9/15/2023
`
`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., )
` ) CASE IPR
` Petitioner, ) 2022-01291
` )
`-against- )
` )
`MASIMO CORPORATION, )
` Patent Owner. )
`____________________)
`
` US Patent No.
` 10,687,745
`
` ***
` ***
` ***
` VIDEO-RECORDED DEPOSITION OF
` BRIAN W. ANTHONY, PH.D.
`
` ***
`
` Zoom Recorded Videoconference
` 09/15/2023
` 11:03 a.m. (EDT)
`
` 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 2023
`
`202-232-0646
`
`MASIMO 2101
`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., )
` ) CASE IPR
` Petitioner, ) 2022-01291
` )
`-against- )
` )
`MASIMO CORPORATION, )
` Patent Owner. )
`____________________)
`
` US Patent No.
` 10,687,745
`
` ***
` ***
` ***
` VIDEO-RECORDED DEPOSITION OF
` BRIAN W. ANTHONY, PH.D.
`
` ***
`
` Zoom Recorded Videoconference
` 09/15/2023
` 11:03 a.m. (EDT)
`
` 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 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
` 09/15/2023
`
`Page 2
`
` 11:03 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.
`
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`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 3
`
`A P P E A R A N C E S
`(Via Zoom Videoconferencing):
`ON BEHALF OF THE PETITIONER APPLE INC.:
` Nicholas W. Stephens, Esquire
` Fish & Richardson P.C.
` 60 South 6th Street, Suite 3200
` Minneapolis, MN 55402
` PHONE: 612-766-2018
` E-MAIL: Nstephens@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
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 4
`
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`A P P E A R A N C E S CON'T
`ON BEHALF OF PATENT OWNER MASIMO CORPORATION:
` Carol Pitzel Cruz, Esquire
` Knobbe Martens
` 925 4th Ave #2500
` Seattle, WA 98104
` PHONE: 206-405-2000
` E-MAIL: Carol.pitzel.cruz@knobbe.com
` - AND -
` 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:
`Joe Cerda - Trial Tech/Videographer - Digital
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
` I N D E X
`
`
`Page 5
`
`WITNESS EXAMINATION BY PAGE
`BRIAN W. ANTHONY, Ph.D. MS. PITZEL CRUZ 8
`
` E X H I B I T S
`EXHIBIT DESCRIPTION PAGE
`Exhibit 1001 US Patent 10,687,745................... 59
`Exhibit 1004 US Patent 8,670,819.................... 155
`Exhibit 1005 US Patent 9,392,946.................... 195
`Exhibit 1042 Supplemental Declaration of Brian W.
` Anthony................................ 14
`Exhibit 1043 American Heritage Dictionary Fifth
` Edition excerpt........................ 173
`Exhibit 1044 Collins Dictionary excerpt............. 174
`Exhibit 1045 Merriam-Webster's Collegiate
` Dictionary excerpt..................... 174
`Exhibit 1050 "A Neo-Reflective Wrist Pulse
` Oximeter".............................. 78
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 6
`
` E X H I B I T S CON'T
`EXHIBIT DESCRIPTION PAGE
`Exhibit 1051 A Wireless Reflectance Pulse Oximeter
` With Digital Baseline Control for
` Unfiltered Photoplethysmograms......... 36
`Exhibit 1053 "Implementation of a Wireless Pulse
` Oximeter Based on Wrist Band Sensor"... 41
`Exhibit 1055 "Optimum Place for Measuring Pulse
` Oximeter Signal in Wireless
` Sensor-Belt or Wrist-Band"............. 70
`Exhibit 1056 "Reflectance-based Pulse Oximeter for
` the Chest and Wrist.................... 75
`Exhibit 1057 "Withings Pulse O2 review: Fitness
` band plus heart rate monitor checks
` blood oxygen, too"..................... 137
`Exhibit 2076 CONFIDENTIAL Brian Land ITC Testimony.. 108
`
` R E Q U E S T S
`
`DESCRIPTION PAGE
`Copy of Dr. Anthony's notes on Exhibit 1004........... 162
`Copy of witness notes................................. 213
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 7
`
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` AUTOMATED MESSAGE: Recording in
` progress.
` THE TECH: Okay. We are now going
` on the video record. Today's date is
` September 15, 2023. The time on the video
` record is 11:03 a.m.
` This is the video deposition of
` Dr. Brian W. Anthony taken in the matter of
` Apple versus Masimo. There's multiple IPRs.
` Will counsel please identify
` themselves for the record and whom they
` represent.
` MS. PITZEL CRUZ: This is Carol
` Pitzel Cruz from Knobbe Martens representing
` Masimo. And with me, I have my partners
` Jeremiah Helm and Daniel Kiang.
` MR. STEPHENS: And this is Nicholas
` Stephens from Fish & Richardson representing
` Petitioner, Apple, Inc. I'm here with my
` colleague Kim Leung.
` BRIAN W. ANTHONY, called as a witness, having
` been first duly sworn by a Notary Public of the
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 8
` State of New York, was examined and testified as
` follows:
` THE WITNESS: Yes, I do.
` THE COURT REPORTER: Okay. Thank
` you. I'm going to go off camera. If you
` need me, I'm here.
` EXAMINATION
` BY MS. PITZEL CRUZ:
` Q. Hi. Good morning, Dr. Anthony. My
` name is Carol Pitzel Cruz, and I'll be asking you
` a series of questions today.
` Do you understand that you're under
` oath today?
` A. Yes.
` Q. Okay. And is there any reason you
` can't testify truthfully and accurately today?
` A. No.
` Q. Do you have any materials with you?
` A. I printed out my clean copies of my
` declarations.
` Q. And when you were saying your
` declarations, can you identify which ones?
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 9
`
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` A. The -- the original declarations
` which were -- oh, I don't know, the numbers.
` Q. I believe the exhibit number is on
` the front page of each.
` A. Apple 1003 or it's 1291/1003, and
` 1465/1003, and then also my -- the new
` declaration, the supplemental declaration.
` Q. And that's Exhibit 1042?
` A. Yes.
` Q. Okay. Thank you.
` And throughout today we'll have
` those up on the screen. They are also available,
` all the exhibits, through the box as well. So if
` you need anything, and as Joe mentioned, if you
` have any trouble with any of that, please let us
` know so we can resolve any issues so you have
` everything in front of you.
` And other than through the video
` that we're all on today, are you in communication
` with counsel?
` A. No.
` Q. And throughout today, if you need a
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 10
` break, please just let me know and we can take a
` break. You know, roughly every hourish we'll
` take one. But if you need one before that, just
` let me know. And, you know, I just ask that if a
` question is pending, you finish your answer to
` the question; is that fair?
` A. Yes.
` Q. Okay. And throughout today if you
` don't understand any of my questions, if you
` could ask for clarification -- is that, we can
` work under that ground rule; is that okay?
` A. Yes.
` Q. Okay. And so if you don't ask, I'll
` assume that you understand the question; is that
` fair?
` A. Yes.
` Q. Okay.
` A. Carol, I am noting, I don't know if
` it's my audio. I can understand you, but you do
` seem to be a little muffled.
` Q. Okay. I'll try to and speak up. Is
` that sound a little bit?
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 11
`
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` A. I think -- it's fine. But it is
` just a little muffled, but it should be fine.
` Q. Okay. Let me just see if I can --
` just -- is that any better?
` A. I think it's comparable. It should
` be fine. If it's a problem --
` Q. Okay. Just let me know.
` A. Yeah.
` Q. Okay. And let's see.
` So the declaration, the -- or excuse
` me.
` The supplemental declaration that
` you have in front of you, Exhibit 1042, you
` submitted that in both the 1291 and 1465
` proceedings; is that correct?
` A. Correct.
` Q. And you styled this declaration as a
` Supplemental Declaration; is that correct?
` A. Yes.
` Q. Okay. And you did not call this a
` Responsive Declaration; is that correct?
` A. I'm sorry. Please, can you repeat
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 12
`
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` that?
` Q. You did not call your Exhibit 1042 a
` Responsive Declaration; is that correct?
` A. It's in response to the Patent Owner
` response, but it's called a Supplemental
` Declaration.
` Q. And the reason why you did not call
` this a Responsive Declaration or a Reply
` Declaration is because you were not just
` responding to Dr. Duckworth's declaration; is
` that correct?
` A. I'm sorry. I didn't -- I'm not
` completely understanding that question.
` Q. Let me try it a little bit different
` way.
` So your intent was submitting this
` Supplemental Declaration, Exhibit 1042, was to
` add additional opinions to your initial
` declaration; is that correct?
` A. It was submitting a response to
` your -- to Patent Owner's response to my original
` declarations.
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 13
` Q. And your Supplemental Declaration
` included new opinions and new exhibits; is that
` correct?
` A. Not new opinions. New exhibits,
` yes -- yes. The opinions are consistent with my
` original declarations, but the -- they are not
` new opinions.
` Q. And you -- with regard to the
` exhibits, you submitted new additional Exhibits
` 1043 through 1058 and 1060 through 1080; is that
` correct?
` MR. STEPHENS: Objection; form. Not
` that the witness submitted them, but he may
` have cited them.
` A. Carol, could you a please repeat the
` numbers?
` BY MS. PITZEL CRUZ:
` Q. Of course. 1043 through 1058 and
` 1060 through 1080.
` A. Yes. Those are -- I'm looking at
` Pages 5 through 10 of my declaration. And those,
` amongst others, are some of the references that I
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 14
`
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` cited in my declaration.
` Q. And those references are new
` references that you cited in your supplemental
` declaration that were not included in your
` original declaration; is that correct?
` A. In the original declaration, the
` 1291, I cited 1004 through 1016. And through --
` and for 1465, I cited, looking at Pages 9 through
` 10 of that declaration, 1004 through 1022. And
` through the new one, 1004 up through -- looking
` at Pages 5 through 10 of the declaration --
` references 1004 up through 1080, 1-0-8-0.
` Q. Just to be clear, though, Exhibits
` 1043 through 1058 and 1060 through 1080 are new
` references that were not included in your
` original declaration; is that correct?
` A. That is correct.
` Q. Thank you.
` So why don't we go ahead and take a
` look at your Exhibit 1042, the Supplemental
` Declaration.
` (Whereupon, Exhibit 1042,
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 15
` Supplemental Declaration of Brian W. Anthony,
` was marked for identification.)
` BY MS. PITZEL CRUZ:
` Q. And on Page 96, is that your
` signature dated August 21st, 2023?
` A. Yes, it is.
` Q. So, why don't we turn to -- I
` believe it's Page 36 of your Declaration and
` Paragraph 27. Are you there?
` A. Yes.
` Q. Okay. So in Paragraph 27, you
` state, "I understand that Patent Owner attempts
` to refute my opinion in this regard, but based on
` my review of the record evidence, I believe
` Patent Owner's argument that a POSITA would have
` lacked a reasonable expectation of success
` implementing a device that would determine oxygen
` saturation at the wrist are baseless."
` Do you see that?
` A. Yes.
` Q. Okay. And so when you refer to the
` "record evidence," that review includes all of
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 16
` the new exhibits that you did not cite in your
` initial declaration, correct?
` A. In my original declarations, it was
` my opinion that a POSITA would have had a
` reasonable expectation of success at the wrist,
` as I describe. And in further collaboration of
` that, I do include additional references in the
` supplemental.
` Q. So just to be clear, the record
` evidence that you're referring to in Paragraph 27
` of Exhibit 1042, includes a review of all the new
` exhibits that were not cited in your initial
` declaration; is that correct?
` A. As I state in Paragraph 27, "I
` understand that Patent Owner attempts to refute
` my opinion, but based on my review of the record
` evidence" -- and the things that were submitted
` as part of the original declarations -- "I
` believe Patent Owner's argument that a POSITA
` would have lacked a reasonable expectation of
` success implementing a device that would
` determine oxygen saturation at the wrist are
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 17
`
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` baseless."
` So being responses to Patent Owner
` argument, I reviewed over a dozen references that
` precede the '745 patent that underscore how
` determining oxygen saturation at the wrist was
` not only well known, but it had actually been
` successful and repeatedly performed before the
` '745 patent.
` These references, though, reinforce
` and corroborated my original opinion from the
` 1295 declaration, that a POSITA would have had a
` reasonable expectation of success in adapting
` Iwamiya's sensor to measure oxygen saturation.
` Q. And what my question is, is -- is
` the statement that you make with respect to
` record evidence. When you refer to "record
` evidence" in Paragraph 27, which exhibits were
` you referring to?
` A. As I stated, my original opinion,
` and I think is -- as I stated in my original
` declaration, the 1291, a POSITA would have had a
` reasonable expectation of success because pulse
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 18
` oximetry sensors such as described in Sarantos
` were well-known and Patent Owner attempts to
` refute that opinion, but based on review of the
` record evidence.
` And I cite additional references in
` response to that a -- further corroborate my
` opinions in the original declarations.
` Q. It's a very simple question. Does
` the record evidence that you're referring to in
` Paragraph 27, does that include the new exhibits
` that your cited in your supplemental declaration?
` Yes or no.
` MR. STEPHENS: Objection; asked and
` answered.
` A. A POSITA reading Iwamiya and being
` familiar with the literature, as a POSITA would
` be, the additional references that I include to
` further corroborate are certainly in the
` knowledge of what a POSITA would have had.
` I further cite them to further
` corroborate and being responsive to what was
` raised as objections -- as objections, but the
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 19
` additional references are certainly within what a
` POSITA would have had as knowledge and would have
` been obvious to a POSITA.
` BY MS. PITZEL CRUZ:
` Q. And are the additional references
` that you cite in your declaration part of the
` record evidence that you reviewed? Yes or no.
` A. So as I stated, a POSITA would have
` had the benefit of all of those references. It
` was not necessary to cite the infinite set of
` references in my first declaration, but a POSITA
` would have had that knowledge.
` And I further bolster my -- in the
` response, I further bolster what a POSITA would
` have had familiarity with by including additional
` references. So a POSITA would have certainly
` been familiar with the references that I
` additionally include in the new -- in the
` response declaration.
` Q. That was not my question,
` Dr. Anthony. My question was: When you refer to
` the record evidence, your -- your words, "record
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 20
`
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`
` evidence" in Paragraph 27, does that record
` evidence include the new exhibits that you cited
` in Exhibit 1042, your supplemental declaration?
` A. So as I stated, the opinions that I
` offered and what a POSITA would have known, as
` stated in my original declarations, that was part
` of the record. That is the evidence.
` A POSITA would have as well the
` knowledge of the references that I further cite.
` So those references are what -- also what a
` POSITA would have had in their knowledge. So I
` cite particular references in the first
` declarations in addition to what a POSITA would
` have known.
` And as I say in response to your
` arguments, I reviewed these additional references
` and include them, but they are certainly within
` what a POSITA would have been familiar with as
` part of the original record.
` Q. Yes, but I'm trying to understand
` what you meant when you said "record evidence."
` Can you explain what you meant by "record
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 21
`
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`
` evidence" in Paragraph 27?
` A. I just did.
` Q. And with respect to the record
` evidence, are you including the new exhibits that
` you have cited in your -- in your second
` declaration, Exhibits 1043 through 1058 and 1060
` through 1080?
` A. So as I stated in Paragraph 27,
` based upon my declaration, my opinion, what a
` POSITA's knowledge would have been and based on
` the art that I cited in the original
` declarations, a POSITA would have reasonably
` expected success in adopting Iwamiya's sensor to
` measure oxygen saturation.
` No further references were necessary
` -- are necessary to support my original opinion
` beyond what I stated in my original opinion.
` In response to Patent Owner's
` attempt to refute my opinion, I prevent --
` present additional reference to further bolster,
` to further highlight what a POSITA would have
` known.
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 22
`
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`
` So the record evidence that I
` submitted includes what a POSITA would have known
` and the references that I cited, but a POSITA
` would have had access as well to the additional
` references that I cite.
` I did not find it necessary to
` include those, nor is it necessary, but in order
` to be responsive to the arguments raised, I
` included additional references to highlight the
` breadth of what a POSITA would have understood
` with reasonable expectation of success.
` Q. So you were aware of all of these
` references, Exhibits 1043 through 1058 and 1060
` through 1080, when you submitted your original
` petition or original declaration; is that fair?
` A. Certainly familiar with what a
` POSITA would have known, and these are
` representative of what a POSITA would have known.
` There are certainly other references that would
` further bolster this as well.
` As I highlight in Paragraph 33,
` "These references all confirm and corroborate my
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 23
` opinion from my first declarations that a POSITA
` would have a reasonable expectation of success in
` measuring oxygen saturation at the wrist before
` the '745 patent. Notably, these references
` include engineering and scientific papers
` describing real-world studies and experimental
` results that conclusively establish the
` feasibility of measuring oxygen saturation at the
` wrist before the '745 patent."
` Q. Is it your opinion that all of these
` new references that you've added are merely
` cumulative of the -- of your original opinion; is
` that correct?
` MR. STEPHENS: Objection; form.
` A. I'm not sure what you mean by
` "merely cumulative of."
` BY MS. PITZEL CRUZ:
` Q. Are these references that you've now
` supplied with your supplemental or cited to --
` let me start that over.
` The references that you've cited to
` in your supplemental declaration, is it your
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`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 24
`
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`
` opinion that those are cumulative of the
` information that was disclosed in your original
` declaration?
` MR. STEPHENS: Same objection.
` A. As I said in 33 -- I'm not sure what
` you mean "are cumulative of" -- but as I say in
` 33, "These references all confirm and corroborate
` my opinions from my first declaration, that a
` POSITA would have had a reasonable expectation of
` success."
` And what I cited in my original
` declaration was sufficient to demonstrate what a
` POSITA and -- would have had a reasonable
` expectation of success of.
` BY MS. PITZEL CRUZ:
` Q. And do you consider yourself a
` POSITA for purposes of these two IPRs?
` A. At least as much, yes.
` Q. In Paragraph 27, as you have stated
` in your answers, the -- you reference that you
` reviewed over a dozen references. And if we take
` a look at Paragraph 28 through 34, are those
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 25
`
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`
` the -- is that the discussion of the dozen
` references that you refer to in Paragraph 27?
` A. So on Paragraph 28, I highlight
` Maattala that published an article, "Optimum
` Place for Measuring Pulse Ox in Wireless Sensor
` or Wrist-Band."
` In Paragraph 29 I highlight Cai or
` Cai, C-A-I, in 2010 established a feasibility
` study based on Implementation of a Wireless Pulse
` ox on a Wrist Band Sensor.
` In Paragraph 30, I highlight ly al
` -- Li, et al. and their IEEE article, "A Wireless
` Reflectance Pulse Oximeter...for Unfiltered
` Plethysmographs" that also highlights the
` opportunity to do so at the fingertip, the wrist,
` and the earlobe.
` In Paragraph 31, I highlight the
` April 2013 WPI, Worcester -- Worcester
` Polytechnic Institute undergraduate project,
` "Reflectance-based Pulse Ox for the Chest and
` Wrist."
` In Paragraph 32, I highlight the
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 26
` Pang, et al. paper, A Neo-Reflective Wrist-Based
` [sic] Pulse Oximeter.
` And 33, I highlight that these
` references all conform -- confirm and corroborate
` my opinion for my first declaration.
` And furthermore, in 34, there are
` prior patents and patent application references,
` showing that wrist-worn pulse oximetry sensors
` were well-known in the art.
` Q. And in Paragraph 34, you reference
` Exhibit 1052, 1054, 1061, 1058, 1062, 1063, 1064,
` 1038, 1065, and 1066; is that correct?
` A. Correct.
` Q. Okay. And these exhibits that are
` discussed in Paragraphs 28 through 34, you did
` not review those exhibits before filing your
` initial declarations; is that correct?
` A. That's not necessarily correct. It
` wasn't necessary to cite additional things beyond
` what I cited in the original ones, but, you know,
` it was -- certainly some of these would have been
` across my desk at that time.
`
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`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 27
` Q. But you did not rely on the exhibits
` that are cited in Paragraphs 28 through 34 in
` your reasonable expectation of success analysis
` in your initial declarations, correct?
` A. As I stated in the original
` paragraph on Paragraph 27, As I stated in the
` 1291 Declaration, a POSITA would have had
` reasonable expectation of success in adapting
` Iwamiya's sensor to measure oxygen saturation,
` wrist-worn pulse oximetry sensors, such as
` described in Sarantos, were well-known in the
` art.
` It's not necessary to cite an
` exhaustive list. It was well-known. But in
` response, I cite additional references to further
` corroborate what I in my opinions which were
` sufficient in the original declarations.
` Q. With respect to the exhibits that
` are described in Paragraphs 28 through 34 of your
` declaration, you didn't locate those exhibits; is
` that correct?
` A. I'm sorry. Can you repeat that?
`
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`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 28
` Q. With respect to the exhibits that
` are cited and discussed in Paragraphs 28 through
` 34, that we just reviewed, did you locate those
` exhibits yourself or were they provided to you by
` Apple's attorneys?
` A. Well, as preparation for my
` declaration, sometimes I write the words,
` sometimes I review the words. These are all my
` opinions. It wasn't necessary for me to
` individually find all the references. I found
` some of them, some of them were suggested; but
` they all are my opinion I cited in confirmation
` of my opinion.
` Q. So when you say you found some of
` the references, what steps did you take to find
` those references?
` A. Again, my declaration as is -- it is
` my opinion that these are references that were
` both discussed with counsel, highlighted by me,
` highlighted by them. These are reinforcing my
` opinion.
` MR. STEPHENS: I'm just caution the
`
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`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 29
` witness not to discuss communications with
` counsel.
` BY MS. PITZEL CRUZ:
` Q. Yes. My question didn't have to do
` with communications or your opinions.
` It's how did you find the references
` that you stated that you found? You said you
` found some of the references.
` So, my question is: How did you do
` that? How did you find those references?
` A. I generally find references through
` Google Scholar, through Mendeley, through library
` searching.
` Q. Did you use any specific search
` terms to find these references that are in your
` declaration in Paragraphs 28 through 34?
` A. It was not necessary to reference
` search terms as part of my opinion.
` Q. I'm sorry. I didn't understand that
` answer.
` Could you explain again what you
` meant?
`
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`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2101
`Apple v. Masimo
`IPR2022-01291
`
`
`
`9/15/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony Ph.D.
`
`Page 30
` The question was: Did you use any
` specific search terms to find the references that
` are in your declaration in Paragraphs 28 through
` 34?
` A. I do not recall what specific search
` terms I would have used. But it was not
` necessary in my -- in -- in the declaration to
` cite what those search terms would h
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