Trials@uspto.gov
`571-272-7822
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`PUBLIC VERSION
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`Paper No. 67
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC,
`Petitioner,
`
`v.
`
`MASIMO CORPORATION,
`Patent Owner.
`____________
`
`IPR2022-01299
`Patent 7,761,127 B2
`____________
`
`Record of Oral Hearing
`Held: November 17, 2023
`____________
`
`Before JOSIAH C. COCKS, GEORGE R. HOSKINS, and
`ROBERT A. POLLOCK, Administrative Patent Judges.
`
`

`

`IPR2022-01299
`Patent 7,761,127 B2
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`W. KARL RENNER, ESQUIRE
`NICHOLAS STEPHENS, ESQUIRE
`ANDREW B. PATRICK, ESQUIRE
`Fish & Richardson P.C.
`1000 Maine Avenue SW
`Washington, DC 20024
`202-783-5070
`
`ON BEHALF OF THE PATENT OWNER:
`
`IRFAN LATEEF, ESQUIRE
`TED M. CANNON, ESQUIRE
`Knobbe, Martens, Olson, & Bear, LLP
`2040 Main Street 14th Floor
`Irvine, CA 92614
`949-760-0404
`
`The above-entitled matter came on for hearing on Friday, November 17,
`2023, commencing at 10:00 a.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`P R O C E E D I N G S
`- - - - -
` JUDGE POLLOCK: Good morning. This is the final hearing in
`IPR2022-01299, which relates to U.S. patent number 7,761,127B2.
`Petitioner is Apple Inc. Patent Owner is Masimo Corporation. I’m Judge
`Pollock. With me are Judges Hoskins and Cocks. Counsel for Petitioner
`Apple, would you kindly identify yourself and your colleagues?
`MR. RENNER: Thank you, your Honor. This is Karl Renner on
`behalf of Apple and I’m joined by Andrew Patrick as well as Nick Stephens.
`JUDGE POLLOCK: Good morning. Counsel for Patent Owner
`Masimo, would you kindly identify yourself and your colleagues?
`MR. LATEEF: Good morning. I’m Irfan Lateef of Knobbe Martens
`and with me today is Ted Cannon.
`JUDGE POLLOCK: All right. This hearing will proceed in two
`phases. First phase will be open to the public. Each party will present its
`argument as to publicly available information. Petitioner will proceed first,
`present its case with regard to the challenged claims and grounds set forth in
`the petition. Patent Owner may then present its own case and respond to
`Petitioner’s argument. Both parties will be afforded an opportunity for
`rebuttal, should they desire.
`The second phase of the hearing will follow the same pattern but be
`closed to any person not qualified to receive sealed information pursuant to
`the board protective order. Accordingly, any public lines will be terminated
`prior to the beginning of the second phase.
`Considering the multi-phase nature of this proceeding, we will not
`require counsel to pre-designate a time they expect to take for rebuttal. As
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`set forth in our October 5th order setting oral argument, each side has a total
`of 60 minutes to present its case and may deploy those minutes where it sees
`fit. My colleagues and I will do best to keep track of allotted time, but we
`do suggest the parties do the same.
`Okay, a few matters of housekeeping. For the courtesy of all parties
`and to minimize technical interference, please mute your microphone when
`not speaking. For clarity of the record, please identify yourself each time
`you begin speaking and refer to each demonstrative by page number. We
`have digital access to the full record, but to the extent you refer to something
`other than one of your demonstratives, please give us time to locate a copy,
`as we may not be able to clearly read the text or context of what you might
`post to video.
`To the extent there are objections to today’s demonstrative, we will
`take them under advisement and address it in our final written decision to the
`extent necessary. Should counsel wish to raise any additional objections,
`you may raise them at the conclusion of any portion of opposing counsel’s
`presentation, and we will likewise take them under advisement. Please do
`not interrupt counsel while they are presenting.
`Petitioner will go first, as it bears the burden of showing
`unpatentability of the challenged claims. Mr. Renner, if you are speaking,
`you are welcome to begin the non-confidential portion of your presentation.
`MR. RENNER: Thank you, your Honor. And good morning. May it
`please the Board. Karl Renner here on behalf of Apple. If we could go to
`slide 2 of Petitioner’s demonstratives, please.
`On this slide you’ll see a presentation of a table of contents for the
`demonstrative material you have before you. I’ll highlight to the section on
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`Yamada-Chadwick combinations, which is intended to cover the variety of
`combinations involving the Chadwick and Yamada references as well as the
`claim construction session following the various objections that were
`addressed. And then finally, a couple of sections that are discussing what
`would happen in terms of alternative constructions, should they ultimately
`be addressed by the Panel.
`If I could take us, please, to slide 12 and 13, slide 12 in particular.
`This shows us a listing of the different grounds that were at issue in the case
`that were brought forth in this petition. And the highlighting that Yamada-
`Chadwick is the base combination for the various grounds of 1A through 1F,
`whereas Yamada alone, 2A through 2F, each of which is complemented by
`teachings such as Leibowitz, Cheung, and Noguchi, as indicated.
`As mentioned, we wanted to spend some time on the combination,
`particularly the Yamada-Chadwick types of combinations that were formed
`to make sure that we’re all speaking on the same grounds in talking about
`what we in fact support. I’m told there’s confusion in the record. We just
`want to make sure this is very clean and clear.
`So if I could take it to slide 15, please, we’ll look together at Yamada.
`It is a base reference. And I just wanted to explain how we see Yamada, and
`then we’ll bring in Chadwick and then Noguchi and Cheung as they come
`in. On this slide, you can see on the upper left figure 5 annotated, it shows
`us the substrate that runs vertically, F15. It’s right in the center just a little
`bit to the right of the pink. You can see additionally on the right-hand side
`of that substrate two LEDs labeled 111 and 112, and they’re attached to that
`substrate, says Yamada. On the left side is an optical center. It’s to capture
`the light that comes through the optical passage up top through the
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`measurement site, finger, something of the like, and then it comes out and is
`detected. This optical is detected at the optical light receiving unit 12. And
`that, again, is on the opposite side of the LEDs. So importantly, there are
`multiple LEDs on the right-hand side of the substrate in Yamada, a sensor
`on the left.
`You can look additionally into the specification of Yamada and you’ll
`see description of a temperature sensor. It’s not actually labeled in this
`figure, but it’s in paragraphs 109 to 111 discussed there’s a temperature
`sensor. And its reason for this temperature sensor is to make sure that we’re
`not overheating. Plus, it’s comfort for the person who’s subject to
`measurements on this device. So the very nature of the interest by Yamada
`in taking that temperature was to that pink range that is near that light
`receiving unit, and that is on the left-hand side of the substrate. That is
`where it’s described in a predominant fashion. So this temperature sensor
`would be, especially where the light sensor receiving unit is, also attached to
`the substrate, but on the opposite side of the LEDs. And this is a direct
`teaching from Yamada.
`Yamada also teaches -- and it’s interesting to note it’s not what we
`rely on in terms of we’re not changing this construction that I just talked
`about of Yamada -- but there is a description in Yamada. And it is in
`paragraph, I believe, 110, where it talks about an alternative position for that
`same temperature sensor. And that is, it’s recognizing you could, in fact,
`sense the temperature on the other side of the sensor of the of the substrate.
`And through a mathematical computation, you could correct for the fact that
`the temperature sensor is isn’t exactly where you want it to be. Now, mind
`you, it’s always -- the temperature sensing is there to detect the LED
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`IPR2022-01299
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`temperature. That is the temperature that is created through the LED’s
`operation. It is the LED that is said to create the heat that could cause the
`discomfort and need for alarm.
`A thermistor 11 is described -- from [unintelligible] paragraph 11 is
`described as the means to take these temperatures. And Yamada, of course,
`has the substrate here without a lot of detail. So it gives us another figure
`shown at the bottom of this slide, figure 19 annotated as well, to show us a
`little bit about what it has in mind with respect to the substrate that it adds
`here. And that becomes quite important when you think about the
`combination with Chadwick. And in particular, it shows the three layers in
`the sandwich that is its substrate: the upper, lower, and middle. The
`intermediate layer in the middle, it tells us either the copper or aluminum or
`some other materials, it has certain properties that it’s described overtly in
`Yamada. Those include light shielding, for instance. It’s grounded. It’s got
`electrical properties, there. It doesn’t talk about thermal connectivity. It
`doesn’t talk about the thermal properties that it clearly has to aluminum and
`copper. But it doesn’t talk about that. So we looked into the art to say what
`would a POSITA do in terms of making or looking at the substrate,
`especially when concerned with heat properties like the heating of a finger.
`And we find that there’s plenty of material to talk about exactly this.
`Chadwick is the reference that we ultimately came to and we brought it
`forward as to combine a reference.
`If you look at slide 16, you can see in Chadwick, it’s the structure that
`it shows. Now, it describes the structure right out the gate in the abstract,
`important parts of it, and I’ll quote, tells us the metal core printed circuit
`board, which includes multiple layers of synthetic plastic resin material on a
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`sheet of metal. You can kind of see that. You see a sheet of metal there and
`you see some layers on top of it. It’s talking about resin that’s on top of it.
`It's not just a metal sheet though. It’s a metal sheet that’s covered,
`effectively, and it has around it a section on both sides. And you think about
`it two-sided, which is one of its implementations, a core. It includes a layer
`15 you can see right here in this figure 11 shown on slide 16. And it’s
`shown in literally every other slide. Fifteen, it ends up, is a material it says
`to offer resistance to the transition of heat into the sheet pad. That’s at
`column 4, lines 11 to 16 of Chadwick. So Chadwick is contemplating a core
`that isn’t just perfectly conductive of heat. And it is contemplating a core
`that in fact is conductive of heat, but it has resistance to heat, which is an
`interesting term that’s come into play in this proceeding. It’s more than
`[unintelligible] as it relates to resistance to heat.
`Now, that Yamada combination, if we look at the next slide, slide 17,
`we took a hard look at that in pages 20 and 21 of the petition itself in fact in
`the beginning. And we thought those capture still well what’s going on.
`Quote, obvious to implement in the combination a thermal core -- it’s talking
`about the core -- in the board of the substrate 15 based on the teachings of
`Chadwick. And you can see that drawn here. We’ve got the arrow showing
`on the left you’ve got Chadwick’s structure. On the right, you’ve got the
`Yamada substrate. You can see that you’re going to stick the core in that
`substrate. And so the metal sheet, it’s actually the core. It’s not just the
`metal layer that’s the core that would be incorporated. And that’s what we
`said in the petition and continue to maintain. Now, Chadwick, it says,
`discloses that metal core and we had written in here into the action petition
`that it has the PCB which includes the multiple layers of synthetic plastic
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`IPR2022-01299
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`resin material on a sheet of metal. Additionally, we call out that figure 11,
`we say that is a PCB of Chadwick of the type that’s been put in which has
`both metal and substrate that is going to be integrated.
`Slide 18, please. We see that Anthony testifies as to what this
`combination might look like in its implementation. And there, he says, in
`any suitable manner, you might have a thermal core integrated into the board
`of substrate 15 with a thermally conducted path between the components
`that are on the left and those that are on the right. That is the LEDs and the
`temperature sensor of that substrate so as to allow for thermal conductivity
`as between.
`And he offers, if you look at slide 19, a variety of motivations for this,
`including to start right off with, reducing the amount of heat transmitted to
`the patient. After all, that was Yamada’s opening goal, to want to reduce
`that and increase the exposure time the patient can actually have that sensor
`on his finger without discomfort or any kind of concerns.
`Additionally -- and we’ll find that the parties repeat with indications
`that POSITAs knew that LEDs have a heat induced wavelength variances.
`So you also -- this is motivation number 2 -- knowing that that is part of the
`prior art and is part of the knowledge of POSITAs, you also induce some
`heat mitigation to affect that property as well.
`A couple other of the motivations are here also, but I want to return to
`a very important part of this. I had mentioned I want to be clear on what
`we’re proposing. We are staying true to what Yamada has said about where
`is that heat sensor. Where is that heat sensor and where are those LEDs?
`Yamada tells us that they’re on the opposite sides of the substrate. What
`we’ve done with Chadwick is we’ve complemented how you make that
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`substrate, what you might do with that substrate in light of what Yamada is
`trying to achieve and what Chadwick discloses. And you end up as a
`consequence with a substrate on each side of which there is an LED heat
`detector and then a thermal core in the middle.
`If we look further, we can see that not only can you detect the
`temperature for purposes of determining what the finger comfort for pain
`might be, alerting a user of that sort like Yamada tells us, but additionally,
`when you look at the features of Noguchi or Cheung, for instance -- and
`we’ll go to slide 21, please -- we see that LEDs of the type that were used in
`Yamada as mentioned just a moment ago, they can experience something
`called temperature induced LED wavelength fluctuations. So when they’re
`introducing those concepts, we have the notion of compensating for the
`detected temperature changes by Noguchi to actually allow for a feedback
`loop to correct for or otherwise compensate those types of changes.
`And we can see this if you look at Noguchi’s figure 1, you can see
`that an LED temperature measurement is available. That’s at 4. If you can
`take that measurement, which of course in the Yamada-Chadwick
`combination, you have the temperature sensor available to do that, and you
`can go to a computing unit and ultimately go to an emissions wavelength
`control means to adjust the operating characteristics and otherwise
`compensate for the LED’s heat-induced wavelength change or fluctuation.
`And that’s exactly what the combination is proposing. It’s saying we
`have a heat sensor. We know -- and by the way, mention one more thing
`about Noguchi, it tells that that temperature [unintelligible] can be taken at
`the site of the LED or it could be taken elsewhere. It says the surrounding
`environment, to quote. And you can see that on the left-hand side here of
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`the clip on the lower left. The temperature and environment surrounding the
`LED can also be measured. And there, it’s talking about the fact that if you
`want to know about the LED and the temperature that you might need to
`correct for, you can take the temperature either by probing the LED itself, or
`you can probe the surrounding environment to get to that temperature.
`In light of Yamada’s structure that we talked about with Chadwick,
`that temperature sensor isn’t located at the LED. It’s located where Yamada
`puts it. It’s on the other side of that substrate and therefore on the other side
`of that thermal core as well. And per Yamada, that’s exactly where you
`should have it. And you can determine characteristics of heat coming off of
`that LED. That’s exactly what that thermistor is designed to do. And then
`per Noguchi, you can actually mathematically relate those to the temperature
`of the LED and the wavelength variance that it is experiencing so that you
`can make the corrections that are necessary.
`On slide 22, we see Dr. Anthony explaining this and explaining that
`through this process and through this combination, you would see both a
`temperature measurement that informs Yamada’s temperature sensing, so
`it’s enabled alerting the user of that heat, and you also inform compensation
`for the affected temperature variation of the wavelength and the light emitted
`diodes, LEDs 111 and 112. In this sense, at this point, you have actually two
`different operations that are supported by that temperature sensor.
`Anthony continues, if I look at slide 23, on how the compensation
`enables the improved accuracy even of measurements. That makes sense if
`you’re going to figure out what kind of temperature variance currently
`exists. And through its feedback, you might change the drive current of the
`LEDs to affect the future, which is still left to current error. There’s some
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`feedback from measure of error no matter how good the heat sinking
`properties may or may not be of that substrate complementing the thermal
`core. It’ll never be perfect. There will always be some measure of
`difference between ambient and whatever the temperature that is induced by
`those LEDs in their operation are. So you’re going to, and it says here by
`Dr. Anthony’s hand, improve the accuracy of the measurements that are
`obtained by the oximetry system.
`And this holds because monitoring the temperature of Chadwick’s
`heat sink, which is thermally linked to the LEDs exposed on that substrate
`on which the LEDs are mounted, it’s something that’s quite obvious given
`the fact that it has already contemplated the surrounding environment as an
`appropriate site for temperature measurement.
`Cheung, as we look at slide 24, is very similar. Cheung recognizes
`the LEDs of the type that are used in Yamada also, it recognizes, can
`experience this temperature induced LED wavelength variance. And it
`offers, and I quote, methods and apparatus for compensating for the effect of
`the temperature variance on the wavelength of the light emitted by the
`oximeter sensor light source. It goes on to explain that it offers a calibration
`curve that allows it to relate what it finds to what the sensor output is. And
`therefore, you can understand what those wavelength characteristics have
`changed on a temperature induction basis are and therefore correct for them.
`So here again with a Cheung based combination, we have, if I look at
`slide 25, the same combination, the same opportunity to inform both
`Yamada’s goal of the finger comfort or a pain point as well as inform to the
`place of the temperature sensor there a reading that will help us to deal with
`these temperature induced variances on wavelength.
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`
`Now, if I look at slide 26, the original declaration here has Dr.
`Anthony explaining that it’s been obvious for a POSITA to do such a
`compensation, again, for improvement of accuracy and the reproducibility of
`measurements. This is with respect to Cheung. Here, he’s a little more
`explicit about how the computations that are shown in Cheung can actually
`be used to adjust data in addition, not that this is a claimed element, but it’s
`something that it did disclose. And that would be not just the LED but
`accounting for that data. So if you look at the underlying text above, it says
`I believe a POSITA would have been motivated to apply Cheung’s teachings
`of temperature compensation in the combination to improve accuracy and
`repeatability of measurements obtained by the original claimed system. The
`intelligent POSITA would have sought to account for temperature when the
`blood oxygen levels are being calculated. And that is, of course, a
`computation.
`If I look at slide 27, I go to Leibowitz, which is again, as you looked
`at the combinations proposed, also integrated. There is not really a dispute,
`as we can tell, on Leibowitz. In fact, it is another way of stacking layers and
`just another helpful reference in terms of how to implement a design of a
`PTFE core. So we’re left at this point, just to take inventory again, sort of
`either or at this part, but I just want to make sure that we’re really clear on
`this, we’re left with a structure that is the structure proposed by as early as
`Yamada, where you have that sensor opposed from the LEDs across that
`substrate complemented with that thermal core internal to it. And in that
`sense, you inform that LED operation as well as the data that come from it
`for Noguchi and Cheung.
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`
`Now, there’s, we think, as a consequence to this -- and we’ve
`demonstrated from the record -- that the thermal core there that is the
`substrate complemented by Chadwick’s teachings, it does two things when
`you think logically about it. The first of those two things is it sinks heat
`away, of course. The second of those two things is in doing so, we know
`from Chadwick’s writing itself, there’s a certain resistance to temperature
`flow to the thermal core’s metal layer. And as a consequence of that, it's not
`going to perfectly sink. It’s going to have some resistance. And we think
`that resistance is sufficient to meet the claims. After all, the specification
`says nothing about resistance itself nor about levels of resistance. And we’ll
`going to into that in just a few moments. But certainly, this teaching is,
`again, beyond the disclosure of thermal mass and internal thermal core and
`its operation is beyond the disclosure that’s put forth in the ’127.
`Additionally, at the same time, even if we’re perfectly heat sinking,
`which it isn’t, it’s going to stabilize at some sort of temperature. It’s going
`to come to a temperature where it can help to reduce the fluctuations,
`because after all, if I have a body of water and I look out and I see, that body
`of water is normalized. It’s going to stabilize the temperature variances of
`the things that it touches by virtual of having a bigger mass, and that’s what
`it’s going to be doing. The heat sinking properties will only aid in that. But
`the fact is that this is again called a substantial mass by Chadwick and we
`would expect to see that kind of behavior in it. Again, nothing more specific
`is given us by the ’127 patent to call into question despite what’s in the
`[unintelligible] isn’t more needed.
`JUDGE HOSKINS: Mr. Renner?
`MR. RENNER: Please.
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`JUDGE HOSKINS: This is Judge Hoskins. I just want to make sure
`that I understand the claim language that you’re talking about. It’s simply
`bulk temperature at this point, right?
`MR. RENNER: Correct, your Honor.
`JUDGE HOSKINS: Okay, thank you.
`MR. RENNER: Yeah. And that’s kind of our point, your Honor.
`The words thermal mass involve temperature. And I would take us to slide
`76 if you can go there as well. These words are independently offered and
`they’re offered alone and there’s not more the claimant gave us with respect
`to them. At this point, there’s a tremendous amount of interest in making
`them narrow than what they had been claimed as, because reality is that they
`stand in the claims as naked terms, very broad terms. Bulk temperature,
`we’ll go into in a little bit, it’s just a temperature. It’s bulk. It’s not local.
`It’s a temperature that can actually be used and it doesn’t have a lot of detail.
`Before we go there, a thermal mass -- and if I look at slide 78, please -
`- a thermal mass has been construed in the institution decision preliminarily
`and Masimo has appealed to that construction. Apple has taken a different
`construction early because it’s trying to maintain consistency with the ITC
`where stabilization was determined to exist in the temperature of a bulk
`temperature. But we think that neither of these are necessary. And the same
`is true of bulk temperature for these proceedings. These proceedings, the
`prior art needs whichever of the variety of constructions have been offered.
`And we know -- slide 77 -- we know Wellman tells us that judicial restraint
`would have us only construe the claims as needed to resolve the dispute in
`front of us. And here, that dispute has prior art which both stabilizes and
`yields resistance to temperature changes.
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`IPR2022-01299
`Patent 7,761,127 B2
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`That said, let’s look please if we could at the construction that was in
`the earliest paper, the institution decision put forward. And if I could go to
`slide 84, please. We can see that we think it’s actually got a few issues. It’s
`got a few concerns that we would have in terms of its sustainability. The
`first of those issues is we think that it really doesn’t find support in the
`specification directly. Now, it’s not just a matter of the words themselves
`not being uttered, it’s that the specification really didn’t talk at all about
`what a resistance to temperature change would look like or is. It doesn’t use
`those words either, but there’s no basis in that specification for that
`particular concept as it’s articulated.
`And Anthony speaks to this concern, as you can see here. He looked
`at the specification carefully. We asked him and he said, based on my
`review, the specification never describes thermal mass in terms of resistance
`to temperature change. And I’ll add, much less does it say anything about
`that temperature change being on a scale relevant to estimating LED
`wavelength.
`So the one issue we have is the mismatch or the lack of match with
`the specification. The second is we think it’s inconsistent with the file
`history, and that’s slide number 85. When you look back in that file history,
`you’ll see that the reference Cheung ironically had been discussed as a
`primary. And when it was discussed, the Examiner looked at it and said,
`you know, I don’t think there’s actually a thermal mass here. And he
`explained himself when he did that. I can see that -- let’s go back a little bit
`to slide 83, please. There’s a clip from the file history on slide 83 that’s
`helpful here. You can see highlighted -- and it’s in the middle of the slide --
`of that clip that’s the quote from the Examiner. And he says, Cheung
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`IPR2022-01299
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`discloses all the elements but doesn’t give us a thermal mass. And at the end
`of the clip, he says that the thermal mass stabilizes the bulk temperature of
`the emitters. Okay, so he’s telling us that he’s excluding a feature prior
`based on that.
`Now, if I go back to to 85, we have a Dr. King from Masimo telling
`us Cheung will fit just fine in the constructed thermal mass if we use
`resistance to temperature change on a scale that’s useful for LED
`temperature variance. And he asked this question here, it’s an unhighlighted
`text here on the bottom that says, would you expect an FR circuit board to
`function well as a thermal mass in the ’127? He said it could. He said, a
`thermal mass limitation is satisfied if the component resists temperature
`change on a scale relevant to the estimating of the led wavelength. Not a
`word about stabilization. He’s just taking a contrary position as is Masimo
`to what has actually been shown to us in the prosecution as to which we
`know we’re supposed to take some guidance from.
`And look at slide 86 --
`JUDGE COCKS: Mr. Renner. One question. I see on your slide 85 -
`- and a think you referenced elsewhere, what exactly -- what legal error are
`you intending could result from Masimo’s thermal mass construction? What
`specific legal error?
`MR. RENNER: Thank you, your Honor. Well, we think that it’s a
`claim that’s been misconstrued in applying the prior art. If, in fact, the art is
`excluded based on instructions that include its limitations that are not in the
`claim, we think that would be in itself legal error. So the claim construction
`itself would be wrong and then the application of the art is supposed to flow
`from that. Does that answer your question?
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`IPR2022-01299
`Patent 7,761,127 B2
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`JUDGE COCKS: It does, thank you.
`MR. RENNER: Not to drone on too much here, I’ll try to speak
`maybe speak to a little more the thermal mass. The third point is that the
`construction, we believe, adds limitations that are not in the claim of course
`themselves. There’s just the word thermal mass and Judge Hoskins had
`asked that question earlier. It’s a term that is being nakedly presented and
`yet now it’s loaded with a significant amount of additional limitation. It has
`become the subject of a lot of conversation, I think, demonstrating the
`amount of additional limitation it presents.
`Finally, we see the resistance to change is not a term of art. It’s not
`well defined and it casts thermal mass in terms of thermal function. And we
`think that, again, takes us in the wrong direction in terms of construction. So
`with that, I would conclude my remarks on the thermal mass. I’m happy to
`continue to talk about that if there are any direct questions as it relates to it.
`Otherwise, go to the first objection. And that would be slide 32.
`Here in the next few slides and moments, we’ll talk in just a moment
`about how monitoring the LED temperatures based on a core temperature
`was not speculative. There was an indication in the record by Masimo that
`it’s speculation that you would actually be able to take temperature on the
`other side of a core. And we just wanted to make actually sure that you
`understood our position on this.
`Slide 35, we see Masimo fails to heed, we think, in re Carlson in this
`regard. And frankly, in a variety of regards today, we’ll talk about some of
`the POSITA not just on notice of information out there. It’s not just in the
`notice there. It’s a hypothetical construct to know a POSITA is and then