Trials@uspto.gov
`571-272-7822
`
`
`
`Paper 33
`Date: April 11, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`v.
`MASIMO CORPORATION,
`Patent Owner.
`
`IPR2020-01521
`Patent 10,292,628 B1
`
`
`
`
`
`
`
`
`
`Before JOSIAH C. COCKS, ROBERT L. KINDER, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`COCKS, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`571-272-7822
`
`
`
`Paper 33
`Date: April 11, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`v.
`MASIMO CORPORATION,
`Patent Owner.
`
`IPR2020-01521
`Patent 10,292,628 B1
`
`
`
`
`
`
`
`
`
`Before JOSIAH C. COCKS, ROBERT L. KINDER, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`COCKS, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`
`IPR2020-01521
`Patent 10,292,628 B1
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`
`I.
`
`INTRODUCTION
`
`A. Background
`Apple Inc. (“Petitioner”) filed a Petition (Paper 2, “Pet.”) pursuant to
`35 U.S.C. §§ 311–319 to institute an inter partes review of claims 1–30
`(“challenged claims”) of U.S. Patent No. 10,292,628 B1 (Ex. 1001, “the
`’628 patent”). We instituted the petitioned review (Paper 7, “Institution
`Decision” or “Inst. Dec.”).
`Masimo Corporation (“Patent Owner”) filed a Patent Owner Response
`(Paper 15, “PO Resp.”) to oppose the Petition. Petitioner filed a Reply
`(Paper 17, “Pet. Reply”) to the Patent Owner Response. Patent Owner filed
`a Sur-reply (Paper 20, “Sur-reply”) to the Reply. We conducted an oral
`hearing on January 19, 2022. A transcript has been entered into the record
`(Paper 32, “Tr.”).
`We have jurisdiction under 35 U.S.C. § 6(b)(4) and § 318(a). This
`Decision is a final written decision under 35 U.S.C. § 318(a) and 37 C.F.R.
`§ 42.73 as to the patentability of claims 1–30 of the ’628 patent. We
`determine Petitioner has shown by a preponderance of the evidence that
`those claims are unpatentable.
`
`B. Related Matters
`The parties identify the following matters related to the ’628 patent:
`Masimo Corporation v. Apple Inc., Civil Action No. 8:20-cv-00048
`(C.D. Cal.) (filed Jan. 9, 2020);
`Apple Inc. v. Masimo Corporation, IPR2020-01520 (PTAB
`Aug. 31, 2020) (challenging claims of U.S. Patent No. 10,258,265 B1);
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`Apple Inc. v. Masimo Corporation, IPR2020-01523 (PTAB
`Sept. 9, 2020) (challenging claims of U.S. Patent No. 8,457,703 B2);
`Apple Inc. v. Masimo Corporation, IPR2020-01524 (PTAB Aug.
`31, 2020) (challenging claims of U.S. Patent No. 10,433,776 B2);
`Apple Inc. v. Masimo Corporation, IPR2020-01526 (PTAB
`Aug. 31, 2020) (challenging claims of U.S. Patent No. 6,771,994 B2);
`Apple Inc. v. Masimo Corporation, IPR2020-01536 (PTAB
`Aug. 31, 2020) (challenging claims of U.S. Patent No. 10,588,553 B2);
`Apple Inc. v. Masimo Corporation, IPR2020-01537 (PTAB
`Aug. 31, 2020) (challenging claims of U.S. Patent No. 10,588,553 B2);
`Apple Inc. v. Masimo Corporation, IPR2020-01538 (PTAB
`Sept. 2, 2020) (challenging claims of U.S. Patent No. 10,588,554 B2); and
`Apple Inc. v. Masimo Corporation, IPR2020-01539 (PTAB
`Sept. 2, 2020) (challenging claims of U.S. Patent No. 10,588,554 B2).
`Pet. 98, Paper 3, 1.
`
`Patent Owner further identifies numerous issued and abandoned
`applications that are said to claim priority to, or share a priority claim with,
`the ’628 patent. Paper 3, 3.
`
`C. The ’628 Patent
`The ’628 patent is titled “Multi-Stream Data Collection System for
`Noninvasive Measurement of Blood Constituents,” and issued on May 21,
`2019, from U.S. Patent Application No. 16/261,326, filed January 29, 2019.
`Ex. 1001, codes (21), (22), (45), (54). The ’628 patent discloses a two-part
`data collection system including a noninvasive sensor that communicates
`with a patient monitor. Id. at 2:31–33. The sensor includes a sensor
`housing, an optical source, and several photodetectors, and is used to
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`measure a blood constituent or analyte, e.g., oxygen or glucose. Id. at 2:55–
`3:5. The patient monitor includes a display and a network interface for
`communicating with a handheld computing device. Id. at 2:38–40.
`Figure 1 of the ’628 patent is reproduced below.
`
`
`
`Figure 1 illustrates a block diagram of data collection system 100 including
`sensor 101 and monitor 109. Id. at 5:26–29, 11:36–37. Sensor 101 includes
`optical emitter 104 and detectors 106. Id. at 11:48–50. Emitters 104 emit
`light that is attenuated or reflected by the patient’s tissue at measurement site
`102. Id. at 13:60–64. Detectors 106 capture and measure the light
`attenuated or reflected from the tissue. Id. In response to the measured
`light, detectors 106 output detector signals 107 to monitor 109 through front-
`end interface 108. Id. at 13:64–67, 14:16–22. Sensor 101 also may include
`tissue shaper 105, which may be in the form of a convex surface that:
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`(1) reduces the thickness of the patient’s measurement site; and (2) provides
`more surface area from which light can be detected. Id. at 10:51–11:3.
`Monitor 109 includes signal processor 110 and user interface 112. Id.
`at 15:6–8. “[S]ignal processor 110 includes processing logic that determines
`measurements for desired analytes . . . based on the signals received from
`the detectors 106.” Id. at 15:10–14. User interface 112 presents the
`measurements to a user on a display, e.g., a touch-screen display. Id.
`at 15:38–42. The monitor may be connected to storage device 114 and
`network interface 116. Id. at 15:52–16:3.
`
`The ’628 patent describes various examples of sensor devices.
`Figures 14D and 14F, reproduced below, illustrate sensor devices.
`
`
`
`
`Figure 14D illustrates portions of a detector submount and Figure 14F
`illustrates portions of a detector shell. Id. at 6:34–37. As shown in
`Figure 14D, multiple detectors 1410c are located within housing 1430 and
`under transparent cover 1432, on which protrusion 605b (or partially
`cylindrical protrusion 605) is disposed. Id. at 36:15–35. Figure 14F
`illustrates a detector shell 306f including detectors 1410c on substrate 1400c.
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`Id. at 36:62–37:3. Substrate 1400c is enclosed by shielding enclosure 1490
`and noise shield 1403, which include window 1492a and window 1492b,
`respectively, placed above detectors 1410c. Id. Alternatively, cylindrical
`housing 1430 may be disposed under noise shield 1403 and may enclose
`detectors 1410c. Id. at 37:34–36.
`
`Figures 4A and 4B, reproduced below, illustrate an alternative
`example of a tissue contact area of a sensor device.
`
`
`
`Figures 4A (left) and 4B (right) illustrate arrangements of protrusion 405
`including measurement contact area 470. Id. at 23:8–14. “[M]easurement
`site contact area 470 can include a surface that molds body tissue of a
`measurement site.” Id. “For example, the measurement site contact area
`470 can be generally curved and/or convex with respect to the measurement
`site.” Id. at 23:31–33. The measurement site contact area may include
`windows 420–423 that “mimic or approximately mimic a configuration of,
`or even house, a plurality of detectors.” Id. at 23:39–53.
`
`D. Illustrative Claim
`Of the challenged claims, claims 1, 7, and 20 are independent.
`Claim 1 is illustrative and is reproduced below.
`1. A noninvasive optical physiological sensor comprising:
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`[a] a plurality of emitters configured to emit light into
`
`tissue of a user;
`[b] a plurality of detectors configured to detect light that
`has been attenuated by tissue of the user, wherein the plurality of
`detectors comprises at least four detectors;
`[c] a housing configured to house at least the plurality of
`detectors; and
`[d] a light permeable cover configured to be located
`between tissue of the user and the plurality of detectors when the
`noninvasive optical physiological sensor is worn by the user,
`wherein the cover comprises an outwardly protruding convex
`surface configured to cause tissue of the user to conform to at
`least a portion of the outwardly protruding convex surface when
`the noninvasive optical physiological sensor is worn by the user
`and during operation of the noninvasive optical physiological
`sensor, and wherein the plurality of detectors are configured to
`receive light passed through the outwardly protruding convex
`surface after attenuation by tissue of the user.
`Ex. 1001, 44:36–56 (bracketed identifiers [a]–[d] added). Independent
`claims 7 and 20 include similar limitations. Id. at 45:9–22; 46:12–34.
`
`E. Evidence Relied Upon
`Petitioner relies on the following references:
`Reference
`Publication/Patent Number
`Aizawa
`U.S. Patent Application Publication No.
`2002/0188210 A1, filed May 23, 2002,
`published December 12, 2002.
`Japanese Patent Application Publication
`No. 2006-296564 A, filed April 18, 2005,
`published November 2, 2006.
`U.S. Patent Application Publication No.
`2001/0056243 A1, filed May 11, 2001,
`published December 27, 2001.
`
`Inokawa
`
`Ohsaki
`
`
`1 Exhibit 1008 is an English translation of Exhibit 1007.
`
`7
`
`Exhibit
`1006
`
`1007,
`10081
`
`1014
`
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`Reference
`Mendelson-
`2006
`
`Beyer
`
`Goldsmith
`
`Lo
`
`Mendelson-
`1988
`
`Publication/Patent Number
`“A Wearable Reflectance Pulse Oximeter for
`Remote Physiological Monitoring,” Proceedings
`of the 28th IEEE EMBS Annual International
`Conference, 912–915 (2006).
`U.S. Patent No. 7,031,728 B2 issued April 18,
`2006.
`U.S. Patent Application Publication No.
`2007/0093786 A1, filed July 31, 2006,
`published April 26, 2007.
`U.S. Patent Application Publication No.
`2004/0138568 A1, filed June 15, 2003,
`published July 15, 2004.
`“Design and Evaluation of a New Reflectance
`Pulse Oximeter Sensor,” Worcester Polytechnic
`Institution, Biomedical Engineering Program,
`Worcester, MA 01609; Association for the
`Advancement of Medical Instrumentation, Vol.
`22, No. 4, 1988, 167–173.
`
`Exhibit
`1016
`
`1019
`
`1027
`
`1028
`
`1015
`
`
`Pet. 1–2.
`Petitioner also relies on the declaration testimony of Thomas W.
`Kenny, Ph.D. (Exhibits 1003 and 1047). Patent Owner relies on the
`declaration testimony of Vijay K. Madisetti, Ph.D. (Exhibit 2004).
`
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`18, 19, 29, 30
`
`18, 19, 29, 30
`
`1–17, 20–28
`
`18, 19, 29, 30
`
`F. Asserted Grounds
`We instituted an inter partes review based on the following grounds:
`Claim(s) Challenged
`35 U.S.C. §
`References/Basis
`1–15, 17, 20–26, 28
`103
`Aizawa, Inokawa
`1–15, 17, 20–26, 28
`103
`Aizawa, Inokawa, Ohsaki
`Aizawa, Inokawa, Mendelson-
`2006, Beyer
`Aizawa, Inokawa, Goldsmith,
`Lo
`Mendelson-1988, Inokawa
`Mendelson-1988, Inokawa,
`Mendelson-2006, Beyer
`
`103
`
`103
`
`103
`
`103
`
`II. ANALYSIS
`A. Principles of Law
`A claim is unpatentable under 35 U.S.C. § 103 if the differences
`between the subject matter sought to be patented and the prior art are such
`that the subject matter as a whole would have been obvious before the
`effective filing date of the claimed invention to a person having ordinary
`skill in the art to which said subject matter pertains. See KSR Int’l Co. v.
`Teleflex Inc., 550 U.S. 398, 406 (2007). The question of obviousness is
`resolved on the basis of underlying factual determinations, including (1) the
`scope and content of the prior art; (2) any differences between the claimed
`subject matter and the prior art; (3) the level of skill in the art; and (4)
`objective evidence of non-obviousness.2 Graham v. John Deere Co., 383
`U.S. 1, 17–18 (1966). When evaluating a combination of teachings, we
`must also “determine whether there was an apparent reason to combine the
`
`
`2 Patent Owner does not present objective evidence of non-obviousness.
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`known elements in the fashion claimed by the patent at issue.” KSR, 550
`U.S. at 418 (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
`Whether a combination of prior art elements would have produced a
`predictable result weighs in the ultimate determination of obviousness. Id. at
`416–417.
`In an inter partes review, the petitioner must show with particularity
`why each challenged claim is unpatentable. Harmonic Inc. v. Avid Tech.,
`Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016); 37 C.F.R. § 42.104(b). The
`burden of persuasion never shifts to Patent Owner. Dynamic Drinkware,
`LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015).
`We analyze the challenges presented in the Petition in accordance
`with the above-stated principles.
`
`B. Level of Ordinary Skill in the Art
`Petitioner identifies the appropriate level of skill in the art as that
`possessed by a person having “a Bachelor of Science degree in an academic
`discipline emphasizing the design of electrical, computer, or software
`technologies, in combination with training or at least one to two years of
`related work experience with capture and processing of data or information.”
`Pet. 3–4 (citing Ex. 1003 ¶¶ 21–22). “Alternatively, the person could have
`also had a Master of Science degree in a relevant academic discipline with
`less than a year of related work experience in the same discipline.” Id. at 4.
`Patent Owner “applies Petitioner’s level of skill.” PO Resp. 10;
`Ex. 2004 ¶¶ 36–39. Patent Owner emphasizes that this level of skill requires
`no specific education or experience “with optics or optical physiological
`monitors” or “in physiology,” and instead “focuses on data processing and
`not sensor design.” PO Resp. 10; Ex. 2004 ¶ 37.
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`The level of ordinary skill in the art offered by Petitioner is reasonable
`based on the record and is agreed to by the parties. We also determine it is
`consistent with the ’628 patent claims and the prior art of record. We adopt
`Petitioner’s expressed level of ordinary skill in the art in this Decision.
`
`C. Claim Construction
`For petitions filed on or after November 13, 2018, a claim shall be
`construed using the same claim construction standard that would be used to
`construe the claim in a civil action under 35 U.S.C. § 282(b). 37 C.F.R.
`§ 42.100(b) (2019). Although both parties contend that no claim term
`requires express construction (Pet. 3; PO Resp. 10), we discern from the
`substance of the parties’ briefing that there is a dispute that emerges for the
`claim term “cover.”
`
`1. “cover”
`Each of independent claims 1, 7, and 20 requires “a light permeable
`cover.” Ex. 1001, 44:44, 45:18, 46: 22.
`Patent Owner argues that the claimed “cover” must be construed to
`exclude “an optically clear adhesive/epoxy” and a “resin on a surface.” PO
`Resp. 51–52. According to Patent Owner, “the ’628 Patent distinguishes a
`resin on a surface from a cover, explaining: ‘the cylindrical housing 1430
`(and transparent cover 1432) . . . can protect the detectors 1410c and
`conductors 1412c more effectively than currently-available resin epoxies.’”
`Id. at 51 (quoting Ex. 1001, 36:35–45).
`Patent Owner alleges that Dr. Kenny also “distinguished a sealing
`resin from a cover, acknowledging a ‘layer of sealing resin’ is ‘one way to
`protect the components without using a cover.’” Id. at 51–52 (quoting
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`Ex. 2009, 395:22–396:17). Patent Owner argues that its construction is
`consistent with how a person of ordinary skill in the art would have
`understood the term based upon the state of the art at the time of filing.
`Id. at 52 (citing Ex. 1008 ¶ 103, Fig. 17; Ex. 1023 ¶ 35; Ex. 1027 ¶ 85,
`Fig. 9B; Ex. 2004 ¶ 114).
`Petitioner replies that “there is nothing in the specification or the
`prosecution history [of the ’628 patent] that would lead a [person of ordinary
`skill in the art] to conclude that ‘cover’ should be interpreted based on
`anything other than its plain meaning.” Pet. Reply 28 (citing Thorner v.
`Sony Computer Entertainment America LLC, 669 F.3d 1362, 1368 (Fed. Cir.
`2012)). That plain meaning, according to Petitioner, is that “a cover is
`merely ‘something that protects, shelters, or guards.’” Id. (quoting
`Ex. 1050; citing Pet. 70–73; Ex. 1047 ¶ 56). Petitioner argues that Patent
`Owner’s reliance on the ’628 patent Specification takes certain text out of
`context, and when this context is considered, it is clear that “the epoxy resin
`to which the ’628 patent compares its cover is not [an] epoxy cover . . . but
`rather epoxy that is applied to solder joints.” Id. at 28 (citing Ex. 1001,
`36:41–45; Ex. 1047 ¶ 58).
`Petitioner also contends that Patent Owner “mischaracterizes
`Dr. Kenny’s deposition testimony to say he agreed that ‘sealing resin’ is
`somehow distinguished from a cover.” Pet. Reply 28. Rather, Petitioner
`contends that Dr. Kenny simply “clarified that using a sealing resin is ‘a
`pretty common way to protect electronic components.’” Id. at 28–29 (citing
`Ex. 2009, 395:22–396:17; Ex. 1047 ¶ 57). Further according to Petitioner,
`“such extrinsic evidence would not justify departure from plain meaning
`under Thorner.” Id. at 29.
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`Patent Owner maintains in response that the ’628 patent Specification
`disclosure at issue “specifically distinguishes a ‘resin’ on a surface from a
`‘cover,’” and Petitioner’s reading of this disclosure is not persuasive.
`Sur-reply 21–24.
`Upon review of the foregoing, we disagree with Patent Owner’s
`limiting construction of the term “cover” to exclude epoxy and resin. The
`plain and ordinary meaning of the term does not support Patent Owner’s
`construction. A “cover” ordinarily connotes “something that protects,
`shelters, or guards.” Ex. 1050 (Merriam-Webster’s Collegiate Dictionary,
`11th ed. (©2005)), 288. That plain and ordinary meaning is consistent with
`the ’628 patent’s description of “flex circuit cover 360, which can be made
`of plastic or another suitable material . . . [and] can cover and thereby protect
`a flex circuit (not shown).” Ex. 1001, 22:63–23:4. It also is consistent with
`the ’628 patent’s description and illustration of “transparent cover 1432” in
`Figure 14D, which covers and protects detectors 1410c and
`conductors 1412c, and which “can be fabricated from glass or plastic, among
`other materials.” See id. at 36:27–45 (emphasis added), Figs. 14D–14E.
`This is not the situation in which a special definition for a claim term
`has been set forth in the specification with reasonable clarity, deliberateness,
`and precision, so as to give notice of the inventor’s own lexicography. See
`Merck & Co. v. Teva Pharms. USA, Inc., 395 F.3d 1364, 1370 (Fed. Cir.
`2005); In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). Nor do we
`discern that Patent Owner “demonstrate[d] an intent to deviate from the
`ordinary and accustomed meaning of a claim term by including in the
`specification expressions of manifest exclusion or restriction, representing a
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`clear disavowal of claim scope.” Teleflex, Inc. v. Ficosa North America
`Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002).
`Here, based upon our review of the intrinsic evidence, no such special
`definition or express disavowal of the term “cover” to exclude epoxy and
`resin exists. Patent Owner relies on the following description of Figure 14D
`in that regard:
`In certain embodiments, the cylindrical housing 1430 (and
`transparent cover 1432) forms an airtight or substantially airtight
`or hermetic seal with the submount 1400c. As a result, the
`cylindrical housing 1430 can protect the detectors 1410c and
`conductors 1412c from fluids and vapors that can cause
`corrosion.
` Advantageously, in certain embodiments, the
`cylindrical housing 1430 can protect the detectors 1410c and
`conductors 1412c more effectively than currently-available resin
`epoxies, which are sometimes applied to solder joints between
`conductors and detectors.
`Ex. 1001, 36:36–45 (emphases added). First, the sentence cited by Patent
`Owner begins with the phrase “in certain embodiments,” which indicates the
`claimed invention is open to other embodiments, so there is no lexicography
`or disavowal here. Second, we agree with Petitioner’s reading of this
`sentence as distinguishing the prior art from the claimed invention based on
`the location of the material (being applied only to solder joints between
`conductors and detectors in the prior art, as opposed to covering the
`conductors and detectors in the invention) and not the type of material.
`Third, at best, the ’628 patent expresses a preference for a cover to be made
`of glass or plastic, because such materials provide “more effective[]”
`protection than resin epoxies that were known to the inventors of the
`’628 patent when it was filed. See id. at 36:41–45. But even this reading
`recognizes that resin epoxies provide some amount of protection, albeit
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`perhaps a lesser amount than glass or plastic, and is not excluded from
`forming the material of a cover.
`Dr. Kenny’s deposition testimony cited by Patent Owner also does not
`persuade us that, in the context of the ’628 patent, an epoxy or resin is
`excluded from the material of a cover. Dr. Kenny testifies that “a layer of
`sealing resin” “[c]ould” be used to protect the electronic components in a
`sensor (Ex. 2009, 395:22–396:8). He was then asked “So that would be one
`way to protect the components without using a cover, correct?” to which he
`answered “[t]here are many ways to protect the elements other than using a
`cover” and maintained his proposed combination of prior art has a “cover”
`to achieve purposes other than protecting electronic components. Id.
`at 396:9–17. He did not squarely testify that sealing resin could never be a
`cover.
`Accordingly, in the context of the ’628 patent, we do not construe the
`claimed “cover” to exclude epoxy and resin.
`
`2. Other Claim Terms
`Upon consideration of the entirety of the arguments and evidence
`presented, we conclude no further explicit construction of any claim term is
`needed to resolve the issues presented by the arguments and evidence of
`record. See Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co.,
`868 F.3d 1013, 1017 (Fed. Cir. 2017) (per curiam) (claim terms need to be
`construed “only to the extent necessary to resolve the controversy” (quoting
`Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir.
`1999))).
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`D. Obviousness over Aizawa and Inokawa
`Petitioner contends that claims 1–15, 17, 20–26, and 28 of the ’628
`patent would have been obvious over the combined teachings of Aizawa and
`Inokawa. Pet. 6–43.
`
`1. Overview of Aizawa (Ex. 1006)
`Aizawa is a U.S. patent application publication titled “Pulse Wave
`Sensor and Pulse Rate Detector,” and discloses a pulse wave sensor worn on
`a user’s wrist that detects light output from a light emitting diode and
`reflected from a patient’s artery. Ex. 1006, codes (54), (57).
`Figure 1(a) of Aizawa is reproduced below.
`
`
`Figure 1(a) is a plan view of a pulse wave sensor. Id. ¶ 23. As shown in
`Figure 1(a), pulse wave sensor 2 includes light emitting diode (“LED”) 21,
`four photodetectors 22 symmetrically disposed around LED 21, and
`holder 23 for storing LED 21 and photodetectors 22. Id. Aizawa discloses
`that, “to further improve detection efficiency, . . . the number of the
`photodetectors 22 may be increased.” Id. ¶ 32, Fig. 4(a). “The same effect
`can be obtained when the number of photodetectors 22 is 1 and a plurality of
`light emitting diodes 21 are disposed around the photodetector 22.” Id. ¶ 33.
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`Figure 1(b) of Aizawa is reproduced below.
`
`
`Figure 1(b) is a sectional view of the pulse wave sensor. Id. ¶ 23. As shown
`in Figure 1(b), pulse wave sensor 2 includes drive detection circuit 24 for
`detecting a pulse wave by amplifying the outputs of photodetectors 22. Id.
`Arithmetic circuit 3 computes a pulse rate from the detected pulse wave and
`transmitter 4 transmits the pulse rate data to an “unshown display.” Id. The
`pulse rate detector further includes outer casing 5 for storing pulse wave
`sensor 2, acrylic transparent plate 6 mounted to detection face 23a of holder
`23, and attachment belt 7. Id.
`Aizawa discloses that LED 21 and photodetectors 22 “are stored in
`cavities 23b and 23c formed in the detection face 23a” of the pulse wave
`sensor. Id. ¶ 24. Detection face 23a “is a contact side between the holder 23
`and a wrist 10, respectively, at positions where the light emitting face 21s of
`the light emitting diode 21 and the light receiving faces 22s of the
`photodetectors 22 are set back from the above detection face 23a.” Id.
`Aizawa discloses that “a subject carries the above pulse rate detector 1 on
`the inner side of his/her wrist 10 . . . in such a manner that the light emitting
`face 21s of the light emitting diode 21 faces down (on the wrist 10 side).”
`Id. ¶ 26. Acrylic transparent plate 6 is disposed between holder 23 and the
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`user’s wrist 10. Id. ¶¶ 23, 26, 30. Furthermore, “belt 7 is fastened such that
`the acrylic transparent plate 6 becomes close to the artery 11 of the wrist 10.
`“Since the acrylic transparent plate 6 is provided on the detection face 23a of
`the holder 23, adhesion between the pulse rate detector 1 and the wrist 10
`can be improved, thereby further improving the detection efficiency of a
`pulse wave.” Id. ¶ 30.
`
`2. Overview of Inokawa (Ex. 1008)
`Inokawa is a Japanese published patent application titled “Optical
`Vital Sensor, Base Device, Vital Sign Information Gathering System, and
`Sensor Communication Method,” and discloses a pulse sensor device that
`may be worn on a user’s wrist. Ex. 1008, code (54), ¶ 56.3
`Figure 1 of Inokawa is reproduced below.
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`3 Exhibit 1008 is an English translation of Exhibit 1007. In this Decision, all
`citations are to the English translation.
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`Figure 1 illustrates a perspective view of a pulse sensor. Id. ¶ 56. Pulse
`sensor 1 includes box-shaped sensor unit 3 and flexible annular wristband 5.
`Id. ¶ 57. Sensor unit 3 includes a top surface with display 7 and control
`switch 9, and a rear surface (sensor-side) with optical device component 11
`for optically sensing a user’s pulse. Id.
`Figure 2 of Inokawa is reproduced below.
`
`
`Figure 2 illustrates a schematic view of the rear surface of the pulse sensor.
`Id. ¶ 58. The rear-side (sensor-side) of pulse sensor 1 includes a pair of
`light-emitting elements, i.e., green LED4 21 and infrared LED 23, as well as
`photodiode 25 and lens 27. Id. In various embodiments, Inokawa discloses
`that the sensor-side lens is convex. See id. ¶¶ 99, 107. Green LED 21
`senses “the pulse from the light reflected off of the body (i.e.[,] change in the
`amount of hemoglobin in the capillary artery),” and infrared LED 23 senses
`body motion from the change in reflected light. Id. ¶ 59. The pulse sensor
`stores this information in memory. Id. ¶ 68. To read and store information,
`the pulse sensor includes a CPU that “performs the processing to sense
`pulse, body motion, etc. from the signal . . . and temporarily stores the
`analysis data in the memory.” Id. ¶ 69.
`
`
`4 We understand “LED” to be an acronym for “light emitting diode.”
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`Pulse sensor 1 includes lens 27, which “makes it possible to increase
`the light-gathering ability of the LED as well as to protect the LED or
`PD[5].” Id. ¶¶ 15, 58. Pulse sensor 1 also uses LEDs 21 and 23 to download
`data to a base station, as shown in Figure 3, reproduced below.
`
`
`Figure 3 illustrates a pulse sensor mounted on base station 17. Id. ¶¶ 60, 66.
`Pulse sensor 1 is depicted as mounted to base device 17, which “is a charger
`with communication functionality.” Id. ¶ 60. When so mounted, sensor
`optical device component 11 and base optical device component 41 face
`each other in close proximity. Id. ¶ 66. In this position, pulse sensor 1 can
`output information to the base device through the coupled optical device
`components. Id. ¶ 67. Specifically, the pulse sensor CPU performs the
`controls necessary to transmit pulse information using infrared LED 23 to
`photodetector 45 of base device 17. Id. ¶¶ 67, 70, 76.
`
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`5 We understand “PD” to be an acronym for “photodiode.”
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`In an alternative embodiment, additional sensor LEDs and base
`photodetectors can be used to efficiently transmit data and improve
`accuracy. Id. ¶ 111.
`
`3. Claim 1
`i. “A noninvasive optical physiological sensor comprising”
`The record supports Petitioner’s undisputed contention that Aizawa
`discloses a noninvasive optical sensor.6 Pet. 23; see, e.g., Ex. 1006 ¶ 2
`(disclosing “pulse wave sensor for detecting the pulse wave of a subject
`from light reflected from a red corpuscle in the artery of a wrist of the
`subject by irradiating the artery of the wrist”).
`
`ii. [1a] “a plurality of emitters configured to emit light into
`tissue of a user;”
`
`[1b] “a plurality of detectors configured to detect light that
`has been attenuated by tissue of the user, wherein the
`plurality of detectors comprises at least four detectors;”
`(1) Petitioner’s Undisputed Contentions
`Petitioner contends that Aizawa discloses an emitter—LED 21—and
`also states that, in certain embodiments, multiple LEDs may be employed.
`Pet. 7, 18. Patent Owner does not dispute this contention, and we agree with
`Petitioner. See Ex. 1006 ¶¶ 23 (“LED 21”), 32 (“The arrangement of the
`light emitting diode 21 and the photodetectors 22 is not limited to this.”).
`For example, Aizawa explains that “[t]he same effect can be obtained when
`
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`6 Whether the preamble is limiting need not be resolved, because Petitioner
`shows sufficiently that the recitation in the preamble is satisfied by the prior
`art.
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`the number of photodetectors 22 is 1 and a plurality of light emitting diodes
`21 are disposed around the photodetector.” Id. ¶ 33.
`Petitioner also contends that Inokawa teaches a sensor with two
`LEDs–a green LED to sense pulse and an infrared LED to sense body
`motion. Pet. 10–11, 18. Petitioner further contends that when Inokawa’s
`sensor is mounted on a base device, the infrared LED also is used to
`wirelessly transmit vital information to the base device. Id. at 21. Patent
`Owner does not dispute these contentions, and we agree with them.
`Inokawa teaches a pair of LEDs 21, 23, where “the basic function of the S-
`side green LED 21 is to sense the pulse from the light reflected off of the
`body . . . , while the S-side infrared LED 23 serves to sense body motion
`from the change in this reflected light.” Ex. 1008 ¶¶ 58–59. Inokawa also
`explains that “vital sign information stored in the memory 63 [of the sensor],
`such as pulse and body motion, is transmitted to the base device 17 using the
`S-side infrared LED 23 of the pulse sensor 1 and the B-side PD 45 of the
`base device 17,” such that “there is no need to use a special wireless
`communication circuit or a communication cable.” Id. ¶¶ 76–77.
`The record further supports Petitioner’s undisputed contentions as to
`the disclosure of multiple photodetectors in Aizawa. See Pet. 25–26.
`Petitioner relies on Aizawa’s disclosure of “four photodetectors 22” that
`operate to “detect light ‘reflected by a red corpuscle running through the
`artery 11 of the wrist 10 . . . so as to detect a pulse wave.’” Id. (citing
`Ex. 1006 ¶¶ 24, 27, 29, 32, Fig. 1(a)).
`
`(2) Petitioner’s Disputed Contentions
`Petitioner points to Aizawa’s disclosure of “a centrally located
`LED/emitter,” but notes that “Aizawa never specifically identifies the use of
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`multiple emitters operating at different wavelengths in conjunction with
`multiple detectors.” Pet. 18 (citing Ex. 1006 ¶¶ 23, 33). Petitioner,
`however, relies on Inokawa as disclosing “two different types of emitters
`‘such as an infrared LED or a green LED’ and that ‘work can be divided
`between the various means, with an infrared LED used to detect vital signs
`and transmit vital sign information, and a green LED used to detect pulse.’”
`Id. (citing Ex. 1008 ¶¶ 14, 44, 58, 59). Petitioner reasons that a person of
`ordinary skill in the art “would have found it obvious to incorpo
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