3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 1
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________________________
` APPLE, INC., )
`)
`Petitioner, )
`) IPR 2022-01465
`-against- ) IPR 2022-01291
`)
` MASIMO CORPORATION, )
`)
`Patent Owner. )
`___________________________________)
`
`VIDEO-RECORDED DEPOSITION OF
`BRIAN W. ANTHONY PH.D.
`Zoom Recorded Videoconference
`03/24/2023
`11:14 a.m. (EDT)
`
` REPORTED BY: AMANDA GORRONO, CLR
`
`________________________________________________
`DIGITAL EVIDENCE GROUP
`1730 M Street, NW, Suite 812
`Washington, D.C. 20036
`(202) 232-0646
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 1
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________________________
` APPLE, INC., )
`)
`Petitioner, )
`) IPR 2022-01465
`-against- ) IPR 2022-01291
`)
` MASIMO CORPORATION, )
`)
`Patent Owner. )
`___________________________________)
`
`VIDEO-RECORDED DEPOSITION OF
`BRIAN W. ANTHONY PH.D.
`Zoom Recorded Videoconference
`03/24/2023
`11:14 a.m. (EDT)
`
` REPORTED BY: AMANDA GORRONO, CLR
`
`________________________________________________
`DIGITAL EVIDENCE GROUP
`1730 M Street, NW, Suite 812
`Washington, D.C. 20036
`(202) 232-0646
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 2
`
` 03/24/2023
` 11:14 a.m. (EDT)
`
` VIDEO-RECORDED DEPOSITION OF BRIAN W. ANTHONY
`PH.D., held virtually via Zoom Videoconferencing,
`before Amanda Gorrono, Certified Live Note
`Reporter, and Notary Public of the State of New
`York.
`
`1
`2
`
`3 4
`
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 3
`
`A P P E A R A N C E S
`
`ON BEHALF OF PETITIONER APPLE INC.:
` Dan Smith, Esquire
` Fish & Richardson P.C.
` 1717 Main Street
` Suite 5000
` Dallas, TX 75201
` PHONE: 214-292-4071
` E-MAIL: Dsmith@fr.com
` - AND -
` Kim Leung, Esquire
` Fish & Richardson P.C.
` 12860 El Camino Real
` Suite 400
` San Diego, CA 92130
` PHONE: 858-678-4713
` E-MAIL: Leung@fr.com
`ON BEHALF OF PATENT OWNER MASIMO CORPORATION:
` Daniel Kiang, Esquire
` Knobbe Martens
` 2040 Main Street
` Irvine, CA 92614
` PHONE: 949-760-0404
` E-MAIL: Daniel.kiang@knobbe.com
` -AND-
` Jeremiah S. Helm, Ph.D., Esquire
` Knobbe Martens
` 2040 Main Street
` Irvine, CA 92614
` PHONE: 949-760-0404
` E-MAIL: Jeremiah.helm@knobbe.com
`
`ALSO PRESENT:
`
`1
`
`23
`
`4
`5
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`13
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 4
`
`Evidence Group
` I N D E X
`WITNESS EXAMINATION BY PAGE
`BRIAN W. ANTHONY PH.D. MR. KIANG 6
`
` E X H I B I T S
`EXHIBIT DESCRIPTION PAGE
`Exhibit 1 Excerpt of Anthony Declaration
` regarding '994 Patent.................. 27
`Exhibit 2 U.S. Patent 9,392,946-Sarantos......... 32
`Exhibit 3 IPR1291 Anthony Declaration............ 54
`Exhibit 1001 US Patent 10,698,745................... 57
`Exhibit 1003 Declaration of Dr. Brian W. Anthony,
` Ph.D................................... 208
`Exhibit 1004 U.S. Patent 8,670,819-Iwamiya.......... 155
`Exhibit 1005 U.S. Patent 9,392,946-Sarantos......... 136
`Exhibit 1007 US Patent 6,483,976.................... 186
`Exhibit 1022 Methods and Approaches of Future
` Studies article........................ 235
`Exhibit 2052 Respondent Apple Inc.'s Corrected
` Pre-Hearing Brief...................... 79
`
`
`1
`2
`3
`4
`
`5 6
`
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` THE TECH: We are on the record.
` This is the remote video deposition of
` Dr. Brian W. Anthony in the matter of Apple
` Inc. versus Masimo Corporation in the United
` States Patent and Trademark Office before the
` Patent Trial and Appeal Board.
` My name is Billy Fahnert. I am the
` video technician today. The court reporter
` is Amanda Gorrono. We are here on behalf of
` Digital Evidence Group.
` Today's date is March 24, 2023. The
` time is 11:14 a.m., Eastern Daylight Time.
` All parties have stipulated to the
` witness being sworn in remotely.
` Will counsel please identify
` yourselves for the record and then the
` witness will be sworn in.
` MR. KIANG: Thank you.
` This is Daniel Kiang from Knobbe
` Martens on behalf of the Patent Owner, Masimo
` Corporation. And with me today is also
` Jeremiah Helm also from Knobbe Martens.
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 6
` MR. SMITH: And this is Dan Smith
` for Petitioner, Apple, from Fish &
` Richardson. And with me, also, is Kim Leung
` also from Fish & Richardson.
` BRIAN W. ANTHONY 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:
` THE WITNESS: I do.
` EXAMINATION
` BY MR. KIANG:
` Q. All right. Good morning,
` Dr. Anthony.
` A. Good morning.
` Q. Could you please state your full
` name for the record, please?
` A. Brian W. Anthony.
` And, Daniel, just noting your audio
` seems a little bit muffled. I'm not sure if it's
` me or --
` Q. Am I just -- do I need to enunciate
` more clearly?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 7
` A. Yeah, that would be good. I think
` that was a little better.
` Q. Sorry about that.
` Dr. Anthony, you've been deposed
` before, right?
` A. Yes.
` Q. Many times?
` A. Several.
` Q. Okay. And you've been deposed
` before in IPRs that Apple has filed against
` Masimo; is that correct?
` A. Correct.
` Q. Is there any reason why you would
` not be able to provide truthful and accurate
` testimony today?
` A. No.
` Q. Are you taking any food, drink or
` medications that could affect your ability to
` provide truthful and/or accurate testimony today?
` A. No.
` Q. Do you have any notes with you?
` A. No.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 8
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Do you have any methods of
`Q.
` communication other than this videoconference?
`A.
`No.
`Q.
`And I understand that counsel has
` provided you with some clean copies of documents
` from the IPR record; is that correct?
`A.
`Correct.
`Q.
`There's no notes on those?
`A.
`No, there's not.
`Q.
`Okay. I'll ask you a few questions
` today -- many questions really. Please wait
` until I've completed the question before
` answering. If you don't understand a question or
` if you didn't hear what I said clearly, please
` let me know and I'll try to rephrase or restate
` the question. If you don't ask me to clarify, I
` will assume that you understood the question.
`Is that fair?
`Yes.
`A.
`And also, we can take a break at any
`Q.
` time today. But I ask that if there is a
` question pending that you please answer the
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` question first before we take a break.
`Is that fair?
`Yes.
`A.
`And you understand that you're being
`Q.
` deposed today in connection with two Declarations
` that you filed; is that correct?
`A.
`Yes.
`Q.
`And that's one Declaration for the
` IPR, IPR No. IPR2022-01291 and another one for
` IPR2022-01465; is that right?
`A.
`I would have to confirm on the
` numbers but that sounds right.
`Q.
`Okay. And you understand that these
` are in connection -- that these IPRs are in
` connection with the '745 patent; is that right?
`A.
`Correct. Yes.
`Q.
`And I'll get the full number of the
` that patent actually.
`Do you understand the '745 patent to
` be Patent No. 10,687,745?
`A.
`Correct.
`Q.
`Dr. Anthony, do you understand what
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` pulse oximetry is?
`MR. SMITH: Objection; form.
`As I described in my Declaration,
`A.
` it's one of multiple physiological signals.
` BY MR. KIANG:
`Q.
`And do you agree that pulse oximetry
` is a method of non-invasively measuring blood
` oxygen saturation using light?
`A.
`It is one of multiple physiological
` monitors can be measured using light.
`Q.
`And pulse oximetry is a non-invasive
` method of measuring blood oxygen saturation; is
` that correct?
`A.
`I'm sorry. Please, can you repeat
`
` that?
`
`I -- I -- again, from -- I'm not
` sure if it's just me, but I might try to put in
` different headphones. I don't have my other
` headphones. Give me one second. I'm going to
` put my earbuds in.
`Q.
`Okay. Can you hear me?
`A.
`Are you able to hear me? Testing.
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 11
` Q. I can hear you. Can you hear me?
` A. Okay. I think that'd be better.
` Q. Okay. So I'll just repeat the
` question.
` Pulse oximetry is a non-invasive
` method of measuring blood oxygen saturation; is
` that correct?
` A. Correct. As I describe in my
` Declaration, it's one of multiple ways that --
` multiple physiological signals you can use
` measuring light in a non-invasive way.
` Q. And do you agree that a device that
` performs pulse oximetry is called a pulse
` oximeter?
` A. Are you referring to a particular
` place in my Declaration where I'm sort of there's
` some ambiguity in -- in what I'm describing?
` Q. No. I just want to make sure we
` have a correct understanding between ourselves as
` to any terms I'm using today.
` A. Well, I didn't feel that it was
` necessary to -- necessary to define any terms
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 12
` other than their plain and ordinary meaning as I
` described in the Declaration, so picking them out
` of the Declaration is sort of what I was trying
` to understand where you were reading from or
` pointing to.
` Q. Well, you know what a pulse oximeter
` is, correct?
` A. Correct.
` Q. And that's a device that does pulse
` oximetry?
` A. That can measure pulse ox signals,
` correct.
` Q. Okay. And do you understand the
` term "SpO2" to refer to a measurement of oxygen
` saturation by a pulse oximeter?
` MR. SMITH: Objection; form.
` A. Pulse ox SpO2, multiple types of
` physiological signals that can be measured
` non-invasively.
` Q. Do you know what heart rate is?
` A. Do I know what heart rate is?
` Q. Yes.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 13
` A. It's a physiological signal related
` to the rate of the heart.
` Q. And do you know what a pulse rate --
` pulse wave is?
` A. It is one of many of the vital
` signs -- it's physiological signals that you can
` measure from a -- from the person.
` Q. Can you describe what a pulse wave
` is?
` MR. SMITH: Objection; form.
` A. Its plain and ordinary use as
` described in my Declaration is -- you know, it's
` a vital sign, amongst many, that can be monitored
` non-invasively.
` BY MR. KIANG:
` Q. Well, where do you say that in your
` Declaration?
` A. Can you please repeat the question?
` Q. Let me rephrase.
` I understand you said that a pulse
` wave is a vital sign that can be monitored
` non-invasively. Can you describe what a pulse
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 14
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` wave is?
` A. It was not necessary to construe
` specific terms here as you're narrowing in on
` them. As I've described in my Declaration, there
` are many types of vital signs and signals that
` can be monitored from a wearable physiological
` monitor as I described in my Declaration.
` Q. I just want to understand what you
` think a pulse wave is.
` Could you please describe that?
` MR. SMITH: Objection; form.
` A. Did not need -- I did not feel I
` needed to explicitly describe or define its plain
` and ordinary use is used in -- throughout the
` Declaration and used throughout the references
` that I cite.
` BY MR. KIANG:
` Q. So we talked about a heart rate --
` heart rate, pulse wave, and oxygen saturation.
` Do you agree that -- that heart rate
` is different from oxygen saturation?
` A. Do I agree that heart rate is
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 15
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` different than?
` Q. Oxygen saturation.
` A. Heart rate is a rate and saturation
` is a saturation.
` Q. So they are not the same measurement
` set, right?
` A. Again, they are both physiological
` monitor -- physiological signals are signals that
` can be monitored from the person. It was not
` necessarily construed specifically to a
` definition of heart rate or a definition of
` saturation, you know, for --
` Q. You haven't answered my question.
` Is a heart rate --
` MR. SMITH: Objection; form.
` BY MR. KIANG:
` Q. -- different than oxygen saturation?
` MR. SMITH: Objection; form.
` A. As I described, I answered heart
` rate is a rate and saturation is a saturation.
` They are different words, different things, but
` related in that they are physiological signals
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 16
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` that can be used -- monitored from the body.
` BY MR. KIANG:
` Q. And is a pulse wave a different
` measurement than oxygen saturation?
` MR. SMITH: Objection; form.
` A. As with any of these signals, you're
` asking them in isolation in context, they are
` multiple signals that can be taken from the body.
` They are related in ways. They are different in
` ways, but they are all physiological signals that
` come from the body.
` BY MR. KIANG:
` Q. I'm not asking whether they're both
` physiological signals. I'm asking: Is a pulse
` wave a different measurement than an oxygen
` saturation measurement?
` MR. SMITH: Objection; form.
` Argumentative.
` A. I didn't feel it was necessary to
` call out the specific individual definitions or
` construe these terms in isolation. Their plain
` and ordinary meaning is well understood by a
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 17
` POSITA in the context of the art and -- that I
` cite.
` BY MR. KIANG:
` Q. So sitting here today, can you tell
` me, yes or no, whether a pulse wave is a
` different measurement than oxygen saturation?
` MR. SMITH: Objection; form.
` Argumentative.
` A. A pulse wave is a pulse wave and a
` saturation is a saturation. It's, as I've
` described, not necessary to construe their --
` their definitions in any other way than their
` plain and ordinary meaning.
` BY MR. KIANG:
` Q. So you applied the plain and
` ordinary meaning of a pulse wave in your
` analysis; is that correct?
` A. Correct.
` Q. So what was that plain and ordinary
` meaning?
` A. So as I describe on Page 11, for
` example, of my first Declaration, the one
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 18
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` that's -- let me see. Where are the numbers
` here? The shorter one, I guess, on Page 11,
` "...for the purposes of my analysis...the terms
` appearing in the patent claims should generally
` be interpreted according to their 'ordinary and
` customary meaning.'"
` And I understand that the ordinary
` and customary meaning of a claim term is the
` meaning that term would have to a person of
` ordinary skill in the art in question at the time
` of the invention.
` Q. Okay. I see that you're reading
` from a recitation of the case Phillips v. AWH
` Corporation. I don't think that was what my
` question was.
` My question was: What was the plain
` and ordinary meaning of the pulse wave that you
` used in your analysis?
` MR. SMITH: Objection; form.
` A. The plain and ordinary meaning is in
` the context of the use as a -- one of multiple
` physiological signals that can be obtained from
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` wearable physiological monitors. It was not
` necessary to construe a specific definition as
` I -- as I comment in Paragraph 28 of my
` Declaration.
` BY MR. KIANG:
` Q. Now, you also -- you applied a plain
` and ordinary meaning of oxygen saturation in your
` analysis; is that correct?
` A. As I say in Paragraph 28, I apply
` a -- "...the terms appearing in the patent claims
` should generally be interpreted according to
` their 'ordinary and customary meaning.'"
` Q. Now, is the plain and ordinary
` meaning of a pulse wave the same as the plain and
` ordinary meaning of oxygen saturation?
` A. I believe I already answered that.
` One is a wave and one is a saturation.
` Saturations can be wave -- can sort of oscillate
` over time. But again, it wasn't -- you know,
` you're asking me to construe a definition here
` where it was not asserted to do so.
` Q. You're saying that an oxygen
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 20
` saturation can be a wave. Is that what you're
` saying?
` MR. SMITH: Objection; form.
` A. I am not saying that.
` BY MR. KIANG:
` Q. Then what did you mean?
` A. What did I mean? Please clarify.
` Q. I believe you said -- I'm trying to
` quote from the realtime transcript here. I
` believe I already answered that one is a wave and
` one is a saturation. Saturations can be wave --
` sort of oscillate over time.
` So what did you mean by that,
` saturation can be oscillated over time?
` A. What I generally meant is the
` signals that come from a body can change over
` time. They can be periodic. They can be
` transient, but they can change over time.
` Q. So if I asked a person of ordinary
` skill to measure a pulse wave, would they
` understand me as asking them to measure an oxygen
` saturation?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 21
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` A. It was not, again, necessary to
` construe that particular question in forming my
` opinions here. A person skilled in the art would
` understand what you're asking in the context
` of -- of the -- the art described.
` Q. And you've been providing your
` opinions as to what a person of skill in the art
` would understand; is that correct?
` A. Correct.
` Q. So what would a person of ordinary
` skill understand? Is a pulse wave the same thing
` as an oxygen saturation?
` A. Again, they would -- these terms
` would be interpreted according to their -- their
` plain -- ordinary and customary meaning.
` Q. I'm not asking you about the law on
` claim construction. I'm asking you: Would a
` person of ordinary skill understand a pulse wave
` to be the same thing as oxygen saturation?
` MR. SMITH: Objection to form.
` A. Again, it was not necessarily
` construed specific terms. The person of ordinary
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` skill would understand in the context and as
` interpreted through the measurements that they
` are things that can be measured from the body,
` and that can mean different things.
` BY MR. KIANG:
` Q. Sitting here today, can you answer
` me, yes or no, whether a pulse wave and oxygen
` saturation are the same thing?
` MR. SMITH: Objection; form.
` A. They are different signals coming
` from the body. But they are physiological
` signals coming from the body.
` BY MR. KIANG:
` Q. Do you know how pulse oximetry is
` performed?
` A. In -- in what context?
` Q. In your own words, how would you
` describe how a pulse oximetry measures oxygen --
` how a -- let me rephrase.
` In your own words, could you please
` describe how a pulse oximeter measures oxygen
` saturation?
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 23
` A. I would point to the references that
` I cited.
` Q. Are you looking at a document in
` particular right now?
` A. I'm looking at in particular
` Sarantos. So, for example, in Column 13 of
` Sarantos, Line 44, photoplethysmographic
` techniques can be used to measure physiological
` parameters such as heart rate, blood oxygenation.
` And then, for example, let's see.
` And, for example, in Column 18, Line 44,
` "...photoplethysmographic techniques, such as --
` such as techniques for measuring blood
` oxygenation levels may be most effective using
` light or dramatically different wave lengths."
` So a person of ordinary skill in the
` art understand that a plethysmograph is generally
` measuring changes in volume. A
` photoplethysmograph uses light to measure those,
` and blood oxygenation can be estimated from the
` relative ratio of those signals.
` Q. Okay. Okay. I'm going to read you
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 24
` a few sentences. And I'd like for you to listen
` carefully and let me know if you agree or
` disagree with what I'm about to say. Is that all
` right?
` A. Yes.
` Q. "Photoplethysmography works by
` directing light into a person's tissue and
` measuring the light that is reflected back from
` or transmitted through the tissue. Different
` components of blood or tissue absorb different
` wavelengths of light. By measuring how much
` light is absorbed by the tissue and how the
` absorption changes over time, a device can
` calculate parameters that are related to the
` properties or tissue or blood."
` Do you agree with that?
` A. I'd have to see it written down to
` make sure that you're understanding it correctly.
` And I also would like to note if it's written
` down someplace in my Declaration, but that sounds
` approximately correct.
` Q. Let me continue reading. "For
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` example, hemoglobin (the protein molecule in
` blood that carries oxygen to the cells) reflects
` more light -- more red light when it is more
` oxygen -- more oxygenated than when it is
` deoxygenated; it absorbs more red light when it
` is deoxygenated."
` Do you agree with that?
` A. Are you reading from a particular
` one of the references that I cited or my
` Declaration?
` Q. No, I'm not. Let me -- let's put
` this on the screen then.
` MR. KIANG: Could I have the
` hot-seater pull up Tab 13?
` (Tech complies.)
` BY MR. KIANG:
` Q. Dr. Anthony, do you see this on the
` screen?
` A. Yes.
` Q. And do you recognize this document?
` MR. SMITH: Objection; form.
` Foundation.
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 26
` A. This looks like a Declaration --
` cover page of a Declaration that is not the ones
` that we're talking about today.
` Q. That's correct. I'll just represent
` that this is an excerpt of a Declaration that you
` previously filled in another IPR.
` MR. KIANG: Can we please move on to
` the -- let's see, next page of this?
` MR. SMITH: Daniel, are you going to
` provide him with an electronic copy of this?
` MR. KIANG: Yeah.
` BY MR. KIANG:
` Q. Dr. Anthony, in the e-mail today
` that gave you the Zoom link for today's
` deposition there should be a link to Dropbox or
` some other repository where you should be able to
` download these documents as they are put on the
` screen.
` Do you have that?
` A. I do not. Let me see.
` Did you say in the e-mail? Actually
` is it okay if I go to my e-mail and -- or my
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 27
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` calendar? Oh, there is a --
` Q. He put it in the chat for the Zoom.
` A. Thank you. Thank you.
` THE TECH: Also, are we marking this
` as an exhibit?
` MR. KIANG: Yep.
` (Whereupon, Exhibit 1, Excerpt of
` Anthony Declaration regarding '994 Patent,
` was marked for identification.)
` A. Okay. We're on Page 11. It's not
` the full Declaration?
` BY MR. KIANG:
` Q. Correct. It's just an excerpt.
` A. Okay.
` MR. SMITH: Objection to form.
` MR. KIANG: Actually, let's have
` Page 12 on the screen. All right.
` BY MR. KIANG:
` Q. And, Dr. Anthony, do you have a copy
` of this document?
` A. I have the four -- I don't have the
` document. I have the five or four -- four pages
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 28
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` that is called Tab 13 excerpt.
` Q. Right. That's what I meant.
` Dr. Anthony, are you -- do you have
` everything you need?
` A. I have -- I have the document, yes.
` Q. Okay. I'm just going to read from
` Paragraph 25 that's on the screen right now. And
` just let me know if you agree with what I'm
` saying.
` "For example, hemoglobin (the
` protein molecule in blood that carries oxygen to
` cells) reflects more red light when it is more
` oxygenated than when it is deoxygenated; it
` absorbs more red light when it is deoxygenated."
` Do you agree with that?
` A. These are my -- presumably my words
` from my Declaration -- from a prior Declaration.
` Q. So you agree with your own words; is
` that right?
` A. Yes.
` Q. And you agree with the next
` sentence: "Hemoglobin reflects the same amount
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 29
` of infrared (IR) light when [sic] oxygenated or
` deoxygenated."
` Do you agree with that?
` A. Can I make sure? Do you have
` APPLE -- what's 1013-769, which is presumably
` what I'm citing here? Just to make sure that the
` quote there -- other documents.
` Q. I'm just asking if you agree with
` your own words in your --
` A. These are the words I wrote in
` citing that particular reference.
` Q. So you agree with what you wrote; is
` that correct?
` A. As I said, that is correct.
` MR. KIANG: Let's take this down.
` BY MR. KIANG:
` Q. Do you agree that the algorithms
` used to determine oxygen saturation are different
` than the algorithms used to determine heart rate?
` MR. SMITH: Objection; form.
` A. Again, it was not necessary for me
` to opine on particular algorithms for calculating
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 30
` of either in forming my opinions for the case at
` hand.
` BY MR. KIANG:
` Q. But a person of ordinary skill would
` know that the algorithms used for calculating
` oxygen saturation are than different algorithms
` used for measuring heart rate; is that correct?
` MR. SMITH: Objection; form.
` Argumentative.
` A. A person of ordinary skill in the
` art would know that algorithms are necessary to
` calculate and different algorithm would be
` necessary to calculate different things.
` BY MR. KIANG:
` Q. And so you would apply a different
` algorithm to measure oxygen saturation than an
` algorithm used to measure heart rhythm; is that
` correct?
` MR. SMITH: Objection; form.
` A. Can you repeat the question?
` BY MR. KIANG:
` Q. So a person of ordinary skill would
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2071
`Apple v. Masimo
`IPR2022-01291
`
`
`
`3/24/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W.
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
