UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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`In the Matter of
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`CERTAIN LIGHT-BASED
`PHYSIOLOGICAL MEASUREMENT
`DEVICES AND COMPONENTS
`THEREOF
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` Inv. No. 337-TA-1276
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`ORDER NO. 48: ADDRESSING RESPONDENTS’ HIGH PRIORITY OBJECTIONS
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`(June 3, 2022)
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`On May 17, 2022, Respondent Apple Inc. (“Apple”) filed high priority objections (the
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`“HPOs,” EDIS Doc. ID 771492). On May 24, 2022, Complainants Masimo Corporation and
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`Cercacor Laboratories, Inc. (collectively, “Masimo”) filed a response to the HPOs (“Resp.,”
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`EDIS Doc. ID 771872). Certain of these objections were discussed at the pre-hearing conference
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`on June 3, 2022.
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`1. Samples of “Masimo W1”
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`Apple’s HPO No. 1 seeks to preclude the admission of multiple physical samples of the
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`“Masimo W1” product. HPOs at 1-5. Apple identifies eight different “Masimo Watch” exhibits
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`representing three separate “Masimo W1” products: CPX-0146C that was provided to Apple’s
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`counsel; CPX-0155aC that was provided to the Administrative Law Judge, and CPX-0157C that
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`was provided to Masimo’s expert, Dr. Madisetti. Id. at 1-2. Apple argues that each of these
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`physical exhibits is different and that admitting multiple “Masimo W1” physical exhibits would
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`create confusion. Id. at 2-3. Masimo argues in opposition that there are no material differences
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`between the “Masimo W1” physical exhibits. Resp. at 2-4. Masimo submits it cannot solely
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`PUBLIC VERSION
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`Washington, D.C.
`
`In the Matter of
`
`CERTAIN LIGHT-BASED
`PHYSIOLOGICAL MEASUREMENT
`DEVICES AND COMPONENTS
`THEREOF
`
` Inv. No. 337-TA-1276
`
`ORDER NO. 48: ADDRESSING RESPONDENTS’ HIGH PRIORITY OBJECTIONS
`
`(June 3, 2022)
`
`On May 17, 2022, Respondent Apple Inc. (“Apple”) filed high priority objections (the
`
`“HPOs,” EDIS Doc. ID 771492). On May 24, 2022, Complainants Masimo Corporation and
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`Cercacor Laboratories, Inc. (collectively, “Masimo”) filed a response to the HPOs (“Resp.,”
`
`EDIS Doc. ID 771872). Certain of these objections were discussed at the pre-hearing conference
`
`on June 3, 2022.
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`1. Samples of “Masimo W1”
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`Apple’s HPO No. 1 seeks to preclude the admission of multiple physical samples of the
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`“Masimo W1” product. HPOs at 1-5. Apple identifies eight different “Masimo Watch” exhibits
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`representing three separate “Masimo W1” products: CPX-0146C that was provided to Apple’s
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`counsel; CPX-0155aC that was provided to the Administrative Law Judge, and CPX-0157C that
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`was provided to Masimo’s expert, Dr. Madisetti. Id. at 1-2. Apple argues that each of these
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`physical exhibits is different and that admitting multiple “Masimo W1” physical exhibits would
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`create confusion. Id. at 2-3. Masimo argues in opposition that there are no material differences
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`between the “Masimo W1” physical exhibits. Resp. at 2-4. Masimo submits it cannot solely
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`PUBLIC VERSION
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`rely on CPX-0146C because that exhibit has been in Apple’s possession and Masimo will not
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`have access to it during the hearing. Id. at 4.
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`At the pre-hearing conference, Apple further argued that CPX-0157C was identified late
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`in discovery and should be excluded for that reason. Masimo represented that CPX-0146C and
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`CPX-0156aC have
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` but CPX-0157C has
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`The undersigned finds that Apple’s arguments go to the merits of Masimo’s domestic
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`industry, not to the admissibility of these exhibits. If there are substantive differences between
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`the physical exhibits, then the parties will be able to raise these issues at the hearing and in post-
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`hearing briefs. Accordingly, Apple’s HPO No. 1 is OVERRULED.
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`2. Exhibits Regarding Apple’s Corporate Conduct
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`Apple’s HPO No. 2 seeks to exclude certain articles and other materials related to
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`Apple’s corporate conduct. HPOs at 3-6. Apple argues that these exhibits are irrelevant hearsay
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`that should be excluded from evidence. Id. Apple notes that certain exhibits were not produced
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`during fact discovery. Id. at 4 n.3. In opposition, Masimo argues that these exhibits are relevant
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`to its allegations of copying and to the public interest. Resp. at 4-8.
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`In consideration of the parties’ arguments, the undersigned finds that CX-1440, CX-1441,
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`CX-1442, and CX-1443 may be relevant to Masimo’s allegations of copying and will not be
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`excluded.1 CX-1557, CX-1558, and CX-1595 will be excluded, however, because Masimo only
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`alleges that these exhibits are relevant to the public interest, which is not an issue before the
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`undersigned in this investigation. Pursuant to Commission Rule 210.50(b)(1), “[u]nless the
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`Commission orders otherwise, . . . an administrative law judge shall not take evidence on the
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`1 As noted in Order No. 46 (Jun. 3, 2022), these exhibits will not be admitted into evidence without a
`sponsoring witness.
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`issue of the public interest for purposes of the recommended determination.” 19 C.F.R.
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`§ 210.50(b)(1). In addition, CPX-0183 will only be available for impeachment, because Masimo
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`did not produce it during fact discovery and has not identified a sponsoring witness.
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`In accordance with the foregoing, Apple’s HPO No. 2 is SUSTAINED-IN-PART and
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`OVERRULED-IN-PART.
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`3. Court Orders from Other Proceeding
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`Apple’s HPO No. 3 seeks to exclude two court orders from a Federal District Court case,
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`Masimo Corp. v. Philips Electronics North America Corp., No. 09-08-LPS (D. Del. 2015).
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`HPOs at 7-8. Masimo argues that these are public records that were cited in the complaint in this
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`investigation. Resp. at 8-9. Apple has not articulated any prejudice from the admission of these
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`exhibits, and accordingly, Apple’s HPO No. 3 is OVERRULED.
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`4. Masimo Physical Exhibits
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`Apple’s HPO No. 4 seeks to preclude Masimo from relying on certain physical items for
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`which Masimo allegedly failed to provide adequate discovery. HPOs at 8-13. Masimo submits
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`that CPX-0128C, CPX-0129C, CPX-0130C, CPX-0131C, and CPX-0132C are
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`that were made available for inspection on December 16, 2021, and were available during the
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`depositions of several Masimo witnesses. Resp. at 10-12. Masimo further submits that its
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`answer to Apple’s Interrogatory No. 2 provided information regarding these
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`. Id. at
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`12-13, Exhibits 18 and 19. Masimo submits that CPX-0141C, a Samsung phone, was available
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`at the first deposition of Stephen Scruggs on January 6, 2022, and it was demonstrated with a
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`Masimo Watch at the second deposition of Mr. Scruggs on March 14, 2022. Resp. at 13-14,
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`Exhibit 1 at 206:8-20, Exhibit 22. Masimo submits that CPX-0137C, CPX-0139C, and CPX-
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`0140C are
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` that were identified in response to Apple’s motion for sanctions
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`and will not be relied upon as part of Masimo’s alleged domestic industry. Resp. at 15-16.
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`Masimo submits that CPX-0133 is a product that was described in Masimo’s briefing in response
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`to Apple’s motion for sanctions, and CPX-0138 is Masimo product described during Joe Kiani’s
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`deposition. Id. at 16-17. Masimo represents that each of these physical exhibits was made
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`available for inspection during fact discovery. Id. at 17.
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`Based on Masimo’s representations. Apple’s HPO NO. 4 is OVERRULED.
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`5. Domestic Industry Documents Subject to Order No. 32
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`Apple’s HPO No. 5 seeks to preclude the admission of certain documents on Masimo’s
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`exhibit list that appear to be subject to Order No. 32, which struck any documents describing
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`Masimo’s domestic industry products that were withheld from production until late in discovery.
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`Order No. 32 (May 5, 2022). Masimo identifies a subset of these documents that are merely
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`duplicates of documents that were produced earlier in discovery: CX-0696C, CX-0697C,
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`CX-698C, CX-0699C, CX-0700C, CX-0701C, CX-0702C, CX-0703C, CX-0704C, CX-0705C,
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`CX-0706C, CX-0707C, CX-0708C, CX-0709C, CX-0710C, CX-0748C, CX-0749C, CX-0754C,
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`CX-0756C, CX-0757C, CX-0761C, CX-0762C, and CX-0805C. Resp. at 18-20. Masimo
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`further submits that CX-0784C and CX-0790C are recent photographs of the Masimo W1
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`product that were timely produced. Id. at 21-22. Masimo further argues that CX-0735C should
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`be admissible because it is substantially identical to an earlier produced drawing. Id. at 22. In
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`addition, Masimo argues that CX-0803C should be admissible because it is a third-party
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`datasheet that is publicly available through its manufacturer. Id. at 22-23.
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`In consideration of the parties’ briefing and arguments at the pre-hearing conference,
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`Apple’s HPO No. 5 is SUSTAINED-IN-PART and OVERRULED-IN-PART. The objection is
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`overruled with respect to CX-0696C, CX-0697C, CX-0698C, CX-0699C, CX-0700C,
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`CX-0701C, CX-0702C, CX-0703C, CX-0704C, CX-0705C, CX-0706C, CX-0707C, CX-0708C,
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`CX-0709C, CX-0710C, CX-0748C, CX-0749C, CX-0754C, CX-0756C, CX-0757C, CX-0761C,
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`CX-0762C, CX-0784C, CX-0790C and CX-0805C, which fall under exceptions explicitly
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`enumerated in Order No. 32. The objection is sustained with respect to the remaining exhibits
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`identified in HPO No. 5, including CX-0735C and CX-0803C.
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`6.
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` Produced Late in Discovery
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`Apple’s HPO No. 6 seeks to exclude certain reports that were produced by Masimo at the
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`close of fact discovery. HPOs at 21-23. In response, Masimo submits that these reports from
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`Masimo’s
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` identify the release dates of Masimo documents and were produced in
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`response to Apple’s arguments challenging the dates of certain domestic industry documents.
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`Resp. at 23-24. In addition, Masimo identifies earlier produced Excel spreadsheet reports that
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`contained the same date information that was provided in the
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` produced at the end
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`of discovery. Id. at 24-30. Masimo submits that it provided contentions regarding the dates of
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`domestic industry developments in its interrogatory responses. Id. at 30-31.
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`In consideration of the parties’ briefing and arguments at the pre-hearing conference,
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`Apple’s HPO No. 6 is SUSTAINED-IN-PART and OVERRULED-IN-PART. The objection is
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`sustained with respect to
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` for which there was no corresponding earlier production
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`of an Excel spreadsheet report: CX-0875C, CX-0877C, CX-0888C, CX-0892C, CX-0893C,
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`CX-0894C, CX-0895C, CX-0896C, CX-0897C, CX-0905C, CX-0908C, CX-0912C, CX-0913C,
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`CX-0924C, CX-0927C, CX-0935C, CX-0941C, CX-0943C, CX-0948C, CX-0949C, CX-0959C,
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`CX-0960C, CX-0961C, CX-0962C, CX-0969C, CX-0978C, CX-0980C, CX-0984C, CX-0985C,
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`CX-0991C, CX-0995C, CX-0997C, CX-1001C, CX-1002C. The objection is overruled with
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`respect to the other
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`7. Domestic Industry Evidence Produced Late in Discovery
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`Apple’s HPO No. 7 seeks to preclude Masimo from relying on certain domestic industry
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`evidence that was not produced during fact discovery. HPOs at 23-26. Masimo submits that the
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`photographs in CX-0835C represent photographs taken during his tour of Masimo facilities and
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`described in his expert report. Resp. at 31-36. Masimo represents that CPX-0147 was available
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`during the deposition of Joe Kiani and the manual for this sensor was produced in discovery. Id.
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`at 36-37. Based on Masimo’s representations, Apple’s HPO No. 7 is OVERRULED.
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`8. Validity Evidence Produced Late in Discovery
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`Apple’s HPO No. 8 seeks to preclude Masimo from relying on certain validity evidence
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`that was not produced during fact discovery. HPOs at 26-29. Masimo submits that CX-1338
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`and CX-1339 were produced to Apple as part of physical samples of the Amazfit watch. Resp.
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`at 37-38. Masimo submits that CX-1278 and CX-1279 were identified in an expert report. Id. at
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`38-39. Masimo identifies CX-1586 as a patent produced by Apple in discovery. Id. at 39.
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`Masimo submits that CPX-0188 and CPX-0198 will only be used for impeachment. Based on
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`Masimo’s representations, Apple’s HPO No. 8 is OVERRULED.
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`9. Additional Evidence Produced Late in Discovery
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`Apple’s HPO No. 9 seeks to preclude Masimo from relying on certain additional
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`evidence that was not produced during fact discovery. HPOs at 29-35. Masimo submits that
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`CX-1613C, CX-1614C, and CX-1615C were attached to Masimo’s opposition to Apple’s motion
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`for sanctions. Resp. at 40. Masimo argues that the additional exhibits are relevant and that
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`Apple would not be prejudiced by their introduction. Id. at 40-43.
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`In consideration of the parties’ arguments, Apple’s HPO No. 9 is SUSTAINED-IN-
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`PART and OVERRULED-IN-PART. The objection is overruled with respect to CX-1613C,
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`CX-1614C, and CX-1615C, which were identified in Masimo’s briefing during fact discovery.
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`The objection is sustained with respect to the remaining exhibits identified in Apple’s HPO
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`No. 9, except that Masimo may use these exhibits for impeachment.
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`This order has been issued with a confidential designation. Within seven days of the date
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`of this document, the parties shall submit a joint statement as to whether or not they seek to have
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`any portion of this document deleted from the public version. If the parties do seek to have
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`portions of this document deleted from the public version, they must submit a single proposed
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`public version of this order with any proposed redactions in the manner specified by Ground
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`Rule 1.9. To the extent possible, the proposed redacting should be made electronically, in a PDF
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`of the issued order, using the “Redact Tool” within Adobe Acrobat, wherein the proposed
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`redactions are submitted as “marked” but not yet “applied.” The submission shall be made by
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`email to Bhattacharyya337@usitc.gov and need not be filed with the Commission Secretary.
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`SO ORDERED.
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`___________________________________
`Monica Bhattacharyya
`Administrative Law Judge
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`PUBLIC VERSION
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