UNITED STATES
`INTERNATIONAL TRADE COMMISSION
`
`--------------------------------x
`In the Matter of
` Investigation No.
`
`CERTAIN LIGHT-BASED PHYSIOLOGICAL 337-TA-1276
`MEASUREMENT DEVICES AND COMPONENTS
`THEREOF
`--------------------------------x
`
`REVISED AND CORRECTED TRANSCRIPT
`OPEN SESSIONS
`
`Pages:
`Place:
`Date:
`
`1 through 282 (with excerpts)
`Washington, D.C.
`June 6, 2022
`
`HERITAGE REPORTING CORPORATION
`Official Reporters
`1220 L Street, N.W., Suite 206
`Washington, D.C. 20005
`(202) 628-4888
`contracts@hrccourtreporters.com
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`1
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
` Washington, D.C.
`Before the Honorable Monica Bhattacharyya
` Administrative Law Judge
`
` 1
` 2
` 3
` 4
` 5
` 6 --------------------------------x
` 7 In the Matter of
` Investigation No.
` 8
` 9 CERTAIN LIGHT-BASED PHYSIOLOGICAL 337-TA-1276
` 10 MEASUREMENT DEVICES AND COMPONENTS
` 11 THEREOF
` 12 --------------------------------x
` 13
` 14
` 15
` 16
` 17
` 18
` 19
`The parties met via remote videoconferencing
` 20
` 21 pursuant to notice of the Administrative Law Judge at 9:30
` 22 a.m. Eastern.
` 23
` 24
` 25 Reported by: Linda S. Kinkade RDR CRR RMR RPR CSR
`
` EVIDENTIARY HEARING
` Monday, June 6, 2022
`Volume I
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`2
`
` 1 A P P E A R A N C E S:
` 2 [All parties appeared via remote videoconferencing and/or
` 3 telephonically.]
` 4
` 5 Counsel for Complainants Masimo Corporation and Cercacor
` 6 Laboratories, Inc.:
` 7
`KNOBBE, MARTENS, OLSON & BEAR, LLP
` 8
`2040 Main Street, Fourteenth Floor
` 9
`Irvine, California 92614
` 10
`(949) 760-0404
` 11
`Stephen C. Jensen, Esq.
` 12
`Joseph R. Re, Esq.
` 13
`Sheila N. Swaroop, Esq.
` 14
`Irfan Lateef, Esq.
` 15
` 16
` 17
` 18
` 19
` 20
` 21
` 22
` 23
` 24
` 25 CONTINUED ON FOLLOWING PAGE
`
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`1717 Pennsylvania Avenue, NW, Suite 900
`Washington, DC 20006
`(202) 640-6400
`Jonathan E. Bachand, Esq.
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`3
`
` 1 A P P E A R A N C E S (continued):
` 2
` 3 Counsel for Complainants Masimo Corporation and Cercacor
` 4 Laboratories, Inc.:
` 5
`KNOBBE, MARTENS, OLSON & BEAR, LLP
` 6
`925 4th Avenue, Suite 2500
` 7
`Seattle, Washington 98104
` 8
`(206) 405-2000
` 9
`Carol Pitzel Cruz, Esq.
` 10
` 11
` 12 Counsel for Respondent Apple Inc.:
` 13
`WILMER CUTLER PICKERING HALE AND DORR LLP
` 14
`1875 Pennsylvania Avenue, NW
` 15
`Washington, DC 20006
` 16
`(202) 663-6000
` 17
`Michael D. Esch, Esq.
` 18
`David L. Cavanaugh, Esq.
` 19
` 20
` 21
` 22
` 23
` 24
` 25 CONTINUED ON FOLLOWING PAGE
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`4
`
` 1 A P P E A R A N C E S (continued):
` 2
` 3 Counsel for Respondent Apple Inc.:
` 4
`WILMER CUTLER PICKERING HALE AND DORR LLP
` 5
`2600 El Camino Real, Suite 400
` 6
`Palo Alto, California 94306
` 7
`(650) 858-6000
` 8
`Mark D. Selwyn, Esq.
` 9
` 10
` 11
` 12
` 13
` 14
` 15
` 16
` 17
` 18
` 19
` 20
` 21
` 22
` 23
` 24
` 25
`
`WILMER CUTLER PICKERING HALE AND DORR LLP
`60 State Street
`Boston, Massachusetts 02109
`(617) 526-6000
`Joseph J. Mueller, Esq.
`Sarah R. Frazier, Esq.
`
`WILMER CUTLER PICKERING HALE AND DORR LLP
`1225 17th Street, Suite 2600
`Denver, Colorado 80202
`(720) 598-3459
`Ravi S. Deol, Esq.
`
`*** Index appears at end of transcript ***
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`
`
` 5
`
`
` 1 P R O C E E D I N G S
`
` 2 (In session at 9:30 a.m.)
`
` 3 JUDGE BHATTACHARYYA: Good morning everyone.
`
` 4 This is Monica Bhattacharyya, Presiding ALJ. We're here for
`
` 5 the evidentiary hearing in certain light-based physiological
`
` 6 measurement devices and components thereof, Investigation
`
` 7 No. 337-TA-1276. With me is my Attorney Advisor Ted Jou.
`
` 8 Could counsel please enter their appearances.
`
` 9 MS. SWAROOP: Good morning, Your Honor. Sheila
`
` 10 Swaroop, counsel for Complainants Masimo and Cercacor.
`
` 11 JUDGE BHATTACHARYYA: Good morning. I believe
`
` 12 you're on mute.
`
` 13 MR. MUELLER: I'm sorry, Your Honor. Good
`
` 14 morning. Joe Mueller on behalf of Respondent Apple.
`
` 15 JUDGE BHATTACHARYYA: Good morning. We're
`
` 16 starting out on the public record.
`
` 17 As we discussed last week, there should be a
`
` 18 designated person for both Complainants and Respondent who
`
` 19 can confirm when we're ready to go on the confidential
`
` 20 record at certain points during the hearing.
`
` 21 Ms. Swaroop, who is the designated representative
`
` 22 for Masimo?
`
` 23 MS. SWAROOP: Yes, Your Honor, I can make those
`
` 24 representations today.
`
` 25 JUDGE BHATTACHARYYA: Thank you. Mr. Mueller,
`
`
`
`
`
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`6
`
` 1 for Apple?
` 2
`MR. MUELLER: Yes, Your Honor. Sarah Frazier
` 3 will be our designated representative on that issue.
` 4
`JUDGE BHATTACHARYYA: Thank you. We do have some
` 5 members of the public here, including, there's a Call In
` 6 User 1. I'd ask call in User 1 to mute their line, if it's
` 7 not muted already, and also at some point when they call in
` 8 to identify themselves as a member of the public.
` 9
`There's also a person on the line, Arjun
` 10 Jaikumar. I'd ask that that person also indicate if they
` 11 are a member of the public or affiliated with Respondent or
` 12 Complainants. We don't have to hold up the hearing for
` 13 that. At the moment I'll just assume that both those people
` 14 are members of the public.
` 15
`(Clarification by reporter.)
` 16
` JUDGE BHATTACHARYYA: All right. Thank you. I
` 17 wanted to follow up on a couple of items from our
` 18 pre-hearing conference last week. There was a question
` 19 about deposition designations. As I believe you received an
` 20 email last week from my attorney advisor, I'm not going to
` 21 require that all deposition designations that have been
` 22 discussed be admitted into evidence. Each party should move
` 23 to admit their deposition designations by the close of their
` 24 case, whether it's their case-in-chief or...
` 25
`Any questions about that?
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`
`
` 7
`
`
` 1 MR. MUELLER: No, Your Honor. Thank you.
`
` 2 MS. SWAROOP: Thank you, Your Honor.
`
` 3 JUDGE BHATTACHARYYA: The other item that was
`
` 4 discussed last week had to do with sequestration. As I also
`
` 5 believe you heard from my Attorney Advisor, each party will
`
` 6 be permitted a corporate representative designated by that
`
` 7 party to not be sequestered. Are there any questions about
`
` 8 that fact?
`
` 9 MR. MUELLER: Does the sequestration apply before
`
` 10 opening statements or after opening statements? There was
`
` 11 some email correspondence on this. We'll, of course, do
`
` 12 whatever Your Honor directs.
`
` 13 We have had in most of our cases actually the
`
` 14 sequestration kicks in before the witnesses begin to testify
`
` 15 as opposed to the opening statements, but whatever
`
` 16 Your Honor's preference is, of course we'll strictly adhere
`
` 17 to that.
`
` 18 JUDGE BHATTACHARYYA: Ms. Swaroop, do you have a
`
` 19 preference?
`
` 20 MS. SWAROOP: Yes, Your Honor. Masimo would
`
` 21 prefer that the sequestration begin with opening statements,
`
` 22 and I think, as we had provided to Your Honor's Attorney
`
` 23 Advisor with some authority, suggesting that if witness
`
` 24 testimony is going to be referred to in the opening, that
`
` 25 the sequestration should go into effect at that time. And I
`
`
`
`
`
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`
`
` 8
`
`
` 1 plan to refer to witness testimony in my opening, and I
`
` 2 understand from Apple's slides that they intend to as well.
`
` 3 JUDGE BHATTACHARYYA: Mr. Mueller, is that
`
` 4 correct, does Apple intend to refer to the anticipated
`
` 5 content of witness testimony?
`
` 6 MR. MUELLER: At a very high level, Your Honor.
`
` 7 We're not going to get into any of the details of what any
`
` 8 particular witness will say.
`
` 9 JUDGE BHATTACHARYYA: The sequestration will go
`
` 10 into effect for the opening statements as well.
`
` 11 MR. MUELLER: Your Honor, I would just note for
`
` 12 the record that our corporate designee from the fact witness
`
` 13 group is Dr. Paul Mannheimer.
`
` 14 JUDGE BHATTACHARYYA: Thank you.
`
` 15 And Ms. Swaroop, I assume it's Mr. Kiani, as you
`
` 16 indicated last week?
`
` 17 MS. SWAROOP: Yes, it is, Your Honor.
`
` 18 JUDGE BHATTACHARYYA: Is there anything further
`
` 19 before we proceed with opening statements?
`
` 20 MR. MUELLER: Yes, Your Honor, two quick things.
`
` 21 To the extent that Masimo does attempt to introduce certain
`
` 22 deposition designations today, we do have some outstanding
`
` 23 objections. We can take those up later if it more
`
` 24 convenient for Your Honor.
`
` 25 Also, on the witness list for today, although I
`
`
`
`
`
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`9
`
` 1 suspect we won't reach him, is Mr. Scruggs. We have some
` 2 pretty significant objections to the anticipated testimony
` 3 from Mr. Scruggs.
` 4
`Again, it may be easier just to take those up
` 5 later today, particularly in light of the fact that we may
` 6 not reach him today, but we're happy to discuss it now if
` 7 Your Honor would prefer.
` 8
`JUDGE BHATTACHARYYA: I would appreciate a
` 9 preview of the issues that are going to come up, but rather
` 10 than take away time from the hearing, if you could send an
` 11 email copying Masimo's counsel just summarizing what you
` 12 believe at a high level the disputes are going to be, that
` 13 would be helpful.
` 14
`MR. MUELLER: Will do. Thank you, Your Honor.
` 15
`JUDGE BHATTACHARYYA: Thank you. Shall we
` 16 proceed with opening statements?
` 17
`MS. SWAROOP: Your Honor, Complainants are ready
` 18 to begin.
` 19
`JUDGE BHATTACHARYYA: Okay. You may proceed.
` 20
` OPENING STATEMENT BY COMPLAINANTS
` 21
` MS. SWAROOP: Good morning, Your Honor. Masimo
` 22 and our team here in California are happy to be here to
` 23 begin this evidentiary hearing. We're looking forward to
` 24 presenting our case to you and to having you hear from our
` 25 witnesses and consider our evidence.
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

` 10
`
`This ITC investigation and the five patents at
` 1
` 2 issue mean a lot to Masimo. These patents resulted from the
` 3 ingenuity of many Masimo and Cercacor engineers, some of
` 4 whom you will hear from.
` 5
`These inventions relate to three areas of
` 6 physiological monitoring. The first is a sensor design for
` 7 light-based measurements that was not only unique but went
` 8 against conventional thinking about how to obtain reliable
` 9 measurements. You'll hear that this design actually
` 10 resulted in improved measurements.
` 11
`The second is a novel sensor design with features
` 12 to project light into tissue to allow more of the tissue to
` 13 be irradiated which increases the relevant information in
` 14 the detected signals.
` 15
`Your Honor, I apologize. There appears to be
` 16 some sound or some background. If the person could mute,
` 17 that would be appreciated. Thank you.
` 18
`And the third invention is a novel accuracy
` 19 enhancement system that introduces a thermal mass that
` 20 stabilizes and normalizes temperature to allow a single
` 21 thermistor to be used to correlate to the temperature of
` 22 multiple LEDs.
` 23
`This is done to compensate for measurement errors
` 24 resulting from subtle changes to the LED operating
` 25 characteristics.
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`
`
` 11
`
`
` 1 Now one of the parameters we will discuss
`
` 2 throughout the hearing is a noninvasive measurement of
`
` 3 oxygen saturation of a person's blood. The evidence will
`
` 4 show the challenges of obtaining reliable oxygen saturation
`
` 5 measurements from a person's wrist.
`
` 6 This investigation presents very important issues
`
` 7 affecting Masimo's domestic industry, and we appreciate your
`
` 8 efforts to carefully consider the issues here.
`
` 9 I'd like to start first with introducing you to
`
` 10 Masimo. The evidence will show that Masimo is a pioneer in
`
` 11 the area of noninvasive monitoring of physiological
`
` 12 parameters. You'll hear from our first witness, Joe Kiani,
`
` 13 about Masimo's history of innovation.
`
` 14 Mr. Kiani will explain how he started Masimo in
`
` 15 1989 to solve a bane of pulse oximeter measurements,
`
` 16 measuring through motion and low blood flow. You will hear
`
` 17 how the innovations developed at Masimo revolutionized
`
` 18 noninvasive monitoring.
`
` 19 And if we could go to our first slide here, which
`
` 20 is on the screen.
`
` 21 The evidence will show that Masimo developed and
`
` 22 introduced many innovative products in the professional care
`
` 23 settings and that Masimo consumer presence began to grow
`
` 24 many years ago.
`
` 25 The timeline here identifies various
`
`
`
`
`
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`
`
` 12
`
`
` 1 medical-grade, consumer products that Masimo has introduced
`
` 2 throughout the years. You will hear about Masimo's iSpO2,
`
` 3 the first consumer pulse oximeter for the Apple iPhone that
`
` 4 Apple itself carried in the 2012 time period.
`
` 5 You will hear about Masimo's other consumer
`
` 6 products including the Masimo W1 Watch that was released in
`
` 7 2021.
`
` 8 In addition to being Masimo's founder and CEO,
`
` 9 Mr. Kiani is also an inventor on three of the five patents
`
` 10 at issue in this investigation.
`
` 11 If we could go to our next slide.
`
` 12 We refer to these as the Multi-Detector Patents
`
` 13 and they are part of the '501, '502, and '648 patent group.
`
` 14 You will hear from Mr. Kiani about this invention.
`
` 15 The evidence will show that the claimed sensor
`
` 16 design, which has a convex protrusion that covers all of the
`
` 17 detectors and deforms the skin, was completely
`
` 18 counterintuitive. These patents also claim specific
`
` 19 structures of the sensor that minimize the amount of light
`
` 20 that goes directly from the LEDs to the detectors without
`
` 21 interacting with the tissue.
`
` 22 Our next slide here, we have a figure from the
`
` 23 Multi-Detector Patents. This is Fig. 3C that Mr. Kiani will
`
` 24 talk about. And you can see here we have a sensor, and
`
` 25 there's a protrusion that's labeled as element 305, and you
`
`
`
`
`
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`
`
` 13
`
`
` 1 can see a series of four windows or openings that are
`
` 2 labeled as 320, 321, 322, and 323.
`
` 3 The photodetectors are below those openings and
`
` 4 receive light from the emitters. The patent also explains
`
` 5 that these windows can include shielding to reduce noise
`
` 6 from ambient light.
`
` 7 You will hear that this invention came about when
`
` 8 Masimo was researching how to obtain better light-based
`
` 9 signals for very difficult and more sensitive noninvasive
`
` 10 physiological parameters, such as total hemoglobin, carbon
`
` 11 monoxide, and even glucose.
`
` 12 In addition to giving better measurements for
`
` 13 more difficult parameters, you will hear that this patented
`
` 14 sensor design also improved light-based measurements in more
`
` 15 difficult sites.
`
` 16 The next patent in this investigation is the '745
`
` 17 patent, which you'll hear referred to as the light-shaping
`
` 18 patent. You'll hear from Ammar Al-Ali, who is the inventor
`
` 19 on this patent, and Mr. Al-Ali will explain his invention.
`
` 20 If we go to our next figure.
`
` 21 What we see here is Fig. 7A from the '745 patent,
`
` 22 which shows one embodiment of the invention. And you can
`
` 23 see here we have an LED that's shaded in red at the top
`
` 24 there, and then there's a light diffuser that spreads out
`
` 25 and can also shape the light so that more tissue is
`
`
`
`
`
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`
`
` 14
`
`
` 1 irradiated before it reaches the photodetector. The
`
` 2 photodetector is shown there in blue as element 710.
`
` 3 There's also light block that's shown as item 706
`
` 4 in green that's between the LEDs and the photodetector.
`
` 5 The evidence will show the -- this improved the
`
` 6 measurement particularly on more difficult sites.
`
` 7 The third inventor you'll hear from is Mohamed
`
` 8 Diab. He joined Mr. Kiani to start Masimo. Mr. Diab is an
`
` 9 inventor on the '127 patent, which we refer to as the
`
` 10 temperature patent.
`
` 11 Mr. Diab will explain how this patent allowed for
`
` 12 the measurement of parameters that no other company has been
`
` 13 able to measure. This patent introduced using a thermal
`
` 14 mass for the LED package and the sensor that stabilizes and
`
` 15 normalizes temperature, so that a thermistor can be used to
`
` 16 correlate to the temperature of multiple LEDs and, in turn,
`
` 17 correlate to the changes in wavelength of emitted light.
`
` 18 The basics of this are shown in our next slide,
`
` 19 which include Figs. 12 and 14 from the '127 patent.
`
` 20 What we see here on Fig. 12 on the left is a
`
` 21 diagram of the emitter substrate, and it shows a thermal
`
` 22 mass in the middle with multiple LEDs thermally coupled to
`
` 23 that mass. A temperature sensor, you see that on the right,
`
` 24 is also shown thermally coupled to the thermal mass.
`
` 25 The temperature sensor measures the temperature
`
`
`
`
`
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`
`
` 15
`
`
` 1 of the thermal mass and uses that to estimate all of the
`
` 2 operating wavelengths of the LEDs.
`
` 3 Fig. 14, which is on the right, from this patent,
`
` 4 illustrates one example of a PC board that includes
`
` 5 metallized layers that act as a thermal mass so that the
`
` 6 measurement by the temperature sensors can provide
`
` 7 meaningful information about the operating wavelengths of
`
` 8 the LED.
`
` 9 The evidence will show that this feature results
`
` 10 in increased accuracy, because the measurement of
`
` 11 physiological parameters depends on the particular
`
` 12 wavelength of the LEDs.
`
` 13 The inventors pursued this to help them measure
`
` 14 new physiological parameters that are difficult to obtain.
`
` 15 This technology is used in Masimo's rainbow* sensors, which
`
` 16 measure a variety of parameters with light-based
`
` 17 measurements.
`
` 18 You'll also hear from several witnesses
`
` 19 about Masimo's extensive activities in the United States to
`
` 20 use these three patent groups in its products. For the
`
` 21 Multi-Detector Patents and the light-shaping patent, the
`
` 22 evidence will show Masimo's efforts in the United States to
`
` 23 design, develop, and manufacture the Masimo Watch.
`
` 24 You will hear from Mr. Kiani, Mr. Al-Ali and
`
` 25 Bilal Muhsin, the CEO, about Masimo's activities in
`
`
`
`
`
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`
`
` 16
`
`
` 1 developing and launching the Masimo Watch that is
`
` 2 commercially called W1.
`
` 3 You'll hear about the details in the Masimo Watch
`
` 4 project from Stephen Scruggs, an engineer at Masimo who,
`
` 5 along with others, designed and developed the watches we are
`
` 6 presenting for the technical prong requirement.
`
` 7 The evidence will show that this has been an
`
` 8 ongoing project for years. Masimo's design and development
`
` 9 activities have taken place in the United States, so that
`
` 10 Masimo could develop a medical-grade product that delivers
`
` 11 reliable measurements. This is in contrast with other pulse
`
` 12 oximeters that are not reliable.
`
` 13 Now my next slide is going to include Masimo
`
` 14 confidential business information. So I just want to make
`
` 15 that clear so that we can have the appropriate people leave
`
` 16 the Webex meeting, and that would include Apple's corporate
`
` 17 representative.
`
` 18 I apologize. Yes, that would include Apple's
`
` 19 corporate representative as well.
`
` 20 (Whereupon, the hearing proceeded in confidential
`
` 21 session.)
`
` 22
`
` 23
`
` 24
`
` 25
`
`
`
`
`
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`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

` 28
`
` O P E N S E S S I O N
`
`JUDGE BHATTACHARYYA: Moving back to the public
`
` 1
` 2
` 3
` 4 record.
`MS. SWAROOP: I'd now like to discuss patent
` 5
` 6 validity with respect to the Multi-Detector Patents.
` 7
`Now we don't know exactly what Apple's validity
` 8 defense will be and what exactly Apple will present to you,
` 9 and that's because Apple's pre-hearing brief for the five
` 10 claims in this group includes dozens of references for
` 11 background and for motivation to combine, and Apple's
` 12 invalidity grounds uses a combination of numerous
` 13 references.
` 14
`So we will see the reveal along with you when
` 15 Apple decides to finally unveil what the bases are for its
` 16 invalidity defense.
` 17
`The best we can discern is that Apple now appears
` 18 to be relying on two primary references in its combinations.
` 19 One, based on a patent that we refer to as Lumidigm, and one
` 20 based on foam sensor heads from a student project at Kansas
` 21 State.
`So let's talk about Lumidigm first. The evidence
` 22
` 23 will show that Lumidigm's focus was obtaining a spectral
` 24 signature across a band of wavelengths to identify the
` 25 wearer. Lumidigm then provides a wish list of wide-ranging
`
`Heritage Reporting Corporation
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`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`
`
` 29
`
`
` 1 use cases that range from fruit ripeness, identifying
`
` 2 counterfeit documents, oxygenation, a mood meter, a lie
`
` 3 detector, used as a TV remote, a barcode scanner, a smoke
`
` 4 detector, a guitar tuner, an alcohol monitor, and more
`
` 5 unrelated wishes.
`
` 6 For Kansas State, the evidence will show that an
`
` 7 undergraduate student following conventional wisdom designed
`
` 8 a basic sensor for a summer project. The foam sensor head
`
` 9 lacked the unrecognized benefit of the convex protrusion
`
` 10 that we talked about earlier. It merely conformed to and
`
` 11 did not disturb the tissue. Also, it was never
`
` 12 commercialized or developed beyond an undergraduate
`
` 13 student's summer project.
`
` 14 When Apple does unveil its invalidity combinations
`
` 15 based on Lumidigm or the Kansas State student project. You
`
` 16 will hear from our expert why the references they choose to
`
` 17 present to you are missing fundamental features of the
`
` 18 claims and why the combinations would not have been obvious
`
` 19 and would still be missing claimed features.
`
` 20 Apple's own evidence will also support the
`
` 21 nonobviousness of the claimed sensor configuration.
`
` 22 Another defense you may hear from Apple on is an
`
` 23 assertion that Masimo's patents are somehow unenforceable
`
` 24 due to prosecution laches. The publicly available
`
` 25 prosecution history of this patent family refutes that
`
`
`
`
`
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

`
`
` 30
`
`
` 1 defense and shows the activity Masimo took to move its
`
` 2 patents toward issuance. You will hear no expert from Apple
`
` 3 testify that the record of prosecution showed any kind of
`
` 4 unreasonable delay by Masimo.
`
` 5 Apple's pre-hearing brief also does not identify
`
` 6 any Apple witnesses who will speak about any prejudice that
`
` 7 Apple has suffered as a result of any alleged delay.
`
` 8 Apple's opening slides include a timeline
`
` 9 labeling various time periods as a delay, but that simply
`
` 10 ignores the public record of the prosecution history that
`
` 11 actually was taking place during that time period.
`
` 12 And now I'd like to turn to the light-shaping
`
` 13 patent and the evidence there. As that patent, as I had
`
` 14 previewed earlier, this patent changes the shape of light
`
` 15 from the detector so that it irradiates more of the tissue
`
` 16 and improves overlap in the area being measured.
`
` 17 The evidence will show that Apple implemented
`
` 18 this feature in the infringing Series 6 and later watches
`
` 19 with its MLA lens.
`
` 20 Masimo will present tests of the infringing
`
` 21 watches that show that light entering the Apple MLA lens is
`
` 22 a different shape from the light that exits the MLA lens.
`
` 23 We can go to our next --
`
` 24 MR. MUELLER: If we could go on the confidential
`
` 25 record, please.
`
`
`
`
`
`
`Heritage Reporting Corporation
`(202) 628-4888
`
`MASIMO 2008
`Apple v. Masimo
`IPR2022-01299
`
`

`

` 31
`
`MS. SWAROOP: Your Honor, this is not --
` 1
`MR. MUELLER: I apologize for interrupting. I
` 2
` 3 just want to be careful about going on the Apple
` 4 confidential record for any discussion of the technical
` 5 details of the Apple products.
` 6
`MS. SWAROOP: Your Honor, I plan to discuss
` 7 testing that was conducted by Masimo. This is not Apple
` 8 confidential information and was not identified as
` 9 containing Apple confidential information in our discussion
` 10 over these slides.
` 11
`MR. MUELLER: I'll take Ms. Swaroop's word for
` 12 it, but to the extent there's oral discussion that's going
` 13 to move into the details of the products, we would ask that
` 14 we go on the Apple confidential record, and I believe there
` 15 is a slide coming up soon that will also require we go on
` 16 that record.
` 17
`JUDGE BHATTACHARYYA: Ms. Swaroop, do you know
` 18 what Mr. Mueller is referring to?
` 19
`MS. SWAROOP: I do, Your Honor. It's related to
` 20 the '127 patent, and I plan to go on the confidential record
` 21 for that portion.
` 22
`This particular portion is information that is
` 23 not confidential to Apple, and I plan to discuss the test
` 24 results on our slide, which Apple has not identified as
` 25 containing any Apple confiden