From:
`To:
`Cc:
`Subject:
`
`Date:
`
`Daniel Kiang
`Trials
`IPR50095-0045IP1; IPR50095-0045IP3; AppleIPR745-1; AppleIPR745-3
`IPR2022-01291, -01465: Request for Authorization for Motion to Strike and Motion to Suspend Board Rules to
`Permit Sur-Reply Evidence
`Monday, August 28, 2023 10:04:40 PM
`
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`
`Dear Board,
`
`Patent Owner respectfully requests the Board grant authorization in IPR2022-01291 and IPR2022-
`01465 to file two separate motions: (1) a motion to strike portions of Petitioner’s Replies and
`exhibits submitted with those Replies for exceeding the permissible scope of reply by introducing
`new evidence and arguments, exceeding the word limit for Replies by incorporating by reference
`arguments from a new expert declaration, presenting an enablement issue beyond the scope of IPR,
`and requesting to correct the 1291 Petition, and (2) a motion for waiver of the Board’s rules so that
`Patent Owner may submit an expert declaration and new evidence in support of Patent Owner’s Sur-
`Replies.
`
`Patent Owner is emailing the Board today to comply with the Consolidated Trial Practice Guide’s
`statement that “authorization to file a motion to strike should be requested within one week of the
`allegedly improper submission.” Consolidated Trial Practice Guide, 81. After receiving Petitioner’s
`Replies, expert declaration, and new exhibits late Monday, August 21, Masimo promptly notified
`Petitioner of the issues on Thursday, August 24 and provided additional information at Petitioner’s
`request on Saturday, August 26.
`
`The parties met and conferred via email over the past week and via teleconference on August 28.
`Apple’s position is:
`Apple is working diligently and with urgency to investigate allegations from Masimo that are
`central to its authorization requests. Masimo’s initial email identified on 8/24 only pages and
`sections of the brief, inspiring a request from Apple the next day for further detail to enable
`investigation. Masimo provided Apple, for the first time, identification of particular
`arguments and exhibits over the weekend, at 9:38 pm ET on Saturday evening, and Apple
`made itself available to discuss the same with Masimo during a call earlier today, the first
`business day after receiving that list. Apple proposed a follow-up meet and confer call on
`Thursday, to further discuss Masimo’s concerns after conducting its investigation into the
`issues alleged by Masimo, to see whether progress can be made to reduce issues that
`require Board consideration. Apple respectfully requests that the parties be given an
`opportunity to further confer this week as we work through the list of issues in Masimo’s
`Saturday evening email.
`
`The parties are available for a conference call at the Board’s convenience. In view of Apple’s
`representations above, Masimo expects the parties will be ready for a teleconference with the Board
`
`Exhibit 3002
`
`

`

`no later than this Friday, September 1.
`
`Petitioner’s counsel is copied on this email.
`
`Best regards,
`Daniel
`
`Daniel Kiang
`Partner
`949-721-5205 Direct
`Knobbe Martens
`
`
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`
`