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`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________________
` APPLE INC.,
`
` IPR NO. 2020-1520
`Petitioner, ) US PATENT NO: 10,258,265
`-against-
`) IPR NO. 2020-1537
`) US PATENT NO: 10,588,553
` MASIMO CORPORATION, )
`) IPR NO. 2020-1539
`Patent Owner. ) US PATENT NO: 10,588,554
`_________________________)
`VIDEO-RECORDED DEPOSITION OF
`THOMAS WILLIAM KENNY, JR. PH.D.
`VOLUME 2
`Zoom Recorded Videoconference
`04/23/2021
`9:02 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. 2007
`Apple v. Masimo, IPR2021-00208
`
`
`
`4/23/2021
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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny, Jr. Ph.D., Vol II
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`Page 274
` 04/23/2021
` 9:02 a.m. (PDT)
`
` VIDEO-RECORDED DEPOSITION OF THOMAS WILLIAM
`KENNY, JR. Ph.D., VOLUME 2, 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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`
`A P P E A R A N C E S
`(Via Zoom Videoconferencing):
`ON BEHALF OF PETITIONER APPLE:
` Dan Smith, Esquire
` Fish & Richardson
` 1717 Main Street
` Suite 5000
` Dallas, Texas 75201
` PHONE: 214-292-4071
` E-MAIL: Dsmith@fr.com
` -AND-
` Andrew B. Patrick, Esquire
` Fish & Richardson
` 1000 Maine Avenue SW
` Washington, D.C. 20024
` PHONE: 202-626-7735
` E-MAIL: Patrick@fr.com
` -AND-
` Hyun Jin In, Ph.D., Esquire
` Fish & Richardson
` 1000 Maine Avenue SW
` Washington, D.C. 20024
` PHONE: 202-626-7765
` E-MAIL: In@fr.com
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`A P P E A R A N C E S (CONT.D)
`(Via Zoom Videoconferencing):
`ON BEHALF OF PATENT OWNER MASIMO:
` 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:
`Billy Fahnert, Legal Video Specialist/Trial Tech,
`Digital Evidence Group
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` I N D E X
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` WITNESS: EXAMINATION
` THOMAS WILLIAM KENNY, JR. Ph.D.
` CONTINUED EXAMINATION 278
` BY: MR. LARSON
`
` PREVIOUSLY MARKED EXHIBITS IDENTIFIED
` EXHIBIT DESCRIPTION PAGE
` Exhibit 1003 Declaration IPR1520-01520 ..280
` of Dr. Thomas W. Kenny
` Exhibit 1006 Aizawa Patent Application...315
` Exhibit 1008 Japanese Unexamined ........329
` Patent Application
` Publication 2006-296564
` Exhibit 1003 Declaration of Dr. Thomas ..444
` W. Kenny IPR2020-01537
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` THE TECH: Stand by. We are on the
`record. This is Volume 2 in the continuing
`deposition of Dr. Thomas W. Kenny in the matter of
`Apple Inc. versus Masimo Corporation filed in the US
`Patent and Trademark Office.
` My name is Billy Fahnert. The court
`reporter is Amanda Gorrono. Today's date is
`April 23, 2021. The time is 9:02 a.m. Pacific
`Daylight Time. The witness is still under oath and
`Counsel may proceed.
`DR. THOMAS WILLIAM KENNY, JR., called as a witness,
`having previously been sworn by a Notary Public of
`the State of New York, was examined and testified as
`follows:
`CONTINUED EXAMINATION
`BY MR. LARSON:
` Q. Good morning, Dr. Kenny.
` A. Good morning.
` Q. Did you discuss your testimony with
`your counsel since you finished testifying yesterday?
` A. No.
` Q. Okay. I want to follow-up on a few
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`things from yesterday before we go on to a couple of
`other topics.
` We discussed quite a bit, you know, a
`convex lens and the optics of a convex lens and I
`guess I just want to get some clarity as to your
`testimony and your understanding.
` Dr. Kenny, you don't dispute that as
`a matter of basic physics, a person of ordinary skill
`in the art would understand that a convex lens
`directs light towards the center of the lens, do you?
` MR. SMITH: Objection; form.
` A. Do you mind if -- I put all the
`materials away yesterday. Do you mind if we pull at
`least one of those Declarations back out? I don't
`know particularly which one you'd want to refer to at
`this time, but let's --
` Q. You're welcome to pull out
`whatever -- sorry.
` A. Go ahead.
` Q. You're welcome to pull out whatever
`materials you want, but my question right now is, is
`simply, I guess, a matter of your understanding of
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`basic physics and what a person of ordinary skill in
`the art would understand. If you think it's helpful
`to have a Declaration, you're welcome to pull out a
`Declaration for that.
` A. Fine.
` Q. I'm primarily going to be asking you,
`again, about your Declaration in IPR1520, so that
`might be the most convenient Declaration to take out.
` A. Right. Which, so which -- so that
`would be?
` Q. That would be Tab -- hold on a
`second.
` THE TECH: Tab 5, perhaps.
` MR. LARSON: Yep, Tab 5.
` (Whereupon, Exhibit 1003, Declaration
`IPR1520-01520 of Dr. Thomas W. Kenny was identified.)
` A. So with respect to the '553 patent --
`oh, '265, sorry. Fair enough.
` So could you repeat that again, now.
` Q. Yeah. You don't dispute that as a
`matter of basic physics, a person of ordinary skill
`in the art would understand that a convex lens
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`directs light towards the center of the lens, do you?
` MR. SMITH: Objection; form.
` A. I think the question, the question is
`too vaguely posed in terms of what the lens does to
`the light. Depends on where the light comes from,
`and its orientation relative to the geometry of the
`lens. It could, it could do that. It might do many
`things.
` Q. So yesterday you testified that there
`are two phenomena with a convex lens-shaped cover.
` Do you recall that testimony?
` A. Yes.
` Q. And you testified that one is that
`light is being directed towards the center and away
`from the edge, correct?
` MR. SMITH: Objection; form.
` A. In the context of a diffuse light
`source scattered or positioned in the space all
`around the lens, associated with the sensors of
`interest in this case. Not as a general statement of
`a convex lens, but in the context of diffuse light
`sources scattered all around.
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` So light coming in from all kinds of
`angles, all directions, all orientations, that one of
`ordinary skill in the art would understand that the
`convex lens can have that effect on the diffuse light
`propagation, depending on the details and
`orientations and geometries.
` Q. Okay. And can you explain the
`details and orientations and geometries that might
`impact the effect a convex lens would have on, on the
`direction of light?
` A. So maybe if we looked to Page 55, one
`of our favorite figures from yesterday.
` Q. Uh-huh.
` A. So as we discussed yesterday, light
`coming from a diffuse light source, somewhere in the
`neighborhood below this lens approaches the lens from
`different angles. Remember, this is a 2D
`representation of a 3D situation. So the light rays
`could be propagating in all three axes.
` When they encounter the lens, they
`experience refraction and possibly reflection. And
`one of ordinary skill in the art would understand
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`that, that the addition of the convex lens to the
`Aizawa Declaration reflected on the right -- on the
`left side would lead to increased light collection
`efficiency, which could enhance the signal-to-noise
`ratio and provide more reliable pulse wave detection.
` Q. Well, my question was -- you
`testified just now that in the context of a diffuse,
`a diffuse light source scattered or positioned in a
`space all around the lens, associated with the
`sensors of interest in this case, one of ordinary
`skill in the art would understand that a convex lens
`could have the effect of directing light towards the
`center and away from the edge, correct?
` A. I said it would have the effect of
`increasing light collection efficiency through the
`action of refraction and therefore, concentrating the
`light coming in and that, that would lead to enhanced
`signal-to-noise ratio and ultimately, a more reliable
`detection.
` Q. Well, I said: You testified that one
`is -- that light is being directed towards the
`center, away from the edge, correct? And then you
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`went on to give a long answer and you said, you know,
`given the qualifications that you're providing, that
`a convex lens can have that effect.
` And so are you, are you now saying
`that a person of ordinary skill in the art would not
`believe that a convex lens in the context of a
`diffuse light source scattered or positioned in the
`space that are all around the lens associated with
`the sensors of interest in this case would direct
`light towards the center and away from the edge?
` MR. SMITH: Objection; argumentative.
` A. So we spoke at some length yesterday
`about what the light intensity might look like across
`that surface, underneath the lens where the detectors
`are positioned in this figure, and that it would
`obviously depend on the specifics of the corpuscle
`locations and other aspects of what was going on with
`a specific piece of human anatomy.
` My statement was that I would expect
`one of ordinary skill in the art would understand
`that on average, you know, sampling across many
`different circumstances, that one would expect this
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`circumstance to produce an increased light intensity
`in the neighborhoods underneath where there's
`curvature in the lens, which in this case, are from
`near the edge towards the center. And that if you
`sampled the intensity, you might see a relative
`increase towards the center relative to what you
`would see at the edge.
` I know that's paraphrasing various
`versions of that long statement that I made at
`various times yesterday, but I think they're all
`consistent with what one of ordinary skill in the art
`would understand takes place here.
` Q. I'm just trying to understand if what
`you are -- if your answer is different than what my
`question is.
` Are you just trying to be more
`precise in your answer?
` A. Maybe I forgot or misinterpreted your
`question.
` Q. Would a person of ordinary skill in
`the art believe that a convex lens, in the context of
`a diffuse light source scattered or positioned in the
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`space that are all around the lens, associated with
`the sensors at interest in this case, believe that
`the convex lens would have the effect of directing
`light towards the center and away from the edge?
`That's my question.
` MR. SMITH: Objection; form.
` Q. Are you able to answer that question
`yes or no?
` A. So I think that is an
`oversimplified --
` MR. SMITH: Objection; form.
` A. -- and this is why I've been
`answering, perhaps, at length rather than with yes or
`no. I think the question oversimplifies the
`situation.
` Q. And how does the question
`oversimplify the situation?
` A. So we've described the circumstances
`of a, of a distributed diffuse light source, which
`provides light rays coming towards the sensor, many
`different angles and orientations in this
`3-dimensional space and that the effect of the lens
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`on each of those light rays is governed by the laws
`of refraction. One of ordinary skill in the art
`would know that.
` And that the particular effect of the
`lens on a specific light ray will depend upon the
`orientation of the lens and the, and the vector of
`orientation of the light ray. Some rays will be
`deflected in one direction or another. It's --
`there's no general statement that all rays are going
`to be deflected towards the center. One of ordinary
`skill in the art would know that's not true.
` Q. But as a matter of basic physics, if
`you have a convex lens and if you have diffuse light
`that enters that lens, wouldn't a person of ordinary
`skill in the art believe that the convex lens would
`direct light towards the center of the lens?
` MR. SMITH: Objection; form.
` A. Are we talking about some of the
`light or a particular example of the light or all of
`the light? Because the answer is different in those
`three cases.
` Q. The light as a whole.
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`
` A. So some of the light will be
`refracted in one direction. Some of the light will
`be refracted -- well, in fact, all of the light will
`be refracted, refracted in all different directions,
`depending on the angles of the individual rays of
`light, which fill pretty much all of the angles
`available in this circumstance, given that we have a
`diffuse light source and not a point source.
` Maybe I can help with a
`counter-example, just so that we understand that
`there's a difference between these different kinds of
`light sources.
` Figure 14 of the '265 patent, I
`believe, shows a collimated light source coming into
`a hemispherical lens, sorry, to a cylindrical lens
`and shows the rays entering and then focusing and
`into a single point. I think one of ordinary skill
`in the art would understand that's a reasonable
`circumstance, what one would expect for a collimated
`light source entering a cylindrical lens.
` We have a diffuse light source and
`one of ordinary skill in the art understands that
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`it's a completely different situation. And one can't
`make the same kinds of simple statements about what
`happens to all the light in the case of a diffuse
`light source because each ray will have a different
`path as a result of the lens.
` Q. And the '265 patent was addressing a
`pulse oximeter, correct?
` A. It included pulse oximeters of one
`kind -- well, of several kinds, many, many examples.
`But that particular illustration is relevant to the
`discussion we're having about the effect of lenses on
`light.
` Q. Do you believe the '265 patent device
`would -- that the light that, that goes to the
`sensor, do you believe that light would be diffuse or
`do you believe it would be collimated?
` A. I -- we need to talk about one of the
`many embodiments in that patent. You want to --
`should I pull the patent out and we can look at a
`particular embodiment?
` Q. Well, I guess I -- you're relying
`Figure 14 of '265 patent and I'm trying to understand
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`how you're interpreting that figure.
` Isn't that figure explaining the
`effect of a lens in the context of a device that's
`going to involve diffuse light reaching the
`detector -- or, sorry, light reaching --
` MR. LARSON: Let me restate that.
` Q. You're relying on the '265 patent --
`you're rely on a figure in the '265 patent that is
`providing the context of explaining a device that is
`going to involve diffuse light reaching the lens;
`isn't that correct?
` A. I was referring to that figure as an
`illustration of what one of ordinary skill in the art
`would understand to be the case when collimated light
`encounters a cylindrical lens and finds a focus. I
`think you'll note in that figure, and we could pull
`it up and look at it together, if you like, but all
`of the rays coming into the lens are parallel.
` Q. But my question is, the context of
`the, of the figure in the '265 patent.
` Isn't the context describing a device
`that would actually involve diffuse -- isn't the
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`context --
` MR. LARSON: Strike that.
` Q. My question is about the context of
`the figure in the '265 patent.
` Isn't the context of that figure a
`description of device in which diffuse light would
`reach the lens?
` A. Maybe we should pull up that patent
`and look at the portion of the specifications that
`describes Figure 14.
` Q. So you don't know without looking at
`the patent?
` A. I didn't memorize that section. All
`I know is -- and what I'm telling you is that one of
`ordinary skill in the art, looking at that
`illustration, would understand that it represents
`collimated light. All the rays are parallel and when
`collimated light, with all the rays travelling in
`parallel, encounter a cylindrical lens, one
`reasonably expects focusing to take place, as shown
`in that figure. The figure is consistent with one of
`ordinary skill's in the art understanding of the
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`interaction between collimated light sources and some
`cylindrical lenses.
` I think one of ordinary skill in the
`art would understand that the figure we're looking at
`in my Declaration corresponds to light sources where
`the light rays are absolutely not all parallel. They
`fill all possible angles in three-dimensional space
`and it's a, just a completely different optical
`circumstances.
` Q. So as part of your analysis, did you
`assume that there was a distributed diffuse light
`source, which provided light rays coming towards the
`sensor?
` A. In the case of the prior art examples
`and in the case of the examples that I described and
`analyzed, yes.
` Q. And so just so I make sure I
`understand your testimony, your testimony is that a
`person of skill in the art would not believe that
`diffuse light that goes into a convex lens directs
`light towards the center of the lens?
` MR. SMITH: Objection; form.
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` Q. Is that accurate?
` A. I think one of ordinary skill in the
`art --
` MR. SMITH: Same objection.
` A. -- if they were being careful, would
`be concerned about that statement being too simple a
`description of what takes place in the case of
`diffuse light source in a convex lens.
` Q. What source would one look at to show
`the result of a diffuse light hitting a convex
`surface --
` MR. LARSON: Let me restate that.
` MR. SMITH: Objection; form.
` Q. What source would one look at to show
`the result of diffuse light hitting a convex surface?
` A. In an experimental setting, for
`example?
` Q. Sure.
` A. Well, it's a cloudy day here in
`San Francisco. If you walk around on the street, you
`don't see crisp shadows. That's consistent with a
`diffuse light source instead of a collimated light
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`source on a sunny day, when there's no clouds and
`light primarily is coming from one direction, the
`sun. And as a consequence of the diffuse light
`source, you see different optical effects, no
`shadows, no edges.
` And if you looked at the way light
`came through a lens, depending on the orientation of
`the lens, the orientation of the light, the general
`character of the source of light, curvature of the
`lens, the index of refraction, you might see various
`things.
` Q. My question was: What source would
`one look to, to show the impact of diffuse light on a
`convex surface?
` MR. SMITH: Objection; form.
` MR. LARSON: Let me restate that.
` Q. What source would you look at to, to
`show the impact of a convex surface on diffuse light
`that enters the lens?
` MR. SMITH: Objection; form.
` A. I guess I'm just not sure of my
`source in this context. I can look outside and do
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`experiments. I could look in the library for
`reference materials. I could look for software. I'm
`just not sure what you're -- what "source" means in
`this, in this sentence, in this question.
` Q. A journal article.
` A. I'm sure there are journal articles
`that describe the effect of convex light sources on,
`on -- I'm sorry -- of diffuse light sources and
`optical systems.
` Q. Can you name any?
` A. Off the top of my head, no.
` MR. SMITH: Objection; form.
` Q. Do you cite any in your Declaration?
` A. So most of the references in this
`Declaration are in the context of optical
`physiological sensors of the kind, perhaps, shown by
`the figures that we have in front of us here, where
`there's an object worn on a wrist or on some part of
`the anatomy. Light is directed into and detected on
`the way back out of the tissue.
` I think most of those references and
`the authors and those relying on those materials
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`understand that the light coming back into the sensor
`is coming as if from a diffuse light source. So it
`might be the entirety of the references.
` Q. None of the references you cite in
`your Declarations discuss or explain the impact of a
`convex shape on diffuse light that enters it,
`correct?
` MR. SMITH: Objection; form.
` A. So Inokawa describes the effect of a
`convex lens in the context of the invention disclosed
`in that patent as making it possible to increase the
`light-gathering ability and that, I think, one of
`ordinary skill in the art would understand that you
`could combine that lens-like shape, convex lens-like
`shape shown in Inokawa with Aizawa to increase light
`collection efficiency, which would enhance the
`signal-to-noise ratio and provide more pulse wave
`detection. And that it's based on the effect of
`refraction and concentration of the light coming in
`through the plate after being refracted -- reflected
`by the blood.
` Q. My, my question is different.
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` None of the sources you cite in your
`Declarations discuss or explain this description that
`you're providing regarding the impact of a convex
`lens on diffuse light, correct?
` A. I think it's well known to one of
`ordinary skill in the art that if you consider a
`diffuse light source in a lens, you have to account
`for all the difference rays propagating in all
`different directions and that the effect of the lens
`on all of that is going to be complicated.
` Some rays will be deflected towards
`the center; some deflected towards the edge; some
`deflected horizontally or, you know, left and right,
`not closer to the center or the edge.
` It's -- you have all different angles
`possibly coming into this lens. So it's -- there's
`no simple statement that one can make about the
`effect of the lens on all of light.
` Q. So you're saying that it would be
`well known in one of ordinary skill in the art, but
`you agree with me that none of the sources you cite
`in your Declarations discuss or provide this
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`explanation that you're providing regarding the
`impact of a convex lens on diffuse light, correct?
` A. Correct.
` MR. SMITH: Objection; form.
` A. One of ordinary skill in the art
`would understand that you don't have to go into
`excessive, absolute detail on all the laws of physics
`in these disclosures. They assume their audience is
`of ordinary skill and understands these things and,
`and builds from that.
` Q. So you agree that as a matter of
`basic physics, a person of ordinary skill in the art
`would understand that collimated light that enters a
`convex surface will be directed towards the center,
`correct?
` A. If it's along -- if it's aligned down
`the axis of the, you know, axis of symmetry of the
`lens, as shown in Figure 14 of the '265 patent, then
`that, that will be true. If you bring the light in
`from a different angle, that may not be true. But
`the general orientation of that figure shows the lens
`and the light lined up in a way that would produce a
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`focus.
` Q. And your opinion is that a convex
`lens would impact diffuse light differently than
`collimated light, correct?
` A. Well, each ray of light is, is
`refracted by the lens according to the laws of
`physics, the amount of refraction, the incoming
`angle, the, the refracted angle, all of those things
`are a function of the directions of the light.
` So if collimated light consists of
`light rays all coming in at the same angle aligned
`with the axis of symmetry of the optical system,
`there will be a focus. Diffuse light is comprised of
`light rays coming with in many angles, perhaps all
`angles and each one of those rays is going to be
`refracted in a way consistent with the laws of
`physics, but they are all going to have different
`geometries coming in and going out.
` Q. So in the case of diffuse light
`entering a convex lens, is it possible to describe
`any overall impact the convex lens will have on that
`light?
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` A. I think, as explained in the
`specification, that one of ordinary skill in the art,
`that would understand that the convex lens makes it
`possible to increase the light-gathering ability, and
`that the combination of the lens-like shape of
`Inokawa and Aizawa's acrylic plate would increase
`light collection efficiency, which in turn leads to
`enhanced signal-to-noise ratio and ultimately more
`reliable pulse wave detection. The lens shape
`provides us benefit through refraction and
`concentration of the light coming in through the
`plate after it's reflected by the blood.
` Q. That's the conclusion that you're
`putting forward in your Declaration, I'm trying to
`understand the reasoning behind that conclusion.
` And I'm asking you if you can explain
`to me the overall impact, if any, that a convex lens
`has on diffuse light that enters it.
` MR. SMITH: Objection; form.
` A. So we talked about, we talked about
`this yesterday, kind of around and around, that where
`there's curvature in the lens, as opposed to where
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`there's flat sections, the lens has the effect of
`diffracting -- sorry -- refracting the light. And
`where there's curvature, there is an opportunity for
`diffuse light to be refracted in a way that increases
`the light collection efficiency and thereby improves
`the signal-to-noise ratio at the locations of these
`directors; and that one of ordinary skill in the art,
`would have, I think, general knowledge of the kinds
`of designs and configurations that would produce
`these benefits.
` Q. Yesterday I thought you testifi