10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 1
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`APPLE INC., )
`) CASE IPR
` Petitioner, ) 2022-01299
`)
`-against- ) US Patent No.
`) 7,761,127
`MASIMO CORPORATION, )
` Patent Owner. )
`____________________)
`
`VIDEO-RECORDED DEPOSITION OF
`BRIAN W. ANTHONY, PH.D.
`
`Zoom Recorded Videoconference
`10/13/2023
`11:02 a.m. (EDT)
`
`REPORTED BY: AMANDA GORRONO, CLR
`CLR NO. 052005-01
`
`______________________________________________________
`DIGITAL EVIDENCE GROUP
`1730 M Street, NW, Suite 812
`Washington, D.C. 20036
`(202) 232-0646
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 1
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`APPLE INC., )
`) CASE IPR
` Petitioner, ) 2022-01299
`)
`-against- ) US Patent No.
`) 7,761,127
`MASIMO CORPORATION, )
` Patent Owner. )
`____________________)
`
`VIDEO-RECORDED DEPOSITION OF
`BRIAN W. ANTHONY, PH.D.
`
`Zoom Recorded Videoconference
`10/13/2023
`11:02 a.m. (EDT)
`
`REPORTED BY: AMANDA GORRONO, CLR
`CLR NO. 052005-01
`
`______________________________________________________
`DIGITAL EVIDENCE GROUP
`1730 M Street, NW, Suite 812
`Washington, D.C. 20036
`(202) 232-0646
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
` 10/13/2023
`
`Page 2
`
` 11:02 a.m. (EDT)
`
` VIDEO-RECORDED DEPOSITION OF BRIAN W. ANTHONY,
`Ph.D., held virtually via Zoom Videoconferencing,
`before Amanda Gorrono, Certified Live Note
`Reporter, and Notary Public of the State of New
`York.
`
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`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 3
`
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`
`A P P E A R A N C E S
`(Via Zoom Videoconferencing):
`ON BEHALF OF THE PETITIONER APPLE INC.:
` Nicholas W. Stephens, Esquire
` Fish & Richardson P.C.
` 60 South 6th Street
` Suite 3200
` Minneapolis, MN 55402
` PHONE: 612-766-2018
` E-MAIL: Nstephens@fr.com
`
`ON BEHALF OF PATENT OWNER MASIMO CORPORATION:
` Ted M. Cannon, Esquire
` Knobbe Martens
` 2040 Main Street
` Irvine CA 92614
` PHONE: 949-760-0404
` E-MAIL: Ted.cannon@knobbe.com
`
`ALSO PRESENT:
`DeAndrae Shivers, Trial Tech - Digital Evidence
`Group
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
` I N D E X
`WITNESS EXAMINATION BY PAGE
`BRIAN W. ANTHONY, Ph.D. MR. CANNON 5
`
`Page 4
`
` E X H I B I T S
`EXHIBIT DESCRIPTION PAGE
`Exhibit 1001 US Patent No. 7,761,127................ 59
`Exhibit 1005 Chadwick reference..................... 157
`Exhibit 1007 Cheung reference....................... 34
`Exhibit 1050 Oldham reference....................... 88
`Exhibit 1051 Muthu reference........................ 108
`Exhibit 1052 Dry reference.......................... 111
`Exhibit 1054 Littleton reference.................... 113
`Exhibit 1055 Supplemental declaration of Dr. Brian 7
` W. Anthony.............................
`Exhibit 1058 American Heritage Dictionary 49
` definition of Bulk.....................
`Exhibit 1059 New Oxford American Dictionary 49
` definition of Bulk.....................
`Exhibit 2151 Dr. King's declaration................. 32
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 5
` BRIAN ANTHONY Ph.D., called as a witness, having
` been first duly sworn by a Notary Public of the
` State of New York, was examined and testified as
` follows:
` THE WITNESS: I do.
` THE COURT REPORTER: Thank you. You
` may proceed.
` MR. CANNON: This is Ted Cannon of
` Knobbe Martens for Patent Owner, Masimo.
` Nick, do you want to make an
` appearance?
` MR. STEPHENS: Yes. This is Nick
` Stephens from Fish & Richardson on behalf of
` petitioner, Apple, Inc.
` EXAMINATION
` BY MR. CANNON:
` Q. Good morning Mr. -- or, Dr. Anthony?
` A. Good morning.
` Q. You've been deposed before in this
` case, correct?
` A. Yes.
` Q. And you've submitted two
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 6
` declarations. And the deposition today is going
` to be on your second declaration called
` Supplemental declaration of Dr. Brian Anthony,
` which is Exhibit 1055.
` Do you understand that?
` A. Yes, I do.
` Q. And you understand that you are
` under oath today as if in a court of law?
` A. Yes, I do.
` Q. And since the proceedings today will
` be transcribed, will you please wait for me to
` finish my questions before you start your
` answers?
` A. Yes.
` Q. And do you understand that your
` answers need to be audible?
` A. Yes.
` Q. And do you understand that your
` attorney may interpose objections, but that you
` still need to answer the questions unless
` instructed otherwise?
` A. Yes.
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 7
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` Q. Is there any reason, such as
` medication or illness, that you would not be able
` to testify truthfully today?
` A. No.
` Q. We'll take breaks periodically. If
` you need a break, feel free to ask for one. I
` would only ask that if there is a question
` pending, that you would answer the question first
` before asking for a break.
` Do you understand that?
` A. Understood.
` Q. All right. Let's turn to
` Exhibit 1055 your declaration.
` (Whereupon, Exhibit 1055,
` Supplemental declaration of Dr. Brian W.
` Anthony, was identified.)
` THE TECH: Counsel, what do you want
` to mark this as?
` MR. CANNON: Sorry. What was that?
` THE TECH: What do you want to mark
` this as?
` MR. CANNON: All of these exhibits
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 8
`
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` are previously marked in the case.
` THE TECH: All right.
` MR. CANNON: Let's turn to Page 8.
` The tail end of Paragraph 7 of the
` declaration.
` BY MR. CANNON:
` Q. There is a sentence that starts, "It
` was unnecessary to formally construe any claim
` terms..."
` Do you see that sentence?
` A. Yes.
` Q. And in the second part of that
` sentence, you indicate in your opinion "...the
` prior art discloses structures so similar to the
` claimed elements of the '127 Patent, that the
` disclosed structures in the prior art would have
` disclosed and rendered obvious the corresponding
` elements of the '127 patent claims under any
` reasonable interpretation of the terms in those
` claim elements."
` Do you see that portion?
` A. Yes, I do.
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 9
` Q. How did you know that the prior art
` structures are similar to the claimed elements
` without construing the claims?
` A. Well, as I described here, the prior
` art discloses the structured so similar to the
` claimed elements that it was not necessary to
` construe those any further.
` Q. Well, let's dig into that a little
` bit.
` One of the claimed elements is a
` thermal mass. So your opinion is the prior art
` is so similar to a thermal mass that you didn't
` have to construe what a thermal mass is? Is that
` what you're saying?
` A. Well, what I was saying is, as I
` wrote here, it was unnecessary to construe the
` claim terms when I prepared my first declaration
` because it was my opinion the prior art discloses
` structures so similar to the claimed elements of
` the '127 patent that the structures in the prior
` art would have disclosed and rendered obvious the
` same terms elements of the '127 patent under any
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 10
`
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` reasonable interpretation of those terms.
` Q. And to know that the prior art
` discloses something similar to a thermal mass,
` don't you need to know what a thermal mass is?
` A. Again, it was not necessary to
` construe the claim terms, you know, the prior art
` discloses structures so similar that what was
` disclosed in the '127 in my opinion was obvious.
` Q. Let's go to Paragraph 9 of your
` declaration. That paragraph you say "To the
` extent the Board construes the term 'a thermal
` mass,' it should be construed as a mass that
` stabilizes a bulk temperature."
` Correct?
` A. That is correct.
` Q. What does stabilizing a bulk
` temperature mean?
` A. So as I described further in, for
` example, Paragraph 10: Based on my review of the
` claims, specification, and the file history all
` support this construction. Independent claims 1
` and 26, for example, each refer to a thermal mass
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 11
`
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` "stabilizing a bulk temperature." This is
` consistent with the specification's description
` of the "thermal mass 1220" being "disposed
` proximate the emitters 710 so as to stabilize a
` bulk temperature 1202 for the emitters."
` Substrate 1200 is also configured with a
` relatively significant thermal mass, which
` stabilizes and normalizes the bulk temperature so
` the thermistor measurement of the bulk
` temperature is meaningful. Further, the
` specification discloses that the "thermal mass"
` can include "substantial metallized areas" that
` serve "to stabilized a bulk temperature."
`And further in Paragraph 11: The
` construction with thermal mass is a mass that
` stabilizes a bulk temperature is also consistent
` with the file history.
`And then I go on to describe that in
` further detail as well.
`Q.
`Thank you.
`So you read a paragraph that uses
` the words "stabilizes" multiple times. Maybe
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 12
` five times. Maybe more. But the question was:
` What does stabilizes mean? So you can read the
` word "stabilizes" 500 times, and I don't think it
` answers the question.
` Could you please tell the board what
` you mean by the word it "stabilizes"?
` A. So, again, as I describe in
` Paragraph 10, you know the thermal mass should be
` construed as a mass that stabilizes a bulk
` temperature.
` The substrate 1200 is configured
` with a relatively significant thermal mass which
` stabilizes and normalizes the bulk temperature so
` that the thermistor measurement of the bulk
` temperature is meaningful.
` And then furthermore, as we get to
` the end of Paragraph 10, Mr. Diab, the
` co-inventor on the '127 patent, agreed in this
` deposition -- stabilization across time and space
` is an essential property of the thermal mass.
` Q. Is there a reason it took you almost
` 10 minutes to answer that question?
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 13
` A. I was refamiliarizing myself with
` what I stated in my declaration.
` Q. Do you have an understanding of what
` the word "stabilize" means outside of what is
` written down in your declaration?
` A. I didn't need to construe the term
` "stabilize" in isolation. I opine about a
` thermal mass as it's construed as a mass to
` stabilize a bulk temperature in my declaration.
` Q. Do you have an understanding of the
` subject matter of this case outside of what is
` written down in your declaration?
` A. Yes, I do.
` Q. And you're capable of answering
` questions that go beyond what is literally
` written in your declaration to give us and the
` board your understanding of various terms,
` correct?
` A. I am an expert in this area. And I
` am able to answer questions about my deposition
` and the context of the field.
` Q. And you've told the board that they
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 14
` ought to construe the term "thermal mass" to mean
` a mass that stabilizes a bulk temperature,
` correct?
` A. So as I described in my first
` declaration it was unnecessary to construe any
` terms.
` And to be -- based on the history
` and the subsequent back and forth since my first
` declaration, to the extent that the board
` construes the term "thermal mass," it should be
` construed as a mass that stabilizes a bulk
` temperature.
` Q. Now if the board has the question,
` how are we going to know whether a mass
` stabilizes a bulk temperature, what would you
` tell them to resolve that question?
` A. I would point to the further
` description in my declaration. The combinations
` of the Yamada and Chadwick that describes, you
` know, how those prior art meet the limitation of
` having a thermal mass that serves to stabilize a
` bulk temperature through the lens of what a
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 15
`
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` POSITA would know.
` Q. You're going to tell the board, look
` at the prior art. And whatever I said
` stabilizes, that's the definition of stabilizes?
` A. So I would also point to, and as I
` opined in Paragraph 65 of my declaration:
` Thermal mass limitations are obvious. Based on
` my review, it would have been obvious to a POSITA
` for the thermal core in the instituted grounds to
` stabilize a bulk temperature and constitute
` thermal mass as claimed. Temperature
` stabilization is largely a function of an
` object's heat capacity which refers to the amount
` of the heat required to change the temperature of
` the object by defined amount. For example,
` Dr. King explained that heat capacity refers to
` the thermal energy storage ability of a material
` and is a proportional constant between quantity
` of heat that flows into or out of an object and
` the temperature change that occurs due to that
` energy flow. The temperature of the object
` becomes more stable exhibiting less variation
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 16
` over time as its heat capacity increases because
` a greater amount of thermal energy becomes
` necessary to flow into or out of the object to
` effect a given amount of temperature change.
` Furthermore: Materials have an
` intrinsic property referred to as specific heat
` capacity that defines, for example, the amount of
` energy required to raise one gram of substance by
` one degree. The heat capacity of a material is
` both a function of both its specific heat
` capacity and mass, however, since heat capacity
` indicates how much energy is required to raise
` temperature by one degree of an entire object or
` collection of mass. As the mass of the object
` increases, its total heat capacity will increase
` by a corresponding amount. Therefore, a thermal
` core with greater mass will generally have a
` higher heat capacity and greater ability to
` stabilize a bulk temperature than a thermal core
` of the same material with a smaller mass.
` Q. Well, that is a Paragraph 65, one
` page and four lines, and I agree it describes a
`
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 17
`
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` few things related to stabilization.
` Is Paragraph 65 the guidance that
` you want to leave the board with about what it
` means to stabilize a bulk temperature?
` A. Again, as I described in Paragraph
` 10, stabilizing a bulk temperature, you know,
` an -- objects with a larger thermal heat capacity
` will stabilize, reduce the variation more. And
` over time and space as Mr. Diab also testified.
` Q. It's going to reduce the variation
` over time. Does that suggest that stabilization
` relates to resisting temperature change?
` MR. STEPHENS: Objection; form.
` A. That's not what I said.
` BY MR. CANNON:
` Q. Well, I'm not an expert, but my
` reading of this says it takes more energy to
` raise the temperature the more heat capacity it
` is.
` That sort of suggests to me, but
` correct me if I'm wrong, that heat capacity
` making it harder to raise the temperature means
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 18
`
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` that it's resisting temperature change.
` Is that wrong?
` MR. STEPHENS: Objection; form.
` A. Again, that's not how I would
` describe a mass that stabilizes -- a thermal mass
` should be construed as a mass that stabilizes a
` bulk temperature. And I understand in Paragraph
` 12, for example, that Masimo's argued the board's
` preliminary construction of a thermal mass is a
` mass having resistance of temperature change on a
` scale relevant to estimating the LED wavelengths
` should be adopted because of the lines with the
` description of the thermal mass.
` But based my review, I disagreed
` with that concept of resistance to temperature
` change.
` Q. Would you agree that a temperature
` that is more stable, is a temperature that
` changes less?
` A. Please could you repeat that
` question?
` Q. Would you agree that a temperature
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 19
`
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`
` that is more stable, is a temperature that
` changes less?
` A. That is -- those are, it depends.
` And, you know, the less -- less than what? You
` know, stabilizes a bulk temperature. You know,
` over some time and space scale based on the
` design considerations for how that thermal mass
` is being used to stabilize a bulk temperature.
` Q. Let's say that a -- one temperature
` changes less than a second temperature changes.
` Is that second temperature, the one
` that changes more, is that less -- you agree that
` is less stable, right?
` A. I was confused by your question.
` Q. All right. Let me rephrase.
` If a first temperature changes less
` than a second temperature changes, do you agree
` that the first temperature is more stable?
` MR. STEPHENS: Objection; form.
` A. Again, I -- my position -- my
` opinion here is that a thermal mass should be
` construed as a mass that stabilizes a bulk
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 20
` temperature. The time and space variation over
` which that stabilization occurs is going to be a
` function of a particular design that a POSITA is
` trying to bring into reality.
` BY MR. CANNON:
` Q. Let's go back to Paragraph 10 and
` let's look at the sentence -- one of them that
` you read: The substrate 1200 is also configured
` with a relatively significant thermal mass which
` stabilizes and normalizes the bulk temperature so
` that the thermistor measurement of the bulk
` temperature is meaningful.
` Do you see that sentence?
` A. Yes.
` Q. What does it mean that the thermal
` mass stabilizes and normalizes the bulk
` temperature so that the thermistor measurement of
` bulk temperature is meaningful?
` A. So I would highlight, for example,
` as I opine in Paragraph 83, of my second
` declaration: A POSITA would have known how to
` design a thermal core with appropriate properties
`
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`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 21
` resist for estimating LED temperatures as evident
` in the specification of the '127 patent. Based
` on my review, the '127 patent does not impose any
` specific geometry, materials, or dimensions for
` the thermal mass; nor does it require any number
` or placement of LEDs relative to the temperature
` sensor. The specification tells a POSITA, for
` example, to use a relatively significant thermal
` mass which stabilizes and normalizes the bulk
` temperature so the thermistor measurement of bulk
` temperature is meaningful. The '127 patent
` leaves the specific design choices needed to
` implement those functions; i.e., the functions
` known in the prior art that would have motivated
` the proposed combinations to a POSITA.
` I understand Mr. Diab, the
` co-inventor '127 patents, similarly acknowledged
` that the '127 patent leaves the design of the
` thermal mass to an engineer.
` I think as a quote, I think we
` described what the functionality of a thermal
` mass is supposed to do. And we've left it to the
`
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`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 22
`
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` engineer to decide what he needs to do. So
` there's no single design that fits. We've just
` shown an example of one possibility, but I think
` we left it to the engineer or somebody doing the
` design to decide what they need, what kind of
` thermal mass, what properties are needed given
` our advice in the patent or the teaching of the
` patent or in the prior art.
` Consistent with Mr. Diab's
` testimony, Dr. King similarly indicated a POSITA
` would have known how to suitably design thermal
` mass and assist them to achieve the thermal
` properties and functions disclosed in the prior
` art. This is disclosed in the patents.
` Q. So I saw that that paragraph
` actually quotes the exact same portion in the
` specification exactly.
` Was there any explanation as to what
` that sentence means in the paragraph that you
` read?
` A. Again, a person of skill in the art
` looking to stabilize the bulk temperature would
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 23
` look to the prior art that Yamada, Chadwick, and
` others and use a thermal mass to stabilize the
` bulk temperature in a way that's appropriate for
` their particular design.
` Q. Do you understand that the board
` members are not necessarily persons of ordinary
` skill in the art?
` A. Yes.
` Q. You understand that the attorneys
` often are not persons of ordinary skill in the
` art?
` A. Yes.
` Q. So, along with Dr. King, we're
` relying on your expert testimony to tell us what
` some of these words mean, because saying, well, a
` person of ordinary skill in the art would know
` what stabilize is doesn't really tell people that
` aren't skilled in the art what it means.
` Do you understand that?
` A. Yes.
` Q. So I'm going to just ask again and
` give you the chance to give a better explanation
`
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`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 24
`
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`
` to the board.
` What does it mean that the thermal
` mass stabilizes and normalizes the bulk
` temperature so that the thermistor measurement of
` bulk temperature is meaningful?
` A. So as I describe again in Paragraph
` 10 and Paragraphs 83 and then furthermore, you
` know, as I describe in my original declaration,
` the reasons of motivations to combine Yamada and
` Chadwick, you know, that the bulk temperature is
` used to stabilize -- or the thermal mass is used
` as a mass that stabilizes a bulk temperature.
` And that bulk temperature is meaningful in the
` sense that it -- is -- gives you a temperature
` related to the temperature of the LED that is
` then used for compensation or correction.
` Q. Does stabilizing a bulk temperature
` require a bulk temperature to remain constant?
` A. Not necessarily. Depends on design
` considerations. What's the degree of variation
` that's tolerable.
` Q. So stabilizing a bulk temperature
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 25
` could allow depending on design considerations
` the bulk temperature to change, correct?
` A. Well, stabilization -- everything
` changes at some scale. At some scale in time,
` some scale in space. So it's a matter of design
` considerations and design tradeoffs how stable
` something needs to be relative to the desired
` performance and function.
` Q. Go to Paragraph 12. And about
` halfway down Paragraph 12 it says: Based on my
` review, specification never describes the thermal
` mass in terms of its resistance to temperature
` change.
` Do you see that sentence?
` A. I do.
` Q. Does the thermal mass in the '127
` patent resist temperature change?
` A. Again, the specification describes
` the thermal mass as a mass stabilizes a bulk
` temperature. Doesn't talk about it in terms of
` resistance to temperature change.
` Q. Just so I understand this, are you
`
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`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 26
` saying -- is it your opinion that -- that the
` '127 patent does not literally use the words
` "resistance to temperature change" or that it
` nowhere would suggest the concept of resistance
` to temperature change?
` A. The concept that's described is
` stabilizing a bulk temperature.
` Q. And stabilizing does not require
` constant temperature, but can involve some change
` to the temperature, correct?
` A. Again, as I described, you know, the
` time and spacial properties of stabilization will
` depend on particular design considerations and
` that a POSITA -- and the device that a POSITA is
` trying to design.
` Q. Well, would you agree that
` stabilizing a bulk temperature at least restrains
` temperature change?
` A. I'm not sure what you mean by that.
` Q. Well, there's some limit on how much
` temperature change there can be and still be
` called stabilization, don't you think?
`
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`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 27
` A. Again, the details would depend on
` the design of the device that a POSITA was trying
` to bring into reality and design tradeoffs.
` Q. At the bottom of the same paragraph
` we're on, Paragraph 12, you say: Interpreting
` thermal mass is a mass having a resistance to
` temperature change on a scale relevant to
` estimating LED wavelengths is problematic because
` it does not ultimately require the thermal mass
` to stabilize a bulk temperature.
` Do you see that?
` A. I do.
` Q. Why would interpreting thermal mass
` in that manner not require the thermal mass to
` stabilize a bulk temperature?
` A. So I would point to -- as I opined
` in Paragraph 18 -- that this -- the preliminary
` construction refers to a thermal property; i.e.,
` resistance to temperature change that does not
` have a well-defined or understood meaning. Does
` not correspond to any single physical property or
` well-defined combination of physical properties
`
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`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 28
`
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`
` but instead appears to refer to an amorphous
` combination of properties that would allow the
` thermal mass to achieve the thermal function of
` facilitating estimation of LED wavelengths. As I
` described above characterizing the thermal mass
` in terms of this thermal function is insufficient
` because it fails to distinguish traditional
` circuit boards like Cheung's that are not
` stabilized at bulk temperature. The elusive
` nature of resistance to temperature change on a
` scale relevant estimating LED wavelengths is
` exemplified by Dr. King's own complex explanation
` of a variety of physical properties and
` conditions both of the thermal mass itself and
` external to the thermal mass that could affect
` whether or not an object has a suitable
` temperature change resistance to qualify as a
` claimed thermal mass.
` Dr. King indicates the temperature
` change resistance of an object reflects some
` combination of an object's thermal conductivity,
` capacity, mass, thermal resistance, thermal time
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2023
`
`202-232-0646
`
`MASIMO 2195
`Apple v. Masimo
`IPR2022-01299
`
`
`
`10/13/2023
`
`Apple, Inc. v. Masimo Corp.
`
`Brian W. Anthony, Ph.D.
`
`Page 29
` constant and thermal diffusivity in addition to
` factors outside of the design of the mass itself
` such as the relative location of the thermistor
` and LED ports. So there is no practical way of
` evaluating all of these factors in some
` combination that would allegedly amount to a
` temperature change resistance other than
` inquiring whether the object alleged to be a
` thermal mass would allow for estimation of LED
` temperatures and wavelengths.
` So it's this concept of resistance,
` it's temperature change, it's what's described as
` a thermal mass stabilizing the bulk te
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