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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE INC.,
`Petitioner,
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`v.
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`MASIMO CORPORATION,
`Patent Owner
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`PETITIONER’S OBJECTIONS TO EVIDENCE
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`IPR2022-01299
`Patent 7,761,127
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner hereby submits the following
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`Case IPR2022-01299
`Docket No. 50095-0046IP1
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`objections to evidence filed with Patent Owner’s Response of May 19, 2023. The
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`following paragraphs are referenced herein by way of example, and not limitation,
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`and the objections applies to the enumerated paragraphs and any other paragraph
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`incorporating or referencing the following paragraphs.
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`Exhibit No.
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`2102
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`Description
`FRE 701 -703 and 37 C.F.R. § 42.65(b): Whether offered as lay
`or expert testimony, or both, record evidence fails to establish that
`the requirements of FRE 701, 702, or 703 are satisfied. This
`exhibit sets forth opinions that are conclusory, do not disclose
`supporting facts or data, are based on unreliable facts, data, or
`methods, and/or include testimony outside the scope of Mr. Diab’s
`specialized knowledge (to the extent he has any such knowledge).
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`Mr. Diab’s testimony in ¶¶41-65, for example, refers to a number
`of simulations allegedly performed to model thermal properties and
`other characteristics of certain sensor devices. The simulations are
`based upon insufficient facts and/or data, as Mr. Diab fails to
`presents the results of multiple simulations without adequate
`evidence of how the simulations were performed, the parameters of
`the simulations, and the software and hardware requirements
`necessary to faithfully reproduce and verify the results of each
`simulation. See e.g., EX2103, EX2135-2140. Mr. Diab further
`does not establish how the sensors and devices modeled in his
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`Case IPR2022-01299
`Docket No. 50095-0046IP1
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`simulations relate to the subject matter of the claims challenged in
`the ’127 Patent. Mr. Diab’s testimony and exhibits showing results
`of the simulations are submitted without evidence that the results or
`opinions are based upon reliable scientific principles and methods.
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`FRE 401-403: Exhibit 2102 further contains opinions that are
`irrelevant, confusing, and presenting the danger of unfair prejudice.
`For example, the declaration relies upon EX2103 and EX2135-
`2140 without adequate explanation of how the simulations were
`performed, which software and hardware was utilized, and the
`parameters involved in the simulation. See e.g., EX2102, ¶¶41-65.
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`FRE 401 - 403: This exhibit contains information relating to
`simulation(s) purportedly performed by Mr. Diab. Apple objects to
`Patent Owner’s reliance on this exhibit at least because insufficient
`evidence has been submitted to demonstrate that referenced
`simulation(s) were reliably performed or that the simulation(s) bear
`on any issues of relevance in the IPR. The exhibit is irrelevant,
`confusing, and presents danger of unfair prejudice.
`FRE 401 - 403: This exhibit contains information relating to
`simulation(s) purportedly performed by Mr. Diab. Apple objects to
`Patent Owner’s reliance on this exhibit at least because insufficient
`evidence has been submitted to demonstrate that referenced
`simulation(s) were reliably performed or that the simulation(s) bear
`on any issues of relevance in the IPR. The exhibit is irrelevant,
`confusing, and presents danger of unfair prejudice.
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`2103
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`2135
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`Case IPR2022-01299
`Docket No. 50095-0046IP1
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`FRE 401 - 403: This exhibit contains information relating
`to simulation(s) purportedly performed by Mr. Diab.
`Apple objects to Patent Owner’s reliance on this exhibit at
`least because insufficient evidence has been submitted to
`demonstrate that referenced simulation(s) were reliably
`performed or that the simulation(s) bear on any issues of
`relevance in the IPR. The exhibit is irrelevant, confusing,
`and presents danger of unfair prejudice.
`FRE 401 - 403: This exhibit contains information relating to
`simulation(s) purportedly performed by Mr. Diab. Apple objects to
`Patent Owner’s reliance on this exhibit at least because insufficient
`evidence has been submitted to demonstrate that referenced
`simulation(s) were reliably performed or that the simulation(s) bear
`on any issues of relevance in the IPR. The exhibit is irrelevant,
`confusing, and presents danger of unfair prejudice.
`FRE 401 - 403: This exhibit contains information relating to
`simulation(s) purportedly performed by Mr. Diab. Apple objects to
`Patent Owner’s reliance on this exhibit at least because insufficient
`evidence has been submitted to demonstrate that referenced
`simulation(s) were reliably performed or that the simulation(s) bear
`on any issues of relevance in the IPR. The exhibit is irrelevant,
`confusing, and presents danger of unfair prejudice.
`FRE 401 - 403: This exhibit contains information relating to
`simulation(s) purportedly performed by Mr. Diab. Apple objects to
`Patent Owner’s reliance on this exhibit at least because insufficient
`evidence has been submitted to demonstrate that referenced
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`2136
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`2137
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`2138
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`2139
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`Case IPR2022-01299
`Docket No. 50095-0046IP1
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`simulation(s) were reliably performed or that the simulation(s) bear
`on any issues of relevance in the IPR. The exhibit is irrelevant,
`confusing, and presents danger of unfair prejudice.
`FRE 401 - 403: This exhibit contains information relating
`to simulation(s) purportedly performed by Mr. Diab.
`Apple objects to Patent Owner’s reliance on this exhibit at
`least because insufficient evidence has been submitted to
`demonstrate that referenced simulation(s) were reliably
`performed or that the simulation(s) bear on any issues of
`relevance in the IPR. The exhibit is irrelevant, confusing,
`and presents danger of unfair prejudice.
`FRE 702 -703: Petitioner objects to the admissibility of this
`exhibit, because it contains opinions that are conclusory, do not
`disclose supporting facts or data, are based on unreliable facts, data,
`or methods, and/or include testimony outside the scope of Dr.
`King’s specialized knowledge (to the extent he has any such
`knowledge) that will not assist the trier of fact.
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`Dr. King acknowledges that evidence was presented “showing that
`the rainbow® sensors are commercially successful,” but does not
`assert whether the assertions in ¶¶ 253-261 of EX 2151 are his
`expert opinions, based on fact or data presented to Dr. King, or
`whether the assertions are lay opinions.
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`In addition, in ¶¶ 52-64 of EX2151, Dr. King asserts that he
`reviewed Mr. Diab’s declaration and references EX2103, 2135,
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`2140
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`2151
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`Case IPR2022-01299
`Docket No. 50095-0046IP1
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`2138. Dr. King does not assert personal or expert knowledge of
`how Mr. Diab’s simulations were performed. Accordingly, as
`noted above, the testimony of Mr. Diab’s that is relied upon by Dr.
`King is unreliable, at least because Mr. Diab’s testimony fails to
`provide the underlying facts and data used to produce the results of
`simulations, e.g., EX2135-EX2140, and no evidence establishes
`that Dr. King independently verified the results of the simulations
`or the methodology by which they were performed.
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`FRE 401-403: Petitioner also objects to EX2151 as containing
`opinions that are irrelevant, confusing, and presenting the danger of
`unfair prejudice. For example, Dr. King’s declaration relies one or
`more of EX2103 and EX2135-2140 without explanation of how the
`simulations were performed, which software and hardware was
`utilized, and the parameters involved in the simulation. See e.g.,
`EX2151, ¶¶ 52-64 of EX2151.
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`For at least these reasons, Petitioner objects to Exhibits 2102-2103, 2135-
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`2140, and 2151 and reserves the right to move to exclude these exhibits as
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`inadmissible.
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`Case IPR2022-01299
`Docket No. 50095-0046IP1
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`Respectfully submitted,
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`/Nicholas W. Stephens/
`Nicholas Stephens, Reg. No. 74,320
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`T: 202-783-5070
`F: 877-769-7945
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`Attorney for Petitioner
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`Dated: May 26, 2023
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`Case IPR2022-01299
`Docket No. 50095-0046IP1
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR § 42.8(b), the undersigned certifies that on May 26,
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`2023, a complete and entire copy of this Petitioner’s Objections to Evidence were
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`provided via email to the Patent Owner by serving the correspondence email
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`addresses of record as follows:
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`Irfan A. Lateef (Reg. No. 51,922)
`Ted M. Cannon (Reg. No. 55,036)
`Jarom D. Kesler (Reg. No. 57,046)
`Jacob L. Peterson (Reg. No. 65,096)
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`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, Fourteenth Floor
`Irvine, CA 92614
`Tel.: (949) 760-0404
`Fax: (949) 760-9502
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`E-mail: AppleIPR127-1@knobbe.com
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`/Crena Pacheco/
`Crena Pacheco
`Fish & Richardson P.C.
`60 South Sixth Street
`Minneapolis, MN 55402
`pacheco@fr.com
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