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`This protective order governs the treatment and filing of confidential information,
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`including documents and testimony.
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`1. Confidential information shall be clearly marked “CONFIDENTIAL
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`BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER” or
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`CONFIDENTIAL BUSINESS
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`INFORMATION.” “PROTECTIVE ORDER
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`MATERIAL.”
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`2. Confidential information is information which concerns or relates to the
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`trade secrets, processes, operations, style of work, or apparatus, or to the
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`production, sales, shipments, purchases, transfers, identification of customers,
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`inventories, amount or source of any income, profits, losses, or expenditures of any
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`person, firm, partnership, corporation, or other organization, or other information
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`of commercial value, the disclosure of which is likely to have the effect of either
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`(i) impairing the PTAB's ability to obtain such information as is necessary to
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`perform its statutory functions; or (ii) causing substantial harm to the competitive
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`position of the person, firm, partnership, corporation, or other organization from
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`which the information was obtained, unless the PTAB is required by law to
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`disclose such information.
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`32. Access to confidential information is limited to the following individuals
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`who have executed the acknowledgment appended to this order:
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`MASIMO 2087
`Apple v. Masimo
`IPR2022-01300
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`(A) Parties. Persons who are owners of a patent involved in the proceeding
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`and other persons who are named parties to the proceeding.
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`(A.B) Party RepresentativesOutside Counsel. Representatives Outside
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`counsel of record for a party in the proceeding.
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`(B.C) Experts. Retained experts of a party in the proceeding who further
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`certify in the Acknowledgement that they are not a competitor to any party,
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`or a consultant for, or employed by, such a competitor with respect to the
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`subject matter of the proceeding.
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`No less than 10 days prior to the initial disclosure to an expert of any confidential
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`information, the party proposing to use such expert shall submit in writing the
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`name of such expert and his or her educational and detailed employment history to
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`the supplier. If the producing party objects to the disclosure of such confidential
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`business information to such expert as inconsistent with the language or intent of
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`this order or on other grounds, it shall notify the other party in writing of its
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`objection and the grounds therefore prior to the initial disclosure. If the dispute is
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`not resolved on an informal basis within ten days of receipt of such notice of
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`objections, the party seeking access to the confidential information shall arrange
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`for a conference call with the PTAB to resolve the dispute. Absent an order from
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`the PTAB, the expert shall not have access to the confidential information.
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`(D) In-house counsel. In-house counsel of a party.
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`MASIMO 2087
`Apple v. Masimo
`IPR2022-01300
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`(C.E) Support Personnel. Administrative assistants, clerical staff, court
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`reporters and other support personnel of the foregoing persons who are
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`reasonably necessary to assist those persons in the proceeding shall not be
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`required to sign an Acknowledgement, but shall be informed of the terms
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`and requirements of the Protective Order by the person they are supporting
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`who receives confidential information.
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`(D.F) The Office. Employees and representatives of the United States Patent
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`and Trademark Office who have a need for access to the confidential
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`information shall have such access without the requirement to sign an
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`Acknowledgement. Such employees and representatives shall include the
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`Director, members of the Board and their clerical staff, other support
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`personnel, court reporters, and other persons acting on behalf of the Office.
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`3. Employees (e.g., corporate officers), consultants, or other persons
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`performing work for a party, other than those persons identified above in
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`(d)(2)(A)–(E), shall be extended access to confidential information only upon
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`agreement of the parties or by order of the Board upon a motion brought by the
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`party seeking to disclose confidential information to that person and after signing
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`the Acknowledgment. The party opposing disclosure to that person shall have the
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`burden of proving that such person should be restricted from access to confidential
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`information.
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`MASIMO 2087
`Apple v. Masimo
`IPR2022-01300
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`4. Prosecution and Development Bar.
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`A.
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`“Relevant Technology” means technology related to non-invasive
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`monitoring of pulse oximetry, total hemoglobin, oxygen content,
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`carboxyhemoglobin, and/or methemoglobin.
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`B. Unless otherwise permitted in writing between the parties, any
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`individual who personally receives from the other party, any material
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`showing or describing the technical functionality of the other party’s
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`products
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`designated
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`as
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`CONFIDENTIAL
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`BUSINESS
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`INFORMATION SUBJECT TO PROTECTIVE ORDER or
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`CONFIDENTIAL BUSINESS INFORMATION under this Protective
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`Order shall not prepare, prosecute, supervise, advise, counsel, or assist
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`in the preparation or prosecution of any patent application seeking a
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`patent on behalf of the party receiving the material or its acquirer,
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`successor, or predecessor in the Relevant Technology during the
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`pendency of this proceeding and for two years after final termination
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`of this proceeding or, alternatively, for two years after the time the
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`individual person(s) formally withdraws from the proceeding. In
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`addition, any such person is prohibited from having any involvement
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`in the prosecution of any patent, patent application or re-examination
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`in the Relevant Technology that was filed, or that claims priority from
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`MASIMO 2087
`Apple v. Masimo
`IPR2022-01300
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`any application that was filed, for up to one year following the final
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`termination of this proceeding (including any appeals). To avoid any
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`doubt, “prosecution” as used in this paragraph does not include
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`representing or advising a Party before a domestic or foreign agency
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`in connection with a reissue, ex parte reexamination, inter partes
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`review, opposition, cancelation, or similar proceeding; though in
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`connection with any such agency proceeding involving the patent-at-
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`issue, outside counsel of a party receiving confidential information
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`shall not: (i) participate in the preparation, prosecution, supervision,
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`advice, counsel, or assistance of any amended claims; (ii) reveal a
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`confidential information to any prosecuting reexamination counsel or
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`agent; or (iii) use a the other party’s confidential information for any
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`purpose prohibited by this Protective Order. The applicability of this
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`provision is to be determined on an individual-by- individual basis
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`such that an individual attorney who has not received confidential
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`information is not restricted from undertaking any activities by virtue
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`of this provision even if said individual attorney is employed by or
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`works for the same firm or organization as an individual who has
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`received such material.
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`MASIMO 2087
`Apple v. Masimo
`IPR2022-01300
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`C. Unless otherwise permitted in writing between Supplying Party and
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`Receiving Party, any expert retained on behalf of a party who is to be
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`given access to any material from another party showing or describing
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`the technical functionality of products produced by another party must
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`agree in writing not to be involved in creating, developing, or
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`modifying, for commercial use (which, for the avoidance of doubt,
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`does not include academic research which is not for industry), any
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`Relevant Technology from the time of first receipt of such
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`confidential material through one year after the date the expert
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`formally withdraws from the Protective Order. For avoidance of
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`doubt, during periods in which the individual person(s) has ceased to
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`have possession of such material or any documents or notes reflecting
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`such material, this section shall not apply.
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`54. Persons receiving confidential information shall use reasonable efforts to
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`maintain the confidentiality of the information, including:
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`(A.) Maintaining such information in a secure location to which persons not
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`authorized to receive the information shall not have access;
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`(B.) Otherwise using reasonable efforts to maintain the confidentiality of the
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`information, which efforts shall be no less rigorous than those the recipient
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`MASIMO 2087
`Apple v. Masimo
`IPR2022-01300
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`uses to maintain the confidentiality of information not received from the
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`disclosing party;
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`(C.) Ensuring that support personnel of the recipient who have access to the
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`confidential information understand and abide by the obligation to maintain
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`the confidentiality of information received that is designated as confidential;
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`and
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`(D.) Limiting the copying of confidential information to a reasonable
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`number of copies needed for conduct of the proceeding and maintaining a
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`record of the locations of such copies.
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`65. Persons receiving confidential information shall use the following
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`procedures to maintain the confidentiality of the information:
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`(A.) Documents and Information Filed With the Board.
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`(i) A party may file documents or information with the Board along with a
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`Motion to Seal. The Motion to Seal should provide a non-confidential
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`description of the nature of the confidential information that is under seal,
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`and set forth the reasons why the information is confidential and should not
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`be made available to the public. A party may challenge the confidentiality of
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`the information by opposing the Motion to Seal. The documents or
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`information shall remain under seal unless the Board determines that some
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`or all of it does not qualify for confidential treatment.
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`MASIMO 2087
`Apple v. Masimo
`IPR2022-01300
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`(ii) Where confidentiality is alleged as to some but not all of the information
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`submitted to the Board, the submitting party shall file confidential and non-
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`confidential versions of its submission, together with a Motion to Seal the
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`confidential version setting forth the reasons why the information redacted
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`from the non-confidential version is confidential and should not be made
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`available to the public. A party may challenge the confidentiality of the
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`information by opposing the Motion to Seal. The non-confidential version of
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`the submission shall clearly indicate the locations of information that has
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`been redacted. The confidential version of the submission shall be filed
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`under seal. The redacted information shall remain under seal unless the
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`Board determines that some or all of the redacted information does not
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`qualify for confidential treatment.
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`(B.) Documents and Information Exchanged Among the Parties. Documents
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`(including deposition transcripts) and other information designated as
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`confidential that are disclosed to another party during discovery or other
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`proceedings before the Board shall be clearly marked as “PROTECTIVE
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`ORDER MATERIAL” and shall be produced in a manner that maintains its
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`confidentiality.
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`76. Within 60 days after the final disposition of this action, including the
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`exhaustion of all appeals and motions, each party receiving confidential
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`MASIMO 2087
`Apple v. Masimo
`IPR2022-01300
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`information must return, or certify the destruction of, all copies of the confidential
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`information to the producing party.
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`87. Standard Acknowledgement of Protective Order. The following
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`formExhibit A may be used to acknowledge thea protective order and gain access
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`to information covered by the protective order:
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`[CAPTION]
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`
`
`
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`MASIMO 2087
`Apple v. Masimo
`IPR2022-01300
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`Exhibit A
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MASIMO CORPORATION,
`Patent Owner.
`
`
`
`
`
`
`
`Case IPR2022-01299
`U.S. Patent 7,761,127
`
`Standard Acknowledgment for Access to Protective Order Material
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`I __________________________________________, affirm that I have
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`read the Protective Order; that I will abide by its terms; that I will use the
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`confidential information only in connection with this proceeding and for no other
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`purpose; that I will only allow access to support staff who are reasonably necessary
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`to assist me in this proceeding; that prior to any disclosure to such support staff I
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`informed or will inform them of the requirements of the Protective Order; that I am
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`personally responsible for the requirements of the terms of the Protective Order
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`and I agree to submit to the jurisdiction of the Office and the United States District
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`MASIMO 2087
`Apple v. Masimo
`IPR2022-01300
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`Court for the Eastern District of Virginia for purposes of enforcing the terms of the
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`Protective Order and providing remedies for its breach.
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`[Signature]
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`MASIMO 2087
`Apple v. Masimo
`IPR2022-01300
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`