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`Monitoring” article by Y. Mendelson, R. J. Duckworth, and G. Comtois as
`
`published in the 2006 IEEE conference publication that is made publicly
`
`available by the Pennsylvania State University through the IEEE’s online
`
`repository, IEEE Xplore.
`
`
`
`17. The 008 field of the MARC record noted on page 1 of Appendix
`
`MENDELSON05 indicates that the 2006 IEEE conference publication was
`
`first cataloged by the Pennsylvania State University’s library as of
`
`December 26, 2007. Based on this information and considering the dates of
`
`the conference, it is my determination that the 2006 IEEE conference
`
`publication, which included the article published as Appendix
`
`
`
`7
`
`8
`
`
`
`MENDELSON10, was made available to the public by the Pennsylvania
`
`State University at least as of December 26, 2007.
`
`
`
`18. Furthermore, I accessed a copy of the 2006 IEEE conference publication
`
`directly through the IEEE’s online repository, IEEE Xplore.
`
`
`
`19. I have reviewed Appendix MENDELSON12, a copy of an article entitled “A
`
`Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
`
`published in the 2006 IEEE conference publication. I secured this record
`
`myself from the IEEE’s online repository, IEEE Xplore.
`
`
`
`20. Attached hereto as Appendix IEEE01 is a true and correct copy of a
`
`declaration made by Mr. Gordon MacPherson, “Director Board Governance
`
`& IP Operations of The Institute of Electrical and Electronics Engineers,
`
`Incorporated.” Mr. MacPherson’s declaration Appendix IEEE01 states that
`
`the “IEEE publishes and makes available technical articles and standards” as
`
`part of its “ordinary course of business,” and that these publications are
`
`“made available for public download through the IEEE digital library, IEEE
`
`Xplore.”
`
`
`
`8
`
`9
`
`
`
`
`
`21. Mr. MacPherson’s declaration includes, as Exhibit A, an article referred to
`
`as “Y. Mendelson, R. J. Duckworth, and G. Comtois, “A Wearable
`
`Reflectance Pulse Oximeter for Remote Physiological Monitoring”, 2006
`
`International Conference of the IEEE Engineering in Medicine and Biology
`
`Society, August 30, 2006 - September 3, 2006,” which was obtained
`
`“through IEEE Xplore, where it is maintained in the ordinary course of
`
`IEEE’s business.” Exhibit A also includes a screen capture of the IEEE
`
`Xplore portal page for the article referred to as “Y. Mendelson, R. J.
`
`Duckworth, and G. Comtois, “A Wearable Reflectance Pulse Oximeter for
`
`Remote Physiological Monitoring”, 2006 International Conference of the
`
`IEEE Engineering in Medicine and Biology Society, August 30, 2006 -
`
`September 3, 2006.”
`
`
`
`22. In comparing the screen capture of the IEEE Xplore portal in Exhibit A of
`
`IEEE01 to the portal to which I was directed from the Pennsylvania State
`
`University’s library system, it is my determination that the IEEE Xplore
`
`portal represented in Exhibit A is the same IEEE Xplore portal (1) to which I
`
`was directed from the Pennsylvania State University’s library system, which
`
`
`
`9
`
`10
`
`
`
`I described above at paragraphs 15-16, and (2) through which I secured the
`
`article published as Appendix MENDELSON10.
`
`
`
`23. Based on this information, it is my determination that the IEEE Xplore
`
`portal to which I was directed from the Pennsylvania State University’s
`
`library system and through which I accessed the IEEE repository and
`
`secured the article published as Appendix MENDELSON10 was authentic.
`
`
`
`24. In comparing the screen capture of the IEEE Xplore portal in Exhibit A of
`
`IEEE01 to the IEEE Xplore portal through which I secured the article
`
`published as MENDELSON12, it is my determination that the IEEE Xplore
`
`portal represented in Exhibit A is the same IEEE Xplore portal through
`
`which I secured the article published as Appendix MENDELSON12.
`
`
`
`25. Based on this information, it is my determination that the IEEE Xplore
`
`portal through which I accessed the IEEE repository and secured the article
`
`published as Appendix MENDELSON12 was authentic.
`
`
`
`26. In comparing the listed fields in Exhibit A of Appendix IEEE01 to Appendix
`
`MENDELSON02 and to Appendix MENDELSON05 and comparing
`
`
`
`10
`
`11
`
`
`
`Exhibit A of Appendix IEEE01 to Exhibit 1010 and to Appendix
`
`MENDELSON10, it is my determination that each of Exhibit A of Appendix
`
`IEEE01, Exhibit 1010, and Appendix MENDELSON10 is a true and correct
`
`copy of the article entitled “A Wearable Reflectance Pulse Oximeter for
`
`Remote Physiological Monitoring” by Y. Mendelson, R. J. Duckworth, and
`
`G. Comtois, as published in the 2006 IEEE conference publication.
`
`27. In comparing Exhibit A of Appendix IEEE01 to Exhibit 1010 and to
`
`Appendix MENDELSON12, it is my determination that each of Exhibit A of
`
`Appendix IEEE01, Exhibit 1010, and Appendix MENDELSON12 is a true
`
`and correct copy of the article entitled “A Wearable Reflectance Pulse
`
`Oximeter for Remote Physiological Monitoring” by Y. Mendelson, R. J.
`
`Duckworth, and G. Comtois, as published in the 2006 IEEE conference
`
`publication.
`
`28. Based on this information, it is my determination that each of Exhibit A of
`
`IEEE01, Exhibit 1010, Appendix MENDELSON10, and Appendix
`
`MENDELSON12 is a true and correct copy of the article entitled “A
`
`Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois as
`
`11
`
`12
`
`
`
`published in the 2006 IEEE conference publication, and that the 2006 IEEE
`
`conference publication containing Exhibit 1010 was cataloged and made
`
`available to the public by the IEEE through its online repository, IEEE
`
`Xplore, at least as of September 3, 2006.
`
`29. Based on this information, it is my determination that each of Exhibit A of
`
`IEEE01, Exhibit 1010, Appendix MENDELSON10, and Appendix
`
`MENDELSON12 is a true and correct copy of the article entitled “A
`
`Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
`
`published in the 2006 IEEE conference publication, and that the 2006 IEEE
`
`conference publication containing Exhibit 1010 was cataloged and made
`
`available to the public by Cornell University at least as of December 26,
`
`2007.
`
`30. Based on this information, it is my determination that each of Exhibit A of
`
`IEEE01, Exhibit 1010, Appendix MENDELSON10, and Appendix
`
`MENDELSON12 is a true and correct copy of the article entitled “A
`
`Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
`
`12
`
`13
`
`
`
`published in the 2006 IEEE conference publication, and that the 2006 IEEE
`
`conference publication containing Exhibit 1010 was cataloged and made
`
`available to the public by the Pennsylvania State University at least as of
`
`December 26, 2007.
`
`31. I have reviewed Appendix COMTOIS04, a copy of an article entitled “A
`
`noise reference input to an adaptive filter algorithm for signal processing in
`
`a wearable pulse oximeter” by G. Comtois and Y. Mendelson, as published
`
`in the Proceedings of the 2007 IEEE 33rd Annual Northeast Bioengineering
`
`Conference, March 10 – 11, 2007 (hereinafter referred to as “2007 IEEE
`
`conference publication”). I secured this copy of the 2007 IEEE conference
`
`publication through the Pennsylvania State University’s online library
`
`catalog portal.
`
`
`
`32. Attached hereto as Appendix COMTOIS02 is a true and correct copy of the
`
`catalog entry for the 2007 IEEE conference publication as maintained by the
`
`Pennsylvania State University. I secured this record myself from the
`
`library’s public catalog.
`
`
`
`13
`
`
`
`
`
`14
`
`
`
`33. Attached hereto as Appendix COMTOIS03 is a true and correct copy of the
`
`table of contents for the 2007 IEEE conference publication. I secured this
`
`record, as provided by the Pennsylvania State University’s library through
`
`the catalog entry for the 2007 IEEE conference publication as shown in
`
`Appendix COMTOIS02, myself.
`
`
`
`34. Attached hereto as Appendix COMTOIS01 is a true and correct copy of the
`
`MARC record for the 2007 IEEE conference publication, as held by the
`
`Pennsylvania State University’s library in its online catalog. I secured this
`
`record myself from the library's public catalog through the table of contents
`
`listing as captured in COMTOIS03.
`
`
`
`35. The MARC record contained within Appendix COMTOIS01 accurately
`
`describes the title, author, publisher, and ISBN number of the 2007 IEEE
`
`conference publication. In comparing the listed fields in Appendix
`
`COMTOIS01 to COMTOIS04, it is my determination that COMTOIS04 is a
`
`true and correct copy of the “A noise reference input to an adaptive filter
`
`algorithm for signal processing in a wearable pulse oximeter” article, and
`
`that the copy of the 2007 IEEE conference publication in the Pennsylvania
`
`State University’s library includes the article in COMTOIS04.
`
`
`
`14
`
`15
`
`
`
`
`
`36. The 008 field of the MARC record noted on page 1 of Appendix
`
`COMTOIS01 indicates that the 2007 IEEE conference publication was first
`
`cataloged by the Pennsylvania State University’s library as of January 24,
`
`2007. Based on this information and considering the dates of the conference,
`
`it is my determination that the 2007 IEEE conference publication, which
`
`included the article published as Appendix COMTOIS04, was made
`
`available to the public by the Pennsylvania State University at least as of
`
`January 24, 2007.
`
`
`
`37. Attached hereto as Appendix COMTOIS05 is a true and correct copy of the
`
`MARC record for the 2007 IEEE conference publication, as held by
`
`University of Wyoming’s library in its online catalog. I secured this record
`
`myself from the library's public catalog.
`
`
`
`38. The MARC record contained within Appendix COMTOIS05 accurately
`
`describes the title, author, publisher, and ISBN number of the 2007 IEEE
`
`conference publication. In comparing the listed fields in Appendix
`
`COMTOIS05 to COMTOIS04, it is my determination that the copy of the
`
`
`
`15
`
`16
`
`
`
`2007 IEEE conference publication in University of Wyoming’s library
`
`includes the article in COMTOIS04.
`
`
`
`39. The 008 field of the MARC record noted on page 1 of Appendix
`
`COMTOIS05 indicates that the 2007 IEEE conference publication was first
`
`cataloged by University of Wyoming’s library as of January 24, 2007. Based
`
`on this information and considering the dates of the conference, it is my
`
`determination that the 2007 IEEE conference publication, which included
`
`the article published as COMTOIS04, was made available to the public by
`
`University of Wyoming at least as of January 24, 2007.
`
`
`
`40. In reviewing the listed citations at page 2 of COMTOIS04, it is my
`
`determination that the “A noise reference input to an adaptive filter
`
`algorithm for signal processing in a wearable pulse oximeter” article cites
`
`the article entitled “A Wearable Reflectance Pulse Oximeter for Remote
`
`Physiological Monitoring” by Y. Mendelson, R. J. Duckworth, and G.
`
`Comtois, as published in the 2006 IEEE conference publication. As noted
`
`above in paragraphs 18 – 20, I have also determined that Exhibit 1010 and
`
`MENDELSON10 are true and correct copies of the article entitled “A
`
`Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`
`
`16
`
`17
`
`
`
`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
`
`published in the 2006 IEEE conference publication. Accordingly, it is my
`
`determination that the 2006 IEEE conference publication containing Exhibit
`
`1010 would have been publicly available at least as early as the publication
`
`date of the 2007 IEEE conference publication: January 24, 2007.
`
`
`
`41. I have reviewed COMTOIS10, a copy of an article entitled “A Comparative
`
`Evaluation of Adaptive Noise Cancellation Algorithms for Minimizing
`
`Motion Artifacts in a Forehead-Mounted Wearable Pulse Oximeter” by G.
`
`Comtois, Y. Mendelson, and P. Ramuka, as published in the Proceedings of
`
`the 29th Annual International Conference of the IEEE EMBS Cité
`
`Internationale, Lyon, France, August 23 – 26, 2007 (hereinafter referred to
`
`as “2007 IEEE EMBS conference publication”).
`
`
`
`42. I obtained a copy of the 2007 IEEE EMBS conference publication through
`
`the Pennsylvania State University’s online library catalog portal.
`
`
`
`43. Attached hereto as Appendix COMTOIS06 is a true and correct copy of the
`
`catalog entry for the 2007 IEEE EMBS conference publication as
`
`
`
`17
`
`18
`
`
`
`maintained by the Pennsylvania State University. I secured this record
`
`myself from the library’s public catalog.
`
`
`
`44. Attached hereto as Appendix COMTOIS07 is a true and correct copy of the
`
`table of contents for the 2007 IEEE EMBS conference publication. I secured
`
`this record, as provided by the Pennsylvania State University’s library
`
`through the catalog entry for the 2007 IEEE EMBS conference publication
`
`as shown in Appendix COMTOIS06, myself.
`
`
`
`45. Attached hereto as Appendix COMTOIS08 is a true and correct copy of the
`
`MARC record for the 2007 IEEE EMBS conference publication, as held by
`
`the Pennsylvania State University’s library in its online catalog. I secured
`
`this record myself from the library's public catalog through the table of
`
`contents listing as captured in COMTOIS07.
`
`
`
`46. The MARC record contained within Appendix COMTOIS08 accurately
`
`describes the title, author, publisher, and ISBN number of the 2007 IEEE
`
`EMBS conference publication. In comparing the listed fields in Appendix
`
`COMTOIS08 to COMTOIS10, it is my determination that COMTOIS10 is a
`
`true and correct copy of the “A Comparative Evaluation of Adaptive Noise
`
`
`
`18
`
`19
`
`
`
`Cancellation Algorithms for Minimizing Motion Artifacts in a Forehead-
`
`Mounted Wearable Pulse Oximeter” article, and that the copy of the 2007
`
`IEEE EMBS conference publication in the Pennsylvania State University’s
`
`library includes the article in COMTOIS10.
`
`47. The 008 field of the MARC record noted on page 1 of Appendix
`
`COMTOIS08 indicates that the 2007 IEEE EMBS conference publication
`
`was first cataloged by the Pennsylvania State University’s library as of June
`
`5, 2008. Based on this information and considering the dates of the
`
`conference, it is my determination that the 2007 IEEE EMBS conference
`
`publication, which included the article published as COMTOIS10, was made
`
`available to the public by the Pennsylvania State University at least as of
`
`June 5, 2008.
`
`48. Attached hereto as Appendix COMTOIS09 is a true and correct copy of the
`
`MARC record for the 2007 IEEE EMBS conference publication, as held by
`
`Library of Congress in its online catalog. I secured this record myself from
`
`the Library’s public catalog.
`
`19
`
`20
`
`
`
`49. The MARC record contained within Appendix COMTOIS09 accurately
`
`describes the title, author, publisher, and ISBN number of the 2007 IEEE
`
`EMBS conference publication. In comparing the listed fields in Appendix
`
`COMTOIS09 to COMTOIS10, it is my determination that the copy of the
`
`2007 IEEE EMBS conference publication in the Library of Congress
`
`includes the article in COMTOIS10.
`
`
`
`50. The 008 field of the MARC record noted on page 1 of Appendix
`
`COMTOIS09 indicates that the 2007 IEEE EMBS conference publication
`
`was first cataloged by the Library of Congress as of June 5, 2008. Based on
`
`this information and considering the dates of the conference, it is my
`
`determination that the 2007 IEEE EMBS conference publication, which
`
`included the article published as COMTOIS10, was made available to the
`
`public by the Library of Congress at least as of June 5, 2008.
`
`
`
`51. In reviewing the listed citations at page 4 of COMTOIS10, it is my
`
`determination that the “A Comparative Evaluation of Adaptive Noise
`
`Cancellation Algorithms for Minimizing Motion Artifacts in a Forehead-
`
`Mounted Wearable Pulse Oximeter” article cites the article entitled “A
`
`Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`
`
`20
`
`21
`
`
`
`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
`
`published in the 2006 IEEE conference publication. As noted above in
`
`paragraphs 18 – 20, I have also determined that Exhibit 1010 and Appendix
`
`MENDELSON10 are true and correct copies of the article entitled “A
`
`Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
`
`published in the 2006 IEEE conference publication. Accordingly, it is my
`
`determination that the 2006 IEEE conference publication containing Exhibit
`
`1010 would have been publicly available at least as early as the publication
`
`date of the 2007 IEEE EMBS conference publication, June 5, 2008.
`
`
`
`52. I have reviewed Exhibit 1017, a copy of an article entitled “Design and
`
`Evaluation of a New Reflectance Pulse Oximeter Sensor” by Y. Mendelson,
`
`et al., as published in the Journal of the Association for the Advancement of
`
`Medical Instrumentation, Vol. 22, No. 4, 1988 (hereinafter referred to as
`
`“1988 publication”).
`
`
`
`53. Attached hereto as Appendix MENDELSON03 is a true and correct copy of
`
`the MARC record for the 1988 publication held by the Pennsylvania State
`
`
`
`21
`
`22
`
`
`
`University’s library. I secured this record myself from the library’s public
`
`catalog.
`
`
`
`54. The MARC record contained within Appendix MENDELSON03 accurately
`
`describes the title, author, publisher, and ISSN number of the Journal of the
`
`Association for the Advancement of Medical Instrumentation. The 949 field
`
`of a MARC record is used for institution-specific notations and the 949
`
`fields of this MARC record indicate the Pennsylvania State University’s
`
`issue level holdings for the Journal of the Association for the Advancement
`
`of Medical Instrumentation, demonstrating that the Pennsylvania State
`
`University’s collection contains volumes 17 – 22. These journal holdings
`
`clearly include Volume 22, No. 4, which corresponds to the 1988
`
`publication. In comparing the listed fields in Appendix MENDELSON03 to
`
`Exhibit 1017, it is my determination that Exhibit 1017 is a true and correct
`
`copy of the “Design and Evaluation of a New Reflectance Pulse Oximeter
`
`Sensor” article, and that the copy of the 1988 publication in the
`
`Pennsylvania State University’s library includes the article in Exhibit 1017.
`
`
`
`55. The 008 field of the MARC record noted on page 1 of Appendix
`
`MENDELSON03 indicates that the Journal of the Association for the
`
`
`
`22
`
`23
`
`
`
`Advancement of Medical Instrumentation was first cataloged by the
`
`Pennsylvania State University’s library as of August 8, 1983. The 362 field
`
`of the MARC record indicates the Pennsylvania State University’s
`
`acquisition of this material ceased as of Vol. 22, No. 6. Based on this
`
`information, it is my determination that the 1988 publication, which
`
`included the article published as Exhibit 1017, was made available to the
`
`public by the Pennsylvania State University shortly after initial publication
`
`in August 1988.
`
`
`
`56. I have reviewed Exhibit 1018, a copy of an article entitled “Skin Reflectance
`
`Pulse Oximetry: In Vivo Measurements From the Forearm and Calf” by Y.
`
`Mendelson and M.J. McGinn as published in Journal of Clinical
`
`Monitoring, January 1991 (hereinafter referred to as the “1991
`
`publication”).
`
`
`
`57. Attached hereto as Appendix MENDELSON04 is a true and correct copy of
`
`the MARC record for the 1991 publication held by the Ohio State University
`
`library. I secured this record myself from the library’s public catalog.
`
`
`
`
`
`23
`
`24
`
`
`
`58. The MARC record contained within Appendix MENDELSON04 accurately
`
`describes the title, author, publisher, and ISSN number of the Journal of
`
`Clinical Monitoring. The ‘Lib Has.’ field of this MARC record indicates
`
`Ohio State University’s issue level holdings for the Journal of Clinical
`
`Monitoring, demonstrating that Ohio State University’s collection contains
`
`volumes 1 (1985) – volume 13 (1997). Accordingly, Ohio State’s journal
`
`holdings range clearly includes the January 1991 edition. In comparing the
`
`information listed in Appendix MENDELSON04 to Exhibit 1018, it is my
`
`determination that Exhibit 1018 is a true and correct copy of the “Skin
`
`Reflectance Pulse Oximetry: In Vivo Measurements From the Forearm and
`
`Calf” article, and that the copy of the 1991 publication in Ohio State
`
`University’s library includes the article in Exhibit 1018.
`
`
`
`59. The 008 field of the MARC record noted on page 1 of Appendix
`
`MENDELSON04 indicates that the Journal of Clinical Monitoring was first
`
`cataloged by Ohio State University’s library as of August 23, 1999. The ‘Lib
`
`has’ field of this record indicates Ohio State University’s acquisition of this
`
`material ceased as of Vol. 13. Based on this information, it is my
`
`determination that the 1991 publication, which included the article published
`
`
`
`24
`
`25
`
`
`
`as Exhibit 1018, was made available to the public by Ohio State University
`
`at least as of August 23, 1999.
`
`
`
`60. Additionally, I obtained a copy of the 1991 publication through the
`
`Pennsylvania State University’s online library catalog portal.
`
`
`
`61. Attached hereto as Appendix MENDELSON14 is a true and correct copy of
`
`the catalog entry for the 1991 publication as maintained by the Pennsylvania
`
`State University. I secured this record myself from the library’s public
`
`catalog.
`
`
`
`62. Attached hereto as Appendix MENDELSON15 is a true and correct copy of
`
`the online page for the 1991 publication. I secured this record, as provided
`
`by the Pennsylvania State University’s library through the catalog entry for
`
`the 1991 publication as shown in Appendix MENDELSON14, myself.
`
`
`
`63. I have reviewed MENDELSON16, a copy of an article entitled “Skin
`
`Reflectance Pulse Oximetry: In Vivo Measurements From the Forearm and
`
`Calf” by Y. Mendelson and M.J. McGinn as published in 1991 publication. I
`
`
`
`25
`
`26
`
`
`
`obtained this document using the online page for the 1991 publication as
`
`shown in Appendix MENDELSON15.
`
`64. Attached hereto as Appendix MENDELSON13 is a true and correct copy of
`
`the MARC record for the 1991 publication, as held by the Pennsylvania
`
`State University’s library in its online catalog indicated by the catalog entry
`
`as shown in Appendix MENDELSON14. The Pennsylvania State
`
`University’s online library catalog entry as shown in Appendix
`
`MENDELSON14 directs the user to Springer’s online repository,
`
`SpringerLink. I secured this record myself from the library’s public catalog
`
`through the online page as captured in Appendix MENDELSON15.
`
`65. The MARC record contained within Appendix MENDELSON13 accurately
`
`describes the title, author, publisher, and ISBN number of the 1991
`
`publication. In comparing the listed fields in Appendix MENDELSON13 to
`
`MENDELSON16, it is my determination that (1) MENDELSON16 is a true
`
`and correct copy of the “Skin Reflectance Pulse Oximetry: In Vivo
`
`Measurements From the Forearm and Calf” article by Y. Mendelson and
`
`M.J. McGinn and (2) that the digital copy of the 1991 publication in the
`
`Pennsylvania State University’s library catalog includes the article in
`
`26
`
`27
`
`
`
`MENDELSON16 and is the same as the copy of the “Skin Reflectance Pulse
`
`Oximetry: In Vivo Measurements From the Forearm and Calf” article by Y.
`
`Mendelson and M.J. McGinn that is made publicly available by the
`
`Pennsylvania State University through Springer’s online repository
`
`SpringerLink.
`
`
`
`66. The 008 field of the MARC record noted on page 2 of Appendix
`
`MENDELSON13 indicates that the 1991 publication was first cataloged by
`
`the Pennsylvania State University’s library as of August 23, 1999. Based on
`
`this information and considering the dates of publication of the journal, it is
`
`my determination that the 1991 publication, which included the article
`
`published as Appendix MENDELSON16, was made available to the public
`
`by the Pennsylvania State University at least as of August 23, 1999.
`
`
`
`67. In comparing the listed fields in Appendix MENDELSON13 to Appendix
`
`MENDELSON04 and comparing Exhibit 1018 to Appendix
`
`MENDELSON16, it is my determination that both of Exhibit 1018 and
`
`Appendix MENDELSON16 are true and correct copies of the article entitl
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