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` Darrin Young, Ph.d. - 4/14/17
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ________________________________________________________
` FITBIT, INC.,
` Petitioner,
`
` v.
`
` ALIPHCOM, INC., D/B/A JAWBONE
` Patent Owner
`
` Case IPR2016-00714
` Patent 8,446,275
` ________________________________________________________
`
` DEPOSITION OF DARRIN YOUNG, PH.D.
`
` April 14, 2017 * 8:59 a.m.
`
` Location: Holland & Hart
` 222 South Main Street, Suite 2200
` Salt Lake City, Utah
`
` Reporter: Heidi Hunter, RPR, CCR
`Job no. 122686
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`FITBIT EXHIBIT 1014
`Fitbit v. Aliphcom
`IPR2016-00714
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` Darrin Young, Ph.d. - 4/14/17
` A P P E A R A N C E S
`
` FOR THE PETITIONER FITBIT:
` Michael Hendershot
` David Okano
` PAUL HASTINGS
` Attorneys at Law
` 1117 S. California Avenue
` Palo Alto, CA 94304
`
` FOR THE PATENT OWNER ALIPHCOM, INC., D/B/A/JAWBONE:
` Michael Guo
` WILSON SONSINI GOODRICH & ROSATI
` Attorneys at Law
` One Market Plaza
` San Francisco, CA 94105
`
` ALSO PRESENT:
` (None)
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` Darrin Young, Ph.d. - 4/14/17
` I N D E X
`
` DARRIN YOUNG, PH.D. PAGE
`
` Examination by Mr. Hendershot 4
` Examination by Mr. Guo 127
` Further examination by Mr. Hendershot 140
`
` E X H I B I T S
` NO. DESCRIPTION
`
` FITBIT 1001 US Patent No. 8,529,811 to
` Drysdale et al
` FITBIT 1003 US Patent Application Pub.
` No. 2006/0264756 to Lo et al
`
` ALIPHCOM 2002 Darrin Young Curriculum Vitae
`
` ALIPHCOM 2001 Darrin Young Declaration
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` Darrin Young, Ph.d. - 4/14/17
` P R O C E E D I N G S
`
`Page 4
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` (EXHIBITS PREMARKED.)
` * * *
` DARRIN YOUNG, PH.D.,
` called as a witness, being first duly sworn, was
` examined and testified as follows:
` EXAMINATION
` BY MR. HENDERSHOT:
` Q Good morning, Dr. Young.
` A Good morning.
` Q Good to see you again.
` A Good to see you too.
` Q In your opinion what is the difference between
` health and wellness?
` MR. GUO: Objection; foundation. Do you want
` to enter appearances first?
` MR. HENDERSHOT: Sure. Michael Hendershot
` from Paul Hastings on behalf of petitioner Fitbit. With
` me is David Okano, also of Paul Hastings.
` MR. GUO: Michael Guo from Wilson Sonsini
` Goodrich and Rosati for Aliphcom, d/b/a Jawbone.
` Q (BY MR. HENDERSHOT) In your opinion, what's
` your difference between health and wellness?
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` Darrin Young, Ph.d. - 4/14/17
` MR. GUO: Same objection. Also vague and
` ambiguous.
` A I don't remember I give my opinion regarding
` the difference between health and wellness in my
` declaration.
` Q Do you have any understanding of a difference
` between the meaning of the word "health" and the word
` "wellness" in the context of the '275 patent?
` A You know, health represents like health
` condition, whether as ordinary skill in the art looking
` at the context of '275 in my interpretation of health
` as, you know, whether you are healthy or not. And
` wellness I think is somewhat related to the health, but
` you may look at, you know, the overall wellness of the
` person. You know, maybe the person appeared to be
` healthy, but like healthy like in terms of being able to
` perform activities or doing daily tasks. But the
` wellness could be, you know, psychological wellness,
` mental wellness that something for me as ordinary person
` is hard to detect.
` Q Yeah, I understand. That's why I'm asking the
` question.
` A Yeah. So that's my take on it.
` Q Okay. So -- and it will put a finer point on
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` Darrin Young, Ph.d. - 4/14/17
` it. You offer a proposed construction of a term in the
` '275 patent that uses the phrase "health and physical
` wellness." Do you recall that?
` MR. GUO: Objection; form.
` THE WITNESS: I recall that.
` Q So we talked about health and wellness
` earlier. What's -- strike that.
` In your opinion, what is the difference
` between the meaning of health and physical wellness in
` the context of the '275 patent?
` MR. GUO: Objection; form.
` THE WITNESS: Again, health meaning whether
` you are healthy or not. You know, physical wellness can
` mean overall you are healthy but physically, you know,
` for example, I may have certain pain in my leg, in my
` back. I may not be able to do as much physical work as
` I intend, but overall I would still consider myself as
` healthy.
` Q Okay. So if -- so if you have pain in your
` leg or back in your view that relates to physical
` wellness not to health?
` A I wouldn't say that.
` Q Okay. Does it relate to both?
` MR. GUO: Objection; form.
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` Darrin Young, Ph.d. - 4/14/17
` THE WITNESS: Have to think about it.
` Q Okay. So how about a measurement of an amount
` of exercise, would that relate to someone's health?
` A It would have certain relation or correlation
` to an individual's health.
` Q Would an amount of exercise have some relation
` to an individual's physical wellness?
` A I would say so.
` Q How about sleep, would an individual's sleep
` relate to that individual's health?
` A I would say it has certain relationship to it.
` Q And would an individual's sleep relate to that
` individual's physical wellness?
` A I will also say it has connection relationship
` to the physical wellness.
` Q How about an individual's diet? Would that --
` would an individual's diet relate to that individual's
` health?
` A Yes.
` Q Would an individual's diet relate to an
` individual's physical wellness?
` A I would say there is relationship connection
` to it.
` Q How about an individual's heart rate? Would
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` an individual's heart rate relate to that individual's
` health?
` A Yes.
` Q And would an individual's heart rate relate to
` that individual's physical wellness?
` A I would say it has certain connection to it.
` Q What about an individual's social related
` activities, an individual sending a message to a friend
` of theirs, does that relate to that individual's health?
` MR. GUO: Objection; form.
` THE WITNESS: Depends on the condition, the
` level of health that, you know, you're talking about.
` Q In the context of the '275 patent, how health
` is used there in your opinion, would an individual's
` social related activities relate to their health?
` MR. GUO: Objection; form.
` THE WITNESS: I would say it has some
` relationship to it.
` Q And as it's used in the '275 patent, with
` the -- strike that.
` As the term "physical wellness" in your
` opinion is used in the '275 patent -- strike that.
` MR. HENDERSHOT: You would have had a good
` objection to that, Mike. I cut you off at the pass.
`
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` Darrin Young, Ph.d. - 4/14/17
` Q In your opinion, as the term "physical
` wellness" is used in the context of the '275 patent,
` would an individual's social-related activities relate
` to that individual's physical wellness?
` MR. GUO: Objection; form.
` THE WITNESS: I would say it has certain
` connection to it.
` Q Are there any examples that you can think of,
` the parameters in the '275 patent, where a parameter
` would relate to health but not wellness?
` A Could you repeat that question again?
` Q Yeah, sure.
` Can you think of any examples of a parameter
` in the '275 patent where that parameter would be
` indicative of an individual's health not their wellness?
` A I can't think of any parameter at the moment.
` Q Okay. So in the context of the '275 patent,
` would a measured amount of exercise be indicative of an
` individual's health or physical wellness?
` MR. GUO: Objection; form.
` THE WITNESS: It has some relationship to it.
` Q Would it be indicative of it?
` MR. GUO: Objection; form.
` MR. HENDERSHOT: Basis of the objection?
`
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` Darrin Young, Ph.d. - 4/14/17
` MR. GUO: Compound. Vague and ambiguous.
` MR. HENDERSHOT: Vague and ambiguous as to
` which term?
` MR. GUO: Would you repeat the question.
` MR. HENDERSHOT: Would you read it back
` please?
` (Record read.)
` MR. GUO: I will stick with the compound
` objection.
` MR. HENDERSHOT: Okay.
` Q Do you understand the question?
` A Yes.
` Q And can you answer the question for me please?
` A The -- you know, if a person cannot do any
` activity, then it would be a clear indication that
` person is not healthy or physical -- no good in terms of
` physical wellness. But if there is certain level of
` activity being performed, then it really depends on each
` individual person. You know, you can walk more, run
` faster than me. Those are different, you know, values,
` parameters, but our health condition, physical wellness
` between you and me may not be at the same level.
` THE WITNESS: Can I --
` MR. HENDERSHOT: Off the record.
`
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` Darrin Young, Ph.d. - 4/14/17
` (DISCUSSION OFF THE RECORD.)
` Q So in the context of the '275 patent, could a
` measured amount of exercise be indicative of a state of
` health or physical wellness of an individual in your
` opinion?
` A Yeah. It can provide indication as a person's
` wellness and physical health -- health and a physical
` wellness.
` Q Okay. So in connection with the IPR
` proceeding concerning the '275 patent, you prepared a
` declaration; is that correct?
` A That's correct.
` Q And in your declaration, did you set forth the
` opinions you intended to offer in connection with this
` IPR proceeding?
` A Yes.
` Q So the opinions you intend to offer in
` connection with this IPR proceeding would have been
` contained in that declaration; is that correct?
` A That's correct.
` Q And any materials you -- strike that.
` Is it correct that any materials you reviewed
` in formulating the opinions set forth in your
` declaration in connection with this proceeding would be
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` Darrin Young, Ph.d. - 4/14/17
` listed in your declaration?
` A That's correct.
` Q So in your declaration, just so I get the --
` scope this out, did you offer an opinion as to the level
` of skill of a person of ordinary skill in the art?
` A Yes, I did.
` Q And in your declaration, did you offer opinion
` as to claim construction with regarding certain --
` strike that.
` In your declaration, did you offer an opinion
` concerning the -- what you think is the proper
` construction of certain claim terms in the '275 patent?
` A That's correct.
` Q And did you also offer in your declaration
` opinions as to whether you thought the Hoffman prior art
` reference taught certain elements of the '275 patent
` claims?
` A I offered opinion that the Hoffman prior art
` did not teach certain elements in the '275 patent.
` Q Okay. And you're a -- your opinion concerning
` the proper claim construction of certain terms, was that
` based on your opinion concerning the level of skill in
` the art?
` A Yes.
`
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` Darrin Young, Ph.d. - 4/14/17
` Q And your opinion that Hoffman -- strike that.
` And your opinion that the Hoffman prior art
` reference did not teach certain claim elements in the
` '275 patent, was that based on what you thought the
` proper construction of the claims was?
` A That's correct.
` Q Okay. And am I correct -- strike that.
` And did you offer any opinion that as to
` whether or not Hoffman teaches certain elements of the
` '275 patent claims under an alternative or different
` claim construction than the one you opined on?
` A I did not.
` Q And did you offer any alternative claim
` constructions in your declaration that would have been
` based on an alternative or different level of skill in
` the art other than the one you identified?
` A Could you repeat that question again.
` Q Sure. I'll break it up.
` A Okay.
` Q In your declaration you offered an opinion as
` to what you think the level skill in the art is,
` correct?
` A Uh-huh.
` Q And your claim construction opinion is based
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` on that stated level of skill in the art; is that
` correct?
` A That's correct.
` Q And you did not offer any other claimed
` constructions or -- that would have been based on some
` different level of skill in the art other than the one
` you identified?
` A No, I didn't.
` Q Okay. I'm going to hand you what has been
` marked as Exhibit 2001 to this proceeding. It is
` labeled "A Declaration of Darrin J. Young, Ph.D."
` Take a moment and look at 2001 please. Take
` however much time you need to satisfy yourself that that
` is your declaration.
` Dr. Young, is what you've been handed as
` Exhibit 2001 a copy of your declaration in this
` proceeding?
` A Yes, it is.
` Q Okay. If I could direct your attention to
` page 31. It's a table under the heading "Table of
` Information Relied Upon." Do you see that?
` A Yes, I see this.
` Q Is this an accurate listings of all the
` materials you relied upon in forming your opinions?
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` A That's correct.
` Q So you did not rely upon a prior art reference
` to someone named Gilly; is that correct?
` A That's correct.
` Q If I could direct your attention back to
` paragraph 15. I believe it's on page 5.
` Does paragraph 15 articulate what is in your
` opinion the level of skill in the art in the field
` relevant to the '275 patent?
` A That's correct.
` Q I'll just read it into the record. In
` paragraph 15 it provides, quote: "In my opinion, a
` person of ordinary skill in the relevant field in
` June 2011 would have had experience working with
` electrical and electronic hardware, computer software,
` wired and wireless network communications, or computing
` devices," close quote.
` Is that your opinion as to what the level of
` skill in the art is with respect to the '275 patent?
` A That's correct.
` Q How did you arrive at that articulation?
` A I read the '275 patent and I looked at the
` elements describing the patent and the -- in the
` ordinary skill in the art to understand the patent that
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` particular person needs to have background in these
` related areas.
` Q So in your opinion, a -- strike that.
` In your opinion, to qualify as a person of
` ordinary skill in the art in June 2011, an individual
` would only need experience with one of these listed
` items here in paragraph 15?
` A Yes.
` Q And in your opinion, a person of ordinary
` skill in the art would not need experience with health
` and wellness management?
` MR. GUO: Objection; form.
` THE WITNESS: You be able to understand,
` right, if you have these type of background in
` engineering, computer science, you know, communication,
` you be able to understand teaching of '275 patent.
` Q Well, your definition doesn't say engineering,
` does it?
` A Electrical and electronic hardware. That's
` where you learn, in the electrical engineering
` department in the university.
` Q Does your stated opinion concerning the level
` of skill in the art here require any particular academic
` degree?
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` A Yeah. You -- you need to have like a bachelor
` degree.
` Q But you didn't say what in your opinion, here?
` A You know, to gain this level of skill you need
` to have a degree.
` Q So someone could not get experience working
` with computing devices without a bachelor's degree?
` A For a person to acquire all these sets of
` skill, you need to have a college degree.
` Q So your opinion is that someone to be a person
` of ordinary skill in the art would need experience with
` all of these? It says "or" in your opinion. I'm just
` going by what you wrote here.
` A Yeah, you need -- you need to have knowledge
` about this field.
` Q That -- that wasn't my question. I will ask
` it again.
` A Okay.
` Q Is it your opinion that to qualify as a person
` of ordinary skill in the art relative to the '275 patent
` in June 2011, that someone would need experience working
` with each of these items listed in paragraph 15, even
` though your opinion just says "or."
` A A person with experience working in each of
`
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` Darrin Young, Ph.d. - 4/14/17
` these item that I listed in my declaration will have the
` sufficient background to understand '275 patent.
` Q Okay. So someone -- so it's in your opinion,
` as you state it here in paragraph 15, accurate in your
` view?
` A Yes, it is.
` Q Okay. So if someone wanted to understand the
` full scope of your opinion with respect what is the
` proper level of skill in the art for the '275 patent,
` they could rely upon the words that are contained here
` in paragraph 15 as written?
` A They can rely upon the knowledge they learn in
` the field that I describe --
` Q Okay.
` A -- in this paragraph.
` Q And did you personally develop this wording of
` this -- this sentence in paragraph 15 that we've been
` discussing?
` A I discussed with the counsel.
` Q Okay. Did counsel tell you where they got
` this wording from?
` A Could you repeat your question again?
` Q Did counsel tell you where they got this
` wording from in paragraph 15 regarding the level of
`
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` Darrin Young, Ph.d. - 4/14/17
` skill in the art?
` A I discussed it with counsel what would be
` background knowledge and training needed in order to
` understand '275 patent.
` Q So you reviewed the '275 patent and spoke to
` counsel about it and came up with this articulation of
` the level of skill in the art here having reviewed the
` '275 patent?
` A This is what I think adequate skills.
` Q Okay. I'm going to hand you what's been
` marked as Exhibit 1001 in this proceeding. It's a copy
` of U.S. patent 8446275, which we've been referring to as
` the '275 patent.
` Take a moment and flip through the -- what has
` been marked as Exhibit 1001. Satisfy yourself it's a
` correct copy of the '275 patent.
` Have you had a chance to review what's been
` marked as 1001?
` A I just look at it.
` Q Does it look like the '275 patent?
` A Yes, it is.
` Q Okay. Great. If I can direct your attention
` to column 9. It should be on page 43 of 63. You see
` the page number at the bottom.
`
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` Darrin Young, Ph.d. - 4/14/17
` Under "Field" and right about line, say, 47,
` 48.
` A Uh-huh.
` Q It says, "The present invention relates
` generally to electrical and electronic hardware,
` computer software, wired and wireless network
` communications, and computing devices."
` Do you see that?
` A I see that.
` Q That wording is nearly identical to the
` identification of the level of skill in the art you had
` in paragraph 14, other than you used "or" instead of
` "and"; is that correct?
` A That's correct.
` Q In arriving at your articulation of the level
` of skill in the art, were you aware that that sentence
` was in column 9 of the '275 patent?
` A They are similar.
` Q Did you copy it from the '275 patent into this
` sentence in paragraph 15?
` A No, I did not.
` Q Okay. At the time you signed your declaration
` that's been marked as Exhibit 2001, did you have an
` understanding that the level of skill in the art
`
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` Darrin Young, Ph.d. - 4/14/17
` identified in paragraph 15 of your declaration had been
` copied from the '275 patent?
` A It was not copied on the '275 patent.
` Q It hasn't? It wasn't?
` A It wasn't.
` Q Why did you arrive at this language that's so
` similar to the '275 patent in paragraph 15?
` A I read the patent and I came up with a set of
` knowledge that I believe -- or background that I believe
` would be sufficient enough for an ordinary skill in the
` art to understand the '275 patent.
` Q And in articulating that, you arrived at this
` language that is nearly verbatim, the language here in
` column 9 of the '275 patent independently; is that your
` testimony?
` A That's right.
` Q So after that sentence that's really
` similar -- strike that.
` After that sentence in column 9 of the '275
` patent, that's very similar to your sentence here in --
` that you wrote in paragraph 15, the patent provides more
` specifically "general health and wellness management
` techniques and devices for use with a data capable
` personal worn or carry device are described."
`
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` Darrin Young, Ph.d. - 4/14/17
` Do you see that?
` A I see that.
` Q In your opinion, to have -- to qualify as a
` person of skill in the art in June 2011, a person would
` not need experience with health and wellness management
` techniques and devices; is that correct?
` A I didn't say that. I didn't say it was
` correct or incorrect.
` Q Well, I'm asking you a question.
` A If you have the background in the area that I
` describe in my declaration, you will have sufficient
` knowledge to understand the health or health management
` techniques.
` Q Which field or experience described here in
` paragraph 15 of your declaration would qualify a person
` of ordinary skill in the art under your definition to
` have an understanding of health and wellness management
` techniques?
` A The person reads the patent. I read the
` patent as an ordinary skill in the art. I understood
` the teaching of '275 patent.
` Q That wasn't my question.
` Which of, if any, experience working with
` electrical and electronic hardware, computer software,
`
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` Darrin Young, Ph.d. - 4/14/17
` wired and wireless network communications, or computing
` devices would provide a person with experience to have
` an understanding of health and wellness management
` techniques?
` A For health and the wellness management
` techniques described in this patent, you know, it
` requires a person to understand the logic, the flow
` chart. And these are the basic knowledge you learn, for
` example, in computer programming class, in engineering
` class. So it was the training in those areas, I
` believe, when a person with that type of skill handled
` with '275 patent should be able to understand the
` teaching of the '275 patent.
` Q Under your definition articulated here in
` paragraph 15 of a person of ordinary skill in the art in
` June of 2011, would you have qualified as a person of
` ordinary skill in the art?
` A Yes, I would be qualified.
` Q Okay. And what would have qualified you under
` your definition? What experience generally?
` A I have experience in electrical -- electronic
` hardware design, computer software, network
` communication, wire/wireless, and also computing
` devices.
`
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` Darrin Young, Ph.d. - 4/14/17
` Q By June of 2011 had you taught courses in any
` of the areas listed here in paragraph 15?
` A Yes, I have.
` Q Which areas listed here in paragraph 15 have
` you taught courses in by June of 2011?
` A I taught courses in electrical, electronic
` hardware. And I taught courses related to, you know,
` wireless communication. And I taught courses related to
` computing devices focusing on computing signals from
` MEMS sensors.
` Q And what are those sensors? Could you spell
` it? Is it an acronym?
` A MEMS, M-E-M-S, stands for micro electrical
` mechanical system.
` Q Thank you. In any of the courses you had
` taught by -- strike that.
` Had any of the sources you taught by June of
` 2011 focused on health and wellness management
` techniques?
` A I would say no.
` Q Okay. Had any of the -- strike that.
` Had you published any research papers prior to
` June of 2011?
` MR. GUO: Objection; form.
`
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` Darrin Young, Ph.d. - 4/14/17
` THE WITNESS: Regarding what field?
` Q Had you published any research papers
` regarding any subject prior to June of 2011?
` A Oh, yeah, I have.
` Q I thought you had. I just wanted to make
` sure. I would have laid my foundation for the next
` question so he didn't yell at me.
` So -- trying to save us the hour and a half we
` spent last time on all the background.
` Prior to June of 2011 had any of those
` research papers that you published focused on health and
` wellness management techniques?
` A No.
` Q Okay. Had any of the papers you published
` prior to June of 2011 focused on health and wellness
` management devices?
` A Around that time we started working on
` wearable sensors that can capture physiological signals
` such as blood pressure, EKG, body temperature.
` Q And for what purpose were those physiological
` sensors to be used?
` A Some of them target towards monitoring the
` physiological condition of laboratory animals under
` research purpose.
`
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` Darrin Young, Ph.d. - 4/14/17
` Q Did any of that work that you just described
` relating to wearable devices involve setting fitness
` goals for a user?
` MR. GUO: Objection; form.
` THE WITNESS: No.
` Q Did any of those devices you just described in
` that time frame involve setting exercise goals for a
` user?
` A No.
` Q Okay. So we've talked about the courses you
` taught and your research publications prior to June of
` 2011, prior to June of 2011 did you have any other
` experience with the design of health and wellness
` management techniques or devices?
` A You know, I read research papers published,
` you know, around that time frame related to, you know,
` health wellness monitoring, wearable devices for human
` application. These are the, you know, skills, knowledge
` that I learn by reading research papers, you know,
` studying what has been going on in the field around that
` time of the -- or around that time frame.
` Q Do you recall how many of those papers you
` read prior to June of 2011?
` A I do not have exact number.
`
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` Darrin Young, Ph.d. - 4/14/17
` Q More than ten?
` A Probably around ten.
` Q Thank you. Your work that you discussed
` earlier around this time frame that involved wearable
` sensors that were used with laboratory animals, do you
` recall specifically what the timing of that research
` was?
` A I started working on sensors for laboratory
` animal applications and those sensors in the form of
` implantable, we

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