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`Apple, Inc. v. Masimo Corp.
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`William P. King, Ph.D.
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`APPLE INC., )
` Petitioner, ) Case IPR2022-01299
`v. ) U.S. Patent 7,761,127
`MASIMO CORPORATION, )
` Patent Owner. )
`_____________________)
`
` VIRTUAL REMOTE DEPOSITION OF
` WILLIAM P. KING, Ph.D.
` Friday, November 3, 2023
` 10:02 a.m. Eastern Daylight Time
`
`REPORTER: Dawn A. Jaques, CSR, CLR
`________________________________________________
` DIGITAL EVIDENCE GROUP
` 1730 M Street, NW, Suite 812
` Washington, D.C. 20036
`(202) 232-0646
`
`www.DigitalEvidenceGroup.com Digital Evidence Group C'rt 2023
`
`202-232-0646
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`APPLE 1062
`Apple v. Masimo
`IPR2022-01299
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`1
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`11/3/2023
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`Apple, Inc. v. Masimo Corp.
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`William P. King, Ph.D.
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`Page 2
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` APPEARANCES:
` On behalf of the Petitioner:
` FISH & RICHARDSON
` By: Nicholas A. Stephens, ESQ.
` 60 South 6th Street
` Suite 3200
` Minneapolis, Minnesota 55402
` (612) 766-2018
` nstephens@fr.com
`
` On behalf of the Patent Owner:
` KNOBBE MARTENS OLSON & BEAR LLP
` By: Ted M. Cannon, ESQ.
` 2040 Main Street
` 14th Floor
` Irvine, California 92614
` (979) 760-0404
` ted.cannon@knobbe.com
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` I-N-D-E-X
`WITNESS: PAGE:
`DR. WILLIAM P. KING, Ph.D.
` Cross-Examination by Mr. Stephens 4
` Redirect Examination by Mr. Cannon 62
` Recross-Examination by Mr. Stephens 68
`
` E-X-H-I-B-I-T-S
` ** NO NEW EXHIBITS WERE MARKED **
`
` PREVIOUS EXHIBITS REFERRED TO
`EXHIBIT NUMBER: PAGE:
`1001 U.S. Patent No. 7,761,127 7
`1008 Noguchi reference (5,334,916) 60
`1050 Oldham reference (US 2005/0279949) 8
`1051 Muthu reference 34
`1052 Dry reference (US 2003/0230765) 44
`1054 Littleton reference (7,055,986) 54
`2194 William King Second Declaration 7
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` P R O C E E D I N G S
` THE REPORTER: Dr. King, will you
` raise your right hand to be sworn, please?
` (The witness was administered the oath.)
`Whereupon,
` WILLIAM P. KING, Ph.D.,
` was called as a witness, after having
` been first duly sworn by the Notary
` Public, was examined and testified as
` follows:
` CROSS-EXAMINATION BY COUNSEL FOR PETITIONER
` BY MR. STEPHENS:
` Q Welcome, Dr. King.
` A Good morning.
` Q Good to see you again.
` A Nice to see you.
` Q My name is Nick Stephens. I'm an
` attorney with Fish & Richardson, and I'll be
` taking the deposition today on behalf of
` Petitioner, Apple Inc. Do you understand?
` A I understand.
` MR. STEPHENS: Would counsel for
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` Patent Owner like to make his appearance?
` MR. CANNON: Yes. This is
` Ted Cannon of Knobbe, Martens, Olson & Bear
` for Patent Owner, Masimo.
` BY MR. STEPHENS:
` Q And we're here today regarding
` IPR proceeding 2022-01299 involving the
` '127 patent. Do you understand?
` A Yes.
` Q This deposition is being transcribed
` today, and so to ensure a clean record, I'll
` try not to interrupt you while you're
` providing your answers.
` I'd just ask if you could wait for
` me to complete my questions before you begin
` your responses.
` Do you understand?
` A Yes.
` Q If you need a break at any time
` today, please feel free to let me know. In
` general, I'll plan to break about every hour,
` but if you need any more than that, don't
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` hesitate to let me know.
` A Thank you.
` Q Can you please state your full name?
` A William Paul King.
` Q And please state your city of
` residence?
` A Champaign, Illinois.
` Q Do you understand that you're under
` oath today?
` A Yes, I do.
` Q Is there any reason that you cannot
` give truthful and accurate testimony?
` A There's no reason.
` Q For clarity, I'll define several
` terms that we may use today.
` When I use the term "Patent Owner"
` or "Masimo," I'm referring to Masimo
` Corporation. Do you understand?
` A Yes.
` Q And when I refer to "Apple," I'm
` referring to Apple Inc., the Petitioner in
` this proceeding. Do you understand?
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` A Yes.
` Q And when I reference the
` '127 patent, I'm referring to Exhibit 1001 in
` this proceeding. Do you understand?
` A Yes.
` Q You've submitted two declarations in
` this proceeding, correct?
` A Yes.
` Q And the first declaration has been
` marked in this proceeding as Exhibit 2151.
` Is that your understanding?
` A Yes.
` Q And your second declaration is
` Exhibit 2194, correct?
` A I believe that's correct.
` Q I'll try to distinguish between the
` two, but in general today, if I refer to your
` declaration, unless the context is clear
` otherwise, I'll be referring to your second
` declaration that's Exhibit 2194.
` Does that sound fair?
` A Yes, thank you.
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` Q Can you please describe how you
` prepared for today's deposition?
` A I reviewed my second declaration, I
` reviewed my first declaration, and I reviewed
` the prior art that's referred to in my second
` declaration.
` Q And approximately how much time did
` you spend preparing for today's deposition?
` A Two hours.
` Q Who did you work with in preparing
` for the deposition?
` A I worked with Mr. Cannon.
` Q Are there any documents that you
` reviewed in preparation for the deposition
` that are not cited in your second declaration?
` A I do not believe so, no.
` Q Are you familiar with Exhibit 1050,
` the Oldham reference?
` A Yes, I am.
` Q I'll turn to paragraph 4 of your
` declaration that's Exhibit 2194. Paragraph 4,
` actually.
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` And in this paragraph, you identify
` Oldham among the references that you reviewed
` and considered in conducting the analyses and
` forming the opinions set forth in this
` declaration, correct?
` A Yes.
` Q Have you reviewed the Oldham
` reference in its entirety?
` A Yes, I have.
` Q Is there any reason that you would
` not be able to substantively respond to
` questions regarding Oldham teachings today?
` A I do not anticipate any reason why I
` could not respond to questions about Oldham.
` Q And you've previously reviewed
` Oldham in connection with preparing your first
` declaration; is that correct?
` A That is correct.
` Q Your second declaration then was not
` your first opportunity to address Oldham in
` this proceeding, correct?
` A In my first declaration, I cited
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` Oldham as an example of a temperature
` regulating system.
` In the second declaration, I had
` the opportunity to respond to some of the
` issues that were introduced by Dr. Anthony.
` Q I'd like to turn to paragraph 6 of
` your second declaration, and here you quote
` testimony that you offered in your first
` declaration regarding Oldham, correct?
` A Yes.
` Q And in that quoted paragraph, that's
` paragraph 40 of Exhibit 2151, you note that
` Apple submitted Oldham as Exhibit 1010 in not
` instituted 2022-01300, correct?
` A Yes.
` Q Did you review Apple's petition from
` IPR2022-01300 before you submitted your first
` declaration in this proceeding?
` A I did not.
` Q Were you aware that Dr. Anthony had
` submitted a declaration in IPR2022-01300
` regarding Oldham?
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` A I do not believe I was aware.
` Q Did you ever seek to review Apple's
` petition in IPR2022-01300 before submitting
` your first declaration?
` A I did not. I understand that that
` was out of scope for the previous declaration
` and the current declaration.
` Q Are you aware that you are not the
` first expert from whom Masimo has submitted
` testimony in this proceeding?
` MR. CANNON: Beyond the scope.
` THE WITNESS: I am aware.
` BY MR. STEPHENS:
` Q Are you aware that Masimo previously
` submitted an expert declaration from Dr. Jack
` Goldberg in this proceeding?
` MR. CANNON: Same objection.
` THE WITNESS: I have only a very
` faint recollection of understanding that there
` was a previous expert, and I have no
` recollection of who that person is or what
` they testified to.
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` BY MR. STEPHENS:
` Q So you did not review Dr. Goldberg's
` declaration before you submitted your own
` testimony in this proceeding?
` A I don't recall reviewing it, no.
` Q So you were not aware that
` Dr. Goldberg had previously addressed Oldham
` in that declaration?
` A No.
` Q All right, I'd like to turn to
` paragraph 9 of your declaration, and here you
` review to Oldham's paragraph 39 disclosure,
` correct?
` A Yes, this paragraph refers to
` Oldham, paragraph 39.
` Q And we'd like to pull up
` paragraph 39 of Oldham as well. I don't know
` if we can put this side by side.
` THE VIDEOGRAPHER: And what is the
` other document you want on the
` right-hand side?
` MR. STEPHENS: Yeah, I'm sorry.
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` It's Exhibit 1050, paragraph 39.
` Dr. King, do you have physical
` copies of the prior art that's cited in your
` second declaration with you?
` THE WITNESS: I do not, no.
` BY MR. STEPHENS:
` Q Are you separately referencing
` electronic copies of your own, or is it
` helpful for you to see this on the screen?
` A This is helpful on the screen. I
` also have electronic copies if we need to go
` there.
` Q Okay. So in Oldham, paragraph 39
` states the following, "The temperature sensor
` and the LED do not necessarily have to be in
` physical contact. The temperature regulating
` system can adjust a monitored temperature of
` the LED to compensate for any thermal masses
` intervening between the LED and the
` temperature sensor and to thus derive,
` calculate, or estimate an operating
` temperature." Did I read that correctly?
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` A Yes, you did.
` Q And when Oldham refers at the end of
` paragraph 39 to an operating temperature, is
` it your understanding that it's referring to
` an operating temperature of the LED?
` A My understanding is that the
` operating temperature is the temperature of
` the components in the system, all of which
` that are at the same temperature, so that
` would include the LED and the temperature
` sensor and other components.
` Q You would agree that paragraph 38
` refers to an operating temperature of the LED,
` correct?
` A Paragraph 38 uses the words "the
` operating temperature of the LED."
` Q And so in paragraph 39, the
` operating temperature referenced there is the
` operating temperature of the LED, correct?
` A Operating temperature is the
` temperature of the multiple components in the
` system that are all at the same temperature,
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` and the LED is at the same temperature as the
` other components, so the LED is inclusive of
` the operating temperature.
` Q So at least when Oldham refers to
` deriving, calculating, or estimating operating
` temperature in paragraph 39, that would
` include deriving, calculating, or estimating
` operating temperature of the LED?
` A Well, the operating temperature
` refers to the temperature of the multiple
` components, including the LED.
` Q Let me restate my question.
` At the end of paragraph 39, when
` Oldham states that it is deriving,
` calculating, or estimating an operating
` temperature, that would include deriving,
` calculating, or estimating an operating
` temperature of the LED, correct?
` A I would just want to be careful here
` about phrasing it in a way that suggests that
` the temperature measurement is exclusive to
` the LED.
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` Q But it is inclusive of the operating
` temperature of the LED?
` A The operating temperature includes
` the operating temperature of the LED.
` Q So paragraph 39 teaches that a
` temperature sensor measurement can be used to
` derive, calculate, or estimate an operating
` temperature inclusive of the operating
` temperature of the LED, even when intervening
` thermal masses exist between the LED and the
` temperature sensor, correct?
` A I'm not sure that I read that from
` paragraph 39.
` Q What do you read from paragraph 39?
` A Well, can you maybe perhaps ask the
` question a different way?
` Q Sure. So paragraph 39 teaches that
` there may be intervening thermal masses
` between the temperature sensor and the LED,
` correct?
` A Yes, paragraph 39 says that there
` may be thermal masses that intervene between
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` the LED and the temperature sensor.
` Q And Oldham teaches that an operating
` temperature can be derived, calculated, or
` estimated despite the presence of the
` intervening thermal masses, correct?
` A Give me one second, please. I'm
` just reviewing my declaration.
` (Witness reviewing Exhibit 2194.)
` Okay, could I ask you to please
` reask your question?
` Q Paragraph 39 teaches that an
` operating temperature, inclusive of an
` operating temperature of the LED, can be
` derived, calculated, or estimated despite the
` presence of intervening thermal masses,
` correct?
` A Yeah, so paragraph 39 reports that
` the LED and the temperature sensor could be
` separated by a thermal mass that intervenes in
` the thermal communication between the two
` devices.
` Q And despite the presence of a
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` thermal mass, an operating temperature,
` inclusive of an operating temperature of the
` LED, can still be derived, calculated, or
` estimated, correct?
` A That question was a little
` complicated. Can you ask it a different way,
` please?
` Q Oldham teaches that you can derive,
` calculate, or estimate an operating
` temperature of the LED even when there are
` intervening thermal masses, correct?
` A Oldham teaches that you can derive,
` calculate, or estimate an operating
` temperature even when there are intervening
` thermal masses.
` Q And paragraph 39 uses the phrase
` "any thermal masses," is that correct?
` A It uses the phrase "any thermal
` masses."
` Q In paragraph 12 of your declaration,
` you refer to paragraph 52 of Oldham, correct?
` A Yes, I do.
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` Q And in paragraph 12 you state that
` "Oldham Paragraph 52 confirms that Oldham uses
` 'thermal mass' differently than the
` '127 patent. Paragraph 52 uses 'thermal mass'
` broadly to refer to any object, 'such as air,'
` that can affect heat transfer," correct?
` A As I testified previously,
` "thermal mass" means different things in
` different situations. So in order to
` understand its meaning, you have to interpret
` the context.
` And so this paragraph here,
` paragraph 12 in my declaration, explains --
` partially explains why this is a good example
` of why "thermal masses" means different things
` in different situations.
` Q So as I understand your testimony in
` paragraph 12, in the context of Oldham, a
` thermal mass refers broadly to any object that
` can affect heat transfer; is that correct?
` A I'm not sure if I would word it that
` way.
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` Q Well, I'm reading your testimony.
` You state "Paragraph 52 uses 'thermal mass'
` broadly to refer to any object, 'such as air,'
` that can affect heat transfer," correct?
` A "Paragraph 52 uses 'thermal mass'
` broadly to refer to any object, 'such as air,'
` that can affect heat transfer," yes.
` Q And is the use of "thermal mass" in
` paragraph 52 representative of how Oldham uses
` "thermal mass" in its disclosure?
` A The way that Oldham uses
` "thermal mass" refers to objects that affect
` heat transfer or interfere with heat transfer.
` Q And you give an example of a thermal
` mass being air, correct?
` A Oldham uses air as an example of a
` thermal mass.
` Q But the thermal mass could be other
` things besides air as well, correct?
` A The thermal mass could be any object
` that affects or interferes with heat transfer.
` Q Can you name some other objects that
`
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` might interfere or affect heat transfer?
` A Well, I think any of the objects
` reported in the Oldham patent may have thermal
` mass that interferes with heat transfer.
` Q Can we turn to paragraph 34 of
` Oldham? And about five lines down, there's a
` sentence that begins "A heat change pathway
` can be established for system components such
` as photodiodes and LEDs using a ground path to
` the same metal or layer plate, for example, in
` a PCB. The plate can be a metal, for example,
` aluminum, copper, or other electrically
` conductive metals." Do you see that?
` A I see that, yes.
` Q So the metal plate in paragraph 34
` would affect heat transfer between the
` temperature sensor and an LED, correct?
` A Well, this paragraph explains that
` the metal plate keeps the components at
` approximately the same temperature.
` Q And therefore, it affects the heat
` transfer between the LED and the temperature
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` sensor?
` A So heat that flows from the LED
` through the metal plate into the temperature
` sensor, that heat flow is affected by the
` metal plate.
` Q So the metal plate would be an
` example of a thermal mass as that term is used
` in Oldham, correct?
` A Oldham uses "thermal mass" as any
` object that's interfering with heat transfer,
` and/or any object that's affecting heat
` transfer, and the metal plate affects the heat
` transfer between the LED and the temperature
` sensor.
` Q So the metal plate in Oldham would
` be an example of a thermal mass as that term
` is used in Oldham, correct?
` A Oldham refers broadly to any object
` that can affect heat transfer; so in a
` situation where the metal plate is affecting
` heat transfer, then it is thermal mass,
` according to Oldham.
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` Q I'd like to turn to paragraph 41 of
` Oldham. And about two-thirds of the way down
` the paragraph, there's a sentence that begins
` "A system can be provided that can include a
` data adjustment unit." Yeah, there it is.
` And that sentence reads, "A system
` can be provided that can include a data
` adjustment unit comprising a memory adapted to
` store at least two operating temperatures and
` at least one respective excitation beam
` characteristic shift for each operating
` temperature."
` Do you see that?
` A I see that.
` Q Would a POSITA reading this
` disclosure from Oldham understand that an
` estimate of the operating temperature of an
` LED could be correlated with an excitation
` beam characteristic shift?
` A A POSITA reading this paragraph
` would understand that the LED temperature
` affects the wavelength of the emitted light
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` from the LED, and that changes in the LED
` temperature would result in changes in the
` LED wavelength; and that if one knew the LED
` temperature, one might be able to calculate or
` predict the wavelength shift given the correct
` wavelength shift coefficients and so on.
` Q Was it well understood before the
` '127 patent that there's a relationship
` between the operating temperature of an LED
` and its wavelength?
` A I believe I testified about this
` previously, also in the context of using that
` wavelength shift for sensors.
` So, yes, this was known.
` Q So if a system can obtain an
` accurate estimate of the temperature of an
` LED, then an estimate of the wavelength or the
` wavelength shift of the LED could be
` determined from the temperature estimate?
` A I think that I answered that
` question.
` Q Is that I guess in the affirmative
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` then?
` A I think that I answered the
` question.
` Q Going back to paragraph 39 in
` Oldham, in that paragraph, we saw again that
` Oldham teaches that "The temperature
` regulating system can adjust a monitored
` temperature of the LED to compensate for any
` thermal masses intervening between the LED and
` the temperature sensor and to thus derive,
` calculate, or estimate an operating
` temperature," correct?
` A Yes.
` Q And so once an operating temperature
` of the LED has been derived, calculated, or
` estimated, according to the teachings in
` paragraph 39, a POSITA would know how to
` correlate that operating temperature with a
` wavelength of the LED, correct?
` A If a POSITA had an accurate
` measurement of an LED, then that measurement
` could be used to calculate a wavelength of an
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` LED.
` Q And when you refer to an accurate
` measurement, are you referring to an accurate
` measurement of the LED temperature?
` A Accurate measurement of the LED
` temperature.
` Q I'd like to go to paragraph 38 in
` Oldham. A little past halfway, there's a
` sentence that begins "The temperature
` regulating system can maintain the operating
` temperature of the LED such that the operating
` temperature does not exceed the bounds of a
` programmed temperature range."
` Do you see that?
` A Yes, I see that.
` Q And the preceding sentence indicates
` that "The temperature regulating system can
` maintain the operating temperature of the LED
` such that the operating temperature does not
` change appreciably, by not more than 0.5 C,
` that is, does not fluctuate by more than 10 C
` during operation, for example, by not more
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` than 5 C, or by not more than 1 C, by not
` more than 0.5 C, or by not more than 0.1 C
` or less." Do you see that?
` A I see that.
` Q Would fluctuation of an LED's
` temperature by, say, up to 10 C lead to an
` appreciable shift in the operating wavelength
` of the LED?
` A What I read from this paragraph is
` that the thermal regulating system can be
` tailored or tuned to achieve an acceptable
` temperature range, and so these are examples
` of acceptable temperature ranges for different
` types of applications and problems to be
` solved.
` So I can infer that the example of
` 10 C, in some cases, would lead to an
` acceptable temperature regulation, and in
` other cases, acceptable temperature regulation
` would be achieved at 1 C, or .5 or .1 C, and
` so on.
` Q Would the wavelength of the LED
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` fluctuate across the range of 10 C if the
` temperature regulating system only maintained
` the LED within 10 C?
` A Well, it's known that there's a
` property of LEDs that their temperature
` changes -- excuse me, that if their
` temperature changes, then their wavelength
` will shift, so that's a generally known
` property, and there's a relationship between
` the temperature and the wavelength shift.
` So, generally, larger temperature
` changes lead to larger wavelength shifts.
` Q Now, Oldham never states that the
` temperature-compensation techniques it
` discloses in paragraph 41 could not be used
` with a temperature regulation system, correct?
` A Oldham presents the temperature
` compensation scheme of paragraph 41 as an
` alternative to the temperature regulation
` system.
` Q Where do you see the disclosure of
` paragraph 41 being an alternative embodiment?
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` A I can understand 41 as an
` alternative embodiment because the temperature
` regulation system is tunable to achieve a
` temperature change that's acceptable for a
` given application.
` So the tunability and the ability to
` achieve acceptable temperature ranges, as
` reported in 38 and elsewhere, says that the
` temperature regulation scheme is one way to
` solve the problem.
` And then in 41, it's an alternate
` approach.
` Q In your experience, do engineers
` ever solve problems using multiple solutions?
` A That's a very abstract question.
` Could you maybe refine it a little bit to make
` it specific to this topic?
` Q Sure. Is there any reason that a
` POSITA would not -- could not -- strike that.
` Is there any reason that a POSITA
` could not use both a temperature regulating
` system and the temperature-compensation
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` techniques disclosed in paragraph 41?
` A Well, that's not what is taught by
` Oldham.
` Q Are you restricted to Oldham's
` literal teachings, as you understand them, or
` would a POSITA bring to bear their knowledge
` and experience in inferring how to look at
` prior art?
` A Well, a POSITA would of course bring
` their training and education to solve a
` problem.
` Q Would a POSITA know that if the
` temperature regulating system allowed the
` LED temperature to fluctuate within a
` programmed temperature range as taught in
` paragraph 38, that any heat-induced spectral
` shift resulting from that temperature
` fluctuation could be mitigated by the
` compensation techniques disclosed in
` paragraph 41?
` A Well, paragraph 38 teaches that the
` temperature regulating system can be tailored
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` to achieve an acceptable temperature range and
` solve the problem.
` Q That wasn't my question. I'll
` restate it.
` Would a POSITA know that the
` wavelength shift that would result from
` temperature fluctuations in paragraph 38 could
` be mitigated by the temperature-compensation
` techniques disclosed in paragraph 41?
` A So Oldham doesn't provide
` connectivity between these two different
` concepts, and so at least from reading Oldham,
` you would not be directed to make a
` combination.
` Q Sorry, that again wasn't my
` question. I'm asking what a POSITA would
` know.
` Would a POSITA know that the
` wavelength shift that would result from the
` temperature fluctuation discussed in
` paragraph 38 could be mitigated by the
` temperature-compensation techniques disclosed
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