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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________________________
` APPLE, INC., )
` )
` Petitioner, )
` ) IPR 2020-01716
` -against- ) IPR 2020-01733
` ) IPR 2020-01737
` MASIMO CORPORATION, )
` )
` Patent Owner. )
`___________________________________)
`
` VIDEO-RECORDED DEPOSITION OF
` THOMAS WILLIAM KENNY, JR. PH.D.
` Zoom Recorded Videoconference
` 07/16/2021
` 9:03 a.m. (PDT)
`
`REPORTED BY: AMANDA GORRONO, CLR
`CLR NO. 052005-01
`
`______________________________________________________
` DIGITAL EVIDENCE GROUP
` 1730 M Street, NW, Suite 812
` Washington, D.C. 20036
` (202) 232-0646
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`Masimo Ex. 2026
`Apple v. Masimo, IPR2020-01737
`
`
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`7/16/2021
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`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr., Ph.D.
`
` 07/16/2021
` 9:03 a.m. (PDT)
`
`Page 2
`
` VIDEO-RECORDED DEPOSITION OF THOMAS WILLIAM
`KENNY, JR. Ph.D., held virtually via Zoom
`Videoconferencing, before Amanda Gorrono, Certified
`Live Note Reporter, and Notary Public of the State of
`New York.
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`Thomas Kenny, Jr., Ph.D.
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`Page 3
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`A P P E A R A N C E S
`(Via Zoom Videoconferencing):
`ON BEHALF OF PETITIONER APPLE, INC.:
` Hyun Jin In, Ph.D., Esquire
` Fish & Richardson
` 1000 Maine Avenue NW
` Washington D.C. 20024
` PHONE: 202-626-7765
` E-MAIL: In@fr.com
`
`ON BEHALF OF PATENT OWNER MASIMO CORPORATION:
` Stephen W. Larson, Esquire
` Knobbe Martens
` 2040 Main Street
` Irvine, CA 92614
` PHONE: 949-721-5301
` E-MAIL: Stephen.larson@knobbe.com
` -AND-
` Jeremiah S. Helm, Ph.D., Esquire
` Knobbe Martens
` 1717 Pennsylvania Avenue N.W.
` Washington, DC 20006
` PHONE: 202-640-6400
` E-MAIL: Jeremiah.helm@knobbe.com
` -AND-
` Jacob Peterson, Esquire
` Knobbe Martens
` 925 4th Ave #2500
` Seattle, WA 98104
` PHONE: 206-405-2000
` E-MAIL: Jacob.peterson@knobbe.com
`
`ALSO PRESENT:
`Jason Snyder, Legal Videographer - Digital Evidence
`Group
`Brian Sparks, Exhibit Technician - Digital Evidence
`Group
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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` I N D E X
` WITNESS EXAMINATION BY PAGE
` THOMAS WILLIAM MR. LARSON 6
` KENNY, JR. Ph.D.
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`Page 4
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` E X H I B I T S
` EXHIBIT DESCRIPTION PAGE
` Exhibit 2006 Kenny Depo Transcript 1..... 14
` Exhibit 2007 Kenny Depo Transcript 2..... 14
` Exhibit 2008 Kenny Depo Transcript 3..... 15
` Exhibit 2009 Kenny Depo Transcript 4..... 15
`
` PREVIOUSLY MARKED EXHIBITS IDENTIFIED
` EXHIBIT DESCRIPTION PAGE
` Exhibit 1003 Dr. Kenny Declaration in ... 8
` IPR 1716
` Exhibit 1006 U.S. Patent Application .... 67
` Publication 2002/0188210
` A1
` Exhibit 1025 U.S. Patent 6.802,799 B2.... 115
` Exhibit 1003 Dr. Kenny Declaration in ... 139
` IPR 1737
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` R E Q U E S T S
` DESCRIPTION PAGE
` Witness retain documents...................... 22
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`Thomas Kenny, Jr., Ph.D.
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`Page 5
` THE VIDEOGRAPHER: This is Videotape
`No. 1 in the videotaped deposition of Thomas W.
`Kenny, Ph.D., taken by the Petitioner and patent
`owner in the matter of Apple, Inc. versus Masimo
`Corporation, IPR 2020-01716, IPR 2020-01733, and IPR
`2020-01737.
` This deposition being held remotely
`via Zoom on July 16, 2021. The time on the screen is
`9:03 a.m.
` My name is Jason Snyder. I'm the
`legal videographer for Digital Evidence Group.
` The court reporter is Amanda Gorrono
`in association with Digital Evidence Group.
` Will counsel please introduce
`themselves for the record, after which the court
`reporter will please swear in the witness.
` MR. LARSON: This is Steve Larson of
`Knobbe Martens for patent owner Masimo.
` With me are my partners Jeremiah Helm
`and Jacob Peterson.
` MR. IN: And this is Hyun Jin In from
`Fish & Richardson representing Petitioner, Apple.
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`Thomas Kenny, Jr., Ph.D.
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`Page 6
`THOMAS WILLIAM KENNY, JR. Ph.D., called as a witness,
`having been first duly sworn by a Notary Public of
`the State of New York, was examined and testified as
`follows:
`EXAMINATION
`BY MR. LARSON:
` Q. Good morning, Dr. Kenny.
` A. Good morning.
` Q. Nice to see you again.
` A. Uh-huh.
` Q. Will you please --
` A. It's been a while.
` Q. -- state your full name for the
`record?
` A. Thomas William Kenny.
` Q. Thank you.
` I know that you've been deposed
`before, but I'll do a brief reminder --
` A. Uh-huh.
` Q. -- and just confirm you understand
`you're under oath today as if you were in a
`courtroom, correct?
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`Page 7
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` A. Yes.
` Q. Is there any reason you'd be unable
`to give truthful and accurate testimony today?
` A. No.
` Q. Are you on any medications that might
`affect your testimony today?
` A. No.
` Q. Okay. As a reminder, the court
`reporter is here to take down questions. Please give
`verbal responses. And please wait until I have
`completed the question before answering.
` And if you don't understand a
`question, let me know.
` You can ask for a break at any time;
`however, if there's a pending question, please answer
`before taking a break.
` Understood?
` A. Understood.
` Q. All right. All right. We sent you a
`box of exhibits, which you just opened, and so let me
`direct you to that so you can take out the exhibits
`that we'll start with.
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 8
` Let's start with Exhibit 1003 from
`IPR 2020-1716.
` (Whereupon, Exhibit 1003, Dr. Kenny
`Declaration in IPR 1716, was identified.)
` A. Okay. This would be my Declaration?
` Q. Yes. In IPR 1716.
` A. Yes.
` Q. Perfect. Do you recognize
`Exhibit 1003?
` A. I do.
` Q. What is it?
` A. It is my Declaration with respect to
`Patent 10,702,194.
` Q. And do you mind if I refer to that
`patent as the '194 patent?
` A. That's fine.
` Q. Now, you submitted this Declaration
`on behalf of Apple, correct?
` A. That's correct.
` Q. In your Declaration you offered
`opinions about certain references, correct?
` A. That's correct.
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`Page 9
` Q. Will you please turn to Paragraph 14
`of your Declaration. And let me just -- hold on.
`Let me make sure that we have the right -- I know
`you're looking at the hard copy.
` A. Uh-huh.
` Q. I want to make sure we have the right
`document on the screen. It looks like the document
`on the screen is for the '195 patent. I want to make
`sure we have the right exhibit.
` MR. LARSON: This should be
`Exhibit 1003 for IPR 1716 -- for the hot seat -- more
`a question for the hot seat person.
` THE WITNESS: Okay. There we go.
` MR. LARSON: There we go. Great.
` Q. Would you please turn to Paragraph 14
`of your Declaration?
` A. Okay.
` Q. And let's see here. And if you look
`below Paragraph 14, do you see a table entitled,
`"Prior Art Reference"?
` A. Yes.
` Q. And in Paragraph 14 you state you
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`Page 10
`reviewed the references in the table entitled, "Prior
`Art Reference," correct?
` A. That's correct.
` Q. The first listed prior art -- and it
`is a true and correct statement that you reviewed
`those references, correct?
` A. That's correct.
` Q. Okay. And the first prior art
`reference that you analyzed is U.S. Patent
`publication number 2002/0188210, correct?
` A. That's correct.
` Q. And you there give it a short name of
`Aizawa, correct?
` A. That's correct.
` Q. Do you mind if I refer to that
`reference as "Aizawa" for this deposition?
` A. That's fine.
` Q. The same question for the next
`reference, it's entitled, "Measurement Site and
`Photodetector Size Considerations in Optimizing Power
`Consumption of a Reflectance Pulse Oximeter." It's
`Apple Exhibit 1024.
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`Page 11
` You provided a short form name of it
`of "Mendelson-2003," correct?
` A. That is correct.
` Q. Do you mind if I refer to that
`reference as "Mendelson-2003" during the deposition
`today?
` A. Sure.
` Q. And the next one was U.S. Publication
`No. 2001/0056243 to Ohsaki. Do you mind in I refer
`to that reference as "Ohsaki"?
` A. That would be fine.
` Q. And the next one entitled, "A
`Wearable Reflectance Pulse Oximeter For Remote
`Physiological Monitoring." It's Apple Exhibit 1016.
`You gave it the short form name "Mendelson-2006." Do
`you mind if I refer to that as "Mendelson-2006"?
` A. That would be okay.
` Q. And finally in that table you
`reference U.S. Patent No. 7,031,728. You gave it the
`short name of "Beyer." Do you mind if I refer to
`that patent as "Beyer"?
` A. That would be fine.
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`Page 12
` Q. Okay. And in our prior deposition we
`discussed some of these -- a couple of these same
`references.
` Do you recall that?
` A. I do.
` Q. And, in fact, you relied on some of
`these references in the declarations you submitted in
`IPR Nos. 1716, 1733, and 1737, correct?
` MR. IN: Objection; scope, relevance.
` A. I haven't memorized those exact
`numbers. I'll take your word for that.
` Q. Okay. And your understanding of the
`prior art hasn't changed from the time you previously
`gave testimony about these references, correct?
` A. That's correct.
` Q. All right. And to the best of your
`knowledge, did you apply the same understanding of
`the prior art across all of your Declarations?
` A. I believe so.
` Q. And to the best of your knowledge did
`you give your best understanding of the prior art
`references across all of the declarations?
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` MR. IN: Objection; form.
` A. I think that's the same -- is that
`different from the question you just asked me? I'm
`not -- maybe I'm just parsing.
` Q. I think the last one was about
`consistency and this one was about that you did your
`best.
` You provided your best understanding
`of those references across all of the declarations,
`correct?
` MR. IN: Objection.
` A. Yes.
` MR. IN: Sorry.
` Q. And specifically you previously
`testified about Aizawa, Ohsaki, and the Mendelson
`'799 patent.
` Do you recall that?
` A. I do.
` Q. And my last deposition with you, you
`provided some deposition testimony about those
`references, correct?
` A. Yes.
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`Page 14
` MR. IN: Objection; relevance, scope.
` MR. LARSON: So I'm going to mark our
`first exhibits. Just so you have them handy. I
`don't necessarily know that I'll ask questions about
`them or not.
` I want to mark your prior depo
`transcripts. And so these will be our first
`exhibits. These will be the depo transcripts from
`April 22nd, 23rd, 24th, and 25th.
` They were Masimo Exhibit 2006, 2007,
`2008, and 2009.
` Q. Do you want to just pull those out
`and have those handy?
` A. Sure. These are in the giant binder.
`Let's see here.
` Q. So you'll have those handy if you
`want to refer to them.
` MR. LARSON: Let's just formally mark
`them, authenticate them for the record.
` (Whereupon, Exhibit 2006, Kenny Depo
`Transcript 1, was marked for identification.)
` (Whereupon, Exhibit 2007, Kenny Depo
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`Page 15
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`Transcript 2, was marked for identification.)
` (Whereupon, Exhibit 2008, Kenny Depo
`Transcript 3, was marked for identification.)
` (Whereupon, Exhibit 2009, Kenny Depo
`Transcript 4, was marked for identification.)
` Q. Do you recognize those documents?
` A. I do.
` Q. Would you mind identifying them for
`the record?
` A. So it looks like there's four volumes
`of transcripts from the deposition taken on -- let's
`see -- the dates from April 22nd, 23rd, 24th, and
`25th. I'm just pulling them out and putting binder
`clips on them so I can get through them without
`having to deal with the giant binder all the time.
` Q. And so, for the record, on the bottom
`right-hand side you should see an exhibit number for
`this deposition, basically that it's marking the
`transcript. For example, the first one should say
`"Masimo 2006."
` Do you see that?
` A. Let's see here --
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` Q. In the bottom right.
` A. Yes, that's correct. I see it.
` Q. Okay. So that Masimo Exhibit 2006 is
`your April 22, 2021, deposition in connection with
`IPRs 1520, 1537, and 1539, correct? You see it on
`the top right-hand side.
` A. Yes, that's correct.
` Q. Okay. And then turning now to Masimo
`Exhibit 2007.
` A. Yes.
` Q. That's your deposition transcript
`from April 23rd, in connection with IPRs 1520, 1537,
`and 1539, correct?
` A. That's correct.
` Q. Turning now to Masimo Exhibit 2008.
`Let me know when you have that handy.
` A. Yes.
` Q. That's your April 24th deposition in
`connection with IPRs 1536 and 1538, correct?
` A. That's correct.
` Q. And last but not least, somewhat
`shorter transcript, Masimo Exhibit 2009 is your
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`Page 17
`deposition transcript from April 25th in connection
`with IPRs 1536 and 1538, correct?
` A. That is correct.
` Q. All right. Keep those handy.
` A few housekeeping questions. To the
`best of your knowledge, did you provide truthful and
`accurate testimony in those depositions?
` A. Yes.
` Q. And to the best of your knowledge did
`you provide your best understanding of the prior art
`in those depositions?
` A. Yes.
` Q. And your understanding of the prior
`art hasn't changed since you provided that testimony,
`correct?
` A. That's correct.
` Q. And you understanding of physics and
`optics hasn't changed since you provided testimony in
`those depositions, correct?
` A. Well, you know, I learn every day,
`but not in a fundamental or important way, no.
` Q. And your testimony regarding the
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`Page 18
`knowledge of a person of skill in the art hasn't
`changed since you provided testimony in those
`depositions, correct?
` A. That's correct.
` Q. Okay. Tell me everything you did to
`prepare for your deposition today.
` A. Everything. Well, I've reviewed the
`prior art references; I reviewed the declarations;
`I've reviewed the transcripts from the last
`depositions, that we've just opened up. I probably
`reviewed most of the materials in these binders.
` Q. Did you meet with anyone?
` A. We had a few Zoom conference calls
`with the attorneys from -- representing Apple.
` Q. Who did you meet with?
` A. So, HJ In was part of those calls;
`Andrew Patrick was part of those calls; Dan Smith
`participated in those calls.
` Q. Okay. Approximately how long did you
`meet with the attorneys?
` A. You know, probably around ten hours,
`give or take.
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`Page 19
` Q. Did you review any documents that
`refreshed your recollection?
` A. Of those meetings or... Sorry.
` Q. Of, of -- did you review any
`documents that refreshed your recollection of any
`facts that, you know, you considered as part of your
`expert analysis?
` A. I reviewed all of the documents that
`we've just described, you know, those -- I reviewed
`them all. Yes.
` Q. Anything else that you recall?
` A. I'm trying to sort out all the things
`I do in my -- over the last two months.
` So there are some new references
`associated with the new Declarations. So those would
`be additive to what was reviewed prior, of course.
`At least in the recent review.
` You know, I reviewed all of those
`documents. Maybe just leave it at that.
` Q. You say "these documents," you mean
`the documents you submitted in connection with your
`Declarations?
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 20
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` A. That's correct.
` Q. And sitting here today, you can't
`recall any other documents you reviewed that
`refreshed your recollections or any facts that you
`relied on as part of your analysis; is that correct?
` A. I'm really trying to separate -- I
`mean I review documents all day long for lots of
`reasons. I'm CEO for a start-up company, I have
`Ph.D. students I'm still advising, there's all kind
`of documents.
` I don't recall anything off the top
`of my head, but, you know, depending on where we go
`with questions they may remind me of something I
`looked at.
` Q. If the question reminds you of
`something you looked at, will you please let me know?
` A. Certainly.
` Q. After preparing for your deposition
`today, is there anything about the analysis in your
`Declarations that you want to change?
` A. Nothing that comes to mind.
` Q. Did you discover any errors in your
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 21
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`Declarations?
` A. Let me -- there was one thing that I
`recall. See if I can find it quickly.
` Actually, I'm not sure which one it's
`in. It's just an instance of I think there is a
`place it says "Mendelson-2006" and it obviously
`should have said "Mendelson-2003." If we come across
`it, I'll point it out. I don't think you want me to
`spend 15 minutes leafing around trying to find that
`one thing for you right now.
` Q. But from your recollection the error
`is fairly obvious from the context that it was
`supposed to be Mendelson-2003?
` A. I think that's true.
` Q. Did you discover any errors in your
`analysis of the prior art?
` A. No.
` MR. IN: Objection; form.
` Q. Okay. So as we go through the
`deposition today, I'm going to refer to exhibits and
`documents. The exhibits we can pull up on the
`computer screen, but we have also provided you hard
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 22
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`copies for you to refer to.
` Let me ask you, I think in our last
`deposition we made the request that you save the
`exhibits for a future possible deposition. Did you,
`by any chance, do that?
` A. Yes, I did. They are all in boxes in
`the hall.
` Q. In the hall. Okay. So accessible,
`if necessary?
` A. Yes. They could be. Yes. It will
`take some digging, but I think I can find everything
`we might need.
` MR. LARSON: Let me make the same
`request for these documents. I mean, I have no idea
`if it will be helpful in a future deposition. But it
`could be. If you don't mind keeping some boxes in
`your office there, we appreciate it.
` (Whereupon, a request for Witness
`retain documents, was made.)
` A. No problem.
` Q. All right. Let's dive in to
`Exhibit 1003 a little bit. That's your declaration
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 23
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`from IPR 1716.
` And I want to start with Paragraph 78
`and the figures below Paragraph 78. Can you take a
`look at those figures?
` If you want to take a moment to read
`them to get context, go ahead.
` A. Okay.
` Q. All right. Can you explain to me
`what you're illustrating with the figures below
`Paragraph 78?
` MR. IN: Objection; form.
` A. The illustration on the left is
`adapted from the Aizawa reference, with some
`modifications of what I think one of ordinary skill
`in the art would consider in context of
`Mendelson-2003.
` Q. And so these drawings are intended to
`illustrate the changes a person of skill in the art
`would make to -- was it Aizawa in view of
`Mendelson-2003?
` MR. IN: Objection; form,
`argumentative.
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`202-232-0646
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 24
` A. So could you repeat that question?
`Sorry.
` Q. Sure.
` Are these figures intended to
`illustrate the modifications a person of skill in the
`art would make to Aizawa based on Mendelson-2003?
` A. And also -- yes. And also based on
`Ohsaki.
` Q. So the figures below Paragraph 78 are
`intended to illustrate the modifications you believe
`a person of skill in the art would make to Aizawa in
`view of Mendelson-2003 and Ohsaki, correct?
` MR. IN: Objection; argumentative.
` A. Yes, that's correct.
` Q. So in your opinion that combination
`would include two LEDs, which you've labeled LED A
`and LED B; is that correct?
` A. That's what is shown here, yes.
` Q. And can you explain to me why a
`person of skill in the art would have made the
`modification from one LED to two LEDs?
` MR. IN: Objection; form.
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
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`202-232-0646
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`7/16/2021
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 25
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` Q. Let me start with a little
`foundation. In Aizawa there's one LED, correct, in
`the center?
` A. In that illustration in Aizawa, yes,
`that's correct.
` Q. Okay. And then your combination here
`in the figure, you have two LEDs, correct?
` A. That's correct.
` Q. My question is just: Can you explain
`why a person of skill in the art would have been led
`to modify Aizawa from one LED to two LEDs?
` MR. IN: Objection; form.
` A. There's many reasons described in
`several of the references, but maybe just to focus,
`the Mendelson-2003 reference includes a red LED and
`an infrared LED.
` Q. But you don't provide any
`testimony -- sorry.
` You don't provide any analysis in
`your Declaration regarding why a person of skill in
`the art would have modified Aizawa's single LED to be
`two LEDs, correct?
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`202-232-0646
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`7/16/2021
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 26
` A. Sorry about that. I was looking all
`around. Could you repeat the question?
` Q. Sure. You don't provide any analysis
`in your Declaration regarding why a person of skill
`in the art would have modified Aizawa's single LED to
`be two LEDs, correct?
` A. So I think one of ordinary skill in
`the art would have understood that having two
`different wavelengths provides the benefits that are
`described in the Mendelson references and in other
`art that we've referred to, but as I review this
`document to the best of my ability, flipping pages
`here, I don't believe there's an explicit analysis
`describing the use of the second LED.
` Q. Right. You don't -- having reviewed
`your Declaration, you don't see any analysis
`discussing why a person of skill in the art would
`have modified Aizawa's single LED to be two LEDs,
`correct?
` A. As I said, I think one of ordinary
`skill in the art in view of the references would
`consider a second LED, but I don't explicitly analyze
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
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`202-232-0646
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`7/16/2021
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 27
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`that inclusion as far as I can tell in the
`15 minutes, 10 minutes or so I spent flipping around.
`I'm not finding an explicit analysis of the addition
`of the second LED.
` Q. In your view, a person of skill in
`the art, reviewing the prior art you analyzed in this
`Declaration, would have been led to include a second
`LED; is that correct?
` A. They would have been led to consider
`including the second LED.
` Q. Would they have included a second
`LED?
` A. I think it depends on exactly which
`physiological parameters they were intending to
`measure.
` Q. Well, I guess in the combination that
`you're proposing and that you're analyzing in your
`Declaration, would that combination have two LEDs or
`one LED?
` MR. IN: Objection; relevance, form.
` A. So the combination that's described
`throughout the section of my Declaration is analyzing
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`202-232-0646
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`7/16/2021
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 28
`the claims has a single LED, as far as I can tell.
` Q. So in the combination that you put
`forward as part of your Declaration, there's one LED;
`is that right?
` MR. IN: Objection; form.
` Q. While you're looking at that, let me
`restate the question. So the combination that you
`proposed and analyzed as allegedly satisfying the
`claims, in your Declaration, has one LED, correct?
` MR. IN: Objection; argumentative.
` A. Almost there sorry. Okay. So can I
`have that question again? I think I'm ready.
` Q. Sure. You've had a chance to review
`your Declaration. My question is: The combination
`that you proposed and analyzed as allegedly
`satisfying the claims in your Declaration has one
`LED, correct?
` MR. IN: Same objection.
` A. So the combination of these
`references that's described and referred to,
`throughout all of the portions of the Declaration
`that are analyzing the claims, so this begins on --
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
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`202-232-0646
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`7/16/2021
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 29
`this begins with Paragraph 87 and then it refers back
`to some earlier sections, but the details are in that
`section are all with respect to combinations with a
`single LED.
` Q. And it's the earlier section, for
`example, Paragraph 78 where you're discussing the
`combination before you provide a specific analysis of
`the claims, in that, in that discussion of the
`combination, you include two LEDs, correct?
` A. There are two LEDs in that figure
`below Paragraph 78, that's correct.
` Q. And you said or you testified earlier
`that whether a person of skill in the art would have
`included one LED or two LEDs would depend exactly on
`which physiological parameters they were intending to
`measure, correct?
` MR. IN: Objection; argumentative,
`form.
` A. You know, so there is a long list of
`possible physiological parameters that one might be
`interested in measuring and some of them require
`multiple wavelengths in order to perform an accurate
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
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`202-232-0646
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`7/16/2021
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr., Ph.D.
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`Page 30
`measurement. The Mendelson 1999 patent -- actually,
`am I getting that right, actually? Yeah, the '799
`Mendelson patent has three LEDs, three different
`wavelengths in order to provide an even better
`measurement method for improving the accuracy, so it
`would depend on the objectives and the needs of the
`situation.
` Q. And you said there is a long list of
`physiological parameters that might impact whether to
`use one LED or more than one LED. Could you provide
`so