Paper No. 34
`Trials@uspto.gov
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`571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`SOTERA WIRELESS, INC.,
`Petitioner,
`
`v.
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`MASIMO CORPORATION,
`Patent Owner.
`____________
`
`IPR2020-01078
`Patent RE47,218E
`____________
`
`Record of Oral Hearing
`Held Virtually: Friday, September 24, 2021
`____________
`
`
`
`Before GEORGE R. HOSKINS, JENNIFER MEYER CHAGNON, and
`AMANDA F. WIEKER, Administrative Patent Judges.
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`Trials@uspto.gov
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`571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SOTERA WIRELESS, INC.,
`Petitioner,
`
`v.
`
`MASIMO CORPORATION,
`Patent Owner.
`____________
`
`IPR2020-01078
`Patent RE47,218E
`____________
`
`Record of Oral Hearing
`Held Virtually: Friday, September 24, 2021
`____________
`
`
`
`Before GEORGE R. HOSKINS, JENNIFER MEYER CHAGNON, and
`AMANDA F. WIEKER, Administrative Patent Judges.
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`IPR2020-01078
`Patent RE47,218E
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`JENNIFER E. HOEKEL, ESQUIRE
`HUSCH BLACKWELL LLP
`190 Carondelet Plaza, Suite 600
`St. Louis, Missouri 63105
`
`AND
`
`NATHAN P. SPORTEL, ESQUIRE
`HUSCH BLACKWELL, LLP
`120 South Riverside Plaza, Suite 2200
`Chicago, Illinois 60606
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`BENJAMIN KATZENELLENBOGEN, ESQUIRE
`JARED BUNKER, ESQUIRE
`BARAA KAHF, ESQUIRE
`DANIEL KIANG, ESQUIRE
`KNOBBE MARTENS IP LAW FIRM
`2040 Main Street, 14th Floor
`Irvine, California 92614
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`The above-entitled matter came on for hearing on Friday, September 24,
`2021, commencing at 1:58 p.m. EST, by video/by telephone.
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`IPR2020-01078
`Patent RE47,218E
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` (Proceedings begin at 1:58 p.m.)
` JUDGE HOSKINS: Good morning, or good afternoon,
`depending on where you are in the country.
` This is a hearing for oral argument in Inter Partes
` Review No. 2020-01078.
` The case is captioned Sotera Wireless, Inc. v.
` Masimo Corporation, and the challenged patent is Reissue
` Patent No. 47,218.
` The PTAB panel here today is myself, my name is
` George Hoskins, and then my colleagues, Jennifer Chagnon and
` Amanda Wieker, are also here today.
` So with that introduction, let me ask counsel for
` the respective parties to make their appearances and
` whatever other introductions of people listening in today that
` might be deemed helpful.
` So let's start with counsel for petitioner, please.
` MS. HOEKEL: Thank you, Your Honor.
` This is Jennifer Hoekel on behalf of petitioner of
`the firm Husch Blackwell.
` With me is Nathan Sportel, who is also entered in
`the case, and I will be doing the presenting for petitioner.
` JUDGE HOSKINS: Thank you, Ms. Hoekel, and welcome
`to the Board.
` And so for patent owner, please.
` MR. KATZENELLENBOGEN: Good afternoon.
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`IPR2020-01078
`Patent RE47,218E
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` This is Benjamin Katzenellenbogen of Knobbe Martens
`for patent owner, Masimo. I will be presenting the argument
`today.
` With me are additional attorneys at my firm, Jared
` Bunker, Baraa Kahf, and Daniel Kiang.
` There may be additional attorneys listening in on
` the public line who obviously will not be participating.
` JUDGE HOSKINS: Thank you, Mr. Katzenellenbogen, and
`welcome as well.
` MR. KATZENELLENBOGEN: Thank you very much.
` JUDGE HOSKINS: Let me return to Ms. Hoekel for a
`moment.
` Ms. Hoekel, you're not on my list of the lawyers
`that are identified in this case. Maybe I have that wrong.
` Are you entered -- have you entered an appearance
` for this proceeding?
` MS. HOEKEL: (Indiscernible)
` JUDGE HOSKINS: Okay.
` MS. HOEKEL: I have, Your Honor.
` JUDGE HOSKINS: Okay, thank you.
` So the order of argument is as set forth in the
` papers. Petitioner will present its case in chief, patent
` owner then has a chance to make a rebuttal, petitioner has a
` chance for a reply, and patent owner then has a chance for a
` surreply.
` Each party has been given 30 minutes, so let me
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`IPR2020-01078
`Patent RE47,218E
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` first ask Ms. Hoekel, do you wish to reserve any time in
` advance for your rebuttal?
` MS. HOEKEL: I'll reserve 10 minutes, Your Honor.
` JUDGE HOSKINS: Thank you.
` And Mr. Katzenellenbogen?
` MR. KATZENELLENBOGEN: My plan is to do the same --
` JUDGE HOSKINS: Okay.
` MR. KATZENELLENBOGEN: -- Your Honor, to reserve 10
`minutes.
` JUDGE HOSKINS: Okay. Thank you very much.
` So before I then turn it over to Ms. Hoekel to make
` her presentation, are there any questions about how we're
` proceeding today from a procedural standpoint?
` MS. HOEKEL: Not from petitioner, Your Honor.
` MR. KATZENELLENBOGEN: One minor one, which is, my
`understanding is that the Board has hard copies of our
`demonstratives and would prefer that we refer to the
`demonstratives rather than putting them up as a share screen
`on the video; is that correct?
` JUDGE HOSKINS: That is correct, yes.
` We do have them in front of us. If you feel it
`helpful to put it up on a screen, if you have a pointer
`device, you know, you might want to point to something
`specific, feel free, but typically, we just refer to the
`demonstratives that we have on the screens in front of us,
`and you can refer to them by slide number for the record.
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`That is typically how we do things.
` MR. KATZENELLENBOGEN: Very good. Thank you.
` JUDGE HOSKINS: Okay.
` MS. HOEKEL: Judge Hoskins?
` JUDGE HOSKINS: Yes.
` MS. HOEKEL: Sorry. The one thing I was about to
`say is I am experiencing a delay. I'm not sure if everyone
`else is as well. But I apologize in advance if I don't stop
`quickly when someone asks a question just because I do think
`there is a bit of a delay, on my end at least.
` JUDGE HOSKINS: Understood. Thank you.
` We can hear you just fine so there's nothing on our
` end that is impeding us from hearing your argument. So I
` think we can go forward, and if it becomes an issue, we can
` deal with it, perhaps, in another way, depending on what
` happens.
` MS. HOEKEL: Thank you.
` JUDGE HOSKINS: So thank you very much.
` So with that, Ms. Hoekel, you may begin your
`argument whenever you are ready, and when you are ready, I
`will start a 20-minute clock and try to give you a little bit
`of warning when you start to end your initial 20-minute
`period. So thank you.
` MS. HOEKEL: Thank you.
` Good afternoon. I am here to present the
` petitioner's argument in the Re-issue '218 patent, and will
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`IPR2020-01078
`Patent RE47,218E
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` refer to the slides, as I refer to them in my presentation,
` which should primarily be in order of the slides, but I may
` jump around just a little bit.
` On Slide 2 is just the agenda of the arguments,
` which is that we will be discussing the challenged patent,
` the several claim construction issues, and then getting
` into, obviously, the grounds of why we believe the '218
`patent is invalid.
` If we can go to Slide 3. And Slide 3 just provides
`Claim 1 of the Reissue '218 patent.
` I think it's important to point out that the purpose
`of this patent, when one reads the patent specification, was
`to come up with a solution to suppress non-actionable alarms
`using something other than fixed delays.
` The petition -- or excuse me -- the patent was
`really directed to preventing and reducing false alarms.
` No one is now arguing about -- about what
`was the point of novelty in the reissue, which was this
`diminishing and adjusting threshold that we'll talk about in
`a minute, now we seem to be talking about how to trigger an
`alarm when a patient's physiological parameter crosses some
`preset level.
` Again, a reading of the '218 patent will show that
`that isn't what this patent was directed to.
` If we look at Slide 3, and Claim 1, the provision
`that starts towards the bottom of the claim, "wherein the
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`IPR2020-01078
`Patent RE47,218E
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`second alarm threshold has a value," that was the provision
`that petitioner believed would be the focus of this
`proceeding when it filed its petition given that was where
`the point of novelty was focused in the reissue.
` It seems, though, as this case has proceeded, the
`focus by Masimo has become more on, particularly the last
`provision of this patent, the triggering a second alarm
`based on at least one value of the oxygen saturation value,
`and that's really because we presented a piece of prior art,
`the Bock reference, which we'll talk about, obviously, that
`covered the alleged point of novelty that was the issue in
`the prosecution of the patent and the reissue.
` If we can go to Slide 5. I have to put my reading
`glasses on now so I can see that we're on Slide 5.
` Slide 5 discusses the fact that the Reissue '218 was
`directed to this adaptive alarm threshold.
` The point of the '218 patent, as described in the
`specification and in the figures and in the claim, was, as
`described here on the left-hand side of the slide,
`determining a patient's physiological parameter value and
`whether to trigger the alarm if the value exceeded the
`threshold, and then accessing a second threshold that
`replaced that original threshold, and the second threshold
`was set at an offset when the patient's physiological
`parameter value and, essentially, got smaller as the
`patient's physiological parameter value approached a lower
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`limit.
` So in other words, as a patient's condition
`worsened, the threshold got closer to the patient's
`parameter such that the delay would be shorter as a
`patient's condition worsened.
` So in the prosecution history, the point of novelty,
`again, was this concept of this adjustable threshold and the
`diminishing threshold, so that's what the petition was
`really focused on was talking about how the Bock reference
`taught these diminishing and adjustable thresholds.
` After the petition was received, though, Masimo
`changed their argument about novelty and is really now
`talking about what causes the alarm to sound after the
`parameter crosses the threshold, and that's really, sort of,
`alarming 101. I mean, the whole point of an alarm system is
`when a patient's physiological parameter crosses a certain
`threshold, an alarm is going to trigger. Sometimes it
`triggers immediately, sometimes there's a delay, but the
`alarm is going to trigger when the physiological parameter
`is crossed, and the Bock reference teaches this very
`clearly.
` So now Masimo has again moved to this argument in
`its response that talks more about the second threshold.
` If we look at Slide 6, the '218 patent taught that
`there was conditions other than just crossing the threshold
`that could cause triggering of a physiological parameter,
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`and this is called out on Slide 6. There's a provision
`portion of the specification in the '218 that talks about an
`optional delay, and it talks about how, in an embodiment,
`the alarm output is triggered after a time delay which may
`be fixed or variable.
` So again, the '218 contemplated that there could be
`a condition other than just merely crossing a threshold
`before the alarm was triggered.
` If we go to Slide 7, which is just really the
`prosecution history slide, and look at some of the broadened
`reissue claim on Slide 8.
` The claim in the prosecution history was originally
`allowed because of this diminishing offset, and we cite to
`that in the file history at Exhibit 10,000 -- I'm sorry --
`1013 at page 6, and that was what the examiner found was the
`point of novelty was this diminishing offset.
` The patentee in this case had its patent and filed a
`broadened reissue request, and if we look at Slide 8, the
`original claim language is on the left and the revised claim
`language from the reissue is on the right.
` And the original claim language read, "determine
`whether a second alarm should be triggered by determining if
`at least one oxygen saturation value obtained during the
`second period of time exceeds the second alarm threshold and
`triggering an alarm if it is determined the second alarm
`should be triggered."
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`IPR2020-01078
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` Masimo filed a broadened reissue request, and the
`reissue language is seen on the right, which is now that
`that's -- the claim language says that, it "triggers a
`second alarm based on at least one value of the oxygen
`saturation values obtained over the second period of time
`exceeding the threshold."
` So it's necessarily more broad. We know that
`because it's a broadening reissue. And as we'll discuss
`with the claim construction position from Masimo in a
`minute, the original claim language may have supported that
`claim construction that Masimo offers in the current
`petition, but the reissue claim language is much more broad.
` So if we look at Claim -- I'm sorry -- Slide 10,
`there was a construction that the Board requested the
`parties to construe.
` Again, this construction, I think, was requested
`when it seemed like the dispute was with respect to the
`diminishing offset, so neither party believes that this
`construction is important to or critical to the rendering of
`a decision in this case about the patentability of the
`claims, so both parties, given the word limits of responses,
`have chosen to not construe this claim term because we don't
`believe that the construction is necessary to either party's
`positions.
` JUDGE HOSKINS: Ms. Hoekel?
` MS. HOEKEL: Yes, Your Honor.
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` JUDGE HOSKINS: Thank you. This is Judge Hoskins.
` In your petition, for the first limitation, the
`first time the at least one oxygen saturation value is
`recited in the claim, when you're applying that to Bock, you
`apply that to a measured value, that squiggly line -- I
`can't remember the number -- but it's the directly measured
`parameter.
` MS. HOEKEL: Yes.
` JUDGE HOSKINS: And then later on in the claim, in
`the second limitation that talks about these oxygen
`saturation values, you cite that the baseline is derived from
`that measured data.
` MS. HOEKEL: The calculated representative value.
` JUDGE HOSKINS: Thank you. Yes.
` So you have the burden to establish unpatentability
` in this case as the petitioner, and so you, in your
` petition, as I understand it, you've applied this term
` oxygen saturation value differently in different
` limitations.
` So don't we need to justify that if we are going to
` find in your favor with respect to the unpatentability of
` Claim 1?
` MS. HOEKEL: So I believe that our consistent
`position is that the value that's being measured from the
`patient at any given moment, that that is the oxygen
`saturation value that we're looking at, and we're always
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`IPR2020-01078
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`comparing it to the tracking threshold, which is 314.
` And so to the extent that there was an inconsistency
` in the petition, I believe it's been clarified through the
` reply and through the patent -- excuse me -- the
` declarations, but that is the position of petitioner.
` JUDGE HOSKINS: So how then do you get to what
`you've referred to as Limitation 1(g)? If you're applying that
`understanding of the oxygen saturation values, how is it that
`Bock satisfies Limitation 1(g)?
` MS. HOEKEL: I believe Bock satisfies Limitation 1(g)
`because Bock is referring to the patient value measured and
`comparing that to the threshold, and so they are looking, as
`the '218 does, looking at the measured patient value in every
`instance and comparing that against the threshold.
` JUDGE HOSKINS: Okay. So walking through the
`language of Limitation 1(g), the first phrase is, "the second
`alarm threshold has a value less than the at least one oxygen
`saturation value."
` So I guess your view would be that therefore, what
` the claim is directed to is we're worried about oxygen
` saturation values going too low, as opposed to too high, do
` I have that correct?
` MS. HOEKEL: Correct, Your Honor.
` JUDGE HOSKINS: Thank you.
` MS. HOEKEL: Yes.
` JUDGE HOSKINS: But then it also says that, "the at
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`least one oxygen saturation value has to be at an offset from
`the at least one oxygen saturation value."
` What does that mean if both of the oxygen saturation
` values that are recited there are referring to actual
` measured data?
` MS. HOEKEL: So if we read the phrase in total, the
`second alarm threshold is a second threshold that is going to
`be less than what the patient's measured value was and
`greater than some lower limit that we're concerned about.
`It's not going to be the same as -- thus, as that per patient
`oxygen saturation -- measured oxygen saturation value.
` So it's trying to show that that threshold is closer
` to that patient value, the measured patient value, because,
` again, we're talking about a situation where the patient is
` becoming -- condition is worsening, and so that second
` threshold is going to be approaching the measured -- that
` first measured value.
` JUDGE HOSKINS: I understand. Thank you very much.
` MS. HOEKEL: So if we look at Slide 12, the other
`construction that's discussed in these proceedings is,
`"trigger a second alarm based on an oxygen saturation value
`exceeding the second alarm threshold," and this is really
`where, from Masimo's patent owner's response, the dispute is
`now -- before the Board is around this claim term.
` We think that there are three problems with the
` construction that was offered by Masimo, and again, I'm on
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`IPR2020-01078
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` Slide 12.
` The first one is it's narrower than the -- than --
` it's too narrow, their construction is too narrow,
` particularly in light of this being a broadening reissue.
` The second problem with it is that it eliminates one
` of the functions of the system, which is looking for false
` alarms.
` And necessarily what has to happen in these systems
` is that, when the patient's measured value falls below the
` threshold, the alarm could trigger instantly. That's, sort
` of, the historic patient monitoring is the number falls
` below the certain value and the alarm triggers.
` Well, this system says, well, we want to eliminate
` false alarms, we want to know that they're really alarms, so
` we're going to wait and we're going to see what that trend
` is.
` Well, that necessarily requires rechecking of those
` oxygen levels before that alarm triggers, and their proposed
` construction completely eliminates that rechecking step.
` And lastly, just as a matter of law, it incorporates
`a negative limitation when it has this portion of the
`construction that says, "optionally in combination with
`other non-oxygen saturation value conditions."
` Since I've taken longer than I intended on the
`intro, I'm going to speed up a little bit to say that, if
`the Board agrees with Sotera's proposed construction then
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`Masimo really doesn't have any substantive arguments over
`Bock, and so I'm going to go, sort of, through the
`construction other than to say that, at Slide 14, we've
`pointed out how the Board has agreed with Sotera's proposed
`construction in their Institution Decision, and so, if you
`maintain that construction going forward, we believe that
`it's very clear that Bock anticipates -- or renders these
`claims invalid, non-patentable.
` If we can go to Slide 21, which is discussing Bock,
`and again, with respect to the claim construction arguments
`of Masimo, they want to read out their amendment to this
`claim, this reissue claim, and read out the “based on”
`language.
` And we point out in our petition and in our
`subsequent papers that Bock clearly shows that the alarm is
` based on whether or not a patient's physiological parameter
` exceeds the threshold.
` If you look at Figure 5 on Slide 21, the only way --
` excuse me -- one of the ways for the alarm to be triggered
` has to pass through exceeding the threshold -- the patient's
` parameter -- physiological parameter has to exceed the
` threshold, and that's at 110.
` While there is this alarm limit provision in there
` as well, the alarm 106 is based on whether or not there's a
` "Yes" to the box "Exceed the Threshold".
` So we think it's very clear that passing the
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` threshold is a condition of triggering the alarm.
` JUDGE HOSKINS: Ms. Hoekel --
` MS. HOEKEL: Yes, Your Honor.
` JUDGE HOSKINS: -- I just wanted to let you know I
`have about two minutes left on your initial 20-minute period.
` MS. HOEKEL: Yes. Thank you, Judge.
` I wanted to skip to Slide 29 and just point out
` that, should the Board adopt Masimo's proposed construction,
` Bock still renders the claims obvious.
` Bock teaches that the alarm limit, which is really
` the crux of the argument between the parties here, Bock
`teaches that that alarm limit can optionally be set to the
`same value as the tracking threshold, sort of, effectively
`eliminating the alarm limit, and it also teaches that that
`alarm limit decays and eventually returns to the same level
`as the original tracking threshold, and so we believe, even
`should the Board adopt what we believe is an incorrect
`construction, Masimo's proposed construction, that even
`under that construction Bock renders the claims obvious.
` I just want to point out briefly that the only
`modification -- I think it's important to point out -- the
`only modification that we argued with respect to Bock in
`Ground 1 is the replacement of the sensor with the optical
`sensor of Kiani, which really is not in dispute here.
` Masimo makes some arguments in their responses that
`we are modifying Bock. We're arguing that, you know, Bock
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`has to be modified, and they argue that Bock is -- there's
`no motivation in Bock to make some of the modifications.
` We just want to make it clear, we're not proposing
`that you need to modify Bock for Ground 1 in any way other
`than to adds the Kiani optical sensor. There's no 103
`analysis, motivation to combine, reasonable expectation of
`success that has to be done to the other provisions of the
` Bock reference because it's all in Bock, and so we just want
` to make that point clear in response to some of Masimo's
` arguments that, again, for Ground 1, the only requirement of
` the 103 analysis is whether or not to take the optical pulse
` oximetry scanner -- or monitor of Kiani and combine it with
` Bock.
` We are not arguing that the tracking threshold or
` the alarm limit have to be modified, we are arguing that, as
` disclosed in Bock, they render these claims invalid.
` So I will end with that and reserve the rest of my
` time for rebuttal.
` JUDGE HOSKINS: Thank you very much.
` I have nine minutes left on your clock for rebuttal
`when we come back to you.
` MS. HOEKEL: Thank you, Your Honor.
` JUDGE HOSKINS: So Mr. Katzenellenbogen, feel free
`to start when you are ready to go, and when you do, I will
`start your 20-minute clock here. Thank you.
` MR. KATZENELLENBOGEN: Thank you very much, Your
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`Honor.
` I'd like to begin by comparing Sotera's
` Demonstrative Slide 21 to Masimo's Slide 21 because I think
`it shows the fundamental flaw in Sotera's argument.
` Sotera's Slide 21 asserts that Bock discloses an
`alarm is triggered based on patient data exceeding the
`tracking threshold, and that's because Sotera argues that
`Bock's tracking threshold 314 is the claimed second alarm
`threshold.
` And as shown in Masimo's Slide 21 -- sorry, I
`apologize -- same slide number, I promise we didn't
`coordinate this ahead of time -- in Masimo's Slide 21, even
`Sotera's own expert disagreed with that assertion. And
`Sotera's expert admitted that Bock does not trigger an alarm
`based on the patient data exceeding the tracking threshold
`314.
` And I think critically, his testimony was not -- was
`based on his understanding of the claim language, and that
`was not based on applying Masimo's claim construction.
` So the assertion that Masimo's arguments all fail
`under Sotera's claim construction is not correct.
` And, of course, Masimo's expert similarly testified
`that Bock does not trigger an alarm based on the patient
`data exceeding the tracking threshold, and that's, for
`example, in Exhibit 2011 at paragraphs 76 and 78.
` And so then on reply, Sotera did not dispute or even
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`address its expert's admission. Instead, Sotera switched
`experts and introduced new arguments.
` And so, unlike what I think is a typical IPR, here,
`the experts agree that the primary reference, Bock, does not
`disclose the triggering limitation in 1(i).
` And so as we go through the arguments today, I'd
`like the Board to view the arguments through that lens. And
`I'm not just asking the Board to take my word for the fact
`that Bock does not disclose this limitation, Sotera's own
`expert agreed.
` And Sotera characterized the invention as being
`simply about reducing the number of false alarms, and I
`don't think that's accurate.
` The invention is directed toward a very important
`balancing between triggering an alarm based on actionable
`events while reducing the number of nuisance alarms, and
`particularly when the patient's baseline oxygen saturation
`value is decreasing for non-actionable reasons, such as
`being taken off oxygen.
` And I also -- I guess I disagree with this concept
`of the point of novelty because the claims recite a novel
`combination of limitations, including a second alarm
`threshold that meets certain criteria and trigger an alarm
`based on exceeding that second alarm threshold.
` And what Sotera is trying to do is to read out of
`the claims the requirement that the alarm is triggered based
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`IPR2020-01078
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`on exceeding, dropping below, the second alarm threshold,
`and Sotera wants to eliminate the requirement that it is the
`second alarm threshold that triggers the alarm.
` And one of the reasons why I think this is wrong is
`because, for a claim that requires the same element
`satisfies Limitation A and Limitation B, it's not enough to
`find prior art that supposedly has an element that satisfies
`Limitation A and a different element that satisfies
`Limitation B. That's trying to eliminate the requirement
`that the same element satisfied both limitations.
` If a reference had a single structure that satisfied
`the first limitation and the second limitation, then adding
`a condition might be a relevant question and might not be
`outside the claims. But here, there is no single element in
`Bock that satisfies all the required limitations of 1(g)
`and 1(i), so we never get to the open-ended nature of the
`claim or which additional conditions might be permitted
`because the claimed conditions aren't satisfied.
` The other thing that I think runs through these
`arguments a little bit is this concept of adding a condition
`versus replacing a condition.
` And adding a time delay is different than changing
`the oxygen saturation level required to trigger the alarm.
`The time delay does not reduce or eliminate the role of the
`second alarm threshold in triggering the alarm, and that
`makes it fundamentally different than a condition that
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`changes the oxygen saturation level required to trigger the
`alarm.
` Changing the oxygen saturation level required to
`trigger the alarm is not adding a condition, and this is
`illustrated by the Venn diagram on Masimo's Slide 14.
` And on the left side, we have in blue an oxygen
`saturation value measurement condition, and then we have a
`time delay in red.
` And adding the time delay in red does not eliminate
`or render irrelevant the value in blue. And here, again,
`we're talking about alarms that are triggered, so it would
`be the overlap between those two.
` And even after the time delay has been added,
`changing the size -- and I apologize that we don't have
`animation today -- changing the size of the blue circle
`larger or smaller would affect that area of overlap. It
`would change which alarms -- which conditions get alarmed.
` And that's in contrast to on the right. And on the
`right we have what Sotera is trying to do, which is saying
`you have an original value condition and then you have a
`narrower, more extreme value condition.
` And in that situation, they've rendered irrelevant
`the original value condition because, as you would be able
`to see in the animation, changing the size of that blue
`circle bigger or smaller does not change the area of
`overlap, therefore, it doesn't change what conditions are
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`going to trigger an alarm.
` And that's why it's different -- and I think this
`was a question that the Board had in the Institution
`Decision which is how those two things were different -- and
`that is one critical way in which they're different, because
`an alarm delay doesn't render irrelevant the original oxygen
`saturation value.
` And I'd now like to turn to the two claim
`construction issues; first is about second alarm threshold
`and then the other is, sort of, what it means to trigger
`based on exceeding.
` And if we could turn to Masimo's Slide 5. That has
`the parties' -- and I use the term slide loosely -- the
`construction of second alarm threshold because Sotera did
`not propose a competing construction.
` And Masimo's construction that it is the most
`extreme or lowest oxygen saturation value that must be
`exceeded to trigger the alarm, that's consistent with and
`supported by the patent specification.
` And if the Board turns to Masimo's Slide 9, this is
`Figure 6 from the patent, and we've annotated it with color,
`but you have three -- this is illustrating three different
`time periods, and at each time p
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