UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`Before the Honorable Monica Bhattacharyya
` Administrative Law Judge
`
`
`
`
`
`
`
`In the Matter of
`
`CERTAIN LIGHT-BASED PHYSIOLOGICAL
`MEASUREMENT DEVICES AND
`COMPONENTS THEREOF
`
`
`
`
`Inv. No. 337-TA-1276
`
`UPDATED JOINT PROPOSED CLAIM CONSTRUCTION CHART
`
`Pursuant to Ground Rule 6.3, Order No. 6 (Setting Procedural Schedule), and Order No.
`
`12 (Granting Respondent’s Motion for Leave to Supplement Identification of Terms for Claim
`
`Construction), Complainants Masimo Corporation and Cercacor Laboratories, Inc. and
`
`Respondent Apple Inc. hereby submit their post-hearing joint claim construction chart setting forth
`
`the post-hearing construction of the terms discussed at the February 17, 2022 Markman hearing.
`
`I.
`
`AGREED-UPON CONSTRUCTIONS
`
`The parties agree to the construction of the following term:
`
`U.S. Patent No. 7,761,127
`
`Term
`“plurality of operating
`wavelengths” in
`Claim 7
`
`Agreed Construction
`
`“two or more operating wavelengths”
`
`
`
`
`
`
`1
`
`MASIMO 2053
`Apple v. Masimo
`IPR2022-01291
`
`
`Washington, D.C.
`
`Before the Honorable Monica Bhattacharyya
` Administrative Law Judge
`
`
`
`
`
`
`
`In the Matter of
`
`CERTAIN LIGHT-BASED PHYSIOLOGICAL
`MEASUREMENT DEVICES AND
`COMPONENTS THEREOF
`
`
`
`
`Inv. No. 337-TA-1276
`
`UPDATED JOINT PROPOSED CLAIM CONSTRUCTION CHART
`
`Pursuant to Ground Rule 6.3, Order No. 6 (Setting Procedural Schedule), and Order No.
`
`12 (Granting Respondent’s Motion for Leave to Supplement Identification of Terms for Claim
`
`Construction), Complainants Masimo Corporation and Cercacor Laboratories, Inc. and
`
`Respondent Apple Inc. hereby submit their post-hearing joint claim construction chart setting forth
`
`the post-hearing construction of the terms discussed at the February 17, 2022 Markman hearing.
`
`I.
`
`AGREED-UPON CONSTRUCTIONS
`
`The parties agree to the construction of the following term:
`
`U.S. Patent No. 7,761,127
`
`Term
`“plurality of operating
`wavelengths” in
`Claim 7
`
`Agreed Construction
`
`“two or more operating wavelengths”
`
`
`
`
`
`
`1
`
`MASIMO 2053
`Apple v. Masimo
`IPR2022-01291
`
`
`
`II.
`
`TERMS FOR RESOLUTION DURING MARKMAN PROCEEDINGS
`
`The parties have agreed that the following two terms should be considered by the
`
`Administrative Law Judge during the Markman hearing process, and have provided their
`
`respective post-hearing positions on the construction of these terms:
`
`U.S. Patent No. 10,912,501
`
`Term
`
`“bulk measurement”
`in Claim 13
`
`Complainants’
`Proposed Construction
`“DC component”
`
`or
`
`“non-pulsatile measurement”
`
`Respondent’s
`Proposed Construction
`Indefinite as used in asserted
`claims (i.e., “wherein the one or
`more processors are further
`configured to process the one or
`more signals to determine a bulk
`measurement”)
`
`U.S. Patent No. 10,912,502
`
`Term
`
`“bulk measurement”
`in Claim 12
`
`Complainants’
`Proposed Construction
`“DC component”
`
`or
`
`“non-pulsatile measurement”
`
`Respondent’s
`Proposed Construction
`Indefinite as used in asserted
`claims (i.e., “wherein the one or
`more processors are further
`configured to calculate a bulk
`measurement”)
`
`U.S. Patent No. 10,945,648
`
`Term
`
`“bulk measurement”
`in Claims 2 and 21
`
`Complainants’
`Proposed Construction
`“DC component”
`
`or
`
`“non-pulsatile measurement”
`
`Respondent’s
`Proposed Construction
`Indefinite as used in asserted
`claims (i.e., “wherein the one or
`more processors are further
`configured to process the one or
`more signals to determine a bulk
`measurement”)
`
`2
`
`MASIMO 2053
`Apple v. Masimo
`IPR2022-01291
`
`
`
`U.S. Patent No. 10,687,745
`
`Term
`
`“second shape” in
`Claims 1 and 20
`
`Complainants’
`Proposed Construction
`“A shape that is different from
`the first shape, where a
`difference in size, without any
`other difference, is not a shape
`different from the first shape”
`
`Respondent’s
`Proposed Construction1
`
`Plain and ordinary meaning
`(i.e., a shape different than the
`first shape)
`
`
`1 Apple’s Note: After the Markman hearing, Apple proposed in writing that the parties drop the
`term “second shape” from the list of terms requiring the ALJ’s construction because it could not
`discern what dispute remained between the parties. Apple explained that, as the parties’ briefs
`have made clear, both sides agree that a mere difference in size is neither necessary nor sufficient
`to change a first shape into a “second shape.” See Apple Rebuttal Br. at 1; Complainants’ Rebuttal
`Br. at 4. Apple also explained that, at the Markman hearing, Apple had agreed on the record with
`Complainants’ position that whether other differences in characteristics result in a change in shape
`should be an issue of fact for trial. See Complainants’ Rebuttal Br. at 4-5. Complainants did not
`agree to Apple’s proposal, but repeatedly refused to identify what remains in dispute.
`Masimo’s Note: Masimo has maintained this term in the joint claim construction chart because
`Apple has not confirmed that it agrees with Masimo’s proposed construction. Absent agreement,
`this term remains in dispute.
`
`3
`
`MASIMO 2053
`Apple v. Masimo
`IPR2022-01291
`
`
`
` DATED: February 23, 2022
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
` /s/ Sarah R. Frazier
`
`Mark D. Selwyn
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`2600 El Camino Real
`Suite 400
`Palo Alto, CA 94306
`Telephone: (650) 858-6031
`
`Joseph J. Mueller
`Richard Goldenberg
`Sarah R. Frazier
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`Telephone: (617) 526-6000
`
`Michael D. Esch
`David Cavanaugh
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`1875 Pennsylvania Ave., NW
`Washington, DC 20006
`Telephone: (202) 663-6000
`
`Counsel for Respondent Apple Inc.
`
`
`
`
`
`/s/ Kendall M. Loebbaka
`Stephen C. Jensen
`Joseph R. Re
`Sheila N. Swaroop
`Ted. M. Cannon
`Alan G. Laquer
`Kendall M. Loebbaka
`Douglas B. Wentzel
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, Fourteenth Floor
`Irvine, CA 92614
`Telephone: (949) 760-0404
`
`William R. Zimmerman
`Jonathan E. Bachand
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`1717 Pennsylvania Avenue N.W., Suite 900
`Washington, DC 20006
`Telephone: (202) 640-6400
`
`Brian C. Horne
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`1925 Century Park East
`Suite 600
`Los Angeles, CA 90067
`Telephone: (310) 551-3450
`
`Carol Pitzel Cruz
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`925 4th Ave., #2500
`Seattle, WA 98104
`Telephone: (206) 405-2000
`
`Karl W. Kowallis
`Matthew S. Friedrichs
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`1155 Avenue of the Americas
`24th Floor
`New York, NY 10036
`Telephone: (212) 849-3000
`
`Counsel for Complainants Masimo Corporation
`and Cercacor Laboratories, Inc.
`
`
`
`4
`
`MASIMO 2053
`Apple v. Masimo
`IPR2022-01291
`
`
`
`In the Matter of Certain Light-Based Physiological Measurement Devices
`and Components Thereof
`Inv. No. 337-TA-1276
`
`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that on February 23, 2022, I caused copies of the foregoing
`document to be filed and served as indicated below:
`
`
`Secretary – U.S. International Trade Commission
`The Honorable Lisa R. Barton
` Via Electronic Filing [EDIS]
`Secretary to the Commission
` Via hand delivery
`U.S. International Trade Commission
` Via Express Delivery
`500 E Street, SW, Room 112
` Not filed
`Washington, DC 20436
`Administrative Law Judge – U.S. International Trade Commission
`The Honorable Monica Bhattacharyya
` Via E-mail to Via E-mail to
`U.S. International Trade Commission
`edward.jou@usitc.gov and
`500 E Street, S.W., Room 317
`michael.maas@usitc.gov
`Washington, D.C. 20436
`
`Counsel for Respondent Apple, Inc.
`Michael Esch
`David Cavanaugh
`WILMER CUTLER PICKERING HALE AND
`DORR LLP
`1875 Pennsylvania Avenue, NW
`Washington, DC 20006
`
`Mark Selwyn
`WILMER CUTLER PICKERING HALE AND
`DORR LLP
`2600 El Camino Real
`Suite 400
`Palo Alto, California 94306
`
`Joseph Mueller
`Richard Goldenberg
`Sarah Frazier
`WILMER CUTLER PICKERING HALE AND
`DORR LLP
`60 State Street
`Boston, Massachusetts 02109
`
` Via Hand Delivery
` Via E-mail to
`WHApple-
`Masimo1276ServiceList@wilmerhale.com
` Via Express Delivery
` Via Facsimile
`
`5
`
`MASIMO 2053
`Apple v. Masimo
`IPR2022-01291
`
`
`
`
`February 23, 2022
`
`55140172
`
`
`
`/s/ Claire A. Stoneman
`Claire A. Stoneman
`Litigation Paralegal
`Knobbe, Martens, Olson & Bear, LLP
`
`
`6
`
`MASIMO 2053
`Apple v. Masimo
`IPR2022-01291
`
`
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