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
`
`RESPONDENT APPLE INC.’S OPENING MARKMAN BRIEF
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`
`
`
`
`
`
`
`
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`APPLE 1021
`Apple v. Masimo
`IPR2022-01299
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`1
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`I.
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`II.
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`TABLE OF CONTENTS
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`Page
`
`INTRODUCTION ...............................................................................................................1
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`U.S. PATENT NO. 7,761,127 .............................................................................................1
`
`A.
`B.
`
`Background ..............................................................................................................1
`Parties’ Claim Construction Dispute .......................................................................3
`
`III.
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`U.S. PATENT NO. 10,687,745 ...........................................................................................6
`
`A.
`B.
`
`Background ..............................................................................................................6
`Parties’ Claim Construction Dispute .......................................................................8
`
`IV.
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`U.S. PATENT NOS. 10,912,501, 10,912,502, and 10,945,648 ........................................10
`
`A.
`B.
`
`Background ............................................................................................................10
`Parties’ Claim Construction Dispute .....................................................................14
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`V.
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`CONCLUSION ..................................................................................................................20
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`i
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`2
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`
`
`Cases
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`TABLE OF AUTHORITIES
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`
`
`Page(s)
`
`Atl. Rsch. Mktg. Sys., Inc. v. Troy,
`659 F.3d 1345 (Fed. Cir. 2011)................................................................................................15
`
`Bicon, Inc. v. Straumann Co.,
`441 F.3d 945 (Fed. Cir. 2006)....................................................................................................4
`
`Brown v. 3M,
`265 F.3d 1349 (Fed. Cir. 2001)..............................................................................................3, 8
`
`C.R. Bard, Inc. v. U.S. Surgical Corp.,
`388 F.3d 858 (Fed. Cir. 2004)................................................................................................3, 4
`
`Dayco Prods., Inc. v. Total Containment, Inc.,
`258 F.3d 1317 (Fed. Cir. 2001)..................................................................................................6
`
`Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc.,
`214 F.3d 1302 (Fed. Cir. 2000)..................................................................................................5
`
`Famosa, Corp. v. Gaiam, Inc.,
`2012 WL 865687 (S.D.N.Y. Mar. 14, 2012) .........................................................................4, 8
`
`Free Motion Fitness, Inc. v. Cybex Int’l, Inc.,
`423 F.3d 1343 (Fed. Cir. 2005)................................................................................................10
`
`Gillette Co. v. Energizer Holdings, Inc.,
`405 F.3d 1367 (Fed. Cir. 2005)................................................................................................10
`
`Haemonetics Corp. v. Baxter Healthcare Corp.,
`607 F.3d 776 (Fed. Cir. 2010)....................................................................................................4
`
`Helmsderfer v. Bobrick Washroom Equip., Inc.,
`527 F.3d 1379 (Fed. Cir. 2008)................................................................................................19
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) .................................................................................................................17
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc)........................................................................4, 5, 15
`
`Rothschild Connected Devices Innovations, LLC v. Coca-Cola Co.,
`813 F. App’x 557 (Fed. Cir. 2020) ............................................................................................5
`
`
`
`
`ii
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`3
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`
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`Smartmetric Inc. v. Am. Exp. Co.,
`476 F. App’x 742 (Fed. Cir. 2012) ..........................................................................................17
`
`Teashot LLC v. Green Mountain Coffee Roasters, Inc.,
`2014 WL 485876 (D. Colo. Feb. 6, 2014) .................................................................................4
`
`Texas Instruments Inc. v. U.S. Int’l Trade Comm’n,
`988 F.2d 1165 (Fed. Cir. 1993)................................................................................................19
`
`York Prods., Inc. v. Cent. Tractor Farm & Family Ctr.,
`99 F.3d 1568 (Fed. Cir. 1996)....................................................................................................6
`
`
`
`
`
`
`iii
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`4
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`I.
`
`INTRODUCTION
`
`For U.S. Patent No. 7,761,127 (“’127 patent”) and U.S. Patent No. 10,687,745 (“’745
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`patent”), Complainants’ terms for construction—“plurality of operating wavelengths” (from the
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`’127 patent) and “second shape” (from the ’745 patent)—are commonly understood, as
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`demonstrated by Complainants’ repetition of the terms “operating wavelength” and “shape” in
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`their proposed constructions. They require no interpretation beyond their plain and ordinary
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`meaning. Complainants’ proposed addition of new phrases that are not found in the claims or
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`specifications are unhelpful, add confusion, create redundancy, render meaningless express claim
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`limitations, and lack basis in the intrinsic evidence.
`
`As for U.S. Patent Nos. 10,912,501 (the “’501 Patent”), U.S. Patent No. 10,912,502 (the
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`“’502 Patent”) and U.S. Patent No. 10,945,648 (the “’648 Patent”) (collectively, the “Asserted
`
`Poeze Patents”), the disputed term “bulk measurement” does not have a commonly understood
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`meaning. The usage of “bulk measurement” in the asserted claims is irreconcilably inconsistent
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`with the shared specification for the Asserted Poeze Patents, and therefore, the term is indefinite.
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`II.
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`U.S. PATENT NO. 7,761,127
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`Claim Term
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`Proposed Constructions
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`“plurality of operating wavelengths”
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`(’127 patent, cl. 7)
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`Complainants’ Construction: “operating wavelength
`that varies with temperature”
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`Apple’s Construction: Plain and ordinary meaning
`(i.e., two or more operating wavelengths)
`
`
`
`A.
`
`Background
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`U.S. Patent No. 7,761,127 is entitled “Multiple Wavelength Sensor Substrate.” The ’127
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`patent states it is directed to a “physiological sensor [that] has emitters configured to transmit
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`5
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`optical radiation having multiple wavelengths in response to corresponding drive currents.” ’127
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`patent, Abstract.
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`The Summary of Invention observes that the plurality of “emission wavelengths [are]
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`affected by one or more dynamic operating parameters,” and describes “multiple operating
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`wavelengths of the light emitting sources are determined dependent on a bulk temperature of the
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`light emitting sources.” ’127 patent, 3:13-20. To perform that determination, “[a] thermal mass
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`is disposed proximate the emitters so as to stabilize a bulk temperature for the emitters. … The
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`temperature sensor provides a temperature sensor output responsive to the bulk temperature so that
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`the wavelengths are determinable as a function of the drive currents and the bulk temperature.”
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`Id., Abstract. According to the specification, “[i]n one embodiment, an operating wavelength λa
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`of each light emitter 710 is determined according to EQ. 3
`
`
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`where Tb is the bulk temperature, Idrive is the drive current for a particular light emitter … and
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`ΣIdrive is the total drive current for all light emitters.” ’127 patent, 10:32-39; see also, e.g., id., 3:2-
`
`8 (Light “sources have corresponding multiple operating wavelengths. A temperature sensor is
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`thermally coupled to the thermal mass and is capable of determining a bulk temperature for the
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`thermal mass, where the operating wavelengths are dependent on the bulk temperature.”).
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`Asserted independent claim 7 requires, inter alia, “a plurality of light emitting sources …
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`the sources having a corresponding plurality of operating wavelengths”:
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`7. [preamble] A physiological sensor capable of emitting light into tissue and
`producing an output signal usable to determine one or more physiological
`parameters of a patient, the physiological sensor comprising:
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`[a] a thermal mass;
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`[b] a plurality of light emitting sources, including a substrate of the plurality
`of light emitting sources, thermally coupled to the thermal mass, the
`2
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`6
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`sources having a corresponding plurality of operating wavelengths, the
`thermal mass disposed within the substrate;
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`[c] a temperature sensor thermally coupled to the thermal mass and capable
`of determining a bulk temperature for the thermal mass, the operating
`wavelengths dependent on the bulk temperature; and
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`[d] a detector capable of detecting light emitted by the light emitting sources
`after tissue attenuation, wherein the detector is capable of outputting a
`signal usable to determine one or more physiological parameters of a
`patient based upon the operating wavelengths.
`
`’127 patent, cl. 7.1
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`B.
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`Parties’ Claim Construction Dispute
`
`
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`The parties dispute whether the term “plurality of operating wavelengths” carries its plain
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`and ordinary meaning, or whether the word “plurality” should be removed and replaced with the
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`phrase “that varies with temperature.” Complainants’ construction should be rejected for
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`numerous reasons, including because it is not necessary or helpful, injects confusing redundancy,
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`renders meaningless an express claim limitation, and lacks any basis for adding a new limitation.
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`First, Complainants’ proposed construction is unnecessary and unhelpful because
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`“plurality,” “operating,” and “wavelengths” are all words in common parlance, and nothing in the
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`intrinsic evidence imbues them with a special or unusual meaning. Complainants concede that the
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`constituent term “operating wavelengths” would have been well-understood by skilled artisans and
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`therefore requires no construction, because Complainants simply repeat the term “operating
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`wavelengths” in their proposed construction. See also supra p. 2 (specification describing
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`embodiment of how the “operating wavelength” of the light emitting sources can be
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`“determined”). Because those words “are not technical terms of art, [they] do not require elaborate
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`interpretation.” Brown v. 3M, 265 F.3d 1349, 1352 (Fed. Cir. 2001); see also C.R. Bard, Inc. v.
`
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`1 Brackets added. All emphases added unless otherwise stated.
`3
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`7
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`U.S. Surgical Corp., 388 F.3d 858, 863 (Fed. Cir. 2004) (“[C]ourts … regularly forgo detailed
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`dictionary analyses if the term is as commonplace as ‘conformable’ or ‘pliable’”); Famosa, Corp.
`
`v. Gaiam, Inc., 2012 WL 865687, at *2-3 (S.D.N.Y. Mar. 14, 2012) (explaining “courts should
`
`refrain from reading meaning into easily understandable terms” and declining to construe phrases
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`because “their respective meanings are plain on their face”).
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`Second, Complainants’ proposed construction cannot be correct, and is unhelpful, because
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`it would create confusing “redundan[cy]” in the claims. Phillips v. AWH Corp., 415 F.3d 1303,
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`1325 (Fed. Cir. 2005) (en banc) (rejecting construction that rendered dependent claim redundant);
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`see also Teashot LLC v. Green Mountain Coffee Roasters, Inc., 2014 WL 485876, at *5 (D. Colo.
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`Feb. 6, 2014) (“[P]atents are generally to be construed in a manner that avoids rendering
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`superfluous any portion of a patent claim.”), aff’d, 595 F. App’x 983 (Fed. Cir. 2015). Limitation
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`7[c] already requires a relationship between the operating wavelengths and bulk temperature,
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`reciting, “the operating wavelengths dependent on the bulk temperature.” ’127 patent, cl. 7. There
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`is no reason to add another requirement in limitation 7[b]—that each operating wavelength “varies
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`with temperature”—because a temperature relationship is already expressly recited later in the
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`claim.
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`Third, Complainants’ construction is incorrect because it reads-out the word “plurality”
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`and substitutes a new phrase—“that varies with temperature”—that appears nowhere in the
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`specification. Complainants’ attempt to excise the word “plurality” violates fundamental claim
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`construction principles. See Haemonetics Corp. v. Baxter Healthcare Corp., 607 F.3d 776, 781
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`(Fed. Cir. 2010) (explaining courts should not “construe[] claims so as to render physical structures
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`and characteristics specifically described in those claims superfluous”); Bicon, Inc. v. Straumann
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`Co., 441 F.3d 945, 951 (Fed. Cir. 2006) (explaining that to read limitations out of a claim would
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`4
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`8
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`“be contrary to the principle that claim language should not be treated as meaningless”); Elekta
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`Instrument S.A. v. O.U.R. Scientific Int’l, Inc., 214 F.3d 1302, 1305-07 (Fed. Cir. 2000) (refusing
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`to adopt construction which would render claim language “superfluous”). Likewise improper is
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`Complainants’ attempt to read-in a new claim limitation—the phrase “that varies with
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`temperature.” Phillips, 415 F.3d at 1323 (cautioning courts to “avoid the danger of reading
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`limitations from the specification into the claim” and to avoid “importing limitations”); see also
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`Rothschild Connected Devices Innovations, LLC v. Coca-Cola Co., 813 F. App’x 557, 561 (Fed.
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`Cir. 2020) (non-precedential) (“[I]t is improper to import limitations from the specification into
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`the claims.”). Complainants’ proposal finds no support in the intrinsic evidence. As previously
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`explained, another claim limitation recites, “the operating wavelengths dependent on the bulk
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`temperature”—i.e., using different words than the proposed “varies with temperature.” See ’127
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`patent, cl. 7. The specification similarly does not use the phrase “varies with temperature.”
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`Instead, the specification states that, in certain embodiments, operating wavelengths “are
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`determinable as a function of … the bulk temperature.” See ’127 patent, 2:62-65 (Summary of the
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`Invention stating, “A temperature sensor provides a temperature sensor output responsive to the
`
`bulk temperature so that the wavelengths are determinable as a function of the drive currents and
`
`the bulk temperature.”); 10:32-39 (“In one embodiment, an operating wavelength λa of each light
`
`emitter 710 is determined according to EQ. 3
`
` where Tb is the bulk
`
`temperature, Idrive is the drive current for a particular light emitter … and ΣIdrive is the total drive
`
`current for all light emitters.”). Complainants’ attempt to change the language of the claim should
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`be rejected.
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`
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`Fourth, if the ALJ is inclined to give a construction, Apple’s proposed elaboration should
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`be accepted because it is consistent with the plain and ordinary meaning of the phrase. Dictionaries
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`5
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`9
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`define “plurality” as “the state of being plural … consisting of more than one.” See, e.g., Ex. 1
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`[Oxford English Dictionary] at 1. The Federal Circuit has similarly held that “plurality” means
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`“two or more.” Dayco Prods., Inc. v. Total Containment, Inc., 258 F.3d 1317, 1328 (Fed. Cir.
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`2001) (construing “‘plurality … of projections’” to mean “‘two or more’” projections); see also
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`York Prods., Inc. v. Cent. Tractor Farm & Family Ctr., 99 F.3d 1568, 1575 (Fed. Cir. 1996) (“The
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`term [plurality] means, simply, ‘the state of being plural.’”). Thus, a “plurality of operating
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`wavelengths” simply means “two or more operating wavelengths.”
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`III. U.S. PATENT NO. 10,687,745
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`Claim Term
`
`Proposed Constructions
`
`“second shape”
`
`’745 patent, claims 1, 20
`
`Complainants’ Construction: “A shape that is different
`from the first shape beyond a change in size of the first
`shape”
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`Apple’s Construction: Plain and ordinary meaning (i.e.,
`a shape different than the first shape)
`
`A.
`
`Background
`
`U.S. Patent No. 10,687,745 is entitled “Physiological Monitoring Devices, Systems, and
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`Methods” and is directed to “[a] non-invasive, optical-based physiological monitoring system.”
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`’745 patent, Abstract. Complainants assert infringement of claims 1-6, 8-9, 11, 14, 20-24, and 26-
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`27, and Complainants rely on claims 15, 17, and 18 for domestic industry. Independent claims 1
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`and 20 require that a material positioned between the light-emitting diodes and tissue on a wrist of
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`a user be configured to “change the first shape into a second shape by which the light emitted from
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`one or more of the plurality of light-emitting diodes is projected towards the tissue,” e.g.:
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`1. [1p] A physiological monitoring device comprising:
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`[1a] a plurality of light-emitting diodes configured to emit light in a first
`shape;
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`10
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`[1b] a material configured to be positioned between the plurality of light-
`emitting diodes and tissue on a wrist of a user when the
`physiological monitoring device is in use, the material configured to
`change the first shape into a second shape by which the light emitted
`from one or more of the plurality of light-emitting diodes is
`projected towards the tissue;
`
`[1c] a plurality of photodiodes configured to detect at least a portion of the
`light after the at least the portion of the light passes through the
`tissue, the plurality of photodiodes further configured to output at
`least one signal responsive to the detected light;
`
`[1d] a surface comprising a dark-colored coating, the surface configured to
`be positioned between the plurality of photodiodes and the tissue
`when the physiological monitoring device is in use, wherein an
`opening defined in the dark-colored coating is configured to allow
`at least a portion of light reflected from the tissue to pass through
`the surface;
`
`[1e] a light block configured to prevent at least a portion of the light emitted
`from the plurality of light-emitting diodes from reaching the
`plurality of photodiodes without first reaching the tissue; and
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`[1f] a processor configured to receive and process the outputted at least one
`signal and determine a physiological parameter of the user
`responsive to the outputted at least one signal.
`
`’745 patent, cl. 1; see also id., cl. 20 (requiring “the material configured to change the first shape
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`into a second shape by which the light emitted from one or more of the plurality of light-emitting
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`diodes is projected towards the tissue”).
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`The specification states that a “diffuser” can be “configured to define a surface area shape
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`by which the emitted spread light is distributed onto a surface of the tissue measurement site. The
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`defined surface area shape can include, by way of non-limiting example, a shape that is
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`substantially rectangular, square, circular, oval, or annular, among others.” ’745 patent, 3:5-14.
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`In Figures 7A and 7B, the light emitter 702 transmits optical radiation and the “light diffuser
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`receives the optical radiation emitted from the emitter 702 and homogenously spreads the optical
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`radiation over a wide, donut-shaped area, such as the area outlined by the light diffuser 704 as
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`7
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`11
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`depicted in FIG. 7B.” ’745 patent, 10:52-11:2; see id. Fig. 7A & 7B (excerpted and with purple
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`annotations below).
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`B.
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`Parties’ Claim Construction Dispute
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`
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`
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`The parties agree that the plain and ordinary meaning of the term “second shape” is
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`“different than/from the first shape,” but dispute whether a new phrase—“beyond a change in size
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`of the first shape”—should also be added. Complainants’ proposal should be rejected for multiple
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`reasons, including because it is not necessary or helpful, adds a confusing new limitation, and lacks
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`any basis.
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`First, Complainants’ proposal is not helpful because it seeks to add new words and
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`additional meaning to two elementary concepts—“second” and “shape”—that are already widely
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`used and understood by both skilled artisans and laypersons. See, e.g., Brown, 265 F.3d at 1352
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`(simple, non-technical terms do not require construction); Famosa, 2012 WL 865687, at *2-3
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`(“courts should refrain from reading meaning into easily understandable terms” because “their
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`respective meanings are plain on their face”). Complainants appear to agree that the word
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`“shape”—which Complainants repeat in their proposed construction—is well-understood. The
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`specification’s usage of the word “shape” is consistent with that well-understood meaning. For
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`example, the specification describes “shapes” that are “substantially rectangular, square, circular,
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`oval, or annular, among others.” ’745 patent, 3:5-14; see also id. at 4:66-67 (describing a filter
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`8
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`12
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`that is “substantially rectangular in shape”); 6:24-50 (noting that the “irradiated surface area” can
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`be “substantially rectangular in shape,” “substantially square in shape,” and “skilled artisan will
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`appreciate that many other shapes and dimensions of irradiated surface area … can be used”); 8:9-
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`14 (noting that “the diffuser 304 is capable of distributing the emitted light on the surface of a
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`plane (e.g., the surface of the tissue measurement site 102) in a predefined geometry (e.g., a
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`rectangle, square, or circle), and with a substantially uniform intensity profile and energy
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`distribution”).
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`Second, Complainants’ proposal to add the words “beyond a change in size of the first shape”
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`is also confusing for at least two reasons. To begin, Complainants’ proposal seems to wrongfully
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`imply that there must be at least a change in size for the second shape to be different from the first
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`shape; in other words, if there is no change in area or size, Complainants’ language implies there is no
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`difference between the first shape and second shape. That cannot be correct because two images can
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`have the same area but different shapes—e.g., rectangular, square, circular, annular. Moreover,
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`Complainants’ proposal places undue emphasis on changes in size not necessarily resulting in shape
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`changes. Complainants seemingly seek to imply, in an expressio unius fashion, that any other changes
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`necessarily result in a second shape that is different from the first shape. That, too, is misleading
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`because two images can be different in ways other than size—e.g., different color, different brightness,
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`different polarization—but have the same shape. Where the claim language was clear, Complainants’
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`attempt to add words injects ambiguity.2
`
`
`2 Complainants’ expert, Dr. Madisetti, describes the prosecution history of a related patent
`application, U.S. Patent Application No. 16/532,065, wherein the examiner’s non-final rejection
`“cited [prior art references] Fei and Scharf for the disclosure of lenses that could alter a light beam
`by changing its size.” Ex. 2 [Expert Report of Vijay K. Madisetti, Ph.D. Regarding Claim
`Construction (“Opening Madisetti Rpt.”)], ¶¶ 62-65. After an interview with the applicant, the
`examiner issued a Notice of Allowance amending the claim to recite “a material configured to alter
`the first shape into a second shape by which the light is emitted from one or more of the plurality
`of emitters is distributed onto a surface of the tissue measurement site.” Id., ¶ 68 (citing March 9,
`9
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`13
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`Third, if the ALJ is inclined to give a construction, Apple’s proposed elaboration should
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`be adopted. Both parties agree that “second” means “different than/from the first.” That
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`construction consistent with the Federal Circuit’s definition of “second” as identifying an element
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`that is different than the “first.” See, e.g., Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367,
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`1373 (Fed. Cir. 2005) (construing “‘first,’ ‘second,’ and ‘third’ blades” and holding “these ordinal
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`terms designate different blades”); Free Motion Fitness, Inc. v. Cybex Int’l, Inc., 423 F.3d 1343,
`
`1348 (Fed. Cir. 2005) (holding that the “‘second pivot point’” “distinguishes the pivot point on the
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`‘first extension arm’”). Thus, the “second shape” simply means “a shape different than the first
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`shape.”
`
`IV. U.S. PATENT NOS. 10,912,501, 10,912,502, AND 10,945,648
`
`A.
`
`Background
`
`U.S. Patent Nos. 10,912,501 (the “’501 Patent”), U.S. Patent No. 10,912,502 (the “’502
`
`Patent”) and U.S. Patent No. 10,945,648 (the “’648 Patent”) (collectively, the “Asserted Poeze
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`Patents”), each entitled “User-Worn Device for Noninvasively Measuring a Physiological
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`Parameter of a User,” focus on user-worn devices for the non-invasive measurement of blood
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`constituents, such as blood oxygen level.
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`As the Background section of the shared specification confirms, at the time of the original
`
`filing, the “standard of care” for patient monitoring included “spectroscopic analysis using, for
`
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`2020 Notice of Allowance (MASITC_00267742)). The applicant then submitted an interview
`summary stating: “‘Agreement was reached that Applicant’s proposed claim amendments, which
`reflect a change in shape of emitted light beyond a change in size, defined over the Examiner’s
`citation of judicial notice of emitted light passing through a lens.’” Id., ¶¶ 65-69 (quoting March
`23, 2020 Summary of Interview at 1 (MASITC_00267717)). At most, that interview summary
`memorializes the applicant’s disclaimer that a change in size is not sufficient to produce a change
`in shape. The context of the office actions, amendments, and interview summary does not suggest,
`however, that a change in size is necessary to produce a change in shape or that it could be the
`only change that does not produce a change in shape.
`10
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`14
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`example, a pulse oximeter.” ’501 patent, 2:15-17; ’502 patent, 2:15-17; ’648 patent, 2:14-16; Ex.
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`3 [Initial Expert Claim Construction Report of Steven Warren Ph.D. (“Initial Warren Rpt.”)] ¶ 34.
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`These well-known devices typically included multiple light emitters for “transmitting optical
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`radiation into or reflecting off a measurement site, such as, body tissue carrying pulsing blood”
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`and multiple photodetectors for “detect[ing] the attenuated light and output[ting] a detector
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`signal(s) responsive to the detected attenuated light” after it passed through the tissue. ’501 patent,
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`2:17-23; ’502 patent, 2:17-23; ’648 patent, 2:16-22; Ex. 3 [Initial Warren Rpt.] ¶¶ 34-35. A
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`processor would then process the detected signals and output a “measurement indicative of a blood
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`constituent of interest,” such as blood oxygen level. ’501 patent, 2:24-29; ’502 patent, 2:24-29;
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`’648 patent, 2:23-28; Ex. 3 [Initial Warren Rpt.] ¶ 36.
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`The specification discloses a variety of finger-worn devices for measuring a user’s
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`physiological conditions. Ex. 3 [Initial Warren Rpt.] ¶¶ 37-38. For example, Figures 3A, 3C, and
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`7B illustrate traditional clothespin-shaped user-worn pulse oximeters, with the light emitters (e.g.,
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`LEDs) located in the top portion of the device’s housing and the light detectors (e.g., photodiodes)
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`located in the bottom portion of the device’s housing:
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`11
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`15
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`’501 patent, Figs. 3A, 3C, 7B; ’502 patent, Figs. 3A, 3C, 7B; ’648 patent, Figs. 3A, 3C, 7B; Ex. 3
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`[Initial Warren Rpt.] ¶ 40.
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`The specification does not identify the purported novelty of any of the exemplary devices
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`described in the patents. Instead, it contends that the described devices can alternatively be used
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`anywhere on a patient’s body (e.g., “finger, foot, ear lobe, or the like”) and can include any
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`arrangement of light emitters (e.g., “one or more” “sets” of “LEDs, laser diodes, incandescent
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`bulbs . . . or the like”), any arrangement of photodetectors (e.g., multiple “photodiodes,
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`phototransistors, or the like” arranged in “any . . . spacing scheme”), and a “tissue shaper” or
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`protrusion of any shape (e.g., “flat,” “substantially flat,” “convex,” “substantially convex,” or
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`“concave”). ’501 patent, 10:65-68, 12:6-7, 14:18-19, 14:30-34; 11:4-23; ’502 patent, 10:65-68,
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`12:6-7, 14:18-19, 14:30-34; 11:4-23; ’648 patent, 10:59-61, 12:1-2, 14:13-14, 14:26-30; 10:66-
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`11:18.
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`The asserted claims—added to Masimo’s applications twelve years after the original filing
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`and a week after Apple introduced the accused Apple Watches—claim specific combinations and
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`arrangements of these well-known elements that Complainants allege are used by the accused
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`Apple Watches but that are not disclosed, together, in any of the examples in the shared
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`specification.
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`The dependent claims also include various additional concepts that are mentioned only
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`briefly in the specification. “Bulk measurement” is one such concept that is mentioned only briefly
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`in the shared specification for the Asserted Poeze Patents. The shared specification states that “the
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`use of multiple-detectors in a spatial configuration allow for a bulk measurement to confirm or
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`validate that the sensor is positioned correctly. This is because the multiple locations of the spatial
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`configuration can provide, for example, topology information that indicates where the sensor has
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`12
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`been positioned.” ’501 patent, 34:49-54; ’502 patent, 34:44-49; ’648 patent, 34:32-37; Ex. 3
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`[Initial Warren Rpt.] ¶ 52. The shared specification further states that “multiple detectors are
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`employed and arranged in a spatial geometry” and that “[t]his spatial geometry provides a diversity
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`of path lengths among at least some of the detectors and allows for multiple bulk and pulsatile
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`measurements that are robust.” ’501 patent, 9:18-22; ’502 patent, 9:18-22; ’648 patent, 9:13-17.3
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`Notably, the shared specification of the Asserted Poeze Patents does not mention a “bulk
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`measurement” in the context of a single emitter (e.g., an LED) or single detector (e.g., a
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`photodiode). Although the specification describes a “bulk measurement” only in the context of
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`multiple signals from multiple photodiodes, the claims recite a bulk measurement that can be taken
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`from as few as one signal from one photodiode.
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`The term “bulk measurement” appears in dependent claim 13 of the ’501 patent, dependent
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`claim 12 of the ’502 patent, and dependent claims 2 and 21 of the ’648 patent. For example, claim
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`1 of the ’648 patent requires the following:
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`1. A user-worn device configured to non-invasively determine
`measurements of physiological parameter of a user, the user-worn
`device comprising:
`a plurality of light emitting diodes (LEDs);
`four photodiodes configured to receive light emitted by the
`LEDs, the four photodiodes being arranged to capture light at
`different quadrants of tissue of a user;
`a protrusion comprising a convex surface and a plurality of
`openings extending through the protrusion, the openings
`arranged over the photodiodes and configured to allow light
`to pass through the protrusion to the photodiodes; and
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`3 The path lengths referenced in the specification relate to the distances light travels between an
`emitter (or emitters) and the respective detectors. See Ex. 3 [Initial Warren Rpt.] ¶ 54. As the
`specification explains, a diversity of path lengths is achieved where there are multiple detectors in
`a spatial geometry. Id. A spatial arrangement of multiple detectors achieves a diversity of path
`lengths because the distance the light from each emitter travels to reach each detector will be
`different, and therefore reflected in the signal from each detector. Id. The specification always
`refers to the use of multiple detectors to achieve a diversity of path lengths and does not explain
`how a single signal from a single detector could reflect such a diversity.
`13
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`one or more processors configured to receive one or more
`signals from at least one of the photodiodes and determine
`measurements of oxygen saturation of the user.
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`’648 patent, cl. 1. Dependent claim 2 of the ’648 patent then recites determining a “bulk
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`measurement” based upon the “one or more signals from at least one of the photodiodes” from
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`independent claim 1 above:
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`2. The user-worn device of claim 1, wherein the one or more
`processors are further configured to process the one or more signals
`to determine a bulk measurement indicating a positioning of the
`user-worn device.
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`’648 patent, cl. 2. Thus, the “bulk measurement” in dependent claim 2 of the ’648 patent can be
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`determined using as few as one signal from one photodiode, as expressed in independent claim 1.
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`Likewise,