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`Trials@uspto.gov
`571-272-7822
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`Paper No. 37
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________
`
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`OMNI MEDSCI, INC.,
`Patent Owner.
`___________
`
`IPR2019-00916
`Patent 9,651,533
`___________
`
`Record of Oral Hearing
`Held: July 16, 2020
`____________
`
`
`
`Before GRACE OBERMANN, JOHN HORVATH, and
`SHARON FENICK, Administrative Patent Judges.
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`IPR2019-00916
`Patent 9,651,533
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`THOMAS A. LEWRY, ESQUIRE
`JOHN LEROY, ESQUIRE
`Brooks Kushman, PC
`1940 Duke Street
`2nd Floor
`Alexandria, VA 22314
`
`
`
`
`
`
`JEFFREY P. KUSHAN, ESQUIRE
`Sidley Austin, LLP
`
`
`
`1501 K Street, N.W.
`
`Washington, D.C. 20005
`
`
`
`
`
`ON BEHALF OF PATENT OWNER:
`
`
`
`
`
`
`
`
`
`
`The above-entitled matter came on for hearing on Thursday, July 16,
`2020, commencing at 1:00 p.m., EDT, by video/by telephone.
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`P R O C E E D I N G S
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`JUDGE HORVATH: Good afternoon everyone. This is
`
`Judge Horvath at the Patent Trial & Appeal Board. With me are
`Judges Obermann and Fenick. We are hear to hear the oral
`argument for IPR2019-00916, Apple, Inc., v. Omni MedSci, Inc.
`Do we have counsel for Petitioner here and could you identify
`yourself, please?
`
`MR. KUSHAN: Yes, Your Honor. This is Jeff Kushan
`from Sidley Austin on behalf of Petitioner Apple. Joined with
`me is Tom Broughan and Matt Hopkins, and I also note that on
`the public line our client Natalie Pous is also participating.
`
`JUDGE HORVATH: Thank you, Mr. Kushan. Who will be
`presenting for Petitioner today?
`
`MR. KUSHAN: I will be.
`
`JUDGE HORVATH: Thank you, sir. And is counsel for
`Omni MedSci on the line?
`
`MR. LEWRY: Yes, Your Honor. This is Tom Lewry from
`Brooks Kushman. I'm here with several people but John Leroy is
`the other person you can see on the screen. Christopher Smith
`and Andrew Turner is with me and on the call-in line our client,
`Mohammad Islam is also on the call.
`
`JUDGE HORVATH: Thank you, Mr. Lewry, and who will
`be presenting for Omni MedSci today?
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`MR. LEWRY: I will be presenting on the issues of claim
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`construction and Mr. Leroy will be presenting on other issues.
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`JUDGE HORVATH: Okay, thank you.
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`MR. LEWRY: (Indiscernible.)
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`JUDGE HORVATH: Yes, that's perfectly fine. And I
`understand the court reporter is on the line; is that correct?
`
`THE REPORTER: Yes.
`
`JUDGE HORVATH: Okay, thank you. So I appreciate
`everyone being here today and I know it's less ideal to have these
`by video conference than it is in person but given the nature of
`what's happening with the pandemic this is, you know, the best
`we can do. So I appreciate everyone's cooperation in being here
`today.
`
`To make the court reporter's job a bit easier, I'm going to
`ask everyone to please identify themselves before they start
`speaking -- to make the reporter's job a bit easier and also to
`make sure that we have as accurate a transcript as possible. So
`I'm going to ask you to please try to remember to speak, rather to
`identify yourselves prior to speaking. I'm going to try to police
`that and I'm going to apologize in advance because if you forget
`to identify yourself I just might interrupt you to ask you to do
`that. And so let me apologize in advance for that interruption to
`the extent that it does occur.
`
`Also for the court reporter, if someone is speaking and you
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`do not know who that person is -- you can't tell from their voice
`or whatever who they are -- please feel free to briefly interrupt
`to ask that party to identify themselves. We are all in possession
`of your demonstrative exhibits so, as to that, in addition to
`identifying yourself, if you're referring to a slide number of your
`demonstratives or to some underlying papers such as the P etition
`or the Patent Owner Response or to an underlying exhibit that
`you please identify that particular paper by number or the
`presentation on your slide by slide number or the exhibit number
`and what page of that document you're referring to so that we
`can all look that information up on our computers.
`
`I suppose the only thing left to discuss before we begin is
`what we do in the event if there's a disconnection. Hopefully
`that won't happen. I've had two proceedings so far and in one it
`did happen, I'm hoping that was an anomaly, I think it probably
`was but anyway my understanding is that if there is a
`disconnection you've all been given a phone number that you can
`dial into so if that does happen please try to reconnect as soon as
`possible and we’ll then try to proceed from the point via the
`court reporter's transcript. We'll try to pick up the hearing from
`the point at which the disconnection occurred.
`
`Okay. Thank you for that. And with that having been said,
`per our Order dated July 1, each side today will have 45 minutes
`total to present their arguments. Each side will be allowed to
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`reserve a certain amount of time for rebuttal. So Petitioner,
`bearing the burden of proof will proceed first and may reserve
`some time for rebuttal. So, Mr. Kushan, would you like to
`reserve some time for rebuttal and if so, how much?
`
`MR. KUSHAN: Yes, Your Honor. I'd like to reserve 15
`minutes for rebuttal or whatever the balance of time will be.
`
`JUDGE HORVATH: Okay, thank you. Just let me just set
`that on my timer here. By the way I will have my timer set. I
`will give you a warning two minutes before your time has
`expired to give you some time to wrap up your presentation and I
`will do that both at the end of your initial period and whatever
`time you have remaining in your rebuttal period. And I will do
`the same for Patent Owner when it's time for their presentation.
`So I have set my clock and beginning now, so whenever you are
`ready.
`
`MR. KUSHAN: Thank you, Your Honor. Again, this is
`Jeff Kushan speaking for Petitioner Apple. If I could invite you
`to turn to slide 4 please of our demonstratives. We explained in
`our petition that Lisogurski and Carlson together make obvious a
`measurement device with every element listed in claims 5 and
`13. After Institution, Patent Owner disputed only one issue, and
`said that the two references do not describe or suggest a light
`source configured to increase the signal-to-noise ratio by
`increasing the pulse rate of at least one LED, and that's the
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`language you see highlighted on this slide. Now, importantly,
`Omni did not dispute that Lisogurski described the device
`configured to increase the signal-to-noise ratio by increasing the
`light intensity in response to noise. They only disputed that it
`does so by increasing the LED pulse rate.
`
`But that's precisely what Carlson teaches doing and that's
`what we said in our petition. As you observed in your Institution
`Decision, Carlson teaches use of a firing rate LED at a frequency
`higher than the frequencies where sunlight and ambient light
`noise occur, and that doing so improves the signal-to-noise ratio.
`And while you recognize there were disputes over what each
`reference taught, at a minimum you found that Carlson and
`Lisogurski together make it obvious to modify Lisogurski's
`device to cause it to increase the LED firing rate to the higher
`frequencies that Carlson identified in order to increase the
`signal-to-noise ratio. And when Lisogurski's measurement
`system is configured to do that, it meets every requirement of the
`claim. We think the record fully supports your initial finding
`that the claims are obvious.
`
`Can I invite you to turn to slide 16, please. A brief
`comment about one of the claim construction disputes that Omni
`is trying to manufacture. Omni proposed an alternative to the
`Board's construction for this disputed phrase. Both constructions
`define the same action followed by the same result of that action.
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`The action is increasing the pulse rate of at least one LED and
`the result is an increased SNR. The distinction between the two
`constructions is therefore very narrow. Omni's construction
`would require the light source to be configured to increase the
`pulse rate of an LED, while the Board's construction uses a
`traditional parlance of the device having the capability of doing
`that. And if we could turn to slide 8, please.
`
`The distinction they're trying to draw is irrelevant. The
`reason is that their expert has agreed that Lisogurski configures
`its device to increase the pulse rate of its LED. As you can see,
`Dr. MacFarlane agreed that Lisogurski teaches configuring its
`device to increase the emitter firing rate in some circumstances.
`Now, that may be why Omni is now trying to run away from its
`own construction in its Sur-reply, but it's more importantly
`telling you that the distinction they're trying to draw is not
`relevant.
`
`Now, the other thing you'll see on this slide is that Omni
`has admitted a couple of things that are important. One, they
`admit that Lisogurski describes a device with an adjustable firing
`rate. And in the same sentence, Omni agrees that Lisogurski's
`device addresses the same problem that Carlson's device is
`addressing, interference caused by ambient light.
`
`If you can go to the next slide, slide 9. Omni also admits
`that Lisogurski describes a device that uses three techniques that
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`improve the signal-to-noise ratio. The first is increasing the
`intensity of the LED or the brightness. The third is Lisogurski's
`cardiac cycle modulation technique. Now Omni spends a lot of
`time criticizing this technique without actually addressing why
`it's relevant to this claim.
`
`If you go to slide 7, that's two slides back, this is their
`excerpts from Lisogurski. In the top quote Lisogurski explains
`that the different parameters of its light source can be modified
`during the cardiac cycle modulation technique. One is
`brightness of the LEDs, another one is the firing rate of the
`LEDs, and I just said Omni has admitted that varying one of
`those does increase the signal-to-noise ratio. In the middle quote
`Lisogurski clearly says that its system, not a person, its system
`varies these light source parameters in response to noise. So
`Lisogurski's system is changing the parameters and is doing that
`in response to the level of noise for ambient light. And that's at
`Exhibit 1, column 9, 46 to 59, that's Lisogurski. In the bottom
`quote Lisogurski explicitly states that its system responds to the
`increased background noise by varying one of these cardiac cycle
`modulation parameters of -- the brightness of the LED -- to
`increase the signal-to-noise ratio. That's at column 9, 50 to 52
`of Lisogurski's Exhibit 1001. All this directly -- I'm sorry, Your
`Honors.
`
`JUDGE HORVATH: I do have a question for you. So it
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`seems like in your Reply one of the arguments you make is this
`idea that Omni has admitted that Lisogurski in fact does increase
`signal-to-noise ratio by varying the pulse rate of the LED to
`track the cardiac cycle. So I guess I have two questions for you.
`One is, is that an argument that you presented in the P etition?
`And then the second is, if it's not an argument you presented in
`the Petition, you know, what do we make of the fact that if we
`agree with you that Omni made this admission in their Patent
`Owner Response, what is it that we do with that? What can we
`do with that?
`
`MR. KUSHAN: Well I think the simplest point to start
`with is that we did explain this in our Petition. The ground we're
`focusing on is that we have a device, Lisogurski, which has the
`capability of modifying different aspects of its light system, the
`light drive system, and one as I explained was the brightness and
`the other was -- is a pulse rate. We also pointed out passages in
`Lisogurski where they show increasing the pulse rate of the LED
`as increasing the quality of the signal and that signaling -- that is
`telling the person of skill that it's improving the quality of that
`signal.
`
`But most importantly, we're not relying only on Lisogurski,
`we're making clear that Lisogurski's system has the capability of
`being modified particularly in modifying the pulse rate of its
`LED and that's where Carlson comes in because that tells the
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`skilled person how to modify the pulse rate in the system of
`Lisogurski to increase the signal-to-noise ratio. So we laid out
`our explanations in the Petition around, I think it's pages 37 to
`39, and that's the particular articulation of the combination of the
`two references. And we believe that is what we're proving now,
`that's the record that we've created and, in fact, if you want to go
`to slide 10 that may help answer the question you posed.
`
`On slide 10 you see the two slides, two excerpts from
`Lisogurski on top of the slide. That is telling the skilled person
`that what Lisogurski's system is doing is increasing the emitter
`firing rate and then, correlated after it does that, is the sampling
`rate that goes along with that. And what they're saying is that
`the increased sampling rate results in more accurate and reliable
`physiological information, but that's an attribute that is tied with
`a pulse rate and that is very clearly stated as being something
`which is resulting from increasing the emitter firing rate that's
`increasing the pulse rate. These are all things we relied on in
`our Petition to explain why Lisogurski is telling you that you
`have the system which has this capability being modified to
`increase the signal-to-noise ratio because we think that's a --
`
`JUDGE OBERMANN: I have a question. This is Judge
`Obermann.
`
`MR. KUSHAN: Yes, Your Honor.
`
`JUDGE OBERMANN: I'm looking at slide 10 and I don't
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`see a citation to the P etition for that first excerpt from
`Lisogurski. I see it cited in the Reply.
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`MR. KUSHAN: If you look at, I apologize for the
`oversight. I believe we cited that at page 36 of the P etition.
`
`JUDGE OBERMANN: Thank you.
`
`MR. KUSHAN: And also, that quote is the passage. So the
`Petition relied on the analysis by our expert of the explanations
`in Lisogurski which you see on the bottom slide 10. This is
`Lisogurski explaining -- this is our expert Dr. Anthony
`explaining the connection that he sees between what Lisogurski's
`describing in the sampling rate and what not, and showing that
`that is teaching that the LED firing rate can be increased and
`increase the signal-to-noise ratio. Now again, we're presenting a
`combination of Lisogurski and Carlson, and the reason for that is
`that it kind of eliminates this view. We think that in the claim
`right now, and what we think is important to also recognize, that
`there's no real dispute that when Lisogurski increases its LED
`intensity in their response to noise is increasing the signal-to-
`noise ratio. They seem to acknowledge that, and that kind of
`takes that dispute out of the equation.
`So it's just a question of whether this could do the same
`thing, have that increased signal-to-noise ratio when it's
`modifying the signal -- sorry, when it's modifying the LED pulse
`rate. So as we see in the record, most of this is uncontested.
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`Lisogurski indicates it is solving the same problem that Carlson
`is solving, noise in the signal caused by ambient light. It
`describes a system that is configured to vary parameters of its
`light source in response to noise. It explains both the intensity
`and the LED in -- the LED firing rate could be modified. It
`recognizes that increasing the frequency of the LED pulsing can
`improve signal quality and it actually describes varying one of
`those light parameters, the LED intensity, in response to noise to
`increase the signal-to-noise ratio. So the only thing that we
`think that could be said to be missing is the specific connection
`of modifying the LED pulse rate in the same way that the LED
`brightness might be modified, and that's where Carlson comes in.
`That's what exactly -- the exact thing that Carlson is suggesting
`to do.
`Could I ask you to go slide 18, please. So Carlson is, we
`laid this out in our Petition pages 24 to 26 and 37 to 39. In our
`Petition we explained that a skilled person, why a skilled person
`would have considered Lisogurski with Carlson. Both are
`teaching the same types of methods for solving the same problem
`in the same kind of devices. They're increasing the signal-to-
`noise ratio to overcome ambient noise in wearable battery
`powered pulsoximetry devices. Omni didn't dispute this
`afterInstitution Decision. They also didn't contend that a skilled
`person would have any difficulty integrating Carlson's technique
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`into Lisogurski's device.
`If you could go to slide 19, please. They also explain that
`Carlson teaches solving the problem of the ambient light by
`pulsing the LED at a frequency chosen to be outside the
`frequency rage of the spectrum of sunlight and of ambient light.
`That's what Carlson is explaining in paragraph 69. And then if
`you could go to slide 24 --
`JUDGE HORVATH: Mr. Kushan, sorry to interrupt you.
`MR. KUSHAN: Of course.
`JUDGE HORVATH: This is Judge Horvath. So one of the
`arguments that Omni makes is that what the Carlson device, at
`least the way it's designed, is that it goes from being an
`unmodulated light source to a light source that's modulated at a
`particular frequency and only one frequency. And so when you
`detect noise you go from perhaps an unmodulated light source,
`from Omni's perspective, you go from an unmodulated light
`source to a light source that is modulated at, for example, 1,000
`Hertz firing rate. In your view, is that -- does that disclose
`increasing a pulse rate of the oximeter, or rather of the LEDs, to
`increase the signal-to-noise ratio and if so, why?
`MR. KUSHAN: So we fundamentally disagree with the
`characterization they've made of what's going on with Carlson's
`device. We don't think when you read Carlson across its entirety
`or understand how things work in it, that it's telling you to start
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`with an unmodulated light where you're basically keeping the
`LED continuously on and then whenever you run into noise
`fluctuate that or, you know, switch out the modulated light at a
`particular frequency. We think that's just an incorrect reading of
`Carlson, and I think there's a lot in Carlson that tells you why
`that is incorrect. If I could just go through that I think that
`would answer your question, because we don't think that the
`proposition they've advanced is actually supported by what you
`see in Carlson or in the record.
`First, if I can direct your attention to slide 20, what Carlson
`is describing is temporarily modulating the LED carrier
`frequency. The carrier frequency is the pulse rate of the LED
`and it's saying to change that, to shift that frequency to a higher
`frequency range. Now that's as a starting point suggesting that
`it's going to be increasing the frequency, not flipping into --
`from one type of light to another.
`The other thing I'd like to explain is, if you can go back
`one page to slide 19, you see in the bottom quote, Carlson is
`explaining that, they're saying as a consequence of everything
`they're talking about is proposed to admit why the LED is not as
`current or continuous light that has pulse light and I think that's
`an important point to set up the context of Carlson.
`I'm going to apologize for making you go a few slides down
`to slide 25. So slide 25 reproduces part of paragraph 69 that we
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`were -- I'm sorry, at the top you see the point we were discussing
`just a minute ago from Carlson. On the bottom is a claim that is
`in the original application of Carlson, and I think that's
`important to appreciate what that's saying. Claim 10 of Carlson
`is saying that the light source modulating means will shift the
`frequency of the admitted light. Now the natural meaning of that
`phrase is it's going to increase from one frequency to another,
`and that is, if you read this with everything else Carlson is
`saying, that's what's going on with Carlson. It's pulsing light at
`one frequency, and then it's going to increase it to the higher
`frequency to overcome the noise.
`Now, there's another reason I think Omni's reading of
`Carlson doesn't make sense. In our Petition around 24 to 25 we
`explain that Lisogurski and Carlson both emphasize the
`importance of conserving battery life in their devices, and that
`controlling how each generates light is a key technique for doing
`that. We said in our Petition that Lisogurski says its techniques
`allow for increased battery life, that's at page 24. We then said
`that a reason to combine Lisogurski with Carlson was because
`Carlson teaches improvements to both signal measurement and
`energy consumption for these devices, which are battery
`powered, if they're things that you put on your ear. That's at
`page 25 of our Petition and we cited the paragraph 2 of Carlson
`for support.
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`Now under Omni's reading of Carlson, its device would be
`continuously illuminating the LEDs then only temporarily switch
`to a pulsing of the LEDs. That doesn't make sense because that
`would burn up the battery life. It doesn't really sync up with the
`concept in play, and so we think the correct reading of Carlson is
`that the device pulses the LED at one frequency and then when it
`encounters noise it increases that, as it says, to shift the
`frequency to a higher frequency range. And that, I think, is the
`natural reading of Carlson. Now that meshes perfectly with
`Lisogurski's technique, which is showing that you can modify
`and vary in the short cardiac cycle drive modulation technique
`the LED pulse rate to improve the signal quality. So all these
`things are pointing to the same conclusion.
`Now I also want to just mention, you made a finding or you
`made an observation in the Institution Decision, and I want you
`to look at slide 29 briefly. So slide 29, and we think this is
`significant to the arguments we hear from Omni, you found or
`observed that there's virtually no support for this disputed
`element of the claims in the 533 patent specification. We think
`that's significant for a few reasons. First, this seems to be the
`point of distinction that Omni is emphasizing makes its claims
`patentable, but it's not telling you, virtually -- it's not telling you
`anything about how to implement or what that technique actually
`is or how it should be used. First, there's no basis for reading
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`IPR2019-00916
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`into the claims any special way of pulsing the LEDs or achieving
`any degree of increase in the SNR so it's going to plainly find its
`language to cover what Lisogurski and Carlson is proposing to
`do. Second, the passage is an identifier explaining how to solve
`a hypothetical situation where the increasing of the LED pulse
`rate doesn't increase the SNR. Finally, the lack of any
`description calls into question (indiscernible) how you could
`take a known technique and put it into a known device and then
`end up with a patentable invention. That seems to be contrary to
`the principles of the well established law of obviousness.
`Now I have a few points I'd like to cover that should
`respond hopefully to just things that they've raised in their
`briefing. One, the other claim construction issue I wanted to
`mention briefly that they raised. They have said -- we believe
`what they're trying to do is effectively read an intent requirement
`into their system claim. According to Omni, a device that
`increases the pulse rate of one of its LEDs and increases the
`signal-to-noise ratio when it does that wouldn't meet the
`requirement of the disputed claim if the device is not expressly
`configured to achieve that result. That's not the law. If you can
`go to slide 15, we've used some citations that we think are
`appropriate on this question.
`First, you know, a device that performs the same action
`achieving the same result will satisfy the claim and second, a
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`IPR2019-00916
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`device doesn't always have to achieve the stated result, it only
`has to sometimes achieve it. We think there's more than enough
`evidence to show you what's going to happen when you've
`combined the Lisogurski system to use the Carlson technique.
`Another point that you've kind of engaged in the briefing is
`whether you actually achieve the signal-to-noise ratio when you
`vary the pulse rate, the LED pulse rate in the Lisogurski system,
`and again we think that's somewhat of a side show.
`First, I think -- and most importantly -- and I would invite
`you to go to slide 19, what we said in our Petition is that Carlson
`teaches and suggests use of a pulse rate at a particular frequency
`outside the frequency spectrum of sunlight and ambient light and
`that doing that increase is what increases the signal-to-noise
`ratio. That's again in our Petition at 37 and 38. We then said it
`was obvious to modify Lisogurski's system to cause it to increase
`the LED firing rate as taught by Carlson. So we weren't
`addressing some abstract question of whether every time you
`increase an LED pulse rate it increases the SNR, we were
`addressing the statements that are in these two references in that
`particular context. We think also, in Dr. MacFarlane's redirect
`testimony, where he's attempting to "raise questions about
`whether increasing the LED pulse rate does or does not increase
`the SNR” are not credible.
`First, if you can go and look at slide 13. This is an
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`exchange that went on, or a couple of exchanges that went on
`during the deposition, and it's clear that he provided redirect
`testimony that was plainly influenced by counsel. Now, while
`we think that might be a reason to discredit or give it very little
`weight, we think there are more probative reasons that you
`should do that. First, on redirect Dr. MacFarlane only addressed
`one of the two times that he testified that increasing the LED
`pulse rate generally increases the SNR.
`If we can go to slide 12. This testimony that he offered
`was not changed by his redirect testimony and that's hard to
`dispute. As a general truth when you increase the LED pulse
`rate you're going to increase the signal-to-noise ratio because
`you're making more signals relative to the same amount of noise.
`Second thing, the part that he did change, if you want to go
`to slide 11, this is the testimony they changed. That's aligning
`with what he said in that first quote I showed you, so if you read
`his testimony before his redirect testimony aligns with what
`we've been saying, that as a general principle when you increase
`the LED pulse rate you're going to increase the SNR. And that
`also aligns with what you're being taught by Carlson in light of
`Lisogurski.
`So we think, you know, when you look at all of these facts
`and you look at all of these bits in the record, we think they all
`are aligning to support our position, which is that when a person
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`of skill reads Lisogurski in light of the guidance provided by
`Carlson as suggesting to modify the Lisogurski LED pulse rate to
`increase it when it encounters noise in order to increase the
`signal-to-noise ratio. So we think we've made a pretty strong
`record to support the finding that you made in the Institution
`Decision that these claims are obvious.
`I think I'm around half an hour. I don't know what my
`precise time is but I'm happy to try to answer any questions you
`have, otherwise I may reserve the balance of my time for
`rebuttal.
`JUDGE OBERMANN: I have a question, I'm sorry --
`MR. KUSHAN: Go ahead, Judge Obermann.
`JUDGE OBERMANN: -- and this doesn't have to count
`towards your time. I'm not sure I'm grasping it, but is it true that
`there's a dispute whether or not the art has to establish that the
`apparatus is configured to perform this function? I'm looking at
`your slide 15 that includes this case law citation saying that, you
`know, does the apparatus claim cover what a device is and not
`what a device does -- and by the way this is Grace Obermann for
`the reporter -- and then I'm looking at the claim and the language
`itself is very clear, it says it's configured to. Now does this take
`that out of the type of claims that the Federal Circuit was talking
`about on your slide 15?
`MR. KUSHAN: I don't believe so. When you look at the
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`record, and I would actually ask you to look at slide 8 because,
`and to most directly answer your question Your Honor, there's no
`dispute that Lisogurski's device is configured to vary LED pulse
`rate in response to noise. You know, when we asked their
`expert, is Lisogurski's device configured to increase the emitter
`firing rate in some circumstances, he said yes. If you look into
`the Lisogurski descriptions you see, if you can just go back one
`slide to slide 7, Lisogurski is telling you -- the middle quote --
`the system may alter the cardiac modulation technique based on
`the level of noise. But that's saying vary one of those
`parameters, the LED pulse rate, in response to the noise.
`So the record I think kind of makes that ultimate legal
`question you've asked unnecessary to try to resolve here because
`the record is showing you that you wish -- you'd believed them
`about this requirement -- that's what Lisogurski's doing. It has a
`system that's been configured to increase the LED pulse rate
`knowing you can do that, as Carlson is teaching you to do, you're
`going to increase the signal-to-noise ratio.
`JUDGE OBERMANN: Okay. This is Judge Obermann.
`You referred us to a slide where they said that we basically left
`out a piece of the claim. What slide was that? In the very
`beginning of your presentation, where they disputed a finding
`that we made in the DI.
`MR. KUSHAN: Yes. If you can look at slide 4 and what I
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