UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN LIGHT-BASED
`PHYSIOLOGICAL MEASUREMENT
`DEVICES AND COMPONENTS
`THEREOF
`
` Inv. No. 337-TA-1276
`
`ORDER NO. 13: GRANTING JOINT MOTION TO AMEND THE PROTECTIVE
`ORDER TO ADD PROVISIONS REGARDING PRODUCTION
`AND REVIEW OF SOURCE CODE
`
`(January 10, 2022)
`
`On January 5, 2021, Complainants Masimo Corporation and Cercacor Laboratories, Inc.
`
`(collectively, “Masimo”) and Respondent Apple Inc. (“Apple”) filed a joint motion (1276-014)
`
`to amend the Protective Order (Order No. 1) to establish procedures for enhanced confidentiality
`
`protections regarding the production and review of source code and to implement a prosecution
`
`and development bar. The motion is jointly filed by all parties in the investigation.
`
`Additional provisions may be added to the protective order pursuant to Commission Rule
`
`210.34(a)(7), which states:
`
`Upon motion by a party or by the person from whom discovery is sought or by the
`administrative law judge on his own initiative, and for good cause shown, the
`administrative law judge may make any order that may appear necessary and
`appropriate for the protection of the public interest or that justice requires to
`protect a party or person from annoyance, embarrassment, oppression, or undue
`burden or expense, including one or more of the following:
`
`. . . .
`
`(7) That a trade secret or other confidential research, development, or commercial
`information not be disclosed or be disclosed only in a designated way[.]
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`19 C.F.R. § 210.34(a)(7). The parties submit that there is a need for enhanced confidentiality
`
`protections for source code in this investigation, and the parties also seek to adopt a prosecution
`
`and development bar to address certain objections regarding expert witnesses. Motion at 2; see
`
`Complainants’ Contingent Notice of Withdrawal of Motions for Protective Orders, EDIS Doc.
`
`ID 760064 (Jan. 7, 2022).1 Based on the parties’ representations, the undersigned finds that
`
`there is good cause to amend the protective order. See, e.g., Certain Power Inverters and
`
`Converters, Vehicles Containing the Same, and Components Thereof, Inv. No. 337-TA-1267,
`
`Order No. 18, EDIS Doc. ID 757403 (Nov. 29, 2021) (amending protective order for source
`
`code); Certain Non-Invasive Aesthetic Body Contouring Devices, Components Thereof, and
`
`Methods of Using the Same, Inv. No. 337-TA-1219, Order No. 7, EDIS Doc. ID 728703 (Dec.
`
`22, 2020) (amending protective order for prosecution bar); Certain Wearable Electronic Devices
`
`With ECG Functionality and Components Thereof, Inv. No. 337-TA-1266, Order No. 7, EDIS
`
`Doc. ID 749871 (Aug. 18, 2021) (amending protective order to include provisions regarding
`
`source code and a prosecution and development bar).
`
`Accordingly, the motion (1276-014) is hereby GRANTED, and the Protective Order
`
`(Order No. 1) shall be supplemented with the addendum set forth in paragraphs 18 and 19
`
`below:2
`
`18.
`
`Source Code. A supplier may designate non-public Source Code as “HIGHLY
`
`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY.”
`
`A.
`
`“Source Code” shall mean source code, source code listings (e.g., file names and
`
`path structures), object code (e.g., computer instructions and data definitions
`
`1 The Notice indicates that Complainants’ previously filed objections to Apple’s experts (Motion Docket
`Nos. 1276-004, 1276-005, 1276-006) will be mooted by the adoption of the proposed prosecution and
`development bar and that these objections will be withdrawn.
`
`2 An updated certification for expert witnesses and consultants is attached hereto as Exhibit A.
`
`- 2 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
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`

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`expressed in a form suitable for input to an assembler, compiler, or other
`
`translator), object code listings and descriptions of object code, scripts,
`
`assemblies, binaries, descriptions of source code (e.g., descriptions of
`
`declarations, functions, and parameters), microcode, register transfer level
`
`(“RTL”) files that describe the hardware design of any ASIC or other chip, and
`
`hardware description language (“HDL”), as well as any and all programmer notes,
`
`annotations, and other comments of any type related thereto and contained within
`
`a file also containing the code. For avoidance of doubt, Source Code includes
`
`source files, make files, intermediate output files, executable files, header files,
`
`resource files, library files, module definition files, map files, object files, linker
`
`files, browse info files, and debug files. Computer aided design (CAD) files may
`
`be designated pursuant to this Paragraph, provided that any printouts of CAD files
`
`shall be designated “CONFIDENTIAL BUSINESS INFORMATION, SUBJECT
`
`TO PROTECTIVE ORDER.”
`
`B.
`
`“Party” shall mean (i) Complainants Masimo Corporation and Cercacor
`
`Laboratories, Inc. collectively on the one hand, and (ii) Respondent Apple Inc. on
`
`the other hand.
`
`C.
`
`“Supplying Party” with respect to particular Source Code or other discovery shall
`
`mean the Party that supplies that Source Code or other discovery.
`
`D.
`
`“Receiving Party” with respect to particular Source Code or other discovery shall
`
`mean the Party that received (e.g., through production or inspection) that Source
`
`Code or other discovery from the Supplying Party.
`
`- 3 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
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`

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`E.
`
`Materials designated as “HIGHLY CONFIDENTIAL SOURCE CODE –
`
`ATTORNEYS’ EYES ONLY,” shall only be reviewable by SOURCE CODE-
`
`QUALIFIED PERSONS. SOURCE CODE QUALIFIED PERSONS include the
`
`following:
`
`(i)
`
`outside litigation counsel for Complainants and Respondent in this
`
`Investigation who have subscribed to the Administrative Protective Order
`
`in this Investigation, and necessary secretarial and support personnel
`
`assisting such counsel;
`
`(ii)
`
`the Commission, the Administrative Law Judge (“ALJ”), Commission
`
`personnel and contract personnel who are acting in the capacity of
`
`Commission employees as indicated in paragraph 3 of this Protective
`
`Order;
`
`(iii)
`
`court reporters, stenographers and videographers transcribing or recording
`
`testimony at depositions, hearings or trial in this Investigation; and
`
`(iv) Qualified Consultants and/or Qualified Experts in this Investigation (under
`
`Paragraph 11 of the Protective Order in this Investigation) to whom
`
`disclosure is reasonably necessary for this Investigation, provided that
`
`each Qualified Consultant and/or Qualified Expert complies with the
`
`requirements of Paragraph 11 of the Protective Order and completes the
`
`“CERTIFICATION OF EXPERT/CONSULTANT REGARDING
`
`PROTECTIVE ORDER” (Exhibit A) which shall be served upon the
`
`supplier.
`
`F.
`
`Source Code shall be provided with the following additional protections:
`
`- 4 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
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`

`

`(i)
`
`Nothing in this Protective Order shall obligate the parties to produce any
`
`Source Code, nor act as an admission that any particular Source Code is
`
`discoverable.
`
`(ii)
`
`Access to Source Code will be given only to SOURCE CODE
`
`QUALIFIED PERSONS.
`
`(iii) Access to Source Code shall be made available for inspection, in a format
`
`allowing it to be reasonably reviewed and searched, during normal
`
`business hours or at other mutually agreeable times, at an office of the
`
`Producing Party’s outside litigation counsel WilmerHale (Los Angeles
`
`office) or Knobbe Martens (New York office) or another mutually agreed
`
`upon location on a “stand-alone secure computer” (i.e., the computer(s)
`
`may not be linked to any network, including a local area network
`
`(“LAN”), an intranet, or the Internet, and may not be connected to any
`
`printer or storage device other than the internal hard disk drive of the
`
`computer). The stand-alone secure computer(s) may be provided in a
`
`secured room without Internet access or network access to other
`
`computers (“Source Code Review Room”) at the offices of the supplier’s
`
`outside litigation counsel, or at such other location as the Supplying Party
`
`and Receiving Party mutually agree. No recordable media or recordable
`
`devices, including without limitation sound recorders, computers, cellular
`
`telephones, peripheral equipment, cameras, CDs, DVDs, or drives of any
`
`kind, shall be permitted into the Source Code Review Room.
`
`- 5 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`(iv)
`
`The supplier shall install tools that are sufficient for viewing and searching
`
`the code produced, on the platform produced, if such tools exist and are
`
`presently used in the ordinary course of the supplier’s business. The
`
`Receiving Party’s outside counsel and/or experts may request that
`
`commercially available software tools for viewing and searching Source
`
`Code be installed on the secured computer, provided, however, that (a) the
`
`Receiving Party possesses an appropriate license to such software tools;
`
`(b) the supplier approves such software tools; and (c) such other software
`
`tools are reasonably necessary for the Receiving Party to perform its
`
`review of the Source Code consistent with all of the protections herein.
`
`The Receiving Party must provide the supplier with access to the
`
`installation copy of such licensed software tool(s) (e.g., through the
`
`installer package or a URL to download it from, or its CD or DVD) at
`
`least ten (10) days in advance of the date upon which the Receiving Party
`
`wishes to have the additional software tools available for use on the stand-
`
`alone secure computer(s). The Parties agree to cooperate in good faith if
`
`additional software becomes necessary.
`
`(v)
`
`The Receiving Party shall provide at least two (2) business days’ notice to
`
`access the source code and make reasonable efforts to restrict its requests
`
`for access to the stand-alone secure computer to normal business hours,
`
`which for purposes of this paragraph shall be 9:00 a.m. through 6:00 p.m.
`
`local time at the reviewing location. Upon reasonable notice from the
`
`Receiving Party, which shall not be less than five (5) business days in
`
`- 6 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`advance, the supplier shall make reasonable efforts to accommodate the
`
`Receiving Party’s request for access to the computer outside of normal
`
`business hours. Such an expanded review period shall not begin earlier
`
`than 8:00 a.m. and shall not end later than 8:00 p.m. local time at the
`
`reviewing location. The parties are to cooperate in good faith such that
`
`maintaining the Source Code at the offices of the supplier’s outside
`
`litigation counsel shall not unreasonably hinder the Receiving Party’s
`
`ability to efficiently conduct the prosecution or defense in this
`
`investigation. It is expected that access to the Source Code shall be
`
`provided at the site of any hearing. Proper identification of all SOURCE
`
`CODE QUALIFIED PERSONS shall be provided prior to any access to
`
`the stand-alone secure computer(s). Proper identification requires
`
`showing, at a minimum, a photo identification card sanctioned by the
`
`government of any State of the United States, by the government of the
`
`United States, or by the nation state of the authorized person’s current
`
`citizenship. Access to the Source Code Review Room or the stand-alone
`
`secure computer(s) may be denied, at the discretion of the supplier, to any
`
`individual who fails to provide proper identification.
`
`(vi) All SOURCE CODE QUALIFIED PERSONS who will review Source
`
`Code on behalf of a Receiving Party shall be identified in writing to the
`
`supplier at least two (2) business days in advance of the first time that such
`
`person reviews such Source Code. Such identification shall be in addition
`
`to any disclosure required under paragraph 18(B) of this Protective Order.
`
`- 7 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`The supplier shall provide these individuals with information explaining
`
`how to start, log on to, and operate the stand-alone secure computer in
`
`order to access the produced Source Code on the stand-alone secure
`
`computer. For subsequent reviews by SOURCE CODE QUALIFIED
`
`PERSONS, the Receiving Party shall give at least 24 hours’ notice to the
`
`supplier of such review. All persons viewing Source Code on the source
`
`code computer in an office of outside litigation counsel shall sign on each
`
`day they view Source Code a log that will include the names of persons
`
`who enter the Source Code Review Room to view the Source Code and
`
`when they enter and depart. The log shall be kept by the supplier.
`
`(vii) No person other than the supplier may alter, dismantle, disassemble, or
`
`modify the stand-alone secure computer in any way, or attempt to
`
`circumvent any security feature of the computer.
`
`(viii) No copies shall be made of Source Code, whether physical, electronic, or
`
`otherwise, other than volatile copies necessarily made in the normal
`
`course of accessing the Source Code on the stand-alone secure computer,
`
`except for: (1) print outs of portions of the Source Code that are
`
`reasonably necessary for the preparation of filings, pleadings, expert
`
`reports, or other papers, or for deposition or hearing; and (2) such other
`
`uses to which the parties may agree or that the ALJ or the Commission
`
`may order. The Receiving Party shall not request paper copies for the
`
`purposes of reviewing the source code in the first instance and shall not
`
`use any outside electronic device to copy, record, photograph, or
`
`- 8 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`otherwise reproduce Source Code. Any printed portion of Source Code
`
`that consists of more than fifteen (15) pages of a continuous block of
`
`Source Code or more than two hundred (200) pages total shall be
`
`presumed to be excessive, and the burden shall be on the Receiving Party
`
`to demonstrate the need for such a printed copy. Further, more than two
`
`hundred (200) pages of CAD printouts shall be presumed to be excessive,
`
`and the burden shall be on the Receiving Party to demonstrate the need for
`
`such a printed copy. The supplier shall not unreasonably withhold
`
`approval and the parties shall meet and confer in good faith to resolve any
`
`disputes.
`
`(ix)
`
`The Receiving Party may take notes, but may not copy the Source Code
`
`into the notes and may not take notes on a laptop or other personal
`
`electronic device. For clarity, the Receiving Party may include the names
`
`of source code files, variables, and functions within their notes, as
`
`reasonably necessary for notetaking purposes. Any such notes must be
`
`treated as HIGHLY CONFIDENTIAL SOURCE CODE – ATTORNEYS’
`
`EYES ONLY under the Protective Order. Unless otherwise agreed in
`
`advance by the Parties in writing, following each day on which inspection
`
`is done under this Order, the Receiving Party’s outside counsel and/or
`
`experts shall remove all notes, documents, and all other materials from the
`
`Source Code Review Room. The supplier is not responsible for any items
`
`left in the room following each inspection session. But all counsel remain
`
`bound by their ethical duties regarding the handling and possible return of
`
`- 9 -
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`
`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`work product inadvertently left behind by a representative of an opposing
`
`Party.
`
`(x)
`
`The supplier may exercise personal supervision from outside the review
`
`room over the Receiving Party when the Receiving Party is in the Source
`
`Code Review Room. Such supervision, however, shall not entail review
`
`of any work product generated by the Receiving Party, e.g., monitoring
`
`the screen of the stand-alone secure computer, monitoring any surface
`
`reflecting any notes or work product of the Receiving Party, or monitoring
`
`the key strokes of the Receiving Party. There will be no video supervision
`
`by any supplier when the review occurs in the office of outside litigation
`
`counsel.
`
`(xi) Nothing may be removed from the stand-alone secure computer(s), either
`
`by the Receiving Party or at the request of the Receiving Party, except for
`
`(1) print outs of reasonable portions of the Source Code in accordance
`
`with the provisions of paragraphs 18(C)(ix)-(x) of this Protective Order;
`
`and (2) such other uses to which the parties may agree or that the ALJ or
`
`the Commission may order.
`
`(xii) At the request of the Receiving Party, the supplier shall within three (3)
`
`business days provide two (2) hard copy print outs of the specific lines,
`
`pages, or files of the Source Code that the Receiving Party believes in
`
`good faith are necessary to understand a relevant feature of an accused
`
`product. The Receiving Party may identify those lines, pages, or files by
`
`printing them to a temporary file on the computer, such as in PDF format.
`
`- 10 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`If the supplier objects in any manner to the production of the requested
`
`source code (e.g., the request is too voluminous), it shall state its objection
`
`within the allotted two (2) business days pursuant to this paragraph. In the
`
`event of a dispute, the parties will meet and confer within five (5) business
`
`days of the objection being raised and if they cannot resolve the objection,
`
`the parties will raise it with the ALJ. The burden shall be on the
`
`Receiving Party to demonstrate that any such printed portions of Source
`
`Code are no more than is reasonably necessary for a permitted purpose
`
`and not merely printed for the purposes of review and analysis elsewhere.
`
`(xiii) Hard copy print outs of Source Code shall be provided on Bates numbered
`
`and watermarked or colored paper clearly labeled HIGHLY
`
`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY on
`
`each page and shall be maintained by the Receiving Party’s outside
`
`litigation counsel or SOURCE CODE QUALIFIED PERSONS in a secure
`
`locked area. For avoidance of doubt, an access-restricted location within
`
`the facilities of outside litigation counsel or a qualified expert, such as a
`
`conference room within an access restricted office or a locked drawer or
`
`cabinet, shall constitute a secured locked area. The Receiving Party may
`
`also temporarily keep the print outs at: (1) the Commission for any
`
`proceeding(s) relating to the Source Code, for the dates associated with the
`
`proceeding(s); (2) the sites where any deposition(s) relating to the Source
`
`Code are taken, for the dates associated with the deposition(s); and (3) any
`
`intermediate location reasonably necessary to transport the print outs (e.g.,
`
`- 11 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`a hotel prior to a Commission proceeding or deposition). The Receiving
`
`Party shall exercise due care in maintaining the security of the print outs at
`
`these temporary locations. No further hard copies of such Source Code
`
`shall be made and the Source Code shall not be transferred into any
`
`electronic format or onto any electronic media except that:
`
`1.
`
`The Receiving Party is permitted to request that the supplier make
`
`additional hard copies of printed Source Code designated as
`
`HIGHLY CONFIDENTIAL SOURCE CODE – ATTORNEYS’
`
`EYES ONLY for use at a deposition. Copies of Source Code
`
`designated as HIGHLY CONFIDENTIAL SOURCE CODE –
`
`ATTORNEYS’ EYES ONLY that are marked as deposition
`
`exhibits shall not be provided to the Court Reporter or attached to
`
`deposition transcripts; rather, the deposition record will identify
`
`the exhibit by its production numbers. All such copies shall
`
`remain with the supplier’s outside counsel for secure destruction in
`
`a timely manner following the deposition.
`
`2.
`
`The Receiving Party is permitted to make up to five (5) additional
`
`hard copies for the Commission or the ALJ in connection with a
`
`filing, hearing, or trial, and of only the specific pages directly
`
`relevant to and necessary for deciding the issue for which the
`
`portions of the Source Code are being filed or offered.
`
`3.
`
`Except as provided in this sub-paragraph, absent express written
`
`permission from the supplier, the Receiving Party may not create
`
`- 12 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`electronic images, or any other images, or make electronic copies,
`
`of the Source Code from any paper copy of Source Code for use in
`
`any manner (including by way of example only, the Receiving
`
`Party may not scan the Source Code to a PDF or photograph the
`
`code). Images or copies of Source Code shall not be included in
`
`correspondence between the Parties (references to production
`
`numbers shall be used instead), and shall be omitted from
`
`pleadings and other papers whenever possible. If a Party
`
`reasonably believes that it needs to reference a portion of Source
`
`Code as part of a filing, or as part of an expert report, contention,
`
`or discovery response, the Party shall cite the page and line
`
`numbers of the relevant Source Code and such Source Code will
`
`not be filed or otherwise attached absent agreement from the
`
`supplier or order of the ALJ or Commission. If a supplier agrees to
`
`produce an electronic copy of all or any portion of its Source Code
`
`or provides written permission to the Receiving Party that an
`
`electronic or any other copy may be made for a filing, expert
`
`report, contention, or discovery response, access to the Receiving
`
`Party’s submission, communication, and/or disclosure of electronic
`
`files or other materials containing any portion of Source Code
`
`(paper or electronic) shall at all times be limited solely to
`
`individuals who are expressly authorized to view Source Code
`
`under the provisions of this Order. Where the supplier has
`
`- 13 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
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`

`

`provided the express written permission required under this
`
`provision for a Receiving Party to create electronic copies of
`
`Source Code, the Receiving Party shall maintain a log of all such
`
`electronic copies of any portion of Source Code in its possession or
`
`in the possession of its retained consultants, including the names of
`
`the reviewers and/or recipients of any such electronic copies, and
`
`the locations and manner in which the electronic copies are stored.
`
`Any such electronic copies must be labeled “HIGHLY
`
`CONFIDENTIAL – SOURCE CODE” as provided for in this
`
`Order.
`
`4.
`
`The supplier shall, on request, make a searchable electronic copy
`
`of the Source Code available on a stand-alone secure computer
`
`during depositions of witnesses who would otherwise be permitted
`
`access to such Source Code. The Receiving Party shall make such
`
`request at the time of the notice for deposition.
`
`(xiv) Nothing in this Protective Order shall be construed to limit how a supplier
`
`may maintain the supplier’s own material designated as HIGHLY
`
`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY.
`
`(xv) Outside litigation counsel for the Receiving Party with custody of
`
`HIGHLY CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES
`
`ONLY shall maintain a source code log containing the following
`
`information: (1) the identity of each person granted access to the HIGHLY
`
`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY; and
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`- 14 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`(2) the first date on which such access was granted. Outside litigation
`
`counsel for the Receiving Party will produce, upon request, each such
`
`source code log to the supplier within twenty (20) days of the final
`
`determination of the investigation.
`
`(xvi) A Receiving Party may not cause a supplier’s Source code to leave the
`
`United States absent written agreement.
`
`19.
`
`Prosecution and Development Bar.
`
`A.
`
`“Relevant Technology” means technology related to wearable non-invasive
`
`monitoring of pulse oximetry, total hemoglobin, oxygen content,
`
`carboxyhemoglobin, and/or methemoglobin.
`
`B.
`
`Unless otherwise permitted in writing between Supplying Party and Receiving
`
`Party, any individual who personally receives, other than on behalf of the
`
`Supplying Party, 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 under this
`
`Protective Order shall not prepare, prosecute, supervise, advise, counsel, or assist
`
`in the preparation or prosecution of any patent application seeking a patent on
`
`behalf of the Receiving Party or its acquirer, successor, or predecessor in the
`
`Relevant Technology during the pendency of this Investigation and for two years
`
`after final termination of this Investigation or, alternatively, for two years after
`
`the time the individual person(s) formally withdraws from the Administrative
`
`Protective Order. In addition, any such person is prohibited from having any
`
`- 15 -
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`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`involvement in the prosecution of any patent, patent application or re-examination
`
`in the Relevant Technology that was filed, or that claims priority from any
`
`application that was filed, for up to one year following the final termination of
`
`this Investigation (including any appeals). To avoid any doubt, “prosecution” as
`
`used in this paragraph does not include representing or advising a Party before a
`
`domestic or foreign agency in connection with a reissue, ex parte reexamination,
`
`inter partes review, opposition, cancelation, or similar proceeding; though in
`
`connection with any such agency proceeding involving the patents-in-suit,
`
`Outside Counsel of Record for a Receiving Party shall not: (i) participate in the
`
`preparation, prosecution, supervision, advice, counsel, or assistance of any
`
`amended claims; (ii) reveal a supplier’s CONFIDENTIAL BUSINESS
`
`INFORMATION SUBJECT TO PROTECTIVE ORDER or HIGHLY
`
`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY material to
`
`any prosecuting reexamination counsel or agent; or (iii) use a supplier’s
`
`CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE
`
`ORDER or HIGHLY CONFIDENTIAL SOURCE CODE – ATTORNEYS’
`
`EYES ONLY for any purpose prohibited by this Protective Order Addendum.
`
`The applicability of this provision is to be determined on an individual-by-
`
`individual basis such that an individual attorney who has not received
`
`CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE
`
`ORDER or HIGHLY CONFIDENTIAL SOURCE CODE – ATTORNEYS’
`
`EYES ONLY is not restricted from undertaking any activities by virtue of this
`
`- 16 -
`
`
`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`provision even if said individual attorney is employed by or works for the same
`
`firm or organization as an individual who has received such material.
`
`C.
`
`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 be involved in creating, developing, or
`
`modifying, for commercial use (which, for the avoidance of doubt, does not
`
`include academic research which is not for industry), any Relevant Technology
`
`from the time of first receipt of such material designated as CONFIDENTIAL
`
`BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER or
`
`HIGHLY CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY
`
`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.
`
`D.
`
`Documents produced by a Supplying Party depicting tear downs of the Receiving
`
`Party’s publicly-available products and not containing other material that qualifies
`
`as the Supplying Party’s Confidential Business Information shall not be
`
`- 17 -
`
`
`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`designated as CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO
`
`PROTECTIVE ORDER. For the avoidance of doubt, review of documents
`
`depicting tear downs of a Receiving Party’s publicly-available products and not
`
`containing other material that qualifies as the Supplying Party’s Confidential
`
`Business Information produced by the Supplying Party shall not trigger the
`
`above-outlined Prosecution and Development Bar for any expert or other
`
`representative of the Receiving Party. For example, review of Complainants’
`
`infringement contentions by Apple’s experts shall not alone trigger the above-
`
`outlined Prosecution and Development Bar for those experts. However, review of
`
`a teardown of a product that the Receiving Party cannot publicly obtain shall
`
`trigger the above-outlined Prosecution and Development Bar for the Receiving
`
`Party’s experts. For example, review of tear-downs of a Masimo domestic
`
`industry article for the ’501, ’502, ’648, and/or ’745 patent, such as within
`
`Complainants’ technical domestic industry contentions, by Apple’s experts shall
`
`trigger the above-outlined Prosecution and Development Bar for those experts
`
`unless the tear-downs are of a unit that Apple publicly obtained. Unless otherwise
`
`permitted in writing, documents depicting tear downs of any non-public products
`
`shall be designated and treated as CONFIDENTIAL BUSINESS
`
`INFORMATION, SUBJECT TO PROTECTIVE ORDER and review of such
`
`documents shall trigger the above-outlined Prosecution and Development Bar.
`
`SO ORDERED.
`
`
`
`
`
`___________________________________
`Monica Bhattacharyya
`Administrative Law Judge
`
`- 18 -
`
`
`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`
`
`EXHIBIT A
`
`CERTIFICATION OF EXPERT/CONSULTANT REGARDING PROTECTIVE ORDER
`
`I,_________________________[print or type full name], of
`
`_______________________________________________am not an employee of the Party who retained me or of a
`
`competitor of any Party and will not use any information, documents, or things that are subject to
`
`the Protective Order entered ____________________________, for any purpose other than this
`
`litigation.
`
`I agree not to be involved in creating, developing, or modifying, for commercial use
`
`(which, for the avoidance of doubt, does not include academic research which is not for
`
`industry), any technology designed for performing wearable non-invasive monitoring of pulse
`
`oximetry, total hemoglobin, oxygen content, carboxyhemoglobin, and/or methemoglobin, from
`
`the time of receipt of material designated as CONFIDENTIAL BUSINESS INFORMATION
`
`SUBJECT TO PROTECTIVE ORDER or HIGHLY CONFIDENTIAL SOURCE CODE –
`
`ATTORNEYS’ EYES ONLY of any Party other than the Party who retained me, through the
`
`date that I cease to have access to any such designated material. For avoidance of doubt, during
`
`periods in which I have ceased to have possession of such material or any documents or notes
`
`reflecting such material, this paragraph shall not apply.
`
`I state under penalty of perjury under the laws of the United States of America that the
`
`foregoing is true and correct.
`
`Executed On________________________________.
`
`
`
`
`
`
`[Printed Name]
`
`
`[Signature]
`
`
`
`
`
`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`Certain Light-Based Physiological Measurement Devices and Components Thereof; Inv.
`No. 337-TA-1276 (Violation)
`
`337-1276 Violation
`
`CERTIFICATE OF SERVICE
`
`I, Lisa R. Barton, hereby certify that the attached document has been served via EDIS upon the Commission
`OUII Investigative Attorney and the following parties as indicated, upon the date listed below.
`
`Document
`
`Security
`
`Document Type Official Rec'd Date
`
`Title
`
`760100
`
`Public
`
`Order
`
`01/10/2022 12:21 PM
`
`Granting Joint Motion to Amend the
`Protective Order to Add Provisions
`regarding Production and Review of
`Source Code
`
`Service Date:
`
`January 10, 2022
`
`/s/
`
`Lisa R. Barton
`U.S. International Trade Commission
`500 E Street, S.W.
`Suite 112
`Washington, D.C. 20436
`
`Service Date:
`
`January 10, 2022
`
`PDF Generated on:
`
`January 10, 2022
`
`MASIMO 2084
`Apple v. Masimo
`IPR2022-01300
`
`

`

`Certain Light-Based Physiological Measurement Devices and Components Thereof; Inv.
`No. 337-TA-1276 (Violation)
`
`337-1276 Violation
`
`CERTIFICATE OF SERVICE
`
`On beha