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
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`
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`COMPLAINANTS’ REBUTTAL CLAIM CONSTRUCTION BRIEF
`
`
`
`
`
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`1
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`APPLE 1024
`Apple v. Masimo
`IPR2022-01299
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`

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`TABLE OF CONTENTS
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`Page No.
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`I.
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`II.
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`III.
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`IV.
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`V.
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`INTRODUCTION ............................................................................................................. 1
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`PERSON OF ORDINARY SKILL IN THE ART ............................................................. 1
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`PLURALITY OF OPERATING WAVELENGTHS (’127 PATENT) ............................. 2
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`SECOND SHAPE (’745 PATENT)................................................................................... 3
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`BULK MEASUREMENT (’501, ’502 AND ’648 PATENTS) ........................................ 5
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`A.
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`B.
`
`C.
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`“Bulk Measurement” is Readily Understandable .................................................. 5
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`The Specification Does Not Require Multiple Signals from Multiple
`Detectors ................................................................................................................ 7
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`Apple’s Expert Contradicts His Own Prior Writings .......................................... 10
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`VI.
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`CONCLUSION ................................................................................................................ 12
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`-i-
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`2
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`TABLE OF AUTHORITIES
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`Page No(s).
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`Hill-Rom Servs., Inc. v. Stryker Corp.,
`755 F.3d 1367 (Fed. Cir. 2014)..................................................................................................7
`
`Masimo Corporation v. Philips Electronics North America Corporation et al.,
`C.A. Nos. 09-080-LPS, 11-742-LPS-MPT ........................................................................11, 12
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)..................................................................................................7
`
`ScriptPro LLC v. Innovation Assoc., Inc.,
`833 F.3d 1336 (Fed. Cir. 2016)..................................................................................................9
`
`Ground Rule 6.2 ...............................................................................................................................1
`
`OTHER AUTHORITIES
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`-ii-
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`3
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`I. INTRODUCTION
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`Masimo proposed constructions to help explain three terms from the five Asserted Patents.
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`For “plurality of operating wavelengths,” Masimo advocated for a construction to make clear that
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`the operating wavelengths, as used throughout the claim, varies with bulk temperature. Apple
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`conceded in its opening brief that each instance of the phrase “operating wavelength” requires a
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`relationship between the operating wavelengths and bulk temperature. Based on this concession,
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`Masimo accepts Apple’s proposal that the claim should be construed according to its plain and
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`ordinary meaning.
`
`For “second shape,” Masimo proposed a construction coming directly from the prosecution
`
`history of a related patent. Apple criticized that construction based on the word “beyond.” In
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`response, Masimo proposed an explicit definition to address that criticism: “a shape that is different
`
`from the first shape, where a different size, without any other difference, is not a shape different
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`from the first shape.” Apple rejected that proposal. Apple’s remaining objection focuses on an
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`unreasonable hypothetical and not the prosecution history.
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`Finally, “bulk measurement” refers to a basic, well-known principle of pulse oximetry:
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`that the vast majority of the signal is the non-pulsatile, DC component. A skilled artisan would
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`readily understand “bulk measurement” to mean “baseline measurement.” Apple argues that “bulk
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`measurement” is indefinite, manufacturing an ambiguity between one embodiment and the claim
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`language. But neither the claim nor the specification is limited to that embodiment. Apple cannot
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`show by clear and convincing evidence that the claim is indefinite.
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`II. PERSON OF ORDINARY SKILL IN THE ART
`
`Ground Rule 6.2 requires identification of the person of ordinary skill in the art (“POSA”
`
`or “POSITA”) in the opening claim construction brief. Apple’s opening brief did not address this
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`-1-
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`4
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`issue. Apple’s expert, however, identified a POSA for the ’501, ’502, and ’648 patents in his claim
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`construction report. See Ex. 41 (Warren Initial Report) ¶ 32.
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`Masimo’s opening brief did not oppose that identification for purposes of this
`
`Investigation. Masimo Opening Brief (Doc ID 761612, “Masimo Op. Br.”) at 13. The ALJ should
`
`therefore adopt that identification:
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`[A] person with a working knowledge of physiological monitoring technologies.
`The person would have had a Bachelor of Science degree in an academic discipline
`emphasizing the design of electrical, computer, or software technologies, in
`combination with training or at least one to two years of related work experience
`with capture and processing of data or information, including but not limited to
`physiological monitoring technologies. Alternatively, the person could have also
`had a Master of Science degree in a relevant academic discipline with less than a
`year of related work experience in the same discipline.
`
`Ex. 4 ¶ 32.
`
`With respect to the POSA for the ’745 and ’127 patents. Masimo and its experts adopted
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`the same identification provided above. Masimo Op. Br. at 13-14. Apple identified no one.
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`Therefore, the ALJ should also adopt the same level of ordinary skill in the art for all five of the
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`asserted patents.
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`III. PLURALITY OF OPERATING WAVELENGTHS (’127 PATENT)
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`Using Apple’s labels, Claim 7 of the ’127 patent is as follows:
`
`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:
`
`
`[a] a thermal mass;
`
`[b] a plurality of light emitting sources, including a substrate of the plurality
`of light emitting sources, thermally coupled to the thermal mass, the sources
`having a corresponding plurality of operating wavelengths, the thermal
`mass disposed within the substrate;
`
`
`
`1 Exhibits 1-16 are attached to Masimo’s Opening Brief.
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`-2-
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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.
`Apple criticized Masimo’s proposed construction as creating a “redundancy” in the claims. Apple
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`argued that “Limitation 7[c] already requires a relationship between the operating wavelengths and
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`bulk temperature, reciting, ‘the operating wavelengths dependent on the bulk temperature.’”
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`Apple Inc.’s Opening Markman Brief (Doc ID 761605, “Apple Op. Br.”) at 4. Apple also argued
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`and admitted that “there is no reason to add another requirement in limitation 7[b] . . . because a
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`temperature relationship is already expressly recited later in the claim.” Id. (emphasis added).
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`That is correct, as explained in the specification that Apple cites: “operating wavelengths ‘are
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`determinable as a function of . . . the bulk temperature.’” Id. at 5 (citing ’127 patent at 2:62-65;
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`10:32-39).
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`Masimo advocated its claim construction to make clear that the operating wavelengths
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`throughout the claim vary with or are a function of bulk temperature, just as Apple now concedes.
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`In view of this agreement, Masimo’s claim construction proposal is no longer necessary. Masimo
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`accepts that “plurality of operating wavelengths” should be construed according to the plain and
`
`ordinary meaning consistent with Apple’s construction “i.e., two or more operating wavelengths.”
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`IV. SECOND SHAPE (’745 PATENT)
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`Masimo proposed its construction because it came directly from the prosecution history of
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`a related patent. Apple objected to the construction based on its particular view of the meaning of
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`the word “beyond.” Specifically, relying on the word “beyond,” Apple argued that “if there is no
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`change in area or size, Complainants’ language implies there is no difference between the first
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`shape and second shape.” Apple Op. Br. at 9. To eliminate Apple’s objection, Masimo offered a
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`revised construction of “second shape” to be “a shape that is different from the first shape, where
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`a difference in size, without any other difference, is not a shape different from the first shape.”
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`See Ex. 17 (February 3, 2022, Email from Kendall Loebbaka) (emphasis added). Apple rejected
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`Masimo’s proposal. See Ex. 18 (February 8, 2022, Email from David Yin).
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`Apple complained that Masimo’s proposal “does not sufficiently address the problems
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`identified on page 9 of Apple’s 1/27 Opening Markman Brief.” Id. Apple made two arguments
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`on page 9. First, Apple argued that Masimo’s original proposed construction “impl[ies] that there
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`must be at least a change in size for the second shape to be different from the first shape.” Apple
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`Op. Br. at 9 (emphasis in original). Masimo never intended such an implication. Indeed, Masimo
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`agrees with Apple’s interpretation that the file history supports the view that “a change in size is
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`not sufficient to produce a change in shape.” Id. at 9-10, n.2 (emphasis in original). Thus, Masimo
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`offered its revised construction to fully address Apple’s criticism.
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`Second, Apple argued that Masimo’s original proposed construction “impl[ies], in an
`
`expressio unius fashion, that any other changes necessarily result in a second shape that is different
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`from the first shape . . . e.g., different color, different brightness, different polarization—but have
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`the same shape.” Id. at 9. Apple’s argument focuses on theoretical issues and not on the specific
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`issue discussed in the file history, i.e., size. Moreover, it ignores that the ALJ, and not a jury, will
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`be applying the claim language.
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`
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`In the context of the straightforward nature of the phrase “second shape,” Apple’s
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`application of the expressio unius interpretative maxim is unreasonable. The file history excluded
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`only one characteristic. Discussing additional characteristics is not part of the claim construction
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`process. Whether other characteristics result in a change in shape could only amount to an issue
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`of fact for trial. Accordingly, Masimo’s revised construction rectifies any reasonable objection by
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`Apple and should be adopted.
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`V. BULK MEASUREMENT (’501, ’502 AND ’648 PATENTS)
`
`A.
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`“Bulk Measurement” is Readily Understandable
`
`Masimo’s construction of “bulk measurement” accounts for various components that make
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`up the bulk at the sensor site. As explained in Masimo’s opening brief, the bulk measurement is
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`the portion of the detected signal that corresponds to the bulk of the measurement site. See Masimo
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`Op. Br. at 5-6. The bulk of the measurement site would include, for example, tissue, bone, skin,
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`fat, vessels, venous blood, and constant arterial blood. That measurement is also called the non-
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`pulsatile or DC component of the detected signal. The bulk measurement makes up well over 99
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`percent of the detected signal. See id.
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`Apple first contends that “bulk measurement” is not a term of art. Apple Op. Br. at 15.
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`Apple contends that “[b]oth sides agree a POSITA would thus have been required to examine the
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`shared specification of the Asserted Poeze Patents to attempt to ascertain the meaning of ‘bulk
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`measurement.’” Id. But Apple cites only its own expert. Masimo and its expert both explained
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`that the construction would be evident to a POSA, particularly after reading the specification.
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`Masimo Op. Br. at 15-18; Ex. 1 (Madisetti Initial Report) ¶ 43. As explained, a POSA would
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`understand the bulk measurement to be the baseline measurement, which is also the non-pulsatile
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`portion or DC component of the detected signal.
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`The experts do not appear to dispute that the DC component of a measured signal is the
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`same as the non-pulsatile component of that signal. In fact, Dr. Warren explains “[t]o the extent
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`that Dr. Madisetti is using the DC component of a signal and a non-pulsatile component of a signal
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`interchangeably, a POSITA would have had this same understanding.” Ex. 5 (Warren Rebuttal
`
`Report) at 4, n.1.
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`Dr. Warren also concedes that “a POSITA at the time of the alleged invention would have
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`readily recognized that a non-pulsatile measurement can be used to help determine the correct
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`positioning of a device.” Ex. 5 (Warren Rebuttal Report) ¶ 17. Similarly, the claims recite that
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`the “bulk measurement” is “responsive to [or indicating] a positioning of the user-worn device.”
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`Therefore, the parties agree that a POSA “would have readily recognized” that the “non-pulsatile
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`measurement” is used for the same purpose as the claimed “bulk measurement.” This also suggests
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`that a POSA would equate bulk measurement and non-pulsatile measurement.
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`Apple argues that use of the phrase “a bulk, non-pulsatile measurement” in the
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`specification somehow requires that “bulk” and “non-pulsatile” must “describe two separate
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`characteristics of the measurement.” Apple Op. Br. at 17-18. According to Apple, the two
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`characteristics are (1) “that the measurement uses multiple signals from multiple detectors,” and
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`(2) “that the measurement is non-pulsatile.” Id. at 18. This argument appears to rest on the
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`erroneous assumption that successive adjectives must have different meanings. Here, the
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`specification’s use of successive adjectives was to emphasize or clarify the meaning of bulk, i.e.,
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`non-pulsatile. In the context of pulse oximetry it is readily apparent that these words are synonyms.
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`It is also readily apparent when the specification uses contrasting adjectives. For example,
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`the specification says, “both the non-pulsatile and pulsatile measurements can employ, among
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`other things, the multi-stream operation described above in order to attain sufficient SNR.” ’501
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`patent at 34:37-41. Here, it is obvious that the specification is contrasting “non-pulsatile” and
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`“pulsatile” measurements. Similarly, the specification contrasts bulk and pulsatile: “[t]his spatial
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`geometry provides a diversity of path lengths among at least some of the detectors and allows for
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`multiple bulk and pulsatile measurements that are robust.” Id. at 9:19-22. Obviously, the context
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`matters.
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`Apple also understood the meaning of “bulk measurement” for purposes of preparing its
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`invalidity contentions. Apple argued that “[t]he Asserted Claims also recite devices with
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`processors capable of determining bulk measurements responsive to positioning of the device.
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`This idea also was known long before the priority date of the Asserted Patents.” Ex. 19 (Excerpt
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`of Apple’s Invalidity Contentions, dated December 3, 2021) at 135. Apple could not have made
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`such a contention without attributing some meaning to bulk measurement. And Masimo agrees
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`that obtaining a bulk measurement is well-known. This term is not indefinite.
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`B.
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`The Specification Does Not Require Multiple Signals from Multiple Detectors
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`Apple contends that a bulk measurement must be obtained from multiple signals from
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`multiple detectors. Apple Op. Br. at 15-16. Specifically, Apple argues that “[t]he specification
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`does not explain how an output stream, or signal, from a single detector (1) can achieve a diversity
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`of path lengths or (2) can be used to determine a bulk measurement.” Id. at 16. There are multiple
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`flaws in this argument.
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`First, Apple makes an enablement argument under the guise of claim construction. Validity
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`issues such as enablement should not be “a regular component of claim construction” and are
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`premature at this stage. Phillips v. AWH Corp., 415 F.3d 1303, 1327 (Fed. Cir. 2005); see also
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`Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1374 (Fed. Cir. 2014) (“Enablement
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`concerns do not justify departing from the plain and ordinary meaning. . . . Courts should be
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`cautious not to allow claim construction to morph into a mini-trial on validity.”). The issue on
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`claim construction focuses on the meaning of the terms, not whether the claim is enabled to one
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`of skill in the art. Regardless, Dr. Warren concedes it is well known that a single detector can be
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`used to make a DC measurement. Ex. 5 (Warren Rebuttal Report) at ¶ 17 (describing the use of a
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`non-pulsatile measurement to help determine the correct positioning of the device without using
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`multiple detectors).
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`Second, Apple assumes that a diversity of path lengths is necessary to determine a bulk
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`measurement. Apple Op. Br. at 16. Generally, path length refers to the distance light travels from
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`the light source to the detector. See Ex. 4 (Warren Initial Report) ¶ 54. The specification is not so
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`limited. Rather, the specification explains that “multiple detectors are employed and arranged in
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`a spatial geometry” and that “[t]his spatial geometry provides a diversity of path lengths among at
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`least some of the detectors and allows for multiple bulk and pulsatile measurements that are
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`robust.” ’501 patent at 9:18-22. Thus, multiple detectors create multiple bulk measurements. The
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`specification thus suggests, what is well-known in the art, that each detector can generate a bulk
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`measurement.
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`Apple quotes the specification, inadvertently reinforcing the concept:
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`In certain embodiments, multiple detectors are employed and arranged in a spatial
`geometry. This spatial geometry provides a diversity of path lengths among at least
`some of the detectors and allows for multiple bulk and pulsatile measurements that
`are robust. Each of the detectors can provide a respective output stream based on
`the detected optical radiation, or a sum of output streams can be provided from
`multiple detectors.
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`Apple Op. Br. at 16 (quoting ’501 patent at 9:18-25 (emphasis added)). The patent therefore
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`explains that bulk and pulsatile measurements are derived from (1) a “respective output stream”
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`from “each of the detectors” or (2) “a sum of output streams” from “multiple detectors.” The first
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`case describes a bulk measurement determined from one output stream (signal) from one detector.
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`The second case describes a bulk measurement from multiple detectors.
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`Moreover, the specification repeatedly refers to single-detector embodiments. See, e.g.,
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`’501 patent at 9:3-4 (“The sensor can include photocommunicative components such as an emitter,
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`a detector, and other components”); 2:60 (referring to “the light detector(s)”); 7:63-65 (“In an
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`embodiment, this is done through the use of a lens which collects attenuated light existing the
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`measurement site and focuses onto one or more detectors); 8:39-40 (describing “one or more
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`detectors”); 9:46-47 (“The sensor may comprise an emitter, a detector, and other components.”).
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`Apple provides no reason to ignore these single-detector embodiments, which confirm that
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`a bulk measurement does not require multiple signals from multiple detectors. Interpreting the
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`claims requires consideration of the specification as a whole, not limiting the analysis to one
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`embodiment as Apple does. “[A] specification’s focus on one particular embodiment or purpose
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`cannot limit the described invention where that specification expressly contemplates other
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`embodiments or purposes.” ScriptPro LLC v. Innovation Assoc., Inc., 833 F.3d 1336, 1341 (Fed.
`
`Cir. 2016).
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`To argue that a single detector cannot be used to determine a bulk measurement, Apple
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`relies on the specification passage explaining that “the use of multiple-detectors in a spatial
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`configuration allow for a bulk measurement to confirm or validate that the sensor is positioned
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`correctly.” Apple Op. Br. at 16 (quoting ’501 patent at 34:49-54 (emphasis added)). This passage
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`does not support Apple’s conclusion that every bulk measurement requires multiple detectors.
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`Rather, this passage explains that multiple detectors allow the bulk measurement to “confirm or
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`validate that the sensor is positioned correctly.” See Ex. 2 (Madisetti Rebuttal Report) ¶ 4.
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`The specification also does not limit “bulk measurement” to the capability of confirming
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`or validating sensor positioning. For example, the specification states that “[s]ome embodiments
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`can employ a bulk, non-pulsatile measurement in order to confirm or validate a pulsatile
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`measurement.” ’501 patent at 34:35-37 (emphasis added). The specification thus explains that
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`some embodiments employ bulk measurements to determine sensor positioning and other
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`embodiments use bulk measurements for other purposes.
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`The parties agree that the full scope of the claim requires that a bulk measurement be
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`determined with one or more signals. As Apple argues, “the claims in a patent must be construed
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`so that their meaning is consistent with the full scope of the claim, which in the case of the Asserted
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`Poeze Patents, is a ‘bulk measurement’ obtained from as few as one signal.” Apple Op. Br. at 15
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`(citing Alt. Rsch. Mktg. Sys., Inc. v. Troy, 659 F.3d 1345, 1354 (Fed. Cir. 2011). Masimo’s
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`proposed construction of “baseline measurement” is consistent with the full scope of the claims.
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`Apple’s contention that a bulk measurement always requires multiple signals from multiple
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`photodiodes is not consistent with the full scope of the claims and the specification, and should be
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`rejected.
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`C.
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`Apple’s Expert Contradicts His Own Prior Writings
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`Apple contends that “a POSITA would not have understood that a ‘baseline measurement’
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`is a ‘DC component’ of a signal.” Apple Op. Br. at 19. Dr. Warren also contends that a “baseline
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`measurement” is not “DC component of a signal.” Ex. 5 (Warren Rebuttal Report) ¶ 30. However,
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`Dr. Warren’s prior writings repeatedly equate the DC component with the term “baseline.”
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`For example, in an article published by Dr. Warren in 2007, shortly before the 2008 priority
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`date of the ’501, ’502, and ’648 patents, Dr. Warren explicitly referred to the DC value as the
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`“baseline” in describing a laboratory exercise for a college course using a pulse oximeter design.
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`Dr. Warren stated:
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`Calculate a calibration coefficient for these data according to the expression R =
`(Iac/Idc)red/(Iac/Idc)near-infrared, where Iac represents the AC (peak-to-peak) excursion
`of each plethysmogram and Idc represents the DC value, or baseline, of each
`plethysmograms.
`
`Ex. 20 (Thompson and Warren, “AC 2—7-2420: A Small, High-Fidelity Reflectance Pulse
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`Oximeter,” Am. Soc. For Eng’g Ed. (2007)) at p. 12.115.8-9 (emphasis added). Accordingly, as
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`of 2007, Dr. Warren understood the DC value of a plethysmogram to mean the baseline.
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`Elsewhere in that same publication, Dr. Warren reinforced this understanding:
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`The new pulse oximeter design is described by the block diagram depicted in
`Figure 2. As in the previous design, the sensor microcontroller changes the LED
`drive currents to maintain a DC baseline that is placed appropriately within the
`range of the microcontroller analog-to-digital (A/D) converter.
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`Id. at p. 12.115.5 (emphasis added).
`
`The “low-resolution” (Low-Res) designator refers to the acquisition of the entire
`plethysmographic waveform, which incorporates both the DC and AC signal
`components. Since these components must be spread over a large portion of the
`ADC range and the signal’s DC component can be hundreds of times greater than
`the signal’s AC excursion, the AC portion must be sampled separately. To
`accomplish this, the circuit subtracts out the signal baseline and samples an
`amplified version of the pulsatile (AC) excursion, resulting in a “high-resolution”
`(High-Res) signal represented by hundreds of digitization levels from valley to
`peak. Note that this signal still contains minor amounts of drift present in the
`original DC signal. . . .
`
`Id. at p. 12.115.7 (emphasis added) (explaining the process of separating the AC portion of the
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`pleth from the DC portion of the pleth by subtracting out the “signal baseline”). And again:
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`The microcontroller then continually adjusts the drive current (and therefore the
`photo-plethysmogram DC baselines) throughout the data acquisition session,
`holding the low-resolution response at approximately one half of the ADC voltage
`reference level.
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`Id. (emphasis added).
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`Dr. Warren similarly equated “baseline” with “DC” in an expert report he submitted in
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`Masimo Corporation v. Philips Electronics North America Corporation et al., C.A. Nos. 09-080-
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`LPS, 11-742-LPS-MPT. For example, Dr. Warren’s opening expert report in the Philips case
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`contained a section titled “Time-Varying and Baseline Signals.” Ex. 21 (Excerpt of Expert Report
`
`of Dr. Steve Warren Regarding The Invalidity of U.S. Patent No. 7,509,154 in in C.A. Nos. 09-
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`080-LPS and 11-742-LPS-MPT) at 11-13. This section explains that the time-varying portion of
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`the signal is the pulsatile signal (or AC portion), and further explains that:
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`the small pulsatile signal, IAC, rides on top of a much larger and more constant
`baseline signal, symbolized by IDC, where ‘DC’ is borrowed from the electrical
`engineering acronym for ‘direct current.’ This baseline component results from
`a constant light-detection level due to tissue that is always present: bone, skin, fat,
`vessels, residual blood, etc.
`
`Id. at 12 (emphasis added). Dr. Warren similarly explains that when determining blood oxygen
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`saturation of a person, “each pulsatile excursion must be normalized by its corresponding baseline
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`to account for variations in the residual tissue and local sensing environment.” Id. at 14. This
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`statement again demonstrates Dr. Warren himself referred to a baseline component, which is used
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`to normalize the pulsatile, or AC, component of the signal in order to determine blood oxygen
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`saturation. See also Ex. 2 (Madisetti Rebuttal Report) ¶ 10 (explaining that “normalization of a
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`signal is calculated by dividing the transmitted light from each LED by its individual DC
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`component.”).
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`
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`Accordingly, Dr. Warren’s assertion that “Dr. Madisetti . . . is incorrect that a ‘baseline
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`measurement’ is a DC component of a signal” lacks credibility in view of Dr. Warren’s own
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`numerous prior statements to the contrary. Neither Apple nor Dr. Warren disputes that a POSA
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`would have known how to determine the DC component from a single signal.
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`VI. CONCLUSION
`
`For the reasons described herein, Masimo respectfully requests the ALJ adopt the plain and
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`ordinary meaning of “plurality of operating wavelengths” to be “two or more operating
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`wavelengths,” Masimo’s revised construction of “second shape” to be “a shape that is different
`
`from the first shape, where a difference in size, without any other difference, is not a shape different
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`from the first shape,” and “bulk measurement” to be “baseline measurement” or “DC component.”
`
`Respectfully submitted,
`
`Dated: February 10, 2022
`
`By: /s/ Sheila N. Swaroop
`Stephen C. Jensen
`
`
`
`-12-
`
`15
`
`

`

`
`
`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
`Facsimile: (949) 760-9502
`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
`Facsimile: (202) 640-6401
`Brian C. Horne
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`1925 Century Park East
`Suite 600
`Los Angeles, CA 90067
`Telephone: (310) 551-3450
`Facsimile: (310) 551-3458
`Carol Pitzel Cruz
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`925 4th Ave., #2500
`Seattle, WA 98104
`Telephone: (206) 405-2000
`Facsimile: (206) 405 2001
`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
`Facsimile: (212) 849-3001
`Counsel for Complainants
`Masimo Corporation and
`Cercacor Laboratories, Inc.
`
`-13-
`
`16
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`

`

`
`
`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 10, 2022, I caused copies of the
`foregoing document to be filed and served as indicated below:
`
` Via Electronic Filing [EDIS]
` Via hand delivery
` Via Express Delivery
` Not filed
`
` Via Hand Delivery
` Via E-mail to
`WHApple-
`Masimo1276ServiceList@wilmerhale.com
` Via Express Delivery
` Via Facsimile
`
`Secretary – U.S. International Trade Commission
`The Honorable Lisa R. Barton
`Secretary to the Commission
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
`Administrative Law Judge – U.S. International Trade Commission
`The Honorable Monica Bhattacharyya
` Via E-mail to edward.jou@usitc.gov
`U.S. International Trade Commission
`and michael.maas@usitc.gov and
`500 E Street, S.W., Room 317
`Bhattacharyya337@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
`
`February 10, 2022
`
`/s/ Claire A. Stoneman
`Claire A. Stoneman
`Litigation Paralegal
`Knobbe, Martens, Olson & Bear, LLP
`
`
`
`55033448
`
`-1-
`
`17
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`

`

`APPENDIX
`LIST OF EXHIBITS
`
`Description
`
`February 2, 2022, Email from Kendall Loebbaka to Counsel for Apple
`
`February 8, 2022, Email from David Yin to Kendall Loebbaka
`
`Excerpt from Apple’s Preliminary Invalidity Contentions
`
`Thompson, David, et al., “AC 2007-2420: A Small, High-Fidelity Reflectance
`Pulse Oximeter,” American Society for Engineering Education, 2007
`
`Excerpt from Expert Report of Dr. Steve Warren Regarding the Invalidity of U.S.
`Patent No. 7,509,154, Masimo Corporation v. Philips Electronics North
`American Corporation, et al., C.A. No. 09-080-LPS, U.S. District Court, District
`of Delaware
`
`Exhibit
`Number
`
`17
`
`18
`
`19
`
`20
`
`21
`
`
`
`
`
`18
`
`

`

`EXHIBIT 17
`EXHIBIT 17
`
`19
`
`

`

`From:
`To:
`Cc:
`Subject:
`Date:
`
`Kendall.Loebbaka
`WH Apple-Masimo 1276 Service List
`Masimo.AppleITC
`ITC No 337-TA-1276 | Claim Construction
`Thursday, February 3, 2022 3:23:44 PM
`
`Counsel,
` 
`We have reviewed Apple’s opening claim construction brief and believe that the parties may be able
`to reach agreement regarding the term “second shape.”  While Masimo maintains its original
`construction is correct, we propose the following for Apple’s consideration to reduce the burden on
`the ALJ and to narrow the issues in this investigation.   Specifically, there appears to be some
`confusion regarding the word “beyond” in Masimo’s proposed construction.  Apple criticized
`Masimo’s construction as implying that:  “if there is no change in area or size, Complainants’
`language implies there is no difference between the first shape and second shape.”  (Page 9.)  To
`remove any such implication, Masimo proposes that the parties agree to a construction of “second
`shape” to be “a shape that is different from the first shape, where a different size, without any other
`difference, is not a shape different from the first shape.” 
` 
`Please let us know by EOD, February 4, if Apple agrees to this construction.   If not, please let us
`know what issue Apple maintains is still in dispute.  We are also available to discuss.
` 
`Best regards,
`Kendall
` 
`Kendall Loebbaka
`Partner
`949-721-7687 Direct
`Knobbe Martens
` 
`
`20
`
`

`

`EXHIBIT 18
`EXHIBIT 18
`
`21
`
`

`

`From:
`To:
`Cc:
`Subject:
`Date:
`
`Yin, David
`Kendall.Loebbaka
`Masimo.AppleITC; WH Apple-Masimo 1276 Serv