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

`

`19 C.F.R. § 210.34(a)(7). The parties submit that there is a need for enhanced confidentiality
`
`protections for source code in this investigation, and the parties also seek to adopt a prosecution
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`and development bar to address certain objections regarding expert witnesses. Motion at 2; see
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`Complainants’ Contingent Notice of Withdrawal of Motions for Protective Orders, EDIS Doc.
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`ID 760064 (Jan. 7, 2022).1 Based on the parties’ representations, the undersigned finds that
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`there is good cause to amend the protective order. See, e.g., Certain Power Inverters and
`
`Converters, Vehicles Containing the Same, and Components Thereof, Inv. No. 337-TA-1267,
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`Order No. 18, EDIS Doc. ID 757403 (Nov. 29, 2021) (amending protective order for source
`
`code); Certain Non-Invasive Aesthetic Body Contouring Devices, Components Thereof, and
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`Methods of Using the Same, Inv. No. 337-TA-1219, Order No. 7, EDIS Doc. ID 728703 (Dec.
`
`22, 2020) (amending protective order for prosecution bar); Certain Wearable Electronic Devices
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`With ECG Functionality and Components Thereof, Inv. No. 337-TA-1266, Order No. 7, EDIS
`
`Doc. ID 749871 (Aug. 18, 2021) (amending protective order to include provisions regarding
`
`source code and a prosecution and development bar).
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`Accordingly, the motion (1276-014) is hereby GRANTED, and the Protective Order
`
`(Order No. 1) shall be supplemented with the addendum set forth in paragraphs 18 and 19
`
`below:2
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`18.
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`Source Code. A supplier may designate non-public Source Code as “HIGHLY
`
`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY.”
`
`A.
`
`“Source Code” shall mean source code, source code listings (e.g., file names and
`
`path structures), object code (e.g., computer instructions and data definitions
`
`1 The Notice indicates that Complainants’ previously filed objections to Apple’s experts (Motion Docket
`Nos. 1276-004, 1276-005, 1276-006) will be mooted by the adoption of the proposed prosecution and
`development bar and that these objections will be withdrawn.
`
`2 An updated certification for expert witnesses and consultants is attached hereto as Exhibit A.
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`expressed in a form suitable for input to an assembler, compiler, or other
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`translator), object code listings and descriptions of object code, scripts,
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`assemblies, binaries, descriptions of source code (e.g., descriptions of
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`declarations, functions, and parameters), microcode, register transfer level
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`(“RTL”) files that describe the hardware design of any ASIC or other chip, and
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`hardware description language (“HDL”), as well as any and all programmer notes,
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`annotations, and other comments of any type related thereto and contained within
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`a file also containing the code. For avoidance of doubt, Source Code includes
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`source files, make files, intermediate output files, executable files, header files,
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`resource files, library files, module definition files, map files, object files, linker
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`files, browse info files, and debug files. Computer aided design (CAD) files may
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`be designated pursuant to this Paragraph, provided that any printouts of CAD files
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`shall be designated “CONFIDENTIAL BUSINESS INFORMATION, SUBJECT
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`TO PROTECTIVE ORDER.”
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`B.
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`“Party” shall mean (i) Complainants Masimo Corporation and Cercacor
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`Laboratories, Inc. collectively on the one hand, and (ii) Respondent Apple Inc. on
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`the other hand.
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`C.
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`“Supplying Party” with respect to particular Source Code or other discovery shall
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`mean the Party that supplies that Source Code or other discovery.
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`D.
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`“Receiving Party” with respect to particular Source Code or other discovery shall
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`mean the Party that received (e.g., through production or inspection) that Source
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`Code or other discovery from the Supplying Party.
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`E.
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`Materials designated as “HIGHLY CONFIDENTIAL SOURCE CODE –
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`ATTORNEYS’ EYES ONLY,” shall only be reviewable by SOURCE CODE-
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`QUALIFIED PERSONS. SOURCE CODE QUALIFIED PERSONS include the
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`following:
`
`(i)
`
`outside litigation counsel for Complainants and Respondent in this
`
`Investigation who have subscribed to the Administrative Protective Order
`
`in this Investigation, and necessary secretarial and support personnel
`
`assisting such counsel;
`
`(ii)
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`the Commission, the Administrative Law Judge (“ALJ”), Commission
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`personnel and contract personnel who are acting in the capacity of
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`Commission employees as indicated in paragraph 3 of this Protective
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`Order;
`
`(iii)
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`court reporters, stenographers and videographers transcribing or recording
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`testimony at depositions, hearings or trial in this Investigation; and
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`(iv) Qualified Consultants and/or Qualified Experts in this Investigation (under
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`Paragraph 11 of the Protective Order in this Investigation) to whom
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`disclosure is reasonably necessary for this Investigation, provided that
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`each Qualified Consultant and/or Qualified Expert complies with the
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`requirements of Paragraph 11 of the Protective Order and completes the
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`“CERTIFICATION OF EXPERT/CONSULTANT REGARDING
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`PROTECTIVE ORDER” (Exhibit A) which shall be served upon the
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`supplier.
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`F.
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`Source Code shall be provided with the following additional protections:
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`(i)
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`Nothing in this Protective Order shall obligate the parties to produce any
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`Source Code, nor act as an admission that any particular Source Code is
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`discoverable.
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`(ii)
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`Access to Source Code will be given only to SOURCE CODE
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`QUALIFIED PERSONS.
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`(iii) Access to Source Code shall be made available for inspection, in a format
`
`allowing it to be reasonably reviewed and searched, during normal
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`business hours or at other mutually agreeable times, at an office of the
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`Producing Party’s outside litigation counsel WilmerHale (Los Angeles
`
`office) or Knobbe Martens (New York office) or another mutually agreed
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`upon location on a “stand-alone secure computer” (i.e., the computer(s)
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`may not be linked to any network, including a local area network
`
`(“LAN”), an intranet, or the Internet, and may not be connected to any
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`printer or storage device other than the internal hard disk drive of the
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`computer). The stand-alone secure computer(s) may be provided in a
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`secured room without Internet access or network access to other
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`computers (“Source Code Review Room”) at the offices of the supplier’s
`
`outside litigation counsel, or at such other location as the Supplying Party
`
`and Receiving Party mutually agree. No recordable media or recordable
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`devices, including without limitation sound recorders, computers, cellular
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`telephones, peripheral equipment, cameras, CDs, DVDs, or drives of any
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`kind, shall be permitted into the Source Code Review Room.
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`(iv)
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`The supplier shall install tools that are sufficient for viewing and searching
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`the code produced, on the platform produced, if such tools exist and are
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`presently used in the ordinary course of the supplier’s business. The
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`Receiving Party’s outside counsel and/or experts may request that
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`commercially available software tools for viewing and searching Source
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`Code be installed on the secured computer, provided, however, that (a) the
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`Receiving Party possesses an appropriate license to such software tools;
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`(b) the supplier approves such software tools; and (c) such other software
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`tools are reasonably necessary for the Receiving Party to perform its
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`review of the Source Code consistent with all of the protections herein.
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`The Receiving Party must provide the supplier with access to the
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`installation copy of such licensed software tool(s) (e.g., through the
`
`installer package or a URL to download it from, or its CD or DVD) at
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`least ten (10) days in advance of the date upon which the Receiving Party
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`wishes to have the additional software tools available for use on the stand-
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`alone secure computer(s). The Parties agree to cooperate in good faith if
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`additional software becomes necessary.
`
`(v)
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`The Receiving Party shall provide at least two (2) business days’ notice to
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`access the source code and make reasonable efforts to restrict its requests
`
`for access to the stand-alone secure computer to normal business hours,
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`which for purposes of this paragraph shall be 9:00 a.m. through 6:00 p.m.
`
`local time at the reviewing location. Upon reasonable notice from the
`
`Receiving Party, which shall not be less than five (5) business days in
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`advance, the supplier shall make reasonable efforts to accommodate the
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`Receiving Party’s request for access to the computer outside of normal
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`business hours. Such an expanded review period shall not begin earlier
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`than 8:00 a.m. and shall not end later than 8:00 p.m. local time at the
`
`reviewing location. The parties are to cooperate in good faith such that
`
`maintaining the Source Code at the offices of the supplier’s outside
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`litigation counsel shall not unreasonably hinder the Receiving Party’s
`
`ability to efficiently conduct the prosecution or defense in this
`
`investigation. It is expected that access to the Source Code shall be
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`provided at the site of any hearing. Proper identification of all SOURCE
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`CODE QUALIFIED PERSONS shall be provided prior to any access to
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`the stand-alone secure computer(s). Proper identification requires
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`showing, at a minimum, a photo identification card sanctioned by the
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`government of any State of the United States, by the government of the
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`United States, or by the nation state of the authorized person’s current
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`citizenship. Access to the Source Code Review Room or the stand-alone
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`secure computer(s) may be denied, at the discretion of the supplier, to any
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`individual who fails to provide proper identification.
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`(vi) All SOURCE CODE QUALIFIED PERSONS who will review Source
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`Code on behalf of a Receiving Party shall be identified in writing to the
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`supplier at least two (2) business days in advance of the first time that such
`
`person reviews such Source Code. Such identification shall be in addition
`
`to any disclosure required under paragraph 18(B) of this Protective Order.
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`The supplier shall provide these individuals with information explaining
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`how to start, log on to, and operate the stand-alone secure computer in
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`order to access the produced Source Code on the stand-alone secure
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`computer. For subsequent reviews by SOURCE CODE QUALIFIED
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`PERSONS, the Receiving Party shall give at least 24 hours’ notice to the
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`supplier of such review. All persons viewing Source Code on the source
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`code computer in an office of outside litigation counsel shall sign on each
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`day they view Source Code a log that will include the names of persons
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`who enter the Source Code Review Room to view the Source Code and
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`when they enter and depart. The log shall be kept by the supplier.
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`(vii) No person other than the supplier may alter, dismantle, disassemble, or
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`modify the stand-alone secure computer in any way, or attempt to
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`circumvent any security feature of the computer.
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`(viii) No copies shall be made of Source Code, whether physical, electronic, or
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`otherwise, other than volatile copies necessarily made in the normal
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`course of accessing the Source Code on the stand-alone secure computer,
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`except for: (1) print outs of portions of the Source Code that are
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`reasonably necessary for the preparation of filings, pleadings, expert
`
`reports, or other papers, or for deposition or hearing; and (2) such other
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`uses to which the parties may agree or that the ALJ or the Commission
`
`may order. The Receiving Party shall not request paper copies for the
`
`purposes of reviewing the source code in the first instance and shall not
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`use any outside electronic device to copy, record, photograph, or
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`otherwise reproduce Source Code. Any printed portion of Source Code
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`that consists of more than fifteen (15) pages of a continuous block of
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`Source Code or more than two hundred (200) pages total shall be
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`presumed to be excessive, and the burden shall be on the Receiving Party
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`to demonstrate the need for such a printed copy. Further, more than two
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`hundred (200) pages of CAD printouts shall be presumed to be excessive,
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`and the burden shall be on the Receiving Party to demonstrate the need for
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`such a printed copy. The supplier shall not unreasonably withhold
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`approval and the parties shall meet and confer in good faith to resolve any
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`disputes.
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`(ix)
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`The Receiving Party may take notes, but may not copy the Source Code
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`into the notes and may not take notes on a laptop or other personal
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`electronic device. For clarity, the Receiving Party may include the names
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`of source code files, variables, and functions within their notes, as
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`reasonably necessary for notetaking purposes. Any such notes must be
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`treated as HIGHLY CONFIDENTIAL SOURCE CODE – ATTORNEYS’
`
`EYES ONLY under the Protective Order. Unless otherwise agreed in
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`advance by the Parties in writing, following each day on which inspection
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`is done under this Order, the Receiving Party’s outside counsel and/or
`
`experts shall remove all notes, documents, and all other materials from the
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`Source Code Review Room. The supplier is not responsible for any items
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`left in the room following each inspection session. But all counsel remain
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`bound by their ethical duties regarding the handling and possible return of
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`work product inadvertently left behind by a representative of an opposing
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`Party.
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`(x)
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`The supplier may exercise personal supervision from outside the review
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`room over the Receiving Party when the Receiving Party is in the Source
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`Code Review Room. Such supervision, however, shall not entail review
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`of any work product generated by the Receiving Party, e.g., monitoring
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`the screen of the stand-alone secure computer, monitoring any surface
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`reflecting any notes or work product of the Receiving Party, or monitoring
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`the key strokes of the Receiving Party. There will be no video supervision
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`by any supplier when the review occurs in the office of outside litigation
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`counsel.
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`(xi) Nothing may be removed from the stand-alone secure computer(s), either
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`by the Receiving Party or at the request of the Receiving Party, except for
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`(1) print outs of reasonable portions of the Source Code in accordance
`
`with the provisions of paragraphs 18(C)(ix)-(x) of this Protective Order;
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`and (2) such other uses to which the parties may agree or that the ALJ or
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`the Commission may order.
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`(xii) At the request of the Receiving Party, the supplier shall within three (3)
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`business days provide two (2) hard copy print outs of the specific lines,
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`pages, or files of the Source Code that the Receiving Party believes in
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`good faith are necessary to understand a relevant feature of an accused
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`product. The Receiving Party may identify those lines, pages, or files by
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`printing them to a temporary file on the computer, such as in PDF format.
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`If the supplier objects in any manner to the production of the requested
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`source code (e.g., the request is too voluminous), it shall state its objection
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`within the allotted two (2) business days pursuant to this paragraph. In the
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`event of a dispute, the parties will meet and confer within five (5) business
`
`days of the objection being raised and if they cannot resolve the objection,
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`the parties will raise it with the ALJ. The burden shall be on the
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`Receiving Party to demonstrate that any such printed portions of Source
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`Code are no more than is reasonably necessary for a permitted purpose
`
`and not merely printed for the purposes of review and analysis elsewhere.
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`(xiii) Hard copy print outs of Source Code shall be provided on Bates numbered
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`and watermarked or colored paper clearly labeled HIGHLY
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`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY on
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`each page and shall be maintained by the Receiving Party’s outside
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`litigation counsel or SOURCE CODE QUALIFIED PERSONS in a secure
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`locked area. For avoidance of doubt, an access-restricted location within
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`the facilities of outside litigation counsel or a qualified expert, such as a
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`conference room within an access restricted office or a locked drawer or
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`cabinet, shall constitute a secured locked area. The Receiving Party may
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`also temporarily keep the print outs at: (1) the Commission for any
`
`proceeding(s) relating to the Source Code, for the dates associated with the
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`proceeding(s); (2) the sites where any deposition(s) relating to the Source
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`Code are taken, for the dates associated with the deposition(s); and (3) any
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`intermediate location reasonably necessary to transport the print outs (e.g.,
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`a hotel prior to a Commission proceeding or deposition). The Receiving
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`Party shall exercise due care in maintaining the security of the print outs at
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`these temporary locations. No further hard copies of such Source Code
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`shall be made and the Source Code shall not be transferred into any
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`electronic format or onto any electronic media except that:
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`1.
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`The Receiving Party is permitted to request that the supplier make
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`additional hard copies of printed Source Code designated as
`
`HIGHLY CONFIDENTIAL SOURCE CODE – ATTORNEYS’
`
`EYES ONLY for use at a deposition. Copies of Source Code
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`designated as HIGHLY CONFIDENTIAL SOURCE CODE –
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`ATTORNEYS’ EYES ONLY that are marked as deposition
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`exhibits shall not be provided to the Court Reporter or attached to
`
`deposition transcripts; rather, the deposition record will identify
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`the exhibit by its production numbers. All such copies shall
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`remain with the supplier’s outside counsel for secure destruction in
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`a timely manner following the deposition.
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`2.
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`The Receiving Party is permitted to make up to five (5) additional
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`hard copies for the Commission or the ALJ in connection with a
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`filing, hearing, or trial, and of only the specific pages directly
`
`relevant to and necessary for deciding the issue for which the
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`portions of the Source Code are being filed or offered.
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`3.
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`Except as provided in this sub-paragraph, absent express written
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`permission from the supplier, the Receiving Party may not create
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`electronic images, or any other images, or make electronic copies,
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`of the Source Code from any paper copy of Source Code for use in
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`any manner (including by way of example only, the Receiving
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`Party may not scan the Source Code to a PDF or photograph the
`
`code). Images or copies of Source Code shall not be included in
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`correspondence between the Parties (references to production
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`numbers shall be used instead), and shall be omitted from
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`pleadings and other papers whenever possible. If a Party
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`reasonably believes that it needs to reference a portion of Source
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`Code as part of a filing, or as part of an expert report, contention,
`
`or discovery response, the Party shall cite the page and line
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`numbers of the relevant Source Code and such Source Code will
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`not be filed or otherwise attached absent agreement from the
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`supplier or order of the ALJ or Commission. If a supplier agrees to
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`produce an electronic copy of all or any portion of its Source Code
`
`or provides written permission to the Receiving Party that an
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`electronic or any other copy may be made for a filing, expert
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`report, contention, or discovery response, access to the Receiving
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`Party’s submission, communication, and/or disclosure of electronic
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`files or other materials containing any portion of Source Code
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`(paper or electronic) shall at all times be limited solely to
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`individuals who are expressly authorized to view Source Code
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`under the provisions of this Order. Where the supplier has
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`provided the express written permission required under this
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`provision for a Receiving Party to create electronic copies of
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`Source Code, the Receiving Party shall maintain a log of all such
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`electronic copies of any portion of Source Code in its possession or
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`in the possession of its retained consultants, including the names of
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`the reviewers and/or recipients of any such electronic copies, and
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`the locations and manner in which the electronic copies are stored.
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`Any such electronic copies must be labeled “HIGHLY
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`CONFIDENTIAL – SOURCE CODE” as provided for in this
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`Order.
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`4.
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`The supplier shall, on request, make a searchable electronic copy
`
`of the Source Code available on a stand-alone secure computer
`
`during depositions of witnesses who would otherwise be permitted
`
`access to such Source Code. The Receiving Party shall make such
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`request at the time of the notice for deposition.
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`(xiv) Nothing in this Protective Order shall be construed to limit how a supplier
`
`may maintain the supplier’s own material designated as HIGHLY
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`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY.
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`(xv) Outside litigation counsel for the Receiving Party with custody of
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`HIGHLY CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES
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`ONLY shall maintain a source code log containing the following
`
`information: (1) the identity of each person granted access to the HIGHLY
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`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY; and
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`(2) the first date on which such access was granted. Outside litigation
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`counsel for the Receiving Party will produce, upon request, each such
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`source code log to the supplier within twenty (20) days of the final
`
`determination of the investigation.
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`(xvi) A Receiving Party may not cause a supplier’s Source code to leave the
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`United States absent written agreement.
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`19.
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`Prosecution and Development Bar.
`
`A.
`
`“Relevant Technology” means technology related to wearable non-invasive
`
`monitoring of pulse oximetry, total hemoglobin, oxygen content,
`
`carboxyhemoglobin, and/or methemoglobin.
`
`B.
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`Unless otherwise permitted in writing between Supplying Party and Receiving
`
`Party, any individual who personally receives, other than on behalf of the
`
`Supplying Party, any material showing or describing the technical functionality of
`
`the Supplying Party’s products designated as CONFIDENTIAL BUSINESS
`
`INFORMATION SUBJECT TO PROTECTIVE ORDER or HIGHLY
`
`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY under this
`
`Protective Order shall not prepare, prosecute, supervise, advise, counsel, or assist
`
`in the preparation or prosecution of any patent application seeking a patent on
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`behalf of the Receiving Party or its acquirer, successor, or predecessor in the
`
`Relevant Technology during the pendency of this Investigation and for two years
`
`after final termination of this Investigation or, alternatively, for two years after
`
`the time the individual person(s) formally withdraws from the Administrative
`
`Protective Order. In addition, any such person is prohibited from having any
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`involvement in the prosecution of any patent, patent application or re-examination
`
`in the Relevant Technology that was filed, or that claims priority from any
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`application that was filed, for up to one year following the final termination of
`
`this Investigation (including any appeals). To avoid any doubt, “prosecution” as
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`used in this paragraph does not include representing or advising a Party before a
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`domestic or foreign agency in connection with a reissue, ex parte reexamination,
`
`inter partes review, opposition, cancelation, or similar proceeding; though in
`
`connection with any such agency proceeding involving the patents-in-suit,
`
`Outside Counsel of Record for a Receiving Party shall not: (i) participate in the
`
`preparation, prosecution, supervision, advice, counsel, or assistance of any
`
`amended claims; (ii) reveal a supplier’s CONFIDENTIAL BUSINESS
`
`INFORMATION SUBJECT TO PROTECTIVE ORDER or HIGHLY
`
`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY material to
`
`any prosecuting reexamination counsel or agent; or (iii) use a supplier’s
`
`CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE
`
`ORDER or HIGHLY CONFIDENTIAL SOURCE CODE – ATTORNEYS’
`
`EYES ONLY for any purpose prohibited by this Protective Order Addendum.
`
`The applicability of this provision is to be determined on an individual-by-
`
`individual basis such that an individual attorney who has not received
`
`CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE
`
`ORDER or HIGHLY CONFIDENTIAL SOURCE CODE – ATTORNEYS’
`
`EYES ONLY is not restricted from undertaking any activities by virtue of this
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`provision even if said individual attorney is employed by or works for the same
`
`firm or organization as an individual who has received such material.
`
`C.
`
`Unless otherwise permitted in writing between Supplying Party and Receiving
`
`Party, any Qualified Consultant or Qualified Expert or other SOURCE CODE
`
`QUALIFIED PERSON retained on behalf of Receiving Party who is to be given
`
`access to any material showing or describing the technical functionality of the
`
`Supplying Party’s products designated as CONFIDENTIAL BUSINESS
`
`INFORMATION SUBJECT TO PROTECTIVE ORDER or HIGHLY
`
`CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY produced by
`
`another Party must agree in writing not to be involved in creating, developing, or
`
`modifying, for commercial use (which, for the avoidance of doubt, does not
`
`include academic research which is not for industry), any Relevant Technology
`
`from the time of first receipt of such material designated as CONFIDENTIAL
`
`BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER or
`
`HIGHLY CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY
`
`through one year after the date the Qualified Expert or other SOURCE CODE
`
`QUALIFIED PERSON formally withdraws from the Protective Order. For
`
`avoidance of doubt, during periods in which the individual person(s) has ceased to
`
`have possession of such material or any documents or notes reflecting such
`
`material, this section shall not apply.
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`D.
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`Documents produced by a Supplying Party depicting tear downs of the Receiving
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`Party’s publicly-available products and not containing other material that qualifies
`
`as the Supplying Party’s Confidential Business Information shall not be
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`- 17 -
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`
`

`

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

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