UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`Before the Honorable Monica Bhattacharyya
`Administrative Law Judge
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`In the Matter of
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`CERTAIN LIGHT-BASED PHYSIOLOGICAL
`MEASUREMENT DEVICES AND
`COMPONENTS THEREOF
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`Inv. No. 337-TA-1276
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`RESPONDENT APPLE INC.’S OPPOSITION TO COMPLAINANTS’
`MOTION FOR PROTECTIVE ORDER TO PRECLUDE ACCESS BY
`BRIAN ANTHONY, PH.D., TO COMPLAINANTS’
`CONFIDENTIAL BUSINESS INFORMATION (MOTION NO. 1276-005)
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`PUBLIC VERSION
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`MASIMO 2091
`Apple v. Masimo
`IPR2022-01299
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`TABLE OF CONTENTS
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`I.  FACTUAL BACKGROUND.................................................................................................. 2 
`A.  Apple’s Proposed Product Development In The Supplemental Protective Order Would
`Fully Address Complainants’ Concerns. ..................................................................................... 2 
`B.  Complainants Rejected Apple’s Proposed Product Development Bar with No
`Counterproposal .......................................................................................................................... 4 
`C.  Complainants’ Objection to Dr. Anthony Are Similar to Their Objections to Dr. Stone,
`Dr. Sarrafzadeh, and Dr. Warren. ................................................................................................ 5 
`D.  Complainants Continue To Ignore Apple’s Efforts to Address Their Concerns. ................ 6 
`II.  LEGAL STANDARD ............................................................................................................. 7 
`III.   ARGUMENT .......................................................................................................................... 8 
`A.  Complainants Have No Individualized Objection To Dr. Anthony’s Participation In This
`Investigation. ............................................................................................................................... 8 
`B.  Complainants’ Concerns Regarding CBI Should Be Addressed By A Supplemental
`Protective Order That Applies Equally to All Individuals Who Access CBI. .......................... 11 
`IV.   CONCLUSION ..................................................................................................................... 12 
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`Certain Automated Media Library Devices,
`Inv. No. 337-TA-746, Order No. 12 (May 19, 2011) ............................................................7, 8
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`Certain Automated Storage and Retrieval Systems, Robots, and Components
`Thereof, Inv. No. 337-TA-1228, Order No. 15 (May 4, 2021) ..................................................8
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`Certain Basketball Backboard Components,
`Inv. No. 337-TA-1040, Order No. 6 4 (Apr. 19, 2017) .............................................................9
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`Certain Mobile Elec. Devices Incorporating Haptics, Inv. No. 337-TA-834,
` Corrected Order No. 15 (Sept. 20, 2012) ...................................................................................8
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`Certain Wearable Electronic Devices with ECG Functionality and Components
`Thereof, Inv. No. 337-TA-1266, Order No. 7 (Aug. 18, 2021) ...............................................11
`Hewlett-Packard Co. v. EMC Corp.,
`330 F. Supp. 2d 1087 (N.D. Cal. 2004) ...........................................................................7, 8, 10
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`Regulations
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`19 C.F.R. § 210.34(a)(7) ................................................................................................................11
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`Respondent Apple Inc. (“Apple”) respectfully submits its opposition to Complainants’
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`Masimo Corporation (“Masimo”) and Cercacor Laboratories, Inc.’s (“Cercacor”) motion to
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`preclude Apple’s expert Dr. Brian Anthony from accessing materials designated as containing
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`Complainants’ confidential business information (“CBI”) under the Protective Order unless he
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`signs a separate, side-agreement imposing a product development bar on them that Complainants
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`refuse to accept for their own experts. This is Complainants’ third of three pending motions that
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`collectively seek to preclude four of Apple’s five technical experts from accessing Complainants
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`CBI unless they agree to restrictions that Complainants refuse to apply to their own experts.
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`Complainants’ refusal to negotiate in good faith a development bar that would apply equally to
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`experts that access CBI of both sides in this case and tactic of instead filing serial objections is
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`prejudicing Apple by preventing it from discussing Complainants’ CBI with its technical experts
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`while wasting party and Commission resources.
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`As discussed in Apple’s oppositions to Complainants’ motions to preclude Dr. Steven
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`Warren, Dr. Robert Stone, and Dr. Majid Sarrafzadeh from this Investigation (see Doc ID 756608;
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`Doc ID 756950), Apple has consistently maintained that a product development bar is an
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`appropriate restriction for all individuals accessing CBI in this Investigation. Complainants
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`continue to refuse to engage with Apple’s proposals. As discussed below, Complainants have now
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`twice struck entirely the product development bar proposed by Apple—even though the second
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`bar Apple proposed contained language taken directly from the separate agreements Complainants
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`are seeking to enforce against Apple’s experts—while continuing to maintain their “objection” to
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`Dr. Anthony (and all but one of Apple’s other technical experts) unless he agrees to sign
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`Complainants’ unilateral agreements including such a bar.
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`Complainants have not raised a valid individualized objection to Dr. Anthony. Nor have
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`Complainants articulated—in any of its three motions—why it is appropriate that they should force
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`Apple’s experts to abide by restrictions that Complainants are unwilling to impose on those who
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`access Apple’s CBI. As before, the concerns that Complainants recycle in their latest motion
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`should be addressed through the negotiation and submission of a Supplemental Protective Order.
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`Instead, Complainants have manufactured a dispute by refusing to negotiate with Apple on the
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`content and scope of a product development bar in the parties’ Supplemental Protective Order, and
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`then later objecting to Apple’s experts unless they agree to execute a separate product development
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`bar agreement. This conduct is the cause of real, immediate, and ongoing prejudice to Apple.
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`Accordingly, Apple again respectfully requests that Complainants’ motion be denied.
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`I.
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`FACTUAL BACKGROUND
`A.
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`Apple’s Proposed Product Development In The Supplemental Protective
`Order Would Fully Address Complainants’ Concerns.
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`Apple first proposed in August 2021 that the parties negotiate and jointly move for an
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`amendment to the Protective Order (“Supplemental Protective Order”) that would include various
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`protections, including a product development provision of the type Complainants now seek to
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`unilaterally impose on Dr. Anthony. The purpose of the Supplemental Protective Order would be
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`to provide additional safeguards for the production and review of source code in this Investigation
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`and also, as relevant to Complainants’ motion, establish a product development bar that would
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`apply equally to all recipients of CBI in this Investigation.
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`On August 31, 2021, the parties filed a Joint Discovery Statement pursuant to Chief
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`Administrative Judge Bullock’s Order No. 2: Notice of Ground Rules; Order Setting Date for
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`Submission of Joint Discovery Statement. See Doc ID 750609. Paragraph 12 of Exhibit A to the
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`Joint Discovery Statement is titled “Proposal for any modifications to the protective order now in
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`effect for this Investigation” and provides the parties’ respective positions regarding the contents
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`of a Supplemental Protective Order. Id. [JDS Ex. A] at 24-25. Apple provided its position:
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`Given Complainants’ counsel’s involvement in prosecuting patents on behalf of
`Complainants, Apple believes that a patent prosecution and product development
`bar is a necessary and reasonable amendment to the Protective Order in this
`Investigation. Apple’s proposed patent prosecution and product development bar
`will be appropriately limited in duration and scope, consistent with other patent and
`prosecution bars permitted by the CALJ in other investigations. See, e.g., Certain
`Automated Storage and Retrieval Systems, Robots, and Components Thereof, Inv.
`No. 337-TA-1228, Order No. 15 (May 4, 2021); Certain Audio Players and
`Controllers, Components Thereof, and Products Containing Same, ITC Inv. No.
`337-TA-1191, Order No. 8 (Apr. 29, 2020).
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`Id. Complainants stated that they “understand that Apple intends to propose a patent prosecution
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`and product development bar. Complainants will consider the proposal once received.” Id. at 24.
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`Notably, Complainants never suggested that they would seek to require Apple’s experts to sign
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`separate product development bars outside the Protective Order. The parties’ positions with
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`respect to a patent prosecution and product development bar were repeated in Exhibit B to the
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`Joint Discovery Statement. Id. [JDS Ex. B] at 10. Again, Complainants’ position contains no
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`mention of separate, ad hoc agreements that would apply to only Apple’s experts in lieu of a single
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`product development bar.
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`On September 24, 2021, Apple sent to Complainants a proposed Supplemental Protective
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`Order that included a patent-prosecution and product development bar. Ex. A [9/24 Frazier Email].
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`Paragraph 19(c) of Apple’s September 24 Supplemental Protective Order stated:
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`Unless otherwise permitted in writing between supplying party and receiving party,
`any Qualified Consultant or Qualified Expert or other SOURCE CODE
`QUALIFIED PERSON retained on behalf of receiving party who is to be given
`access to any material showing or describing the technical functionality of the
`supplying party’s products designated as CONFIDENTIAL BUSINESS
`INFORMATION SUBJECT TO PROTECTIVE ORDER or HIGHLY
`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY produced by
`another party must agree in writing not to perform product development work
`directly or indirectly intended for commercial purposes related to the particular
`information disclosed in the CONFIDENTIAL BUSINESS INFORMATION
`SUBJECT TO PROTECTIVE ORDER or HIGHLY CONFIDENTIAL SOURCE
`CODE – ATTORNEYS’ EYES ONLY from the time of first receipt of such
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`material through one year after the date the Qualified Expert or other SOURCE
`CODE QUALIFIED PERSON formally withdraws from the Protective Order. For
`avoidance of doubt, during periods in which the individual person(s) has ceased to
`have possession of such material or any documents or notes reflecting such
`material, this section shall not apply.
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`Ex. B at 15-16 [9/24 SPO]. Apple offered to discuss the proposed Supplemental Protective Order
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`at the parties’ next Discovery Committee Meeting (“DCM”). Complainants stated that they were
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`not prepared to discuss the Supplemental Protective Order on the September 29 DCM and
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`postponed the discussion. Ex. C [9/30 Frazier Letter]. In the following weeks, Apple repeatedly
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`sought Complainants’ position on the Supplemental Protective Order. See Ex. D [10/1 and 10/4
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`Garcia Emails]; Ex. E at 1-2 [10/8 Frazier Letter] (noting “Complainants stated they are still
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`drafting redlines [to the Supplemental Protective Order] and could not commit to a date certain to
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`provide them”); Ex. F [10/12 Frazier Email] (“We have also not received any response to the
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`proposed Supplemental Protective Order, which Apple provided a draft of on September 24.
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`Please provide your edits this afternoon so that negotiation of that Order can continue at this week’s
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`DCM[.]”).
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`B.
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`Complainants Rejected Apple’s Proposed Product Development Bar with No
`Counterproposal
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`Complainants first provided edits to the Supplemental Protective Order on October 13,
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`2021. Ex. G [10/13 Laquer Email]. Complainants struck entirely the product development bar
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`proposed by Apple and provided no counterproposal to address limitations on product
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`development. Ex. H [10/13 SPO]. Nor did Complainants provide any rationale for deleting the
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`product development bar—a protection that Complainants now allege is not only necessary to
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`safeguard their CBI, but also is the basis for each of their motions to preclude Apple’s technical
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`experts from accessing their CBI. During the parties’ October 13, 2021 DCM, Apple asked
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`Complainants to explain why they deleted Apple’s proposed product development bar in its
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`entirety, and why Complainants did not counter propose with their own product development
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`language. Complainants responded that they object to the entry of a Supplemental Protective
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`Order with provisions that differ from the protective order entered in a separate litigation pending
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`between the parties in the United States District Court for the Central District of California, Case
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`No. 8:20-cv-00048. However, Complainants again failed to inform Apple that they would seek to
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`require separate, ad hoc agreements that would apply to Apple’s experts in lieu of the single
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`product development bar proposed by Apple.
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`C.
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`Complainants’ Objection to Dr. Anthony Are Similar to Their Objections to
`Dr. Stone, Dr. Sarrafzadeh, and Dr. Warren.
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`On October 25, 2021, Apple disclosed its technical expert, Dr. Anthony, pursuant to
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`paragraph 11 of the Protective Order. See Ex. I [10/25 Garcia Email]. Dr. Anthony is a professor
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`and the Principal Research Scientist in the MIT Department of Mechanical Engineering. See Ex.
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`J [Anthony CV]. On November 3, 2021, Complainants objected to Dr. Anthony’s receipt of CBI
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`under the Protective Order. Ex. K [11/03 Loebbaka Letter]. Complainants’ November 3
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`“objection” follow the same pattern as their October 22 and October 28 “objections” to Apple’s
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`other technical experts Dr. Warren, Dr. Stone, and Dr. Sarrafzadeh. See Ex. M [10/22 Loebbaka
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`Letter]; Ex. L [10/28 Loebbaka Letter].
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`In their November 3 letter, Complainants objected to Dr. Anthony’s access to their CBI
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`based on his participation in certain academic research endeavors at MIT, including MIT’s Master
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`of Engineering in Manufacturing Program, Medical Electronic Device Realization Center, and
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`Skoltech Initiative. See Ex. K at 1 [11/03 Loebbaka Letter]. Complainants also objected that Dr.
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`Anthony “is a published author and has conducted research on non-invasive monitoring of health
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`information.” Id. Again, Complainants’ November 3 letter does not identify any past confidential
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`relationship Dr. Anthony had with either Masimo or Cercacor. Id. And, as they did with Dr.
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`Warren, Dr. Stone, and Dr. Sarrafzadeh, Complainants stated they would withdraw their
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`“objection” to Dr. Anthony if he “execut[es] an agreement similar to the agreements other experts
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`disclosed by Apple have signed with respect to other matters with Masimo.” Id. As before,
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`Complainants’ November 3 letter dismisses Apple’s efforts to address Complainants’ concerns
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`through the Supplemental Protective Order. Id.
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`D.
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`Complainants Continue To Ignore Apple’s Efforts to Address Their
`Concerns.
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` As discussed in Apple’s oppositions to Complainants’ motions to preclude Dr. Warren,
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`Dr. Stone, and Dr. Sarrafzadeh (see Doc ID 756608; Doc ID 756950), Complainants have
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`repeatedly ignored any effort to resolve their product development concerns through a mutually-
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`negotiated Supplemental Protective Order. Instead, Complainants steadfastly insist that their
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`concerns can only be resolved if Apple’s technical experts execute multiple, separate agreements
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`that apply to them only.
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`On November 1, 2021, Apple sent Complainants another draft of the Supplemental
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`Protective Order. See Ex. N [11/01 Garcia Email]. In an effort to resolve the parties’ disputes,
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`Apple’s November 1 Supplemental Protective Order contained a revised product development bar,
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`with language taken directly from the separate agreements Complainants have demanded that
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`Apple’s experts sign. See Ex. O ¶ 19(C) [11/01 SPO]. During the parties’ November 3, 2021
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`DCM, Apple reiterated that any additional restrictions to an expert’s ability to access CBI should
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`be achieved through mutually-negotiated language in the Supplemental Protective Order, and that
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`the restrictions should apply to both parties’ experts. See Ex. P at 7 [11/5 Frazier Letter]. To the
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`extent Complainants were concerned that the time for objections to disclosed experts would lapse
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`during the parties’ negotiations over a Supplemental Protective Order, Apple further offered to
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`agree to extend the expert objection period until an agreement on a Supplemental Protective Order
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`could be reached. See id. Complainants stated they understood Apple’s position but later that day
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`filed their motion against Dr. Warren. Motion No. 1276-004.
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`On November 5, 2021, Apple reiterated in writing its offer to agree to extend the deadlines
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`for expert objections so that the parties could finalize negotiation of the Supplemental Protective
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`Order and avoid burdening the ALJ with unnecessary motion practice. See Ex. P [11/05 Frazier
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`Letter]. Complainants again ignored Apple’s offer, and on November 8 moved to preclude Dr.
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`Stone and Dr. Sarrafzadeh from accessing Complainants’ CBI unless they, too, execute the
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`unilateral product development bars proposed by Complainants. Motion No. 1276-005.
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`On November 12, 2021, Complainants provided additional edits to the Supplemental
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`Protective Order Apple shared on November 1. See Ex. Q [11/12 Laquer Email]. Again,
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`Complainants struck entirely, with no counterproposal, the product development bar. As stated
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`above, the bar had language taken directly from the separate agreements Complainants seek to
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`enforce against only Apple’s experts. See Ex. R [11/12 SPO].
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`On November 15, 2021, Complainants filed their third motion Apple’s expert Dr. Anthony
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`from accessing Complainants’ CBI in this Investigation unless he also agrees to their separate
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`product development bar. Motion No. 1276-006.
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`II.
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`LEGAL STANDARD
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`Although an administrative law judge has the authority to disqualify experts from
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`participating in an investigation, see Certain Automated Media Library Devices, Inv. No. 337-TA-
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`746, Order No. 12 at 3 (May 19, 2011), “disqualification is a drastic measure that courts should
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`impose only hesitantly, reluctantly, and rarely.” Hewlett-Packard Co. v. EMC Corp., 330
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`F.Supp.2d 1087, 1092 (N.D. Cal. 2004). Moreover, “[c]ourts have considered the competing
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`policy objectives in determining expert disqualification such as ensuring parties have access to
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`experts with specialized knowledge, the right of experts to pursue their profession, preventing
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`litigants from easily disqualifying experts, preventing conflicts of interest, and maintaining the
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`integrity of the judicial process.” Certain Mobile Elec. Devices Incorporating Haptics, Inv. No.
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`337-TA-834, Corrected Order No. 15 at 4 (Sept. 20, 2012) (citing Thompson, I.G., L.L.C. v.
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`Edgetech I.G., Inc., 2012 WL 3870563, at *3 (E.D. Mich. Sept. 6, 2012); Cordy v. Sherwin
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`Williams Co., 156 F.R.D. 575, 580 (D.N.J .1994); Koch Refining Co. v. Boudreau, 85 F.3d 1178,
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`1182 (5th Cir. 1996)). “Expert disqualification may be appropriate when a party retains expert
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`witnesses who previously worked for an adversary and who acquired confidential information
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`during the course of their employment.” Certain Automated Media Library Devices, Order No.
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`12 at 3 (emphasis added) (quoting Eastman Kodak Co. v. AGFA-Gevaert N.V., No. 02-CV-6564,
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`2003 WL 23101783, at *1 (W.D.N.Y. Dec. 4, 2003)).
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`III. ARGUMENT
`A.
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`Complainants Have No Individualized Objection To Dr. Anthony’s
`Participation In This Investigation.
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`Complainants have not identified any valid reason specific to Dr. Anthony to justify
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`denying him access to Complainants’ CBI in this Investigation. As explained in Apple’s
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`November 15 and November 18 oppositions (see Doc ID 756608; Doc ID 756950), expert
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`preclusion is a “drastic measure” that applies when a retained expert previously had a relationship
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`with the opposing party and acquired confidential information through that relationship. Hewlett-
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`Packard Co., 330 F. Supp. 2d at 1092; Certain Automated Media Library Devices, Order No. 12
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`at 4 (disqualifying respondents’ expert who previously had an “undisputed” confidential
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`relationship with complainant); see also Certain Mobile Electronic Devices Incorporating
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`Haptics, Corrected Order No. 15 at 5-6 (same).
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`In their brief, Complainants raise for the first time two additional “concerns” that they
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`present as grounds for precluding Dr. Anthony from accessing their CBI. First, Complainants state
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`their “concern” that Dr. Anthony provides consulting services to multiple companies, including
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`Apple. Br. at 7. Complainants say “it is unclear whether such services are limited to expert
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`services or also include technical consulting,” and further assert that “[i]f Dr. Anthony provides
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`technical consulting services for Apple, this heightens Masimo’s concerns with Dr. Anthony
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`viewing its CBI.” Id. Second, Complainants state that MIT’s Medical Electronic Device
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`Realization Center—of which Dr. Anthony is a co-director—identifies Philips Healthcare as one
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`of its partners. Id. at 8. Complainants state that “Philips is one of Masimo’s largest competitors,”
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`and assert that Dr. Anthony’s “engagement” with Philips Health—through MIT’s research
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`center—“pose[s] a significant risk to Masimo’s CBI.” Id.
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`As they were with Dr. Warren, Dr. Stone, and Dr. Sarrafzadeh, Complainants’ stated
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`concerns regarding Dr. Anthony are insufficient. See Certain Basketball Backboard Components,
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`Inv. No. 337-TA-1040, Order No. 6 at 4 (Apr. 19, 2017) (“[R]elevant past experience and the
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`possibility of future related engagements is true of any technical expert in patent infringement
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`litigation” and denying motion to preclude) (quotation omitted). Again, Complainants have not
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`identified, for example, any confidential relationship Dr. Anthony previously had with either
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`Masimo or Cercacor (he has none). Indeed, Complainants consistently focus on Dr. Anthony’s
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`“engagements” with their competitors, such as Philips Health. Nor have Complainants articulated
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`any concurrent conflict of interest presented by any of Dr. Anthony’s academic research endeavors
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`or consulting activity (there is none).1
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`As before, Complainants argue that Dr. Anthony’s access to CBI poses a “serious risk of
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`competitive harm” because this information “cannot be forgotten.” Br. at 7-9. Apple explained
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`If Complainants, in fact, had “heightened” concerns about the type of consulting Dr.
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`Anthony provides to Apple, they could have asked Apple to provide clarification. They did not.
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`in its November 15 and November 18 oppositions that Complainants’ concern of possible
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`inadvertent, unauthorized use of information is not specific to Dr. Anthony (or Dr. Stone or Dr.
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`Sarrafzadeh or Dr. Warren) but extends to virtually any technical expert—including
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`Complainants’ own.
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`Complainants are again willing to dismiss their “concerns” regarding Dr. Anthony if he
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`agrees to sign a separate agreement that would place additional restrictions on only him—and not
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`on Complainants’ own experts who conduct similar academic research. See Br. at 2, 9-10; Ex. K
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`at 1 [11/03 Loebbaka Letter]. Complainants’ concerns are not grounds to preclude Dr. Anthony
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`but are the type of generalized concerns that apply to all technical experts, and thus should be
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`addressed via a Supplemental Protective Order that applies a single, consistent standard to all
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`parties’ experts.
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`Complainants assert that the “drastic measure” of expert preclusion, Hewlett-Packard Co.,
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`330 F. Supp. 2d at 1092, is an appropriate remedy here because it is Apple’s burden to show that
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`other experts are not available to it. Br. at 10. Complainants argue that Apple cannot meet this
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`burden because “Dr. Anthony does not have any unique knowledge” and “Apple has other
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`experts—Drs. Warren, Sarrafzadeh, and Stone—to provide whatever assistance Apple seeks from
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`Dr. Anthony if these other experts are willing to agree to the restrictions” Complainants have
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`demanded of them. Id. (emphasis added). But Complainants have not met their burden to identify
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`a valid, individualized objection to Dr. Anthony that would justify denying his access to
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`Complainants’ CBI. Complainants’ remark that Apple “has other experts” is specious. Id.
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`Complainants have objected to all but one of Apple’s technical experts unless they agree to
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`Complainants’ separate agreements and have now filed three motions to preclude them from
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`accessing Complainants CBI. Complainants themselves acknowledge that Apple only “has other
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`experts” if those experts are willing to acquiesce to Complainants’ unilateral demands. Id. Apple
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`is entitled to use the experts of its choosing and Complainants’ objections purely an effort to delay
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`Apple’s ability to prepare its defenses and gain a perceived strategic advantage by subjecting
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`Apple’s experts to restrictions that Complainants are unwilling to adhere to themselves after
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`accessing Apple’s CBI.
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`B.
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`Complainants’ Concerns Regarding CBI Should Be Addressed By A
`Supplemental Protective Order That Applies Equally to All Individuals Who
`Access CBI.
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`Complainants have not identified a valid, individualized basis for precluding Dr. Anthony
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`from accessing their CBI. Accordingly, Complainants’ concerns about access to their CBI should
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`be addressed in a Supplemental Protective Order that would apply to all parties’ experts. When
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`good cause is shown, ALJs routinely grant motions for the entry of additional provisions to a
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`protective order. See 19 C.F.R. § 210.34(a)(7). Additional protections that are generally granted
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`include protections for the production and review of highly confidential source code, patent
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`prosecution bars, and development bars. See, e.g., Certain Wearable Electronic Devices with ECG
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`Functionality and Components Thereof, Inv. No. 337-TA-1266, Order No. 7 (Aug. 18, 2021)
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`(granting motion to amend the protective order with, inter alia, patent prosecution, product
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`development, and competitive decision-making bars). The parties can jointly move to amend the
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`Protective Order in this Investigation with a Supplemental Protective Order that would include a
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`product development bar that applies equally to both parties’ experts.
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`Complainants agree that entry of a Supplemental Protective Order is warranted. See Br. at
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`6-7 (“Masimo . . . will continue to produce additional documents and its source code upon entry
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`of a supplemental protective order.”). Complainants have identified no reason why a global
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`product development bar—such as what Apple has proposed since August—would not be the
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`“adequate safeguard” that Complainants claim is necessary for any of Apple’s technical experts to
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`access their CBI. Ex. K at 1 [11/03 Loebbaka Letter]. Nor have Complainants justified their
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`position that Apple’s experts—but not their own—should be subject to the restrictions of a product
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`development bar. To the extent the ALJ finds that Dr. Anthony’s academic research endeavors
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`are sufficient to preclude him from accessing Complainants’ CBI absent execution of the separate
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`agreements proposed by Complainants, Apple respectfully requests that the ALJ order that all
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`parties’ experts must be subject to the same agreement as a condition for access to CBI and
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`participation in this Investigation.
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`IV. CONCLUSION
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`For the foregoing reasons, Complainants’ Motion to Preclude Apple’s expert Dr. Anthony
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`under the Protective Order should be denied.
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`Apple v. Masimo
`IPR2022-01299
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`DATED: November 24, 2021
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`Respectfully submitted,
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`/s/ Sarah R. Frazier
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`Joseph J. Mueller
`Richard Goldenberg
`Sarah R. Frazier
`WILMER CUTLER PICKERING HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`Telephone: (617) 526-6000
`
`Mark D. Selwyn
`WILMER CUTLER PICKERING HALE AND DORR LLP
`2600 El Camino Real
`Suite 400
`Palo Alto, CA 94306
`Telephone: (650) 858-6031
`
`Michael D. Esch
`David Cavanaugh
`WILMER CUTLER PICKERING HALE AND DORR LLP
`1875 Pennsylvania Ave., NW
`Washington, DC 20006
`Telephone: (202) 663-6000
`
`Counsel for Respondent Apple Inc.
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`Apple v. Masimo
`IPR2022-01299
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`INDEX OF EXHIBITS
`
`Description
`9-24-2021 Email from S. Frazier re: “Inv. No. 337-TA-1276 | Suppl. PO”
`9-24-2021 Apple draft Supplemental Protective Order
`9-30-2021 Letter from S. Frazier to K. Loebbaka
`10-01-2021 and 10-04-2021 Emails from N. Garcia re: “Inv. No. 337-TA-1276
`| Suppl. PO”
`10-08-2021 Letter from S. Frazier to K. Loebbaka
`10-12-2021 Email from S. Frazier re: “Inv. No. 337-TA-1276 | October 13
`Inspection & Supplemental PO”
`10-13-2021 Email from A. Laquer re: “Inv. No. 337-TA-1276 | Suppl. PO”
`10-13-2021 Complainants’ edits to draft Supplemental Protective Order
`10-25-2021 Email from N. Garcia re: “Inv. No. 337-TA-1276 – Expert
`Disclosures”
`Brian Anthony, Ph.D., curriculum vitae
`11-03-2021 Letter from K. Loebbaka to N. Garcia
`10-28-2021 Letter from K. Loebbaka to H. Nikogosyan
`10-22-2021 Letter from K. Loebbaka to J. Cox
`11-01-2021 Email from N. Garcia re: “337-TA-1276: Supplemental Protective
`Order”
`11-01-2021 Apple’s edits to draft Supplemental Protective Order
`11-05-2021 Letter from S. Frazier to K. Loebbaka
`11-12-2021 Email from A. Laquer re: “Inv. 1276: Supplemental Protective
`Order”
`11-12-2021 Complainants’ edits to draft Supplemental Protective Order
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`Exhibit
`Exhibit A
`Exhibit B
`Exhibit C
`Exhibit D
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`Exhibit E
`Exhibit F
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`Exhibit G
`Exhibit H
`Exhibit I
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`Exhibit J
`Exhibit K
`Exhibit L
`Exhibit M
`Exhibit N
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`Exhibit O
`Exhibit P
`Exhibit Q
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`Exhibit R
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`PUBLIC VERSION
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`MASIMO 2091
`Apple v. Masimo
`IPR2022-01299
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`EXHIBIT A
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`PUBLIC VERSION
`
`MASIMO 2091
`Apple v. Masimo
`IPR2022-01299
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`

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`From:
`To:
`Cc:
`Subject:
`Date:
`Attachments:
`
`Frazier, Sarah
`Masimo.AppleITC
`WH Apple-Masimo 1276 Service List; Lyon, H. Mark; bandrea@gibsondunn.com; dbrzozowski@gibsondunn.com
`Inv. No. 337-TA-1276 | Suppl. PO
`Friday, September 24, 2021 11:51:07 AM
`2021-09-24 Supplemental Protective Order.docx
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`Counsel,
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`Following up on the parties’ prior discussions, I have attached a proposed Supplemental Protective
`Order for your review. We would like to discuss on next week’s DCM, or we can schedule a
`separate, earlier time if you prefer.
`
`Thanks,
`Sarah
`
`Sarah R. Frazier | WilmerHale
`60 State Street
`Boston, MA 02109 USA
`+1 617 526 6022 (t)
`+1 617 526 5000 (f)
`sarah.frazier@wilmerhale.com
`
`Please consider the environment before printing this email.
`
`This email message and any attachments are being sent by Wilmer Cutler Pickering Hale and Dorr LLP, are confidential, and may be
`privileged. If you are not the intended recipient, please notify us immediately—by replying to this message or by sending an email to
`postmaster@wilmerhale.com—and destroy all copies of this message and any attachments. Thank you.
`
`For more information about WilmerHale, please visit us at http://www.wilmerhale.com.
`
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`PUBLIC VERSION
`
`MASIMO 2091
`Apple v. Masimo
`IPR2022-01299
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`EXHIBIT B
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`PUBLIC VERSION
`
`MASIMO 2091
`Apple v. Masimo
`IPR2022-012