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`
`
`Filed: October 30, 2023
`
`Filed on behalf of:
`Patent Owner Masimo Corporation
`By: Brian C. Claassen (Reg. No. 63,051)
`Carol Pitzel Cruz (Reg. No. 61,224)
`Daniel C. Kiang (Reg. No. 79,631)
`Jeremiah S. Helm, Ph.D. (admitted pro hac vice)
`
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, Fourteenth Floor
`Irvine, CA 92614
`Tel.: (949) 760-0404
`Fax: (949) 760-9502
`E-mail:
`AppleIPR745-3@knobbe.com
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MASIMO CORPORATION,
`Patent Owner.
`
`
`
`
`
`
`
`Case IPR2022-01465
`U.S. Patent 10,687,745
`
`
`
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE
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`
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`
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`I.
`RELIEF REQUESTED
`Pursuant to 37 C.F.R. §42.64(c) and the Board’s September 28, 2023 Order
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`on Conduct of the Proceedings and Trial Hearing, Patent Owner Masimo
`
`Corporation (“Patent Owner” or “Masimo”) moves to exclude:
`
`1.
`
`2.
`
`3.
`
`4.
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`5.
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`EX1009, EX1010, and EX1014-EX1016 as irrelevant;
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`Exhibits EX1039 and EX1041 as not authenticated;
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`EX1042, ¶31 for lack of foundation and/or as improper expert
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`testimony;
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`EX1056 as not authenticated and/or irrelevant;
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`EX1042, ¶¶27, 31, 33-34, 40-50, and 61-64 as arguments that are
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`improperly incorporated by reference into the Reply; and
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`6.
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`EX1054, EX1058, and EX1063-1066 as irrelevant.
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`II. ARGUMENT
`A. EX1009, EX1010, AND EX1014-EX1016 Are Irrelevant
`EX1009, EX1010, and EX1014-EX1016 should be excluded as irrelevant
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`(FRE 402). Patent Owner timely objected to these exhibits as irrelevant in its
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`February 21, 2023 Objections to Evidence. Paper 19, 6. Apple submitted EX1009,
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`EX1010, and EX1014-EX1016 with its Petition, but did not cite them for any
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`purpose whatsoever in the Petition, Petitioner’s Reply, or in Petitioner’s expert’s
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`declarations (EX1003, EX1042). Thus, they are irrelevant to any issue in this
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`proceeding and are inadmissible. FRE 401; FRE 402.
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`B. Apple Did Not Authenticate EX1039 and EX1041
`EX1039 and EX1041 are inadmissible because Petitioner failed to establish
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`their authenticity under FRE 901. Patent Owner timely objected to EX1039 and
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`EX1041 for lack of authenticity in its August 28, 2023 Objections to Evidence. Paper
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`42, 1-2. Petitioner’s Reply cites these exhibits in a parenthetical citation to
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`Anthony’s supplemental declaration. See 1465 Reply, 14 (citing EX1042, ¶¶27-34
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`and referencing “APPLE-1039—APPLE-1041”).
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`Under FRE 901(a), the proponent of an exhibit must “produce evidence
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`sufficient to support a finding that the item is what the proponent claims it is.”
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`EX1039 and EX1041 are undated documents without any hallmarks of authenticity.
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`The Reply lists these exhibits as “prior art references” that a “POSITA would have
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`known of,” but otherwise does not explain or discuss them. 1465 Reply, 13-14.
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`Apple’s expert, Anthony, incorrectly asserts in a footnote that these exhibits
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`“describe systems that measured oxygen saturation at the wrist before the ’745
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`Patent.” EX1042, 47 n.5.
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`Apple has not produced evidence sufficient to establish EX1039 and EX1041
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`are what they are purported to be. EX1039 is an undated single-page document.
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`There is no evidence sufficient to establish that the document included as EX1039
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`was created before the ’745 Patent. There is also no evidence sufficient to establish
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`that the document included as EX1039 was ever published or publicly available.
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`Finally, there is no evidence that EX1039 describes a device able to determine
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`oxygen saturation at the wrist. EX1041 is an undated photograph, presented without
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`any context or evidence for when the photograph was taken or what it shows. Thus,
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`there is no evidence sufficient to establish that the document included as EX1039
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`and EX1041 were created before the ’745 Patent, were ever published or publicly
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`available, or involved a device able to determine oxygen saturation at the wrist.
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`Neither Apple nor Anthony provided any context for these documents or any
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`analysis of the content of these documents or their prior art status. 1465 Reply 13-
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`14; EX1042 47 n.5.
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`In response to Masimo’s objections, Apple served (not filed) a Declaration of
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`Anne Koch Baland (“Baland Declaration”) purporting to authenticate EX1039 and
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`EX1041. Ms. Baland purports to be a librarian at Fish & Richardson. The Baland
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`Declaration only compared EX1039 and EX1041 against their counterpart
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`documents from the ITC investigation and deemed them “true and correct cop[ies]”
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`of the corresponding ITC exhibits. However, neither Apple nor Ms. Baland points
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`to anything suggesting that EX1039 and EX1041 were authenticated in the ITC,
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`much less that the documents are what Apple now asserts them to be in this
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`proceeding. Ms. Baland does not assert any personal knowledge of the documents,
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`or their creation that might provide evidence of authenticity. Merely identifying the
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`documents as correct copies of the corresponding document in the ITC investigation
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`-3-
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`does not establish they are what Apple purports them to be in this case, namely
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`documents created before the ’745 Patent, published or otherwise available, and
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`disclosing systems or solutions for determining oxygen saturation at the wrist.
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`Accordingly, the Board should exclude or otherwise disregard EX1039 and EX1041
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`for lack of authenticity under FRE 901.
`
`C.
`Paragraph 31 of Anthony’s Declaration (EX1042) and EX1056
`Should Be Excluded
`1.
`Paragraph 31 Lacks Foundation and/or Is Improper Expert
`Testimony
`Patent Owner objects to the following statement in EX1042, ¶31 for lack of
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`
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`foundation and/or as improper expert testimony (FRE 602/702): “In April 2013, the
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`Worcester Polytechnic Institute published an undergraduate project report titled
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`‘Reflectance-based Pulse Oximeter for the Chest and Wrist’ by Fontaine et al.
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`APPLE-1056 (‘Fontaine’).” Patent Owner timely objected to this paragraph for lack
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`of foundation and/or as improper expert testimony in its August 28, 2023 Objections
`
`to Evidence. Paper 42, 3. Petitioner cited this paragraph in its Reply. 1465 Reply,
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`14 (citing EX1042, ¶¶27-34).
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`
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`As stated in Patent Owner’s Sur-Reply, Apple failed to establish that EX1056
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`was prior art available to a POSITA. 1465 Sur-Reply, 26. EX1056 is an undated
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`document. See EX1056. Apple introduced no evidence that it was published or
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`otherwise available before the ’745 Patent. The only statement in the record
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`-4-
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`purporting to establish Fontaine’s prior art status is the objected-to statement in
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`Anthony’s declaration. But Anthony provided no foundation or factual basis for that
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`statement.
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`Because EX1042 ¶31 provides factual, not expert, testimony, it is therefore
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`subject to FRE 602’s requirement that “[a] witness may testify to a matter only if
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`evidence is introduced sufficient to support a finding that the witness has personal
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`knowledge of the matter.” Anthony, however, provides no evidence that he had any
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`relevant personal knowledge related to EX1056. Indeed, Anthony admitted he did
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`not know whether he independently identified EX1056 or if counsel provided it to
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`him. EX2101, 77:15-22. Without any relevant personal knowledge of EX1056’s
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`creation, publication, or even its identification, Anthony’s testimony that EX1056
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`was published in April 2013 lacks foundation. Accordingly, EX1042 ¶31 should be
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`excluded pursuant to FRE 602.
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`To the extent EX1042 ¶31 purports to provide an expert opinion, it should
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`likewise be excluded under FRE 702. Anthony was not offered as an expert in
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`determining whether a document is prior art. Nor was his testimony “based on
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`sufficient facts or data” or the “product of reliable principles and methods” as
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`required under FRE 702. EX1056 is an undated document and Anthony provided
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`no factual basis, regardless of admissibility, for his assertion that EX1056 was
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`published in April 2013.
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`Apple served no supplemental evidence that could provide the foundation or
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`factual basis for Anthony’s statement. The Baland Declaration, discussed above,
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`only stated that counsel’s librarian “searched for and located the referenced
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`publication on or around September 8, 2023.” That the document can be
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`downloaded now says nothing of when it was actually published. Nor did Anthony
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`testify that he relied on that librarian’s declaration in forming his opinions. Apple
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`also served (not filed) a Second Supplemental Declaration of Brian W. Anthony in
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`response to Patent Owner’s objections, but that declaration did not address
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`Anthony’s statement that EX1056 was allegedly published in April 2013.
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`Accordingly, the Board should exclude or otherwise disregard the objected-to
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`statement in EX1042, ¶31.
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`2.
`EX1056 Should Be Excluded as Not Authenticated and/or
`Irrelevant
`As discussed above, Apple and Anthony contend that EX1056 is a prior art
`
`reference allegedly published in April 2013. See 1465 Reply, 13-14 (arguing
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`EX1056 is a “reference[] from before the ’745 Patent” that a “POSITA would have
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`known of”); EX1042, ¶31. However, EX1056 should be excluded because (1) Apple
`
`has not authenticated it as a reference published in April 2013 (FRE 901), and/or (2)
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`it is irrelevant because Apple has not established that it is prior art (FRE 402).
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`Masimo timely objected to EX1056 as not authenticated and irrelevant in its August
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`28, 2023 Objections to Evidence. Paper 42, 4-5.
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`Anthony claimed, without evidence, that EX1056 is an undergraduate project
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`report published by the Worcester Polytechnic Institute in April 2013. EX1042, ¶31.
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`But EX1056 is undated and has blank signature lines for the authors and the advising
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`professor. See EX1056, Cover; FRE 901(a) (proponent of exhibit must “produce
`
`evidence sufficient to support a finding that the item is what the proponent claims it
`
`is.”). As Dr. Duckworth, a former professor at WPI, explains, EX1056 is unreliable
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`because it is undated, unsigned, and not a peer-reviewed publication or presentation
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`from a scientific conference. EX2100, ¶69.
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`The Baland Declaration does not authenticate EX1056. Baland merely
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`testified that she retrieved a copy of “Reflectance-Based Pulse Oximeter for the
`
`Chest and Wrist” by Fontaine et al. from WPI’s website “on or around September 8,
`
`2023” and compared it with EX1056. But that testimony only demonstrates that
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`EX1056—an exhibit filed in August 2023—is the same document as what Baland
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`retrieved in September 2023. It is irrelevant to whether EX1056 is what Apple and
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`Anthony claim it to be: a report published by WPI in April 2013.
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`The Second Supplemental Anthony Declaration also does not authenticate
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`EX1056. There, Anthony merely listed numerous exhibits and stated, “I understand
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`the foregoing exhibits to be true and correct copies of their respective publications,
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`or excerpts of the respective publications.” But Anthony did not purport to
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`authenticate the documents himself. Anthony also stated that “a number of the
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`exhibits among APPLE-1043-1078 include indicia of authenticity, including
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`copyright symbols, publisher details, publication dates, etc. that imply these exhibits
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`are true and correct.” That type of vague and non-specific testimony does not
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`support a finding of authenticity for any individual reference. Moreover, that
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`testimony is completely irrelevant to EX1056, which does not include a copyright
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`symbol, was not published and therefore has no publisher details, and does not
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`include a publication date. EX1056 therefore contains none of those “indicia of
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`authenticity.” Thus, EX1056 should be excluded as lacking authenticity pursuant to
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`FRE 901.
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`Similarly, EX1056 should also be excluded as irrelevant. Aside from
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`reasonable expectation of success, Apple also relies on the disclosure of EX1056 as
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`prior art. See 1465 Reply, 13 (relying on EX1056 to argue 940 nm light was used
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`for pulse oximetry), 25 (arguing EX1056 shows an “annular configuration of
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`detectors”). However, for the same reasons discussed above, Apple did not establish
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`that EX1056 is prior art to the ’745 Patent. It is therefore irrelevant and inadmissible
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`as irrelevant and without probative value. FRE 401, 402.
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`-8-
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`D.
`Paragraphs 27, 31, and 33-34 of EX1042 and EX1054, EX1058,
`EX1063-1066 Should Be Excluded
`1.
`Paragraphs 27, 31, and 33-34 Are Arguments Improperly
`Incorporated by Reference into the Reply
`Patent Owner objects to paragraphs 27, 31, and 33-34 of EX1042 because they
`
`are arguments from Anthony’s supplemental declaration that are improperly
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`incorporated by reference into the Reply to circumvent the word limit. 37 C.F.R.
`
`§42.6(a)(3); see also 1465 Reply, 14 (citing EX1042, ¶¶27-34). Patent Owner timely
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`objected to these paragraphs as being improperly used to circumvent the word limit
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`in its August 28, 2023 Objections to Evidence. Paper 42, 2-3; 1465 Sur-Reply, 21.
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`
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`“Arguments must not be incorporated by reference from one document into
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`another document.” 37 C.F.R. §42.6(a)(3). This rule “serves various policy goals
`
`including to ‘minimize the chance that an argument may be overlooked’ and to
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`‘eliminate[] abuses that arise from incorporation and combination.’” Parus
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`Holdings Inc. v. Google LLC, 70 F.4th 1365, 1372 (Fed. Cir. 2023). Arguments that
`
`are improperly incorporated by reference may be excluded or given no consideration
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`via motion to exclude. See Boston Sci. Neuromodulation Corp. v. Nevro Corp., 813
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`F. App’x 572, 582-83 (Fed. Cir. 2020) (affirming exclusion of part of expert
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`declaration as improper incorporation by reference); Surgalign Spine Techs., Inc. v.
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`Lifenet Health, IPR2019-00570, Paper 71 (excluding claim charts as improperly
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`incorporated by reference).
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
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`Apple filed over a dozen new exhibits with its Reply purporting to support a
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`reasonable expectation of success (EX1050-EX1056, EX1058, EX1061-EX1066).
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`Yet, Apple’s Reply only discussed four of them. 1465 Reply, 14 (citing EX1050,
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`EX1051, EX1053, EX1055). Only paragraphs 28-30 and 32 of Anthony’s
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`declaration (EX1042) discussed those four exhibits. Instead of explaining or
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`addressing EX1052, EX1054, EX1056, EX1058, EX1061-EX1066, the Reply
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`states: “Anthony reviewed these references … and explained how they further
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`demonstrate that a POSITA would have reasonably expected success implementing
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`the combinations to determine oxygen saturation at the wrist.” 1465 Reply, 14
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`(citing EX1042, ¶¶27-34) (emphasis added). The direction to read Anthony’s
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`declaration for that explanation—which is absent from the Reply—amounts to
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`impermissible incorporation by reference. Cisco Sys., Inc. v. C-Cation Techs., LLC,
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`IPR2014-00454, Paper 12 at 8 (Aug. 29, 2014) (informative) (“The practice … of
`
`using footnotes to cite large portions of another document, without sufficient
`
`explanation of those portions, amounts to incorporation by reference.”).
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`The incorporation is particularly egregious here because the cited declaration
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`paragraphs (27, 31, and 33-34) comprise approximately six pages of argument not
`
`included in the Reply. Paragraph 27, for example, includes a page-long footnote
`
`advancing an argument about wrist-positioning never mentioned in the Reply.
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`EX1042, ¶27 n.4. Apple resorted to this impermissible incorporation because the
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`-10-
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`Reply was certified at just 19 words shy of the 5,600-word limit. 1465 Reply, 31.
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`The Reply’s incorporation of arguments and evidence from Anthony’s declaration
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`is an improper end-run around the word limit and is exactly the type of abuse that
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`the Board’s rules were designed to prevent. Parus Holdings, 70 F.4th at 1372
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`(“Incorporation by reference amounts to a self-help increase in the length of the brief
`
`and is a pointless imposition on the court’s time.”) (cleaned up, citation omitted).
`
`The improper incorporation is particularly prejudicial because Apple already
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`knew of Masimo’s reasonable expectation of success arguments because they were
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`fully briefed in the ITC investigation. Apple made the deliberate decision not to
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`address those reasonable expectation of success arguments in its Petition. Instead,
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`Apple made the tactical decision to ignore that evidence and arguments and to
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`oppose Masimo’s efforts to obtain the same evidence and make the same arguments
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`in this IPR. See Paper 21. After that strategy failed, and after reading the Patent
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`Owner Response and accompanying declaration, Apple cited over a dozen new
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`references in its Reply, but provided no substantive analysis or discussion of those
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`references. Apple’s inability to meaningfully discuss those exhibits in Reply due to
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`word count issues is a problem solely of its own making. And instead of seeking
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`leave to expand its Reply brief, Apple improperly incorporated arguments and
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`evidence from its expert’s declaration, prejudicially confusing exactly what
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`arguments were raised in the briefing. See DeSilva v. DiLeonardi, 181 F.3d 865,
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`-11-
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`866-67 (7th Cir. 1999) (disregarding arguments incorporated by reference because
`
`“[a] brief must make all arguments accessible to the judges, rather than ask them to
`
`play archaeologist with the record.”). Accordingly, the Board should exclude or
`
`otherwise disregard paragraphs 27, 31, and 33-34 of EX1042 because they were
`
`improperly incorporated by reference to circumvent the Reply word limit.
`
`2.
`EX1054, EX1058, EX1063-1066 Should Be Excluded If
`Paragraphs 27, 31, and 33-34 of EX1042 Are Excluded
`To the extent the Board excludes paragraphs 27, 31, and 33-34 of EX1042,
`
`the Board should also exclude EX1054, EX1058, and EX1063-EX1066 as irrelevant
`
`(FRE 401/402). Masimo timely objected to these exhibits in its August 28, 2023
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`Objections to Evidence. Paper 42, 4-6. These objected-to exhibits are cited only in
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`the objected-to paragraphs in Anthony’s declaration. Thus, to the extent those
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`paragraphs are excluded, then EX1054, EX1058, and EX1063-EX1066 are
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`irrelevant to any issue in this proceeding and are therefore inadmissible.
`
`E.
`Paragraphs 40-50 of EX1042 Are Improperly Incorporated
`Arguments
`Paragraphs 40-50 of EX1042 should also be excluded as improperly
`
`incorporated arguments that serve to circumvent the word limit. Patent Owner
`
`timely objected to these paragraphs in its August 28, 2023 Objections to Evidence.
`
`Paper 42, 2-3. Patent Owner also explained in its Sur-Reply that these paragraphs
`
`were improperly incorporated by reference. 1465 Sur-Reply, 31.
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`Apple’s Reply argues that Apple’s engineers’ testimony and documents were
`
`related to other challenges unrelated to determining oxygen saturation at the wrist.
`
`See 1465 Reply, 20-23. However, Apple does not substantively discuss or analyze
`
`any of the testimony by Apple’s engineers or its documents. Id. Instead, Apple
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`string-cites various exhibits and refers the Board to Anthony’s declaration for
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`“detail[s].” 1465 Reply, 21 (citing EX1042, ¶¶40-50) (“As Anthony describes in
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`detail…”). “The burden of production cannot be met without some combination of
`
`citing the relevant record evidence with specificity and explaining the significance
`
`of the produced material in briefs.” Parus Holdings, 70 F.4th at 1372; see also
`
`Cisco, IPR2014-00454, Paper 12 at 9 (“citing the Declaration to support conclusory
`
`statements that are not otherwise supported in the Petition also amounts to
`
`incorporation by reference.”). Again, Apple could have addressed those arguments
`
`in the Petition instead of the Reply. Instead, Apple made the strategic choice to (1)
`
`attempt to prevent its own evidence from becoming part of the record and (2) wait
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`until the Reply to substantively address the issue of a reasonable expectation of
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`success.
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`Apple could have, but did not, seek an expansion of the word limit for its
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`Reply. 37 C.F.R. §42.24(a)(2). Instead, Apple incorporated eighteen pages of
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`evidence and arguments from an expert declaration. 1465 Reply, 21 (citing EX1042,
`
`¶¶40-50). Such incorporation is not a substitute for analyzing the evidence in the
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`Reply because it (1) evades the briefing limits and (2) prejudicially creates
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`uncertainty about what arguments and evidence Apple relies upon since there is no
`
`corresponding explanation in the Reply. Parus Holdings, 70 F.4th at 1372. In
`
`similar situations, arguments that are incorporated by reference are waived. See
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`DeSilva, 181 F.3d at 866-67.
`
`F.
`Paragraphs 61-64 of EX1042 Are Improperly Incorporated
`Arguments
`Paragraphs 61-64 of EX1042 should similarly be excluded as arguments that
`
`were improperly incorporated to circumvent the word limit. Patent Owner timely
`
`objected to these paragraphs in its August 28, 2023 Objections to Evidence. Paper
`
`42, 2-3. Patent Owner also explained in its Sur-Reply that these paragraphs were
`
`improperly incorporated by reference. 1465 Sur-Reply, 15.
`
`Patent Owner’s Response and Duckworth’s declaration (EX2070) criticized
`
`Petitioner’s three alleged motivations to combine Sarantos and Shie for numerous
`
`reasons. See 1465 POR, 45-54; EX2070, ¶¶78-87. Apple’s Reply did not respond
`
`to Masimo’s arguments, and instead directed the reader to Anthony’s declaration.
`
`1465 Reply, 24 (citing EX1042, ¶¶60-64). Apple’s Reply merely stated, “Masimo’s
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`attempts to refute these straightforward motivations are based on Masimo’s
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`incomplete understanding of the prior art, as Anthony explains.” Id. (emphasis
`
`added). The Reply contained no argument whatsoever regarding Masimo’s
`
`criticisms and instead referred the reader solely to paragraphs 60-64 of EX1042 to
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`-14-
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`find those arguments (Note: Paragraph 60 addresses a different argument).
`
`Paragraphs 61-64 span five pages and includes arguments not included in the Reply,
`
`and discuss positions and evidence (EX1004, EX1006, EX1013, EX1047-EX1049,
`
`and EX1074) not mentioned or even cited in the corresponding section of the Reply.
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`Such improper incorporation violates the rules and prejudices Masimo by confusing
`
`the scope of the arguments and evidence raised by the Reply. 37 C.F.R. §42.6(a)(3);
`
`Parus Holdings, 70 F.4th at 1372. Accordingly, the Board should exclude or
`
`otherwise disregard paragraphs 61-64 of EX1042.
`
`III. CONCLUSION
`For the foregoing reasons, Patent Owner respectfully requests that the Board
`
`exclude or otherwise disregard the testimony and exhibits objected to above.
`
`
`
`Dated: October 30, 2023
`
`
`
`
`
`Respectfully submitted,
`
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`
`
`
`/Daniel C. Kiang/
`Daniel C. Kiang (Reg. No. 79,631)
`Customer No. 64,735
`
`Attorney for Patent Owner
`Masimo Corporation
`
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`-15-
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`IPR2022-01465
`Apple Inc. v. Masimo Corporation
`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that, pursuant to 37 C.F.R. § 42.6(e) and with the agreement
`
`of counsel for Petitioner, a true and correct copy of PATENT OWNER’S
`
`MOTION TO EXCLUDE is being served electronically on October 30, 2023, to
`
`the e-mail addresses shown below:
`
`W. Karl Renner
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Tel: 612-335-5070
`Fax: 612-288-9696
`Email: IPR50095-0045IP3@fr.com
`
`Dated: October 30, 2023
`
`Nicholas Stephens
`Andrew B. Patrick
`Kim Leung
`Patrick J. Bisenius
`Patrick J. King
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Tel: 202-783-5070
`Fax: 877-769-7945
`Email: IPR50095-0045IP3@fr.com
`
`
`
`/Daniel C. Kiang/
`Daniel C. Kiang (Reg. No. 79,631)
`
`Attorney for Patent Owner
`Masimo Corporation
`
`
`
`-16-
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