UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable Monica Bhattacharyya
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN LIGHT-BASED PHYSIOLOGICAL
`MEASUREMENT DEVICES AND
`COMPONENTS THEREOF
`
`Inv. No. 337-TA-1276
`
`COMPLAINANTS' OBJECTION TO RESPONDENT'S
`PROPOSED EXPERT BRIAN ANTHONY, PH.D. AND MOTION FOR
`PROTECTIVE ORDER TO PRECLUDE ACCESS BY BRIAN ANTHONY TO
`COMPLAINAINANTS' CONFIDENTIAL BUSINESS INFORMATION
`
`Pursuant to 19 C.F.R. §§ 210.34 and the Protective Order in this Investigation (Order No. 1
`
`at ~ 11), Complainants Masimo Co1poration and Cercacor Laboratories, Inc. (collectively,
`
`"Masimo"), by and through its counsel, objects to the disclosme ofMasimo's confidential business
`
`infonnation ("CBI'') to the proposed expe1i of Apple, Inc. ("Apple"), Brian Anthony. Masimo
`
`respectfully submits this motion for a Protective Order to preclude Dr. Anthony from accessing
`
`Masimo 's CBI. The attached Memorandum sets fo1ih the grounds in suppo1i of this Motion.
`
`Ground Rule 3.2 Certification
`
`Masimo ce1iifies that it has made a reasonable, good faith effo11 to resolve this matter with
`
`Apple more than two business days before filing this motion. Apple has made it clear that it
`
`opposes this motion.
`
`Dated: November 15, 2021
`
`By: Isl Kendall M Loebbaka
`Stephen C. Jensen
`Joseph R. Re
`Sheila N . Swaroop
`Ted. M. Cannon
`Alan G. Laquer
`
`-1-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`Kendall M . Loebbaka
`Douglas B. Wentzel
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, Fomieenth Floor
`Irvine, CA 92614
`Telephone: (949) 760-0404
`Facsimile:
`(949) 760-9502
`
`William R. Zimme1man
`Jonathan E. Bachand
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`1717 Pennsylvania Avenue N.W., Suite 900
`Washington, DC 20006
`Telephone: (202) 640-6400
`Facsimile: (202) 640-6401
`
`Brian C. Home
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`1925 Centmy Park East
`Suite 600
`Los Angeles, CA 90067
`Telephone: (3 10) 551-3450
`Facsimile: (3 10) 551-3458
`
`Carol Pitzel Cmz
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`925 4th Ave., #2500
`Seattle, WA 98104
`Telephone: (206) 405-2000
`Facsimile: (206) 405 2001
`
`Karl W. Kowallis
`Matthew S. Friedrichs
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`1155 Avenue of the Americas
`24th Floor
`New York, NY 10036
`Telephone: (212) 849-3000
`Facsimile: (212) 849-3001
`
`Counsel for Complainants
`Masimo C01poration and
`Cercacor Laboratories, Inc.
`
`-2-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`In the Matter of Certain Light-Based Physiological Measurement Devices
`and Components Thereof
`Inv. No. 337-TA-1276
`
`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that on November 22, 2021, I caused copies of the
`foregoing document to be filed and served as indicated below:
`
`
`Secretary – U.S. International Trade Commission
`The Honorable Lisa R. Barton
` Via Electronic Filing [EDIS]
`Secretary to the Commission
`
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
`Administrative Law Judge – U.S. International Trade Commission
`The Honorable Monica Bhattacharyya
` Via E-mail to edward.jou@usitc.gov;
`U.S. International Trade Commission
`michael.maas@usitc.gov
`500 E Street, S.W., Room 317
`Washington, D.C. 20436
`
`Counsel for Respondent Apple, Inc.
`Michael Esch
`David Cavanaugh
`WILMER CUTLER PICKERING HALE AND
`DORR LLP
`1875 Pennsylvania Avenue, NW
`Washington, DC 20006
`
`Mark Selwyn
`WILMER CUTLER PICKERING HALE AND
`DORR LLP
`2600 El Camino Real
`Suite 400
`Palo Alto, California 94306
`
`Joseph Mueller
`Richard Goldenberg
`Sarah Frazier
`WILMER CUTLER PICKERING HALE AND
`DORR LLP
`60 State Street
`Boston, Massachusetts 02109
`
` Via E-mail to
`WHApple-
`Masimo1276ServiceList@wilmerhale.com
`
`
`-1-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`
`November 22, 2021
`
`
`
`/s/ Claire A. Stoneman
`Claire A. Stoneman
`Litigation Paralegal
`Knobbe, Martens, Olson & Bear, LLP
`
`
`
`
`
`-2-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable Monica Bhattacharyya
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN LIGHT-BASED PHYSIOLOGICAL
`MEASUREMENT DEVICES AND
`COMPONENTS THEREOF
`
`Inv. No. 337-TA-1276
`
`MEMORANDUM IN SUPPORT OF
`COMPLAINANTS' OBJECTION TO RESPONDENT'S
`PROPOSED EXPERT BRIAN ANTHONY, PH.D. AND MOTION FOR
`PROTECTIVE ORDER TO PRECLUDE ACCESS BY BRIAN ANTHONY TO
`COMPLAINAINANTS' CONFIDENTIAL BUSINESS INFORMATION
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`TABLE OF CONTENTS
`
`Page No.
`
`I.
`
`II.
`
`IN"TRODUCTION ....................................................................................................... 1
`
`FACTUAL BACKGROUND ...................................................................................... 2
`
`A.
`
`Apple 's Proposed Expe11s Have Previously Agreed to Restrictions On
`CmTent and Futme Activities ........................................................................... 2
`
`B.
`
`Apple Discloses Dr. Anthony as an Expe11 in this Investigation ..................... 4
`
`III.
`
`LEGAL STANDARD .................................................................................................. 5
`
`IV. ARGUMENT ............................................................................................................... 6
`
`A.
`
`Access to Masimo's CBI by Dr. Anthony Poses a Serious Risk of
`Haim to Masimo Absent the Proposed Written Restrictions ........................... 6
`
`B.
`
`The Balance of Interests Weighs in Favor ofMasimo .................................... 9
`
`V.
`
`CONCLUSION .......................................................................................................... 10
`
`-1-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`TABLE OF AUTHORITIES
`
`Page No(s).
`
`BASF Corp. v. US.,
`28 C.I.T. 414, 321 F. Supp. 2d 1373 (CIT M~u-. 23, 2004) ................................................ 6
`
`Certain Automated Media Library Devices,
`fuv. No. 337-TA-746, Order No. 12 (May 19, 2011) ........................................................ 5
`
`Certain Automotive Parts,
`fuv. No. 337-TA-557, Order No. 5, 2006 WL 686993 (Mar. 10, 2006) ............................ 5
`
`In re Certain Memory Devices with Increased Capacitance and Prods.
`Containing Same,
`fuv. No. 337-TA-371 , Order No. 19 (Apr. 27, 1995) ........................................................ 8
`
`Certain Mobile Elec. Devices Inc01porating Haptics,
`fuv. No. 337-TA-834, Order No. 15, 2012 WL 5195955 (Sept. 20, 2012) ....................... 5
`
`Certain Rotary Wheel Printers,
`ITC fuv. No. 337-TA-145, Comm'n Op. (Nov. 4, 1983) .................................................. 6
`
`Masimo C01p. v. Philips Elec. N Am. Corp.,
`No. CV 09-80-LPS, 2015 WL 2379485 (D. Del. May 18, 2015) ...................................... 8
`
`Masimo C01p. v. Sotera Wireless, Inc.,
`No. 17-cv-0885-BTM-BLM, 591 B.R. 453 (S.D. Cal. Sep. 11 , 2018) .............................. 9
`
`US. Gypsum Co. v. Lafarge N Am., Inc.,
`No. 03 C 6027, 2004 WL 816770 (N.D. Ill. Mar. 2, 2004) ............................................... 6
`
`Univ. of Va. Patent Found. V. Gen. Elec. Co.,
`No. 3:14-cv-51, 2015 WL 7431412 (W.D. Va. Nov. 20, 2015) ...................................... 10
`
`-11-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`Complainants Masimo C01poration ("Masimo Co1p. ") and Cercacor Laboratories, Inc.
`
`("Cercacor") (collectively, "Masimo") hereby move for a protective order to preclude the
`
`disclosure of its confidential business info1m ation to Apple Inc.' s ("Apple") proposed expe1t Brian
`
`Anthony, Ph.D.
`
`I.
`
`INTRODUCTION
`
`Within the last two weeks, Masimo has moved to preclude access to its confidential
`
`business info1mation ("CBI'') to three of Apple's proposed expe1ts, Dr. Steve Wanen, Dr. Majid
`
`SaiTafzadeh, and Dr. Robeit Stone. All three proposed expe1ts have been or cunently ai·e expe1ts
`
`for parties adverse to Masimo, including Apple. All three expe1ts signed agreements in those
`
`proceedings restricting their cunent and future activities in order to safeguard Masimo's
`
`confidential info1mation. When Apple disclosed the same three expe1ts in this Investigation,
`
`Masimo proposed that each expe1t agree to those same restrictions in this Investigation. Apple has
`
`declined Masimo 's proposal, proposing instead that the paities require expe1ts to be bound by a
`
`supplemental protective order with additional restrictions proposed by Apple. This solution is
`
`inadequate because there is no ce1tainty on what provisions will be adopted or when it will be
`
`entered. Despite Masimo repeatedly raising these concerns, Apple refuses to resolve Masimo's
`
`objections to Apple's expeits by having those expe1ts sign agreements extending their
`
`previouslyagreed upon restrictions to this Investigation.
`
`For its fomth technical expe1t, Apple has identified Dr. Anthony, a professor at
`
`Massachusetts Institute of Technology (MIT) where he co-directs a program that develops medical
`
`devices and health industry technologies. This prograin partners with companies in the industry ,
`
`including one of Masimo's biggest competitors, Philips. These activities pose a serious risk of
`
`economic haim and disclosure ofMasimo's CBI to its direct competitor. While Dr. Anthony has
`
`-1-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`been an expe1i for Apple in inter partes review (IPR) proceedings against Masimo 's patents, he
`
`has not viewed Masimo's confidential info1mation yet. Accordingly, Dr. Anthony has not signed
`
`any agreements restricting his cunent and future activities in view of Apple's plan to share
`
`Masimo 's CBI with him. In view of Dr. Anthony's activities, Masimo has proposed an agreement
`
`for Dr. Anthony containing similar provisions to the agreements previously signed by Apple 's
`
`proposed expe1is in other proceedings. Apple has refused. Once again, Masimo requests a
`
`protective order to safeguard its CBI and minimize the risk of inadve1ient disclosure.
`
`Balancing the paiiies' interests also favors precluding Dr. Anthony from having access to
`
`Masimo 's CBI absent the proposed written assurances suggested by Masimo. Dr. Anthony does
`
`not offer any specialized knowledge for this investigation for which Apple is unable to find an
`
`expe1i. Thus, absent a confnmation from Dr. Anthony that he will be bound to the same
`
`restrictions in this investigation that have been previously agreed to by proposed expe1is in other
`
`proceedings against Masimo, the ALJ should preclude Dr. Anthony from having access to
`
`Masimo 's CBI due to his cunent activities in co-directing a program at MIT that develops medical
`
`devices and health industry technologies.
`
`II.
`
`FACTUAL BACKGROUND
`
`A.
`
`Apple's Proposed Experts Have Previously Agreed to Restrictions On Current and
`Future Activities.
`
`Drs. W aiTen, Sanafzadeh, and Stone have been or cmTently ai·e experts in litigation matters
`
`against Masimo. (Dkt. No. 755848, Mot. 1276-004, at 2-3; Dkt. No. 756139, Mot. 1276-004, at
`
`2-3.) Each of these expe1is has previously agreed to restrictions on their activities in order to
`
`provide safeguai·ds in viewing Masimo's confidential business info1mation. For example,
`
`Dr. Wanen agreed to the following restrictions:
`
`I agree not to be involved in creating, developing, or modifying, for
`commercial use, any technology designed for non-invasively measuring total
`
`-2-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`hemoglobin, oxygen content, carboxyhemoglobin, or methemoglobin for the
`duration of th e Litigation, including all appeals from orders and final judgments in
`this action, plus two years. To the extent I create, develop, or modify such
`technology for other uses during that time frame, I will not at any time allow such
`technology to be published or included in any product to measure total hemoglobin,
`oxygen content, carboxyhemoglobin, or methemoglobin.
`
`(Ex. 1 at ,I I.)
`
`Like Dr. Warren, Dr. Sa1rnfzadeh agreed to restrictions m order to view Masimo 's
`
`confidential info1mation:
`
`Dr. Sairnfzadeh represents and waiTants that he is not, and does not
`2.
`intend or plan to, be involved in creating, developing, modifying, publishing, or
`commercializing any technology that:
`a.
`optically measures any physiological pai·ameter;
`b.
`non-invasively measures any blood constituents; and/or
`non-invasively measures total hemoglobin, oxygen content,
`c.
`carboxyhemoglobin, or methemoglobin.
`
`Dr. Sarrafzadeh agrees not to be involved in creating, developing,
`4.
`or modifying, for commercial use, any technology designed for non-invasively
`measuring
`total hemoglobin, oxygen content,
`carboxyhemoglobin, or
`methemoglobin for the duration of the Litigation, including all appeals from orders
`and fmal judgments in this action, plus two yeai·s. To the extent Dr. Sanafzadeh
`creates, develops, or modifies such technology for other uses during that time
`frame, Dr. SaiTafzadeh will not promote its use in any commercial product to
`total
`hemoglobin,
`oxygen
`content,
`cai·boxyhemoglobin,
`or
`measure
`methemoglobin.
`(Ex. 2 at ,nr 2, 4 .)
`
`Dr. Stone agreed to similai· restrictions on his activities:
`
`I shall be prohibited from researching, designing or developing technology
`in the fields of pulse oximetiy and measuring blood constituents non-invasively
`using light absorption techniques or competing with any business, product or
`service of Masimo related to pulse oximetiy technology and technology for
`measuring blood constituents non-invasively using light absorption techniques.
`
`(Ex. 3 at ,i 1.)
`
`To resolve Masimo's objections to these expe1is in this Investigation, Masimo proposed
`
`that each of these expe1is sign amendments or agreements with these same resti·ictions to
`
`-3-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`acknowledge the present Investigation. (Exs. 4-6; Dkt. No. 755848, Mot. 1276-004, at 4 (citing
`
`Exs. 6-7); Dkt. No. 756139, Mot. 1276-004, at 4-5 (citing Exs. 8, 11 , 12).) Apple refosed to state
`
`whether the proposed expeits would agree to the proposed amendments and agreements. (Dkt.
`
`No. 755848, Mot. 1276-004, at 4 (citing Exs. 8-9); Dkt. No. 756139, Mot. 1276-004, at 5 (citing
`
`Ex. 13).) After Apple would not resolve Masimo's objections using these previously agreed to
`
`restrictions, Masimo moved to preclude the disclosure of its CBI to the proposed expe1is in the
`
`absence of the the previously agreed to restrictions.
`
`(Dkt. No. 755848, Mot. 1276-004; Dkt.
`
`No. 756139, Mot. 1276-004.) These motions are pending.
`
`B.
`
`Apple Discloses Dr. Anthony as an Expert in this Investigation
`
`On October 25, 2021 , Apple disclosed Dr. Anthony in this Investigation. (Ex. 7.) On
`
`November 3, Masimo objected to the disclosure of its CBI to Dr. Anthony. (Ex. 8 at 1.) Masimo
`
`noted that it was objecting to Dr. Anthony because he is the co-director of the Medical Electronic
`
`Device Realization Center (MEDRC), and deputy director for the MIT Skoltech Initiative.
`
`Masimo also noted that the vision of MEDRC is to "transfo1m the medical electronic device
`
`industry. Specific areas that show promise are wearable or minimally invasive monitoring
`
`devices ... " (Id.) Additionally, MEDRC was established to "foster the development of patient
`
`monitoring devices," and is focused on "minimally invasive technology that monitors activity."
`
`(Id.) Masimo also noted its concerns that Dr. Anthony is a published author and has conducted
`
`research on non-invasive monitoring of health info1mation. (Id.)
`
`As Masimo proposed with Drs. Wanen, Stone, and San afzadeh, Masimo proposed that
`
`Dr. Anthony execute an agreement restricting ce1iain activities for the duration of this
`
`Investigation, plus two years.
`
`(Id.; Ex. 9.) Using language similar to agreements from other
`
`litigation, Masimo proposed that Dr. Anthony agree to the following:
`
`-4-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`I agree not to be involved in creating, developing, or modifying, for
`commercial use, any technology designed for non-invasively measuring blood
`oxygen saturation, total hemoglobin, oxygen content, carboxyhemoglobin, or
`methemoglobin for the duration of the Investigation, including all appeals from
`orders and final judgments in this action, plus two years. To the extent I create,
`develop, or modify such technology for other uses during that time frame, I will not
`at any time allow such technology to be published or included in any product to
`measure blood oxygen
`saturation,
`total hemoglobin, oxygen content,
`carboxyhemoglobin, or methemoglobin.
`
`(Ex. 9 at ,I I.)
`
`The paiiies met and confened on Masimo's objection to Dr. Anthony on November 11.
`
`(Ex. 10.) Apple again maintained that the paii ies should enter a supplemental protective order
`
`("SPO") that would include restrictions applicable to all experts that have yet to be approved by
`
`the paities.
`
`(Id.) As Masimo has previously explained to Apple and in its briefing to this
`
`Collllllission, the pa1iies do not agree on multiple provisions in the SPO, preventing the paiiies
`
`from resolving the present dispute through the SPO. (Id.; Dkt. No. 755848, Mot. 1276-004, at 4
`
`(citing Ex. 9); Dkt. No. 756139, Mot. 1276-004, at 5 (citing Exs. 8 and 13).) To address Masimo 's
`
`objections to Dr. Anthony, Masimo seeks a protective order to prevent Apple from disclosing
`
`Masimo 's CBI to Dr. Anthony in the absence of the proposed restrictions set f01ih in Ex. 9.
`
`III.
`
`LEGAL STANDARD
`
`The Commission has the authority to regulate the course of proceedings and heai·ing in
`
`investigations, which includes the authority to exclude and disqualify expe1is. Certain Automated
`
`Media Library Devices, Inv. No. 337-TA-746, Order No. 12 at 3 (May 19, 2011). "The power to
`
`disqualify expe1is 'exists in fmi herance of [this] judicial duty to protect the integrity of the
`
`adversa1y process and to promote public confidence in the fairness and integrity of the legal
`
`process." ' Certain Mobile Elec. Devices Incorporating Haptics, Inv. No. 337-TA-834, Order No.
`
`15, 2012 WL 5195955 at *2 (Sept. 20, 2012). "Protection of confidential business infonnation is
`
`cm cial to the Commission 's ability to cany out its statuto1y responsibilities."' Certain Automotive
`
`-5-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`Parts, Inv. No. 337-TA-557, Order No. 5, 2006 WL 686993 (Mar. 10, 2006) (quoting Certain
`
`Rota,y Wheel Printers, ITC Inv. No. 337-TA-145, Comm'n Op. at 3-4 (Nov. 4, 1983)).
`
`In determining whether to grant an expe1i access to CBI over a movant's objection, comi s
`
`generally "balance the [ receiving paiiy' s] interest in selecting the consultant most beneficial to its
`
`case, considering the specific expe1iise of this consultant and whether other consultants possess
`
`similai· expe1iise, against the disclosing paiiy's interest in protecting confidential commercial
`
`infonnation from disclosm e to competitors." See BASF C01p. v. US. , 28 C.I.T. 414, 321 F. Supp.
`
`2d 1373, 1378 (CIT Mar. 23, 2004). To demonstrate haim, the objecting paiiy must "show the
`
`type of confidential info1mation that will need to be disclosed to [ the receiving pa1iy' s] expert, that
`
`this info1mation will be useful to [competitors] and that [the receiving paiiy's] expe1i is in a
`
`position that could allow the infonnation to be used by competitors." US. Gypsum Co. v. Lafarge
`
`N Am., Inc. , No. 03 C 6027, 2004 WL 816770, at *1 (N.D. Ill. Mai·. 2, 2004); see also BASF, 321
`
`F. Supp. 2d at 1378.
`
`IV. ARGUMENT
`
`A.
`
`Access to Masimo's CBI by Dr. Anthony Poses a Serious Risk of Harm to Masimo
`Absent the Proposed Written Restrictions
`
`If Apple's proposed expert, Dr. Anthony, is approved, he would obtain access to Masimo's
`
`most confidential info1mation in this Investigation. As Masimo has explained in its previous
`
`motions regai·ding Apple's proposed experts, Masimo will establish its domestic industry in this
`
`Investigation based upon its innovative rainbow® sensors an
`
`(collectively,
`
`--------
`
`"the Domestic Industry Products").
`
`(Dkt. No. 755848, Motion No. 1276-004 at 6; Dkt.
`
`No. 746514, First Amended Complaint, Ex. 27, Muhsin Deel. , ,r,r 6-7, 24.) Masimo has produced
`
`thousands of pages of CBI on its Domestic Industry Products, including CAD drawings,
`
`schematics, and engineering specifications, and will continue to produce additional documents and
`
`-6-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`its source code upon entry of a supplemental protective order. (Loebbaka Deel., ~ 18.) Access to
`
`this CBI poses a serious risk of competitive hann to Masimo absent the written assurances
`
`proposed by Masimo.
`
`Dr. Anthony is a professor in the Mechanical Engineering Departinent at MIT. (Ex. 11
`
`at 1.) His principal fields of interest include "Medical Device Design and Manufacturing" and
`
`"Innovation and Product Realization." (Id.) Dr. Anthony 's work includes "systems analysis and
`
`design and calling upon mechanical, electrical, and optical engineering, along with computer
`
`science and optimization." (Ex. 12 at 2.) Dr. Anthony also has "extensive experience in market
`
`driven technology innovation as well as business entr·epreneurship."
`
`(Id. at 3.) Fmiher,
`
`Dr. Anthony frequently publishes his research inj omnals and conference proceedings. (Ex. 11 at
`
`11-18.) Dr. Anthony also consults for multiple companies, including Apple. (Id. at 2.) Because
`
`Ex. 11 does not include a description of these consulting se1v ices, it is unclear whether such
`
`se1v ices are limited to expe1i se1v ices or also include technical consulting. If Dr. Anthony provides
`
`technical consulting se1v ices for Apple, this heightens Masimo's concerns with Dr. Anthony
`
`viewing its CBI.
`
`At MIT, Dr. Anthony is the co-founder and co-director of MEDRC, which seeks to
`
`"revolutionize medical diagnostics and tr·eatments by bringing health care directly to the individual
`
`and to create enabling technology for the future infonnation-driven healthcare system. " (Ex. 13
`
`at 1; see also Ex. 11 at 5.) MEDRC notes that one area that shows promise includes "wearable or
`
`minimally invasive monitoring devices."
`
`(Ex. 13 at 1.) In describing his work at MEDRC,
`
`Dr. Anthony notes that "areas of innovation include wearable, non-invasive and minimally
`
`invasive optical biosensor devices, medical imaging, laborato1y instrumentation, and the data
`
`communication from these devices and instruments to healthcare providers and caregivers."
`
`-7-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`(Ex. 14 at 3, ,i 5.) MEDRC paiiners with "th e microelectronics industiy, the medical device
`
`industiy , medical professionals, and MIT."
`
`(Ex. 15.) Dr. Anthony notes in his CV that he
`
`"recrnit[ s] lai·ge Medical Device manufacturing companies, lead( s] reseai·ch, an d engage[ s] with
`
`th e Med Tech community nationally an d internationally." (Ex. 11 at 5.) Dr. Anthony describes
`
`the process of how MEDRC prototypes projects, including paitnering with industiy:
`
`Research activities ai·e jointly defined by faculty, physicians and clinicians, and
`industi·ial paiiners. Visiting scientists from microelecti·onic and medical device
`companies, physically resident at the Center, provide th e industrial viewpoint in the
`project definitions an d pa1ticipate in the realization of the technology. Prototype
`systems are developed which are used in clinical tests early in the projects to help
`guide the reseai·ch technology being developed in pai·allel.
`
`(Id. at 6.)
`
`One of the industi-ial pa1iners for MEDRC is Philips. (Ex. 16.) MEDRC has raised funds
`
`from Philips and has had a visiting scientist from Philips. (Ex. 11 at 6.) Philips is one ofMasimo's
`
`lai·gest competitors.
`
`In 2015, Masimo was awai·ded $466 million in dainages for Philips'
`
`infringement ofMasimo's patents. Masimo Corp. v. PhiUps Elec. N Am. Corp., No. CV 09-80-
`
`LPS, 2015 WL 2379485 (D. Del. May 18, 2015).
`
`As Masimo explained in its previous motions, the Commission has recognized that it is
`
`difficult for an expe1t to forget CBI. (Dkt. No. 755848 at 8 ( citing In re Certain Memory Devices
`
`with Increased Capacitance and Prods. Containing Same, Inv. No. 337-TA-371, Order No. 19 at
`
`2 (Apr. 27, 1995) ("Some infonnation that an expe1t learns simply cannot be forgotten. This
`
`infonnation may be used by the expe1t in his own work inadvertently, simply because he is awai·e
`
`of ce1tain facts that he othe1wise would not have known, and even though he does not intend to
`
`violate the protective order.")).) Once Dr. Anthony is exposed to Masimo's CBI, he will learn
`
`infonnation that cannot be forgotten. Dr. Anthony engages in multiple activities that pose a
`
`significant risk to Masimo's CBI, including his cmTent role at MEDRC, his engagement with
`
`-8-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`industry paiiners, such as Philips, his publication histo1y, and his consulting for Apple. It is
`
`entirely foreseeable that Dr. Anthony will use infonnation that cannot be forgotten for the use and
`
`benefit of these endeavors.
`
`Masimo 's business is built on incorporating its innovative technologies to noninvasively
`
`measure physiological parameters. It would cause Masimo substantial haim for its CBI to be
`
`shai·ed, even inadveliently, with its competitors. The provisions ah-eady agreed to by the paities
`
`in other litigation against Masimo minimize that risk and should apply in this Investigation as well.
`
`Accordingly, as with Drs. Warren, San afzadeh, and Stone, there is an unacceptable risk of
`
`competitive ha1m and/or inisuse ofMasimo's CBI by Dr. Anthony if he does not agree to the saine
`
`restr-ictions that other expe11s have agreed to in previous litigation against Masimo.
`
`B.
`
`The Balance of Interests Weighs in Favor of Masimo
`
`Dr. Anthony co-directs an initiative at MIT that builds medical devices in paiinership with
`
`one of Masimo's biggest competitors, consults for Apple, and publishes extensively. Masimo's
`
`CBI produced in this Investigation would be beneficial to the development of medical devices at
`
`MEDRC, Philips, and Apple. Masimo has invested significant time and resources in developing
`
`its Domestic Industry Products and proactively protects its prop11eta1y info1mation.
`
`(Dkt.
`
`No. 755848 at 9 (citing Distr·ict Comi Litigation, Dkt. No. 1 (asse11ing patent infringement and
`
`tr·ade secret inisappropriation); Masimo Corp. v. Sotera Wireless, Inc. , No. 17-cv-0885-BTM(cid:173)
`
`BLM, 591 B.R. 453 (S.D. Cal. Sep. 11 , 2018) (finding inisappropriation ofMasimo's tr·ade secrets
`
`by competitor Sotera Wireless)).) Any inadve11ent disclosure of Masimo's CBI for reseai·ch and
`
`development for products that will compete with Masimo or be publicly disclosed in papers and
`
`aiiicles would cause in epai·able business and economic ha1m to Masimo. Masimo 's substantial
`
`interests in protecting its CBI and preventing economic han n to its business outweighs Apple's
`
`-9-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`need to allow Dr. Anthony access to Masimo 's CBI in this Investigation in the absence of proper
`
`safeguards.
`
`Apple cannot show that there are no other expe11s available or that those that are available
`
`will be less useful than its chosen expe11. See Univ. of Va. Patent Found. V Gen. Elec. Co., No.
`
`3:14-cv-51 , 2015 WL 7431412, at *2 (W.D. Va. Nov. 20, 2015). Dr. Anthony does not have any
`
`unique knowledge in this Investigation identified by Apple. Additionally, Apple has other
`
`expe11s-Drs. W aiTen, Sairnfzadeh, and Stone-to provide whatever assistance Apple seeks from
`
`Dr. Anthony if these other expelis are willing to agree to the restrictions to which they ai·e ah-eady
`
`bound or agreed to in other litigation .
`
`Masimo remains willing to resolve its objections to each one of Apple 's proposed expe11s
`
`via th e proposed amendments and agreements. Thus, if at least one of these experts is willing to
`
`sign an agreement, Apple has this expe11 available. Absent a showing that Dr. Anthony possesses
`
`unique expe11ise, which he does not, Dr. Anthony should not be pe1mitted access to Masimo 's CBI
`
`absent the proposed restrictions.
`
`V.
`
`CONCLUSION
`
`Masimo respectfully requests that the ALJ issue a protective order denying Dr. Anthony
`
`access to Masimo 's CBI until he has agreed to the proposed restrictions suggested by Masimo in
`
`Ex. 9.
`
`Dated: November 15, 2021
`
`By: Isl Kendall M Loebbaka
`Stephen C. Jensen
`Joseph R. Re
`Sheila N . Swai·oop
`Ted. M . Cannon
`Alan G. Laquer
`Kendall M . Loebbaka
`Douglas B. Wentzel
`
`-10-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, Fomieenth Floor
`Irvine, CA 92614
`Telephone: (949) 760-0404
`Facsimile:
`(949) 760-9502
`
`William R. Zimme1man
`Jonathan E. Bachand
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`1717 Pennsylvania Avenue N.W., Suite 900
`Washington, DC 20006
`Telephone: (202) 640-6400
`Facsimile: (202) 640-6401
`Brian C. Home
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`1925 Centmy Park East
`Suite 600
`Los Angeles, CA 90067
`Telephone: (3 10) 551-3450
`Facsimile: (3 10) 551-3458
`
`Carol Pitzel Cmz
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`925 4th Ave., #2500
`Seattle, WA 98104
`Telephone: (206) 405-2000
`Facsimile: (206) 405 2001
`
`Karl W. Kowalis
`Matthew S. Friedrichs
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`1155 Avenue of the Americas
`24th Floor
`New York, NY 10036
`Telephone: (212) 849-3000
`Facsimile: (212) 849-3001
`
`Counsel for Complainants
`Masimo C01poration and
`Cercacor Laboratories, Inc.
`
`-11-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable Monica Bhattacharyya
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN LIGHT-BASED PHYSIOLOGICAL
`MEASUREMENT DEVICES AND
`COMPONENTS THEREOF
`
`
`
`
`
`
`Inv. No. 337-TA-1276
`
`
`
`
`
`
`
`APPENDIX OF ATTACHMENTS TO COMPLAINANTS’ OBJECTION TO
`RESPONDENT’S PROPOSED EXPERT BRIAN ANTHONY, PH.D. AND MOTION FOR
`PROTECTIVE ORDER TO PRECLUDE ACCESS BY BRIAN ANTHONY TO
`COMPLAINAINANTS’ CONFIDENTIAL BUSINESS INFORMATION
`
`Declaration of Kendall M. Loebbaka in Support of Complainants Masimo
`
`1.
`
`Corporation (“Masimo”) and Cercacor Laboratories, Inc.’s (“Cercacor”) (collectively,
`
`“Complainants”) Objection to Respondent’s Proposed Expert Brian Anthony, Ph.D. and Motion
`
`Protective Order to Preclude Access by Brian Anthony to Complainants’ Confidential Business
`
`Information.
`
`Exhibit 1: Agreement signed by Steve Warren regarding the patent infringement
`2.
`lawsuit Masimo Corp. v. Apple Inc., Case No. 8:20-cv-00048-JVS-JDE in the United States
`District Court for the Central District of California (“the District Court Litigation”), dated
`December 18, 2020 (“Warren Agreement”).
`Exhibit 2: Agreement signed by Majid Sarrafzadeh regarding the District Court
`3.
`Litigation, dated January 7, 2021 (“Sarrafzadeh Agreement”).
`Exhibit 3: Agreement signed by Robert Stone regarding the patent infringement
`4.
`lawsuit Masimo Corp. v. Philips Medizin Systeme Boblingen GMBH, Case No. 1:09-cv-00080 in
`the United States District Court for the District of Delaware, dated September 1, 2010 (“Stone
`Agreement”).
`
`-1-
`
`MASIMO 2090
`Apple v. Masimo
`IPR2022-01300
`
`

`

`Exhibit 4: Draft amendment to the Warren Agreement for Steve Warren.
`5.
`Exhibit 5: Draft amendment to the Sarrafzadeh Agreement for Majid Sarrafzadeh.
`6.
`Exhibit 6: Draft agreement for Robert T. Stone.
`7.
`Exhibit 7: Email exchange culminating in an email from Nina Garcia to counsel
`8.
`for Masimo, dated October 25, 2021.
`Exhibit 8: Letter from Kendall M. Loebbaka to Nina Garcia, dated November 3,
`9.
`
`2021.
`
`Exhibit 9: Draft agreement for Brian Anthony.
`10.
`Exhibit 10: Letter from Kendall M. Loebbaka to Jonathan Cox dated
`11.
`November 14, 2021.
`Exhibit 11: Curriculum vitae of Brian Anthony, Ph.D.
`12.
`Exhibit 12: A capture of the website https://medrc.mit.edu/people/brian-anthony/,
`13.
`which is a webpage for Brian Anthony on the Medical Electronic Device Realization Center
`(MEDRC) website, captured November 12, 2021.
`Exhibit 13: A capture of the website https://www.mtl.mit.edu/research/medical-
`14.
`electronic-device-realization-center-medrc, which is a webpage for research conducted at
`MEDRC, captured November 12, 2021.
`Exhibit 14: Declaration of Dr. Brian W. Anthony, submitted on behalf of Apple
`15.
`in the inter partes review of Masimo’s U.S. Patent No. 10,470,695, IPR2020-01722, dated
`October 1, 2020.
`Exhibit 15: A capture of the website https://medrc.mit.edu/, which is a webpage
`16.
`for MEDRC, captu