Trials@uspto.gov
`571-272-7822
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`Paper # 31
`Entered: February 16, 2022
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MASIMO CORPORATION,
`Patent Owner.
`__________
`
`
`IPR2020-01523
`Patent 8,457,703 B2
`__________
`
`Record of Oral Hearing
`Held: January 19, 2022
`___________
`
`
`
`
`Before JOSIAH C. COCKS, ROBERT L. KINDER, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`
`
`
`571-272-7822
`
`
`
`
`
`Paper # 31
`Entered: February 16, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MASIMO CORPORATION,
`Patent Owner.
`__________
`
`
`IPR2020-01523
`Patent 8,457,703 B2
`__________
`
`Record of Oral Hearing
`Held: January 19, 2022
`___________
`
`
`
`
`Before JOSIAH C. COCKS, ROBERT L. KINDER, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`
`
`
`
`IPR2020-01523
`Patent 8,457,703 B2
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`WALTER KARL RENNER, ESQUIRE
`DAN SMITH, ESQUIRE
`KIM LEUNG, ESQUIRE
`Fish & Richardson
`1000 Maine Avenue, S.W.
`Washington, D.C. 20024
`
`
`
`
`ON BEHALF OF PATENT OWNER:
`
`
`JOSH STOWELL, ESQUIRE
`Knobbe, Martens, Olson & Bear, LLP
`2040 Main Street
`Irvine, CA 92614
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`January 19, 2022, commencing at 12:39 p.m., EDT, at the U.S. Patent and
`Trademark Office, by video/by telephone, before Chris Hofer, Notary
`Public.
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`2
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`IPR2020-01523
`Patent 8,457,703 B2
`
` P R O C E E D I N G S
`- - - - -
`JUDGE COCKS: Welcome back everyone. This is the second
`
`session of our marathon oral hearing session today. I am Judge Cocks and
`again I'm joined by Judge Wieker and Judge Kinder. This oral argument
`session pertains to IPR2020-01523 involving patent 8,457,703. Would
`counsel for Petitioner who will be arguing their side today, will they please
`introduce themselves?
`
`MR. RENNER: Yes, Your Honor. This is Karl Renner. I am joined
`today by Dan Smith and Kim Leung and I'll be presenting primarily. Thank
`you.
`
`JUDGE COCKS: Thank you, Mr. Renner, and will counsel for Patent
`Owner who will be arguing in this session please identify themselves.
`MR. STOWELL: Hello, Your Honor. This is Josh Stowell from
`Knobbe, Martens and I will be arguing on behalf of the Patent Owner,
`Masimo.
`JUDGE COCKS: All right. Thank you, Mr. Stowell. So, we had
`provided for this session 40 minutes per side. Again, Petitioner will go first
`and may reserve rebuttal time. Patent Owner will then argue their
`opposition to Petitioner's case and may reserve surrebuttal time, and then
`Petitioner will use their rebuttal time and we will conclude with Patent
`Owner arguing their surrebuttal. So, with that said, Mr. Renner, you may
`begin whenever you are ready.
`MR. RENNER: Thank you, Your Honor, and I'll reserve ten minutes
`if I may.
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`Patent 8,457,703 B2
`JUDGE COCKS: Yes. Thank you.
`MR. RENNER: You're welcome. Well, good afternoon, Your
`Honors. I'm Karl Renner as I mentioned and I'm here on behalf of Apple.
`May it please the Court. Today we plan to address the Diab-based grounds
`first. We're going to defer the conversation of the construction of
`predetermined characteristics until addressing the Amano grounds given the
`relevance of that construction to the Amano grounds.
`If I could go to slide 4, please. On slide 4 we show the claims 1 and
`9, the independent claims 1 and 9, which are largely redundant of one
`another and I'll just talk to them briefly to orient us at the outset here. The
`preamble indicates a focus on managing power consumption during a patient
`monitoring and the first two steps implicate driving light sources to emit
`light into tissue and receiving signals attenuated by that tissue as impacted.
`Then the claim goes on to talk about transitioning from a lower power
`consumption level to a higher consumption level when processing
`characteristics are said to pass a predetermined threshold. Claims 9 and 1
`defer in one specific area and that has to do with what happens in the lower
`power consumption level and that is in claim 1 it calls for reduced sensor
`activation but claim 9 speaks instead of signal processor processing.
`Go to slide 12, please, we'll turn into the Diab reference and speak to
`the combination by doing so. Diab is similar to the claims of '703 device as
`it emits light into tissue and it detects the lights attenuated from that tissue
`and it uses that detector attenuation of light to deduce physiological
`measurements for a specific patient (phonetic). Diab addresses two kinds of
`unhelpful artifacts, noise, that may be present in the detected light. The first
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`Patent 8,457,703 B2
`is described as an artifact resulting from, for instance, respiration. It's a low
`frequency type of an artifact. It's not relevant to our claim's mapping.
`The second is where we spend the time in the record and that's where
`we focus because it's an artifact that's introduced by patient movement, said
`to be erratic unlike that low frequency that's done with the respiration and
`the difference between these two noises or artifacts is yielded in the
`treatment that they get that's different in Diab.
`If we look at slide 13, please, we'll see at the bottom figure 20 is
`annotated and shows how Diab addresses these kinds of noises. The low
`frequency artifact, those unrelated to motion, are shown as the signal passes
`with the green line in the top part of this figure. It's an infrared light type
`noise or artifact and it's processed along this path and it's processed along
`this path with a DC bandpass filter in a spectral estimation module.
`The erratic motion artifacts, those ones that have to do with motion,
`these are characteristics that appear in the red and the ultrared light and
`they're otherwise addressed in the processing path that's shown in purple at
`the bottom and kind of throughout. Most notoriously though, this includes
`the namesake element, the motion artifact suppression module 580 that's
`going to get a lot of conversation today. But it also includes corresponding
`spectral estimation module 588 and there doesn't seem to be controversy at
`this level of detail. Where the controversy comes in is when examining that
`purple path and assessing what Diab does in the absence of motion. Does
`Diab continue to process motion artifacts and suppress them? Does it do the
`processes that are otherwise called for by its namesake in doing that in the
`absence of motion or does it continue?
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`Patent 8,457,703 B2
`According to Masimo the show goes on and that module is going to
`continue to process and it's going to continue to absorb processing cycles
`and therefore power and we don't believe that's true at all. We believe that
`there's an in input too that we'll talk a lot about that would tell that device to
`do something different to modify its processing and therefore have a
`corresponding modification in the power that's consumed as a consequence
`and this is based on the express disclosure found in Diab as well as
`inferences that are drawn from it in other statements.
`But let's look at Diab pretty closely if we could as we're talking to this
`and there's a couple of excerpts you can see at the top of this slide. The top
`and the top left quotes immediately follow from one another in the
`specification, both are referencing the same section and they speak to the
`what happens in each of the circumstances. I'm going to address them in the
`order they're listed on this slide although they are opposite in the actual
`specification of Diab. But it says in the case of motion motion artifacts are
`suppressed. There's no real mystery to that. But they also say that if motion
`is not detected it tells us what happens here. It says spectral estimation on
`the signals is carried out without motion artifact suppression. The key here
`is Diab's use of the word without. It describes what happens when motion is
`not detected. Spectral estimation of signals is carried out without motion
`artifact suppression. Motion artifact suppression does not occur. This is
`Diab's disclosure expressly. It couldn't be more clear.
`Now also in Diab there's a great number of instances where it speaks
`more affirmatively to the actual performance of motion suppression and in
`doing so we believe it draws out what negative inference that you don't
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`Patent 8,457,703 B2
`perform that same suppression in the absence of motion. An example of this
`would be found, for instance, at Diab 48, 34 to 36 and I'll quote,
`"In the case of motion, a motion artifact suppression is completed."
`Now this is an affirmative indication. But we believe there's a
`negative inference from it. Why would you specify in the case of motion if
`not suggesting at least rendering obvious to those of skill that in the absence
`of motion the opposite would happen.
`Slide 14, please. For fear of beating a dead horse the point is also
`reinforced we believe by Diab's disclosure of input from its motion status
`module 584 to the motion artifact suppression module 580 and this is shown
`at the bottom left of the prior figure. Motion status module 584 we know
`generates an output reflecting the presence or the absence of motion and it
`provides a trigger therefore for additional motion artifact suppression
`module and the processing that's done by it. Dr. Anthony credibly testifies
`that motion status input to the motion artifact suppression module must have
`a purpose and one of skill would find it obvious in view of Diab's other
`disclosure as well as the namesake of module 580 itself that it foregoes
`motion artifact suppression processes when informed of no motion and in
`this way the naming conventions themselves given by Diab's further
`disclosure by Diab of exactly what's going on when read in light of this
`motion status indication. Of course, this is an obviousness inquiry and this
`is a rhetorical issue. Why wash a car if the car isn’t dirty? Why clean, why
`perform the processing on a motion artifact laden signal, there is no motion
`and this is what Diab is telling us.
`Even Masimo offers tellingly helpful rhetoric on this. In its Patent
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`Owner response, it confirms that operations are different in light of motion
`or lack thereof by Diab. I'll quote, the modules, "operate differently based
`on motion status input." There's no rational basis offered alongside of this
`by Masimo to distinguish modules 590 and 94 that are implicated by that
`statement from 580. Instead, they maintain for whatever reason that the
`module continues in its way regardless of whether the motion is there or not
`and we can see in Diab that there's none.
`Slide 15, please. As shown by figure 21 that's annotated at the bottom
`of this figure you can see, and Anthony has testified to this in paragraph 54
`incidentally, that the motion artifact suppression module of Diab has
`components whose functions in red are useful for motion suppression but
`has other components that are only partially devoted to this function because
`they're not useful to it and therefore don't process data, but they process data
`regardless of motion. So, some of its components that are internal would
`naturally be affected by lack of motion because they're devoted to getting rid
`of motion artifacts. Others might still operate. It's hard to know. What we
`do know is the obviousness theories that have been set forth suggest that
`either you shut down that module, you suspend its operation all together or
`you shut down at least the portions of processing that are devoted to motion
`suppression.
`Slide 17, please. With all this why does Masimo maintain -- why are
`we talking about this -- why do they maintain that even if motion were
`absent a POSITA would not find it obvious to forego the processing that is
`specifically designed to eliminate motion inspired artifacts. Well, in the
`figure you see here, figure 20, you can see there's a lead line that shows out
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`Patent 8,457,703 B2
`as a clean plethysmograph waveform at the bottom, it's labeled and
`highlighted. Masimo goes further than just identifying a lead line. They
`draw some conclusions that we think are fairly incredible and unsupported,
`two of which stand out. One, that a POSITA would have considered the
`generation of that clean plethysmograph waveform by the motion artifact
`suppression module 580 a critical feature of Diab and two, that because
`that's a critical feature that a person would not modify Diab in any way that
`would affect the generation of that signal or the availability of that signal in
`that spot.
`Now let's unwind this. First, accepting Masimo's argument that
`generation by 580, module 580, of a clean plethysmograph wave form is
`essential to Diab if we accept that, which we do not, but for the purposes of
`the argument if we accept that Masimo still fails to account for contentions
`that a POSITA would find it obvious to suspend performance of processes
`after which module 580 is named, the ones that deal with motion artifact
`suppression in the absence of motion and to be clear about this point, recall
`figure 21 -- we just saw it -- which showed that several of the module 580
`sub-components, there's a DC band filter and a bandpass filter but they're not
`fully devoted to artifact suppression so it's possible that you could suppress
`the activities, the motion artifact suppression, you could suspend those and
`nevertheless still get to a place where the lead line would be present and
`that's not addressed in the arguments that they've given us.
`Now another issue with this is, to be clear, Masimo's critical feature
`theory is just itself unsustainable. Masimo's theory turns on the notion that
`that waveform is critical to the teaching of Masimo but when you look at
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`Patent 8,457,703 B2
`Masimo -- Diab, when you look at Diab beyond figure 20 there's scant
`mention of exactly what that is, why it's there and frankly that it's only there
`and we know that that's not the only place you can find a clean
`plethysmograph waveform. What you find at that spot as highlighted -- and
`let's go back to that (indiscernible) figure 20, it's on slide 17 -- you can see
`that it's cleaned of motion. That's the point of putting the lead line here. It's
`to show someone of skill reading this that you can find clean
`plethysmograph waveforms after this because you clean it in the presence of
`motion. But in the absence of motion, why would you go through the
`processing that's otherwise devoted to cleaning out motion? You find the
`clean plethysmograph waveform available wherever. This is something
`that's well understood by people of skill. There's no motion error to clean
`out and the only difference between the output of this module and the input
`of it is that you've cleaned out that motion that no longer exists or the
`artifacts no longer exist in the absence of motion.
`So, their contentions seem to be that because figure 20 shows an
`opportunity to obtain this waveform at the spot where it's shown, that it
`wouldn't be obvious for a POSITA to forego having the module perform
`processing operations that are specifically designed for cleaning of motion
`artifacts and we think this defies logic. Again, why would you run a car
`that's clean through a car wash?
`If we could jump to slide 19, please. Starting at the bottom --
`JUDGE COCKS: Actually, I have a question, Mr. Renner.
`MR. RENNER: Yes.
`JUDGE COCKS: Can we go back to slide 13? That would illustrate
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`my question better. So, I think I heard you suggest -- well, let me ask. The
`infrared signal that's shown in green there, there are occasions when it goes
`through motion artifact suppression and times that it does not; is that
`accurate?
`MR. RENNER: The green signal does not. Sorry, the green signal is
`free of --
`JUDGE COCKS: The green signal --
`MR. RENNER: -- the, oh, sorry.
`JUDGE COCKS: So, I guess my question then is I think you're
`suggesting that the purple signal from what's called the red snapshot, if that
`could pass through the motion artifact suppression module without
`undergoing motion artifact suppression; is that accurate?
`MR. RENNER: That is accurate. That's one thing that could happen
`and in order of course -- there are several different things spoken to in the
`record as to what a person of skill would find. But, Your Honor, I think
`you're asking is that possible and the answer is we believe so.
`JUDGE COCKS: So, I guess my question then is what is the purpose
`of figure 20 in showing the infrared snapshot, the green, not passing through
`the motion artifact suppression if that module can be turned off for motion
`artifact suppression? I guess, what is the entire purpose of that upper
`schematic portion dealing with infrared snapshot if it would pass -- if it
`could pass through the motion artifact suppression module without
`undergoing motion artifact suppression?
`MR. RENNER: Yes. Great question. That goes back to, you'll recall
`I mentioned that the Diab reference speaks of two different kinds of noise
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`and the kind of noise that we're spending all of our time with is the motion
`artifacts noise that needs to be suppressed. So, in the existence of motion
`you want to suppress the artifacts that are motion laden and that's what the
`580 module and the purple path does.
`But there's a second kind of noise that Diab is speaking to in its
`disclosure and that's noise that comes of respiration and other low frequency
`effects on the blood. Those effects are filtered out in the green. So in the
`absence of motion, you need not pursue all of the processing that it
`contemplates on motion artifacts but you still might have, in fact you
`probably have, other artifacts, the ones that are respiratory in nature and
`those are going to pass through different filters as you can see in different
`processing to get rid of them and then they all will under the spectral
`analysis collectively which is where you can see the green and the purple
`come together in the presence of motion. Does that help? So, kind of there's
`two different kinds of noise --
`JUDGE COCKS: I understand your answer.
`MR. RENNER: Uh-huh.
`JUDGE COCKS: Okay. Go ahead. Thank you.
`MR. RENNER: Sure. So, we were at slide 19, if I may, and here we
`were looking at testimony from Dr. Anthony that concerns the notion that
`the motion suppression is not necessary and it's the why drive your car
`through a car wash. He says, and this is in response to questions in the
`deposition, if motion is not present we need not remove it to generate the
`clean plethysmograph signal and this is at the transcript at 68, 15 to 69, 6.
`Now we expounded upon that. That was of course his deposition
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`early on. There was no mention of this in the brief where the critical theory
`was introduced. Instead, this was not regarded and we talked about that in
`our Petitioner's reply at 4 and 7 and 8 and we'll leave that to the papers but
`the point being that there's very specific testimony here from Dr. Anthony
`that confirms the very concept of don't do something that's not necessary and
`that could be changing the processing, that could be shutting down the
`element all together.
`Without more, I would move to slide 25 and we'd start speaking about
`Amano's contribution. So generally, at slide 25 Amano is leveraged relating
`to its body movement eliminating operations. Sounds very familiar. These
`are designed to address motion artifacts also in a manner that's similar to
`what Diab just gave us with its motion artifact suppression module and
`Amano says, and I'll quote. This is from 21, 50 to 22, 6. It says,
`"When the control signal C," its control signal, "indicates that no body
`movement is present, the operations of the body movement component
`eliminating section are suspended."
`And then it goes on to say that this can "reduce power consumption in
`the apparatus." So much like Diab but a little more explicitly here, you see
`from Amano an indication that when you get a motion, a no motion signal,
`you shut down the operations that are devoted to getting rid of motion
`artifacts and when you do that, you get the side benefit of less processing
`equals less power consumption. This isn't really a tough concept but we
`wanted to have a reference in the combination that was express on this point,
`hence we have Amano.
`So it also talks about the relationship that exists between performance
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`of its movement eliminating operations therefore and the power
`consumption and it discloses that a POSITA similarly would commonly
`know that the power consumption is indeed increased when a device
`performs processing and power consumption is decreased when it foregoes
`the same, and more to the point therefore it teaches suspending in light of no
`motion and motion eliminating operation they didn't call for just like what
`Diab has said but in the context of, as Dr. Anthony explains, these two
`together it becomes even more evident and more obvious that what you're
`going to do in a system like Diab is you're going to stop the processing that's
`devoted to motion artifacts if indeed there is no motion.
`If we could go to slide 29, please. Now the obviousness of the
`combination of Diab and Amano is there's an attempt to undermine that
`based on details that are not part of the combination itself. Various different
`details you'll probably hear about, that have got really nothing to do with the
`combination of Amano. Keep in mind I want to be very clear on this, has
`been looked upon for very specifically its teaching of artifact suppression,
`motion artifact suppression, and shutting down the processing for that in the
`spirit of pursuing power consumption savings. Beyond that we're leaving
`Diab where it is in large part so the other details that are said to be
`conflicting as between them would have to amount to a teaching away or
`something along those lines and we would submit to you that the record just
`does not establish that kind of proof.
`To this point, none of the supposed incompatibilities between the
`device of Diab and Amano have bearing on the proposed combination. In
`fact, the devices described in Diab and Amano share many key features that
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`would lead someone to pull them together. Both them detect physiological
`parameters by emitting light through tissue and detecting attenuation. Both
`can be used in similar parts of the body, the finger for instance, both
`measure pulse rate and both teach selectively removing a body motion
`component, an artifact from the received light signal when motion is indeed
`present.
`Even if Amano's implementation details were somehow thought to
`render the teachings incompatible -- this is an important point we think --
`please note the back-up ground that's offered where Petitioner alternatively
`advanced the obviousness based on Diab in view of a POSITA's knowledge.
`In doing so we establish what a POSITA's knowledge is, not just on Amano
`although it is cited in support. We also cite seven different patents and
`they're all listed, you know, I could read them but they're in the record.
`They're all cited in support of establishing what a POSITA actually
`understood to be true and why it would in fact take Diab and modify it in a
`way that's objective (phonetic).
`Slide 30, please. Let's just go to slide 31. So Diab describes the
`motion status module 584 and it takes the average peak width as input and
`this has to do with predetermined threshold. So, one of the other arguments
`here is that there is no predetermined threshold, that the threshold that's used
`for assessing whether or not motion is the kind of motion that would albeit
`characteristic to trigger a transition, is at a predetermined threshold that it's
`compared against and there's a lot of noise made over that. So, we wanted to
`address this. Slide 31 is where we turn in doing so and we find that Diab
`describes that the motion status module 584, it takes an average peak width
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`as its input, it determines whether that average peak is wide -- it just says it's
`wide -- and it produces a signal indicating whether motion is present based
`on its determination of whether that signal actually reflected wide enough to
`be a motion.
`Dr. Anthony testifies about this and he says that a POSITA would find
`it obvious in light of Diab's disclosure to use the motion status model 584 to
`compare the average peak width to some sort of threshold value because you
`have to figure out whether or not why it exists and the absence of any
`indication here that there is real time processing or other processing that's
`necessary to go and figure out a new threshold to find out a threshold once
`you want to do the comparison, that itself tells that it's obvious that Diab has
`used indeed a predetermined threshold.
`Now I don't want to belabor this point too much. I just wanted to
`mention that predetermined, determined prior, there is no more by which this
`is connected to the claim other than it happens to sit in a step which is a step
`for comparison. So presumably we've predetermined, determined prior to
`the comparison, and surely that's what you get in Diab. It's looking for a
`way to evaluate in fact its peak and how it's going to assess whether or not
`it's a width and we know that in Diab, and we think it's fairly important, at
`column 34 lines 5 to 7 it shows us an example of when something isn't able
`to be predetermined. It tells the reader this, and I'll read it out loud. Again,
`34, 5 to 7. It says "erratic motion induced noise typically cannot be
`predetermined." This is the words in Diab. Point being where there are
`items in Diab that cannot be predetermined where its disclosure is not
`supposed to encompass predetermined it tells the reader about it with respect
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`to the why it did not do so and therefore leaves, we believe, the reader to
`understand what Dr. Anthony tells us he understood.
`If we could turn maybe to slide 47, I would turn to the Turcott ground
`briefly and I'd note that Turcott is relied upon in the briefing for balancing
`power consumption and signal-to-noise ratio based on adjustments in duty
`cycle and other adjustments with low duty cycle, for instance, used to
`improve power consumption at the cost of signal-to-noise ratio and a high
`duty cycle being used to improve signal-to-noise at the cost of power
`consumption. The point is Turcott offers us another theory. It's another
`combination, and the theory it offers is I know that I want to adjust power so
`as to create the right balance between signal-to-noise ratio and power and as
`a consequence I'm going to make changes to the system to reflect that and
`Diab, the primary reference, dictates real time processing and adjustments in
`real time are used for detection of movement. So Diab brings the real time
`nature of the table and Turcott is merely, although there are contentions
`otherwise being used to add the flexibility of signal-to-noise ratio as a
`comparative of power consumption, and with that it offers that you can
`change power in any of a variety of ways that are relied upon. It's the
`flexibility that Diab is after though.
`Dr. Anthony explains, if we look at slide 48, that a POSITA would
`have found it obvious to modify Amano as well as Diab because a
`modification by Turcott would allow for a modification of the current duty
`cycle pulse training applied to the LED of the sensor in the same way and
`therefore there'd be reduced activation of the attached sensor, much as the
`theory was the for the Diab combination.
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`On slide 52, if we can move to it, we can see that Diab/Amano, they
`offer adjustments during monitoring but to be clear, they don't rely on
`Turcott. They won't agree that, sorry, that Turcott would be seen by a
`POSITA as limited to a factory setup or anything else. It's a real time -- its
`integration would be into a real time system and there's no reason why you
`couldn't integrate it as said.
`There was a contest that Turcott was said to be limited to surgical
`implants in an attempt to establish that it wouldn't be obvious to integrate its
`teachings into a real time monitoring type system. Surgical implant of
`course would be put in the body, you may have a hard time adjusting things.
`But this couldn't be further from the truth.
`Slide 56 if we look at it shows us that Turcott explicitly discloses that
`its teachings apply to non-invasive pulse sensors so when you encounter that
`argument, we submit that to you.
`With that I would jump to Amano itself and close my direct by talking
`a little about the combination and then the construction that relates to that
`but before I do that, are there questions about Diab and its combinations
`with Amano or Turcott that I could address before I turn there?
`JUDGE COCKS: No, I think you can. We may have questions at
`some later time but you have about three minutes so why don’t you finish
`your direct presentation in those three minutes.
`MR. RENNER: Thank you, Your Honor. So, slide 35 is where I was
`directing us. Amano teaches of course this physiological monitor operating
`based on the same principles of the '703 patent as Diab with emitting light
`into the user tissue to determining if physiological measurement value is
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`based on that attenuation and like Diab it (indiscernible) move motion, we've
`talked about this already. The difference that we are going to talk about is it
`uses an accelerometer to detect motion rather than influencing it or inferring
`it from a light signal. In Diab we infer from a light signal what motion
`existed here. It's an accelerometer that bears that out and that difference
`forms the crux of Masimo's attack on it and its attempt to leverage the term
`processing characteristic. You'll note that the trigger was formed by virtue
`of the processing characteristic being part of a comparison to that
`predetermined threshold.
`So, what is a processing characteristic? If we go to slide 7. What we
`can see here is that Masimo's construction was that the processing
`characteristic is to require the characteristics determined from a signal
`received from one or more detectors configured to detect light. So,
`something's that determined from a signal, received from one or more
`detectors that are configured to detect light and that's what they're reading
`into the words processing characteristic. We think that plain meaning does
`the trick to what we had alleged at the front end and we don't see reason to
`move from that.
`Looking at their construction we think it's improper. It injects
`unclaimed subject matter from the specification into the claim. It usurps the
`amendment process in doing so. If they had wanted more de
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