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`construction is also consistent with the “bulk temperature” embodiment in the specification,
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`where a thermistor is used “to determine the bulk temperature of LEDs 801 (FIG. 8) mounted on
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`the substrate 1200,” and “[t]he substrate 1200 is configured with arelatively significant thermal
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`mass, which stabilizes and normalizes the bulk temperature so that the thermistor measurement
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`of bulk temperature is meaningful.” Jd. at 10:67-11:4.!°! Complainants’ proposed construction
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`improperly reads out the “thermal mass” from the limitation “bulk temperature for the thermal
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`mass.” This is improper, for the same reasons discussed abovein the context of the construction
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`for “thermal mass,” because it would fail to give meaning to these terms and would be
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`inconsistent with the prosecution history. Complainants’ proposed construction requiring only
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`that the bulk temperature be used to estimate the operating wavelength of all the LEDs would be
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`met by Cheung, which does notinclude a “thermal mass.” See RX-0406at 13:20-32.!°
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`Accordingly, “bulk temperature for the thermal mass”shall be construed to mean a
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`representative temperature for the thermal mass.
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`E.
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`Infringement
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`Complainants allege that the Accused Products infringe claim 9 of the ‘127 patent,
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`relying on the testimony of Mr. Goldberg. CIB at 248-66; CRB at 141-54; Tr. (Goldberg)at
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`612:9-626:16. Apple disputes whether the Accused Products meet the limitations requiring a
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`101 Complainants argue that Apple’s proposed interpretation ofthis limitation would read outthe preferred
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`embodimentin the specification using a single thermistor, CIB at 246-47, but Apple agrees that “a “bulk
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`temperature’ could be measured by a properly positioned single thermistorif the thermal mass were
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`stabilized at the bulk temperature.” RRB at 122.
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`102 Complainants’ proposed construction would also be superfluous, because the subsequent languagein
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`the claim already requires “the operating wavelengths dependent on the bulk temperature.” See JX-007at
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`19:45-49.
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`“thermal mass” and a temperature sensor“capable of determining a bulk temperature for the
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`thermal mass,” relying on the testimony of Dr. Sarrafzadeh. RIB at 209-24; RRB at 114-30; Tr.
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`(Sarrafzadeh) at 1064:8-1084:5. For the reasons discussed below, the undersigned finds that the
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`Accused Products have not been shown to infringe claim 9 of the ’127 patent by a preponderance
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`of the evidence.
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`1.
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`Element [7 preamble]: “physiological sensor”
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`There is no dispute that the Accused Products meetthe limitations of the preamble of
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`claim 7, describing “[a] physiological sensor capable of emitting light into tissue and producing
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`an output signal usable to determine one or more physiological parametersof a patient.”!
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`Complainants identify evidence that the Accused Products have LEDs capable of emitting light
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`to a user’s wrist that is reflected back to photodiodes and used to determine blood oxygenlevels.
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`CIB at 254; Tr. (Goldberg) at 616:4-16; CDX-0013C.007; CX-1724 at 3. Accordingly, the
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`evidence showsthat the Accused Products have physiological sensors that meet the preamble
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`limitations of claim 7.
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`2.
`Element [7A]: “a thermal mass”
`Mr. Goldberg identifiedBS. of a printed circuit board
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`(“PCB”) in the Accused Products, which Complainants identify as the claimed “thermal mass.”
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`CIB at 254-58; Tr. (Goldberg) at 617:9-618:21. Mr. Goldbergidentified
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`I© 1.01012) 21617921.
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`103 The parties have stipulated that the preamblesof the asserted patents are limiting. See Joint
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`Stipulation of Facts § 9, EDIS Doc. ID 770692 (May 13, 2022).
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`CDX-0013C.008(citing CX-0193C). Hefurtheridentified(a
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`GM.” Tr. Goldberg) at 617:9-21.
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`CDX-0013C.008 (citing CX-0195C). Mr. Goldberg performedtests confirming that the=
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`|= in the Accused Products are coupled to each other and to the LEDs and a thermistor. Tr.
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`(Goldberg) at 20:17-021:15; CDX-0013C.013 (citing CX-0839C; CX-0840C).
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`Mr. Goldberg further identified an Apple document describing aae
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`I 1ce) 622:1-18
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`CDX-0013C.015 (citing CX-0012Cat 22). He cites anotheriis
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`explaining “that there’s a balance in the thermal properties ofthe printed circuit board that needs
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`to be maintained in order for such formulations to work.” Tr. (Goldberg) at 622:22-623:7; CDX-
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`0013C.016 (citing CX-0011C at 23). Complainants note that in this document, Apple uses the
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`term “thermal mass.” CX-0011C at 23. Mr. Goldberg recognized that the Accused Products use
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`a single thermistor to measure the temperature of the PCB, and “the thermal mass is configured
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`in a mannerthat the thermal coupling between the LEDsand the thermistor are such that the bulk
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`temperature as measured by the thermistor is meaningful, and that meaningfulness has to do with
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`being able to use that bulk temperature to determine the operating wavelengths.” Tr. (Goldberg)
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`at 624°725, Complainants orev(ht
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`I 12101s {01c easementof
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`a single temperature that can be usedto reliably estimate the wavelengths of the plurality of
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`LEDs. CRB at 141-43, 147-48.
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`Apple argues that Mr. Goldberg failed to show that the Accused Products have the
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`accused “thermal mass.” RIB at 218-19. Apple cites testimony from named inventor Mohamed
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`Diab, who agreed that “some form of experiment” would be necessary to determine whether an
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`object stabilizes temperatures in accordance with the invention. See Tr. (Diab) at 238:15-19.
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`Apple argues that Mr. Goldberg only performed tests regarding thermal conductivity, which are
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`not sufficient to show temperature stabilization. See Tr. (Sarrafzadeh) at 1070:22-1071:5,
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`1080:11-1081:18; RDX-7.70. Apple submits that Complainants have failed to articulate what
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`thermal properties would be sufficient to establish that a “thermal mass”stabilizes a bulk
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`temperature. RRB at 123-24. With respect to the use of the term “thermal mass” in an Apple
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`presentation, Dr. Mannheimerexplained that the term referred to a physical property related to
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`an object’s heat capacity, and not to the “thermal mass” referenced in the ’127 patent. CX-
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`0289C (MannheimerDep. Tr.) at 148:8-156:1; see also CX-0291C (Mehra Dep.Tr.) at 180:8-
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`182:17 (‘I don’t know whatthat refers to”); Tr. (Sarrafzadeh) at 1071:13-1072:7 (“the thermal
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`masshere is not the thermal mass ofthe patent”).Sse
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`ae (Sarrafzadeh) at 1074:8-1078:22; RDX-7.65C; RDX-7.66C.
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`CX-0322b-C.0010.
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`Apple also argues that he iii in the PCB of the Accused Products do not
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`comprise a “thermal mass” becauseae to stabilize a bulk temperature. RIB at 215-
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`19. Apple relies on the testimonyof one of its engineers, Saahil Mehra, whotestified that the
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`I | 1; (Serratzadeh) at 1065:16-1066:9: RDX-
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`7.49. Dr. Sarrafzadeh compared the thickness of the= in the Accused Products with
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`the thickness of Masimo’s early rainbow®sensors, finding that the “rainbowsensorthicknessis
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`than the Accused Products. Tr. (Sarrafzadeh) at 106:10-21;
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`RDX-7.51C. Dr. Sarrafzadeh submits that because the Accused Products have more LEDsthan
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`the rainbow sensors, thicker layers would likely be needed to provide the same level of thermal
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`stability. Tr. (Sarrafzadeh) at 1067:4-13. He relied on testimony from Masimo engineers
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`discussing the thickness of the rambow sensorboards to support his opinion. Jd. at 1068:14-25.
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`Apple cites the testimony of Mr. Diab, who was asked whether Masimo designed the rainbow
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`sensorcircuit boards to be “as thin as possible.” RX-1200C (Diab Dep. Tr.) at 108:12-15. At
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`the hearing, Mr. Diabtestified that whether a mass of=z is sufficient to stabilize a bulk
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`temperature depends on “how muchheat you are pumpinginto the sensor, and that[] typically
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`has to do with the number of LEDs.” Tr. (Diab) at 238:9-14.
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`In consideration of the parties’ arguments, the undersigned finds that Complainants have
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`not shown, by a preponderanceof the evidence, thai in the PCB of the Accused
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`Products meetthe “thermal mass” limitation. As discussed above, “thermal mass” has been
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`construed to mean a massthat stabilizes a bulk temperature. Complainants have failed to show
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`temperature stabilization in the Accused Products.EEE5)
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`Complainants disagree with Dr. Sarrafzadeh’s opinion regarding temperature stabilization, but
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`they rely only on attomey argumentto characterizebn|See
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`Mr. Goldberg admitted that he “did not do any tests that address stabilization or
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`normalization.” Tr. (Goldberg) at 649:4-11; see also id. at 618:1-21 (disagreeing with Apple’s
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`understanding that stabilization and normalization were required fora “thermal mass.”).
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`Complainants rely on the fact the Accused Products use a single temperature sensorto determine
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`the wavelengths of the LEDs but as discussed abovein the context of claim construction,this is
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`insufficient to prove the existence of a “thermal mass”—during prosecution, for example, the
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`examiner recognized that the Cheung prior art estimated such wavelengths without a “thermal
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`mass.” See JX-008 at 363; RX-0406 at 13:20-32. Complainants have failed to present any
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`affirmative evidence of temperature stabilization, and accordingly, they have not met their
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`burden to show that the Accused Products contain a “thermal mass.”!™
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`104 Complainants also acknowledgethat the presence of metallized layers does not show the existence of
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`a thermal mass. See CRB at 162 (rejecting argumentthat “anymetallized layers in a PCB can be a
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`There is further evidence in the record to support a finding of non-infringement with
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`respect to the “thermal mass”limitation. Dr. Mehra testified tha ofthe PCB in
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`the AccusedPos
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`«1x. (Sarrafzadeh)at 1065:15-1066:21; RDX-7.49C; RX-0087C; RX-
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`0338C.'!° A preponderance of the evidence does not support a finding that the Accused
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`Products meet the “thermal mass”limitation.
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`With respect to the “plurality of light emitting sources” limitation, Mr. Goldberg
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`the PCB with thermally conductive epoxy. Tr. (Goldberg) at 618:22-619:9; CDX-0013C.09
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`(citing CX-0057C; CX-0025C; CX-0198C at 17-18; CX-0199C). Mr. Goldberg further
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`620:17-621:15; CDX-0013C.013 (citing CX-0839C; CX-0840C). Apple only disputes
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`infringement with respect to the “thermal mass” within this limitation. See CIB at 258-59; RIB
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`at 215-19. Accordingly, the evidence showsthat the “plurality of light emitting sources”
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`limitation is met by the Accused Products.
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`105 Apple argues that the rainbow® sensors were designedto be
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`the testimony of Mohamed Diab whostatedat his deposition: “I t
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`. RRB at 126-27,citing
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`Element[7C]: “the sources having a correspondingplurality of
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`identified red, green, and infrared LEDsin the Accused Products. Tr. (Goldberg) at 619:10-17;
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`CDX-0013C.010 (citing CX-0057C; CX-0025C). There is no dispute with respectto this
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`limitation. See CIB at 259. Accordingly, the evidence showsthat the “plurality of operating
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`wavelengths”limitation is met by the Accused Products.
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`Element[7D]: “the thermal mass disposed within the substrate”
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`With respect to the “thermal mass disposed within the substrate” limitation, Mr. Goldberg
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`identified thea within the PCB substrate ofthe Accused Products. Tr. (Goldberg)at
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`619:18-620:3; CDX-0013C.011 (citing CX-0105C; CX-0193C). Apple does not dispute that the
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`not shown that these layers comprise a “thermal mass.” See CIB at 260-61; RIB at 215-19.
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`Accordingly, the evidence showsthat the “disposed within the substrate” limitation is met by the
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`Accused Products, but Complainants have not shownthat the Accused Products have a “thermal
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`Element [7E]: “a temperature sensor thermally coupled to the
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`limitation, Mr. Goldberg identified a thermistor near the center of the sensor board of the
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`Accused Products. Tr. (Goldberg) at 620:4-16; CDX-0013C.012 (citing CX-0057C; CX-
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`comprise a “thermal mass,” although Apple does not dispute that the thermistoris thermally
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`coupled to hei. See CIB at 261-62; RIB at 215-19. Accordingly, the evidence
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`showsthat the “temperature sensor” limitation is met by the Accused Products, but Complainants
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`have not shown that the Accused Products have a “thermal mass.”
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`Element [7F]: the temperature sensor “capable of determining a bulk
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`temperature for the thermal mass, the operating wavelengths
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`dependent on the bulk temperature”
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`With respect to the “bulk temperature”limitation, Complainants identify the temperature
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`measured by the thermistor in the Accused Products. CIB at 262-65. eee)
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`Complainants argue that the=—=
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`measured by the thermistoris the claimed “bulk temperature,” becauseit is a single temperature
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`for the thermal massthat is used to estimate the wavelengths of the LEDs. CIB at 262-65: CRB
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`at 149-54.
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`In consideration of the parties’ arguments, the undersigned finds that Complainants have
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`not shown, by a preponderance of the evidence, that the thermistor in the Accused Products
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`determines a “bulk temperature for the thermal mass.” As discussed abovein the context of
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`claim construction, the claimed “bulk temperature” must be a representative temperature for the
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`thermal mass. Complainants have not shown, however, that the Accused Products have a
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`Complainants disagree with
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`Dr. Sarrafzadeh’s conclusion, arguing that the observed temperature variationis “remarkably
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`uniform” and “very stable.” CRB at 145-46. But Complainants’ contentions are only attorney
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`argument, without any expert testimony. See RRB at 128-29. Apple documents contradict
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`” RX-0093C.0009-10.
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`Mr. Goldberg admitted that he did not perform any tests to show whethera thermal mass
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`stabilizes or normalizes a bulk temperature in the Accused Products. Tr. (Goldberg) at 649:4-11.
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`His infringement analysis instead relied on the fact that the “temperature as measured by the
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`thermistor is meaningful, and that meaningfulness has to do with being able to use that bulk
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`temperature to determine the operating wavelengths.” Tr. (Goldberg) at 624:7-25. This
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`evidence may indicate that the temperature sensor in the Accused Products measures a
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`representative temperature for the LEDs, but it does not show a representative temperature for
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`the “thermal mass.” As discussed above in the context of the “thermal mass” limitation, the fact
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`that a temperature is used to determine the operating wavelengths of LEDs1s insufficient to
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`prove that the temperature is “a bulk temperature for the thermal mass.” The determination of
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`operating wavelengthsis a separate requirementofthis limitation,!°° and the examiner
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`recognized that calculation of wavelengths using a representative temperature was known in the
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`priorart. See JX-008 at 338 (MASITC_00077663), 363 (MASITC_00077988); RX-04.06at
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`13:20-32. Accordingly, in addition to the failure to show that the Accused Products have a
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`“thermal mass,” Complainants have failed to show by a preponderanceof the evidence that the
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`temperature measured by the thermistoris a “bulk temperature for the thermal mass.
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`Element [7G]: “a detector capable of detecting light emitted by the
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`light emitting sources after tissue attenuation”
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`Withrespect to the “detector” limitation, Mr. Goldberg identified four photodiodes in the
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`Accused Products. Tr. (Goldberg) at 625:1-9; CDX-0013C.018 (citing CX-0057C; CX-0025C).
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`107 Apple separately arguesin its post-hearing briefs ~a
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`“bulk temperature.” RIB at 224; RRB at 129-30. This non-infringement argument wasnotraised in
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`Apple’s pre-hearing brief, however, and accordingly, it has been waived pursuant to Ground Rule 9.2.
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`See CRB at 153-54.
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`Complainants further cite the testimony of Apple witnesses confirming that the photodiodes in
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`the Accused Products detect light that is emitted by the LEDs and attenuated by the user’stissue.
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`See, e.g., CX-0281C (Block Dep. Tr.) at 86:17-87:14; CX-0289C (Mannheimer Dep.Tr.) at
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`133:2-134:12. There is no dispute with respectto this limitation. See CIB at 265; RIB at 215-
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`19. Accordingly, the evidence showsthat the “detector” limitation is met by the Accused
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`9.
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`Element [7H]: “wherein the detector is capable of outputting a signal
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`usable to determine one or more physiological parameters of a patient
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`based upon the operating wavelengths”
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`With respect to the “outputting a signal”limitation, Mr. Goldberg identified “PPG
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`signals” described in Apple documents corresponding to the output of the photodiodes, which are
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`used to determine blood oxygen saturation in combination with the wavelength estimates for the
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`LEDs. Tr. (Goldberg) at 625:10-25; CDX-0013C.019 (citing CX-0100C at 5-8; CX-0012C at
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`21). Complainants further cite the testimony of Apple witnesses confirming that signals from the
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`photodiodesare used to determine blood oxygen saturation. See, e.g., CX-0281C (Block Dep.
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`Tr.) at 72:10-73:7; CX-0289C (Mannheimer Dep.Tr.) at 134:14-138:1. There is no dispute with
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`respect to this limitation. See CIB at 266; RIB at 215-19. Accordingly, the evidence showsthat
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`the “outputting a signal” limitation is met by the Accused Products.
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`Element [9]: “a thermistor”
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`Claim 9 further requires that the “temperature sensor” of claim 7 is a thermistor. As
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`discussed above in the context of the “temperature sensor”limitation, there is no dispute that the
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`Accused Products have a temperature sensorthat is a thermistor. See Tr. (Goldberg) at 626:3-16;
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`CDX-0013C.020 (citing CX-0057Cat 1-2; CX-0025C at 31). Accordingly, the evidence shows
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`that the “thermistor” limitation of claim 9 is met by the Accused Products.
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`Asdiscussed above, because Complainants have not shown by a preponderance of the
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`evidence that the “thermal mass” and “bulk temperature for the thermal mass”limitations of
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`claim 7 are met by the Accused Products, the undersigned finds that the Accused Products have
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`not been shown to infringe claim 9 of the ’127 patent.
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`Complainants allege that Masimo’s rainbow® sensors practice claim 9 of the ’127 patent,
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`relying on the testimony of Mr. Diab and Mr. Goldberg. CIB at 266-74; CRB at 154-60; see Tr.
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`(Diab) at 216:15-226:19; Tr. (Goldberg) at 627:3-635:11. Apple disputes whether the rainbow®
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`sensors meetthe limitations requiring a “thermal mass” and a temperature sensor “capable of
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`determining a bulk temperature for the thermal mass,” relying on the testimony of
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`Dr. Sarrafzadeh. RIB at 224-32; RRB at 130-36; Tr. (Sarrafzadeh) at 1084:6-1087:12. For the
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`reasons discussed below, the undersigned finds that only some of Masimo’s rainbow® sensors
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`have been shown to practice claim 9 of the ’127 patent.
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`Mr. Diab explained that there are two different LED assemblies used in Masimo’s
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`substrate, and current rainbow® sensors use aa. Tr. (Diab) at 216:15-219:5; see
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`Tr. (Goldberg) at 627:4-13; CDX-0013C.021.Apple argues that Complainants have failed to
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`identify the Masimo rainbow® sensors by product number and havefailed to specify which
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`products are “early” or “current” rainbow® sensors. RIB at 224-24; RRB at 130-31.
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`Complainants submit that the ranbow® sensors have been identified on a sales spreadsheet.
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`CRB at 9; CX-0649C. Complainants contendthat “pre-2009 sales are for early rainbow®
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`sensors and later sales are for current rainbow® sensors,”citing the testimony of Mr. Diab. CRB
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`at 10 (citing Tr. (Diab) at 216:15-218:1, 220:4-221:10). Mr. Diab testified at the hearing: “My
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`understandingis that . .. we have switched to i iii” in around 2009.” Tr. (Diab)
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`at 233:16-20. Masimo’ssales spreadsheet (CX-0649C) showscontinuous sales of rainbow®
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`sensors from 2008 through 2012, with no indication of distinct product numbers for early
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`rainbow® sensors and current rainbow® sensors. See CX-0649C. The undersigned agrees with
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`Apple that the record lacks any straightforward identification of Masimo’s rainbow® sensors,
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`but the sales data, as explained by Mr. Diab’s testimony, is sufficient to infer that the design of
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`Masimo’s rainbow® sensors was changed in 2009 such that “early” rainbow® sensors before
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`2009 were comprised ofa. but all of the rainbow® sensors made and sold after 2009
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`are “current” rainbow® sensors with aana
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`2;
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`Element [7 preamble]: “physiological sensor”
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`There is no dispute that the early and current rainbow® sensors meetthe limitations in
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`the preamble of claim 7, describing “[a] physiological sensor capable of emitting lightinto tissue
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`and producing an outputsignal usable to determine one or more physiological parameters of a
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`patient.” See CIB at 266-67.'% Mr. Goldberg identified evidence that the rainbow® sensors
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`contain a photodetector that detects light emitted by LEDs and producesa signalthat is used to
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`determine “patient measurement values.” Tr. (Goldberg) at 627:14-22; CDX-0013C.022 (citing
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`CX-0430C at 5). Accordingly, the evidence showsthat the preamble limitations of claim 7 are
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`met by each of the rainbow®sensors.
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`108 The parties have stipulated that the preamblesof the asserted patent claims are limiting. See Joint
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`Stipulation of Facts § 9, EDIS Doc. ID 770692 (May 13, 2022).
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`Element [7A]: “a thermal mass”
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`With respect to the “thermal mass” limitation, Complainants rely on different structures
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`in the current rainbow®sensors and the early rainbow® sensors. CIB at 267-69. Mr. Diab
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`described 1iii material that is used in the substrate of the current rainbow®
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`sensors, “because it has very good heat conduction.” Tr. (Diab) at 220:4-222:1 (citing CX-
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`0454C; CX-0589C). Mr. Goldberg identified thisiii as the claimed “thermal
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`mass”in the current rainbow® sensors, relying on Masimo documents and Mr. Diab’s testimony.
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`Tr. (Goldberg) at 627:23-628:24; CDX-0013C.023 (citing CX-0590C; CX-135C at 81, 98).
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`With respect to the early rainbow® sensors, Mr. Diab identifiedll
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`a. which are “connected with .
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`conduction throughout the system.” Tr. (Diab) at 216:15-219:5 (citing CX-0397C; CX-0588C).
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`Mr. Goldberg identified—_—____a as the claimed “thermal mass”in the
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`early rainbow® sensors. Tr. (Goldberg) at 628:25-629:18; CDX-0013C.024 (citing CX-0588C).
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`Apple argues that Complainants have failed to show that the rambow® sensors have a
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`“thermal mass.” RIB at 226-29, 230-32. Apple submits that Complainants failed to provide any
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`analysis of the thermal properties of the substrate in the current rainbow®sensorsorthe early
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`rainbow® sensors. Jd. at 226-279, 230-32 see Tr. (Sarrafzadeh) at 1084:22-1085:11 (noting the
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`Mr. Goldberg “did not do any simulation or any other analysis”). Apple contrasts the lack of
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`analysis for the current rainbow® sensors with Mr. Diab’s extensive testing and simulation in the
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`developmentof the early rainbow® sensors. RIB at 227-29. Apple further argues that
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`Mr. Goldberg did not rely on any of Mr. Diab’s testing and simulation for his opinions. RRB at
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`131-35.
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`In consideration of the parties’ arguments, the undersigned finds that Complainants have
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`shown by a preponderanceof the evidence that the early rainbow® sensors had a “thermal
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`mass,” but Complainants have failed to show that the current rainbow® sensors meetthis
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`limitation. Although Mr. Goldberg’s testimony onthis limitation did not rely on testing or
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`detailed analysis of the substrates in the rambow® sensors, his testimony is supported by other
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