Trials@uspto.gov
`571-272-7822
`
`Paper 7
`Entered: April 16, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`v.
`MASIMO CORPORATION,
`Patent Owner.
`
`IPR2020-01524
`Patent 10,433,776 B2
`
`
`
`
`
`
`
`
`
`Before JOSIAH C. COCKS, ROBERT L. KINDER, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`KINDER, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314, 37 C.F.R. § 42.4
`
`
`
`
`
`
`
`
`571-272-7822
`
`Paper 7
`Entered: April 16, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`v.
`MASIMO CORPORATION,
`Patent Owner.
`
`IPR2020-01524
`Patent 10,433,776 B2
`
`
`
`
`
`
`
`
`
`Before JOSIAH C. COCKS, ROBERT L. KINDER, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`KINDER, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314, 37 C.F.R. § 42.4
`
`
`
`
`
`
`
`
`
`IPR2020-01524
`Patent 10,433,776 B2
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`I.
`
`INTRODUCTION
`
`Background
`A.
`Apple Inc. (“Petitioner”) filed a Petition requesting an inter partes
`review of claims 1–16 (“challenged claims”) of U.S. Patent
`No. 10,433,776 B2 (Ex. 1001, “the ’776 patent”). Paper 2 (“Pet.”). Masimo
`Corporation (“Patent Owner”) waived filing a Preliminary response. Paper 6
`(“PO Waiver”).
`We have authority to determine whether to institute an inter partes
`review, under 35 U.S.C. § 314 and 37 C.F.R. § 42.4. An inter partes review
`may not be instituted unless it is determined that “the information presented
`in the petition filed under section 311 and any response filed under
`section 313 shows that there is a reasonable likelihood that the petitioner
`would prevail with respect to at least 1 of the claims challenged in the
`petition.” 35 U.S.C. § 314 (2018); see also 37 C.F.R § 42.4(a) (“The Board
`institutes the trial on behalf of the Director.”).
`For the reasons provided below and based on the record before us, we
`determine that Petitioner has demonstrated a reasonable likelihood that
`Petitioner would prevail in showing the unpatentability of at least one of the
`challenged claims. Accordingly, we institute an inter partes review on all
`grounds set forth in the Petition.
`
`Related Matters
`B.
`The parties identify the following matters related to the ’776 patent:
`Masimo Corporation v. Apple Inc., Civil Action No. 8:20-cv-00048
`(C.D. Cal.) (filed Jan. 9, 2020) (“the parallel district court litigation”);
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`Apple Inc. v. Masimo Corporation, IPR2020-01520 (PTAB
`Aug. 31, 2020) (challenging claims of U.S. Patent No. 10,258,265 B1);
`Apple Inc. v. Masimo Corporation, IPR2020-01521 (PTAB
`Sept. 2, 2020) (challenging claims of U.S. Patent No. 10,292,628 B1);
`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, IPR2020-01526 (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);
`Apple Inc. v. Masimo Corporation, IPR2020-01537 (PTAB
`Aug. 31, 2020) (challenging claims of U.S. Patent No. 10,588,553);
`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. 68; Paper 3, 2–3.
`
`The parties further identify certain pending patent applications, as
`well as other issued applications, that claim priority to, or share a priority
`claim with, the ’776 patent. Pet. 68; Paper 3, 1.
`
`The ’776 Patent
`C.
`The ’776 patent is titled “Low Power Pulse Oximeter,” and issued on
`October 8, 2019, from U.S. Patent Application No. 16/174,144, filed
`October 29, 2018. Ex. 1001, codes (21), (22), (45), (54). The ’776 patent
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`claims priority through a series of continuation applications to Provisional
`Application No. 60/302,564, filed July 2, 2001.1 Id. at codes (60), (63).
`The ’776 patent relates to a pulse oximeter that may reduce power
`consumption in the absence of certain parameters that may be monitored to
`trigger or override the reduced power consumption state. Id. at code (57).
`“In this manner, a pulse oximeter can lower power consumption without
`sacrificing performance during, for example, high noise conditions or
`oxygen desaturations.” Id.
`As depicted below, the low power pulse oximeter has signal processor
`(340) that derives physiological measurements (342), including oxygen
`saturation, pulse rate, and plethysmograph, from input sensor signal (322).
`Ex.1001, 4:65–5:16, Figs. 3, 4.
`
`
`1 The Office has made the prior determination that the application leading to
`the ’776 patent should be “examined under the pre-AIA first to invent
`provisions.” See Ex. 1002, 59 (Office Action of Jan. 17, 2019). We
`determine that based on this prior determination, and the lack of any
`contrary evidence before us, the Petition was not required to be filed more
`than nine months after the date of the grant of the patent. See 37 C.F.R.
`§ 42.102(a)(1). Instead, based on the record before us, 37 C.F.R.
`§ 42.102(a)(2) should apply, which allows a petition to be filed after “the
`date of the grant of the patent.”
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`Figure 3 illustrates a top-level block diagram of a low power pulse oximeter.
`Id. at 4:41–42. Signal processor (340) may also derive signal statistics
`(344), such as signal strength, noise, and motion artifact. Id. at 5:16–17,
`Figs. 3, 4. Physiological measurements (342) and signal statistics (344) may
`be input into sampling controller (360), which outputs sampling controls
`(362) that in turn are used to regulate pulse oximeter power dissipation by
`causing sensor interface (320) to vary the sampling characteristics of sensor
`port (302) and by causing signal processor (340) to vary its sample
`processing characteristics. Id. at 5:17–26, Figs. 3, 4. According to the
`’776 patent, power dissipation “is responsive not only to output parameters,
`such as the physiological measurements 342, but also to internal parameters,
`such as the signal statistics 344.” Id. at 5:26–29.
`The pulse oximeter uses the physiological measurements and signal
`statistics to determine “the occurrence of an event or low signal quality
`condition.” Ex. 1001, 6:28–31. An event determination is based upon the
`physiological measurements and “may be any physiological-related
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`indication that justifies the processing of more sensor samples and an
`associated higher power consumption level, such as oxygen desaturation, a
`fast or irregular pulse rate or an unusual plethysmograph waveform.” Id. at
`6:31–37. A low signal quality condition is based upon the signal statistics
`and “may be any signal-related indication that justifies the processing or
`more sensor samples and an associated higher power consumption level,
`such as a low signal level, a high noise level or motion artifact.” Id. at 6:37–
`42.
`
`The pulse oximeter “utilizes multiple sampling mechanisms to alter
`power consumption.” Ex. 1001, 5:62–64. One sampling mechanism is “an
`emitter duty cycle control” that “determines the duty cycle of the current
`supplied by the emitter drive outputs 482 to both red and IR sensor
`emitters.” Id. at 5:64–6:2. The sampling mechanisms “modify power
`consumption by, in effect, increasing or decreasing the number of input
`samples received and processed.” Id. at 6:12–14. “Sampling, including
`acquiring input signal samples and subsequent sample processing, can be
`reduced during high signal quality periods and increased during low signal
`quality periods or when critical measurements are necessary.” Id. at 6:14–
`18. “In conjunction with an intermittently reduced duty cycle or as an
`independent sampling mechanism, there may be a ‘data off’ time period
`longer than one drive current cycle where the emitter drivers . . . are turned
`off.” Id. at 7:11–15. The occurrence of an event or low signal quality
`triggers a higher duty sensor sampling, allowing high fidelity monitoring of
`the event and providing a larger signal-to-noise ratio. Id. at 8:47–61.
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`
`Illustrative Claim
`D.
`Of the challenged claims, claims 1 and 11 are independent. Claim 1 is
`illustrative and is reproduced below.
`1.[p] A method of operating a patient monitor configured
`to monitor at least a pulse rate of a patient by processing signals
`responsive to light attenuated by body tissue, the method
`comprising:
`[a] operating the patient monitor according to a first
`control protocol, wherein said operating includes activating a
`first control protocol light source in accordance with the first
`control protocol, the first control protocol light source including
`one or more of a plurality of light sources;
`when operating according to the first control protocol,
`calculating, by the patient monitor, measurement values of the
`pulse rate, the measurement values responsive to light from the
`first control protocol light source, detected by a detector of an
`optical sensor after attenuation by body tissue of the patient using
`the patient monitor;
`[b] generating a trigger signal, wherein generating said
`trigger signal is responsive to at least one of: a comparison of
`processing characteristics to a predetermined threshold, a
`physiological event, or signal quality characteristics of signals
`received from the detector;
`[c] in response to receiving the trigger signal, operating the
`patient monitor according to a second control protocol different
`from the first control protocol, wherein said operating includes
`activating a second control protocol light source in accordance
`with the second control protocol, the second control protocol
`light source including one or more of the plurality of light
`sources; and
`when operating the patient monitor according to the
`second control protocol, calculating the measurement values of
`the pulse rate, the measurement values responsive to light from
`the second control protocol light source, detected by the detector
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`after attenuation by the body tissue of the patient using the
`patient monitor,
`[d] wherein said operating of the patient monitor
`according to the first control protocol operates the first control
`protocol light source according to a first duty cycle and said
`operating of the patient monitor according to the second control
`protocol operates the second control protocol light source
`according to a second duty cycle, wherein power consumption of
`the first control protocol light source according to the first duty
`cycle is different than power consumption of the second control
`protocol light source according to the second duty cycle.
`Ex. 1001, 11:40–12:21 (bracketed identifiers a–d added). Independent
`claim 11 is an apparatus claim that includes limitations substantially similar
`to limitations [a]–[d] of claim 1. Id. at 12:60–14:9.
`
`Applied References
`E.
`Petitioner relies upon the following references:
`Richardson et al., U.S. Patent No. 5,555,882, filed
`August 24, 1994, issued September 17, 1996 (Ex. 1004,
`“Richardson”);
`Bindszus et al., U.S. Patent No. 6,178,343 B1, filed
`May 20, 1999, issued January 23, 2001 (Ex. 1005, “Bindszus”); and
`Turcott, U.S. Patent No. 6,527,729 B1, filed October 11, 2000,
`issued March 4, 2003 (Ex. 1006, “Turcott”).
`Pet. 3-4.
` Petitioner also submits, inter alia, the Declaration of Brian W.
`Anthony, Ph.D. (Ex. 1003).
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`Asserted Grounds
`F.
`Petitioner asserts that claims 1–16 are unpatentable based upon the
`following grounds:
`
`Claims Challenged
`1–8, 11–16
`1–9, 11–16
`
`35 U.S.C.
`§
`1032
`103
`
`9, 10
`
`1–9, 11–16
`
`1–9, 11–16
`
`9, 10
`
`103
`
`103
`
`103
`
`103
`
`Reference(s)/Basis
`Richardson (first mapping)
`Richardson (second mapping)
`Richardson (either mapping)
`and Bindszus
`Richardson and Turcott (first
`mapping)
`Richardson and Turcott (second
`mapping)
`Richardson and Turcott (either
`mapping) and Bindszus
`
`II. DISCUSSION
`Claim Construction
`A.
`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.
`
`
`2 Petitioner adds a footnote (Pet. 8 n.1) suggesting that because this ground
`is a single reference obviousness challenge, Petitioner’s challenge may also
`encompass anticipation. We disagree and limit this proceeding to the
`specific challenge set forth in the Petition (§ 103). An obviousness
`challenge is not an anticipation challenge. As stated by the Federal Circuit,
`“[d]espite the often quoted maxim that anticipation is the ‘epitome of
`obviousness,’ In re Kalm, 378 F.2d 959, 962 (CCPA 1967), novelty under
`35 U.S.C. § 102 and nonobviousness under 35 U.S.C. § 103 are separate
`conditions of patentability and therefore separate defenses available in an
`infringement action.” Cohesive Techs., Inc. v. Waters Corp., 543 F.3d 1351,
`1363 (Fed. Cir. 2008).
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`§ 42.100(b) (2019). Petitioner submits that no claim term requires express
`construction. Pet. 7. As noted above, Patent Owner did not file a
`Preliminary Response. See generally PO Waiver.
`Petitioner has seemingly based its analysis (two distinct “mappings”)
`on two alternative claim interpretations of the claim limitations related to a
`“first duty cycle” and “second duty cycle.” See Pet. 3, 16 (“Accordingly,
`Richardson teaches operating the patient monitor according to different duty
`cycles, under the proper construction of 1[d].” (emphasis added)), 50
`(“Under the proper construction of 1[d] requiring a different duty cycle for
`operating the infrared light source in State 2 than the duty cycle for
`operating the infrared or red light source in State 1, Turcott describes . . .”),
`56 (similar argument). Petitioner seems to suggest that under a proper
`construction, the first and second duty cycles cannot be identical, but
`Petitioner fails to provide any argument or basis for this reasoning.
`Petitioner, in an alternative mapping, then posits a second claim
`interpretation theory for the “first duty cycle” and “second duty cycle”
`limitations. Pet. 30. Specifically, Petitioner argues, “Richardson teaches
`this limitation under an alternate construction of this limitation that does not
`require different duty cycles for the first duty cycle and the second duty
`cycle.” Id. In this second theory, Richardson’s light sources are operated
`according to the first control protocol (a first selected frequency) according
`to a first duty cycle of at least 25%, and likewise the light sources are
`operated according to the second control protocol (a second selected
`frequency) according to a second duty cycle of at least 25%. Id.
`Our regulations require a petitioner to explain “[h]ow the challenged
`claim is to be construed,” (37 C.F.R. § 42.104(b)(3)) and in some instances
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`we have denied institution where a petitioner fails to provide a necessary
`claim interpretation. See, e.g., OrthoPediatrics Corp. v. K2M, Inc.,
`IPR2018-01548, Paper 9 (PTAB Mar. 1, 2019) (stating that the petitioner
`failed to provide a claim construction necessary to meet its burden to show a
`reasonable likelihood that at least one claim is unpatentable). In this
`instance, Petitioner has presented an alternative theory, acknowledging that
`it is either one interpretation or the other for the duty cycle limitations.
`Although this is a not a preferred method of practice, we proceed with the
`trial as outlined below on the basis that Petitioner’s first proposed claim
`interpretation is persuasive (the first mapping) and in the absence of
`argument from Patent Owner.3 Our final decision cannot rest on both of
`Petitioner’s mappings, regardless of outcome, and the parties must present
`any and all arguments as to the proper meaning of the limitations requiring a
`“first duty cycle” and “second duty cycle” during the course of the trial.
`The parties should also bring to the Board’s attention any arguments
`or decisions in related proceedings or the related district court litigation that
`impact the claim interpretation of any claim term in the ’776 patent. See
`Facebook, Inc. v. Sound View Innovations, LLC, IPR2017-00998, Paper 13
`(PTAB Sept. 5, 2017); see also 37 C.F.R. § 42.100(b) (“Any prior claim
`construction determination concerning a term of the claim in a civil action,
`or a proceeding before the International Trade Commission, that is timely
`made of record in the inter partes review proceeding will be considered.”).
`
`
`3 As noted and required, this trial will proceed on all grounds and our final
`decision will be based on the complete trial record before us.
`
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`Principles of Law
`B.
`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 at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains.” 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.4 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 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.
`
`
`4 At this stage of the proceeding, neither party has introduced objective
`evidence of non-obviousness.
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`Level of Ordinary Skill in the Art
`C.
`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,
`including but not limited to physiological monitoring technologies.” Pet. 6
`(citing Ex. 1003 ¶ 32). “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.
`For purposes of this Decision, we generally adopt Petitioner’s
`assessment as set forth above, which appears consistent with the level of
`skill reflected in the Specification and prior art.
`
`D. Obviousness over the Teachings of
`Richardson (First Mapping)
`Petitioner presents undisputed contentions that claims 1–8 and 11–16
`of the ’776 patent would have been obvious over the teachings of
`Richardson. Pet. 8–26.
`
`Overview of Richardson (Ex. 1004)
`1.
`Richardson is titled “Method and Apparatus for Reducing Ambient
`Noise Effects in Electronic Monitoring Instruments.” Ex. 1004, code (54).
`Richardson discloses “a method and apparatus for adapting to noise sources
`affecting a pulse oximeter.” Id. at code (57). Richardson describes
`evaluating various frequencies to determine their respective noise levels and
`selecting one to act as the operating demultiplexer frequency. Id. “During
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`normal operation of the pulse oximeter, the various available demultiplexer
`frequencies are periodically scanned to determine which has the lowest
`associated noise,” and “[t]he noise level associated with the operating
`frequency is used to determine the signal-to-noise ratio of the pulse oximeter
`signals” in order to “qualify certain signals from the pulse oximeter.” Id.
`Richardson may rely upon noise levels to conserve power by reducing LED
`drive current while maintaining a safe signal-to-noise ratio. Id. at 3:3–7.
`In Richardson, the pulse oximeter includes light sources that emit red
`and infrared light alternately into a patient’s tissue and a photodetector that
`senses the light transmitted through the tissue. Ex. 1004, 1:37–45, 2:61– 62,
`4:2–5. Based on the changes in red and infrared light transmission, the pulse
`oximeter measures a physiological parameter. Id. at 1:46–61. The oximeter
`operates in one of three states: State 0, State 1, or State 2. Id. at 5:41–43. In
`State 0, the oximeter turns off the light sources and monitors the
`photodetector signal at a given frequency to monitor noise in the oximeter
`signal. Id. at 2:57–64, 5:17–24, 5:43–53. The measured noise level is used
`to select a frequency at which the contribution of noise to the signal is
`relatively low. Id. at 3:1–17, 5:53–54, 7:58–63. After selecting a frequency,
`the oximeter operates in a normal operating state, State 1, where both light
`sources are activated alternately at a frequency and the physiological
`parameter is monitored. Id. at 5:55–57, 6:66–7:3, 7:58–63, 8:46–49. When
`the oximeter is operating in State 1, the oximeter displays blood saturation
`values, a pulse waveform, and heart rate estimates and provides an audible
`pulse tone. Id. at 9:33–38, 9:43–47. If the oximeter determines that the
`signal-to-noise ratio decreases below an acceptable level, it reverts from
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`State 1 to State 0 to search for a new frequency. Id. at 5:64–67, 7:3–18,
`8:41–43, 8:50–64.
`The oximeter may transition from State 1 to State 2 to reassess the
`noise at the current operating frequency. Ex. 1004, 6:1–2, 8:46, 9:39–43. In
`State 2, the red light source is turned off, and a new noise level is calculated
`by measuring the ambient noise in the red channel only. Id. at 6:2–4, 9:40–
`43, 9:52–63. In State 2, the infrared channel is operating, and the oximeter
`monitors the pulse rate, displays a pulse waveform and heart rate estimates,
`and provides an audible pulse tone. Id. at 6:4–7, 9:43–47. After calculating
`the new noise level, the oximeter returns to State 1 and operates normally
`using the new noise level. Id. at 6:7–10, 9:63–65.
`
`Independent Claim 1
`2.
`Petitioner contends that claim 1 would have been obvious over
`Richardson. Pet. 10–17.
`
`i. “A method of operating a patient monitor configured to
`monitor at least a pulse rate of a patient by processing
`signals responsive to light attenuated by body tissue, the
`method comprising:”
`On this record, the cited evidence supports Petitioner’s undisputed
`contention that Richardson satisfies the subject matter of the preamble.5
`Pet. 10–12; see, e.g., Ex. 1004, 2:57–59 (“the method and apparatus of the
`present invention are used to process photodetection signals obtained with a
`pulse oximeter”). Richardson describes placing a detector on the finger of a
`
`
`5 Whether the preamble is limiting need not be resolved at this stage of the
`proceeding, because Petitioner shows sufficiently for purposes of institution
`that the recitation in the preamble is satisfied by the prior art.
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`patient in order to make various readings, including pulse and blood oxygen
`saturation. Ex. 1004, 3:58–67, 3:67–4:2, 7:58–63, 5:53–57.
`
`ii.“[a] operating the patient monitor according to a first
`control protocol, wherein said operating
`includes
`activating a first control protocol light source in
`accordance with the first control protocol, the first control
`protocol light source including one or more of a plurality
`of light sources;
`
`when operating according to the first control protocol,
`calculating, by the patient monitor, measurement values
`of the pulse rate, the measurement values responsive to
`light from the first control protocol light source, detected
`by a detector of an optical sensor after attenuation by body
`tissue of the patient using the patient monitor”
`On this record, the cited evidence supports Petitioner’s undisputed
`contention that Richardson discloses these limitations through operation in
`from State 1 into State 2, which Petitioner maps to the claimed “first control
`protocol.” Pet. 12–13; see, e.g., Ex. 1004, 9:40–43, 6:2–4, 9:52–63.
`Petitioner equates the claimed “first control protocol light source” to
`Richardson’s infrared light source. See id. The claim requirement of
`calculating measurement values of the pulse rate is met by Richardson’s
`infrared channel operating to maintain “its pulse waveform display, heart
`rate estimates, and audible pulse tone.” Id.; Ex. 1004, 9:43–47.
`According to Petitioner,
`Richardson’s oximeter operates according to a first control
`protocol, e.g., State 2, including activating the infrared light
`source and operating the red light source in an off state in
`accordance with the first control protocol. APPLE-1003, ¶45;
`APPLE-1004, 1:37-45, 6:2-7, 9:40-47, 9:52-63. When the
`oximeter is operated according to the first control protocol, the
`oximeter processes signals responsive to light attenuated by body
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`IPR2020-01524
`Patent 10,433,776 B2
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`tissue using the infrared channel and monitors at least a pulse rate
`of a patient to display a pulse waveform and heart rate estimates.
`APPLE-1003, ¶45; APPLE-1004, 9:43-47, 1:37-45, 6:4-7.
`Pet. 13; Ex. 1003 ¶ 45. We find this argument and testimony of
`Dr. Anthony persuasive on the record before us. See Ex. 1003 ¶ 45.
`
`iii.“[b] generating a trigger signal, wherein generating said
`trigger signal is responsive to at least one of: a
`comparison of processing
`characteristics
`to a
`predetermined threshold, a physiological event, or signal
`quality characteristics of signals received from the
`detector;”
`On this record, the cited evidence supports Petitioner’s undisputed
`contentions regarding this limitation. Pet. 13–14. Specifically, Petitioner
`contends that Richardson calculates a new noise level in State 2, which
`causes a trigger signal to be generated. Pet. 13–14; see, e.g., Ex. 1004,
`9:40–43 (“The purpose of State 2 is to detect new noise sources that may
`have appeared since the last State 0 noise measurements by turning off the
`red LED (Step J) and measuring ambient noise in the red channel only
`(Step K).”), 6:2–10 (“After the noise is assessed in State 2, the system
`returns to State 1 . . . and operates normally, employing the new noise level
`calculated in State 2.”), 9:52–63.
`
`iv. “[c] in response to receiving the trigger signal, operating
`the patient monitor according to a second control protocol
`different from the first control protocol, wherein said
`operating includes activating a second control protocol
`light source in accordance with the second control
`protocol, the second control protocol light source
`including one or more of the plurality of light sources;
`
`and when operating the patient monitor according to the
`second control protocol, calculating the measurement
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`IPR2020-01524
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`
`values of the pulse rate, the measurement values
`responsive to light from the second control protocol light
`source, detected by the detector after attenuation by the
`body tissue of the patient using the patient monitor”
`On this record, the cited evidence supports Petitioner’s undisputed
`contentions regarding these limitations. Pet. 14–15. Petitioner contends that
`Richardson’s oximeter, in response to the trigger signal that causes the
`oximeter to return to State 1, returns to the normal operating state where
`both the red and infrared light sources are activated alternately, and the
`oximeter displays blood saturation values, a pulse waveform, and heart rate
`estimates and provides an audible pulse tone. Pet. 14–15 (citing Ex. ¶ 48;
`Ex. 1004, 1:37–45, 5:53–57, 6:2–10, 6:61–7:3, 7:58–63, 8:46–49, 9:33–65).
`Richardson describes how “State 1 is the oximeter’s normal operating state”
`and “both LEDs are turned on and the blood oxygen saturation is
`monitored.” Ex. 1004, 7:58–63, 5:53–57, 6:61–7:3.
`Petitioner argues that Richardson’s oximeter, in response to receiving
`the trigger signal causing it to return to State 1, operates according to a
`second control protocol, e.g., State 1, including activating the both the red
`and infrared light sources in accordance with the second control protocol.
`Pet. 15. Petitioner, relying on the testimony of Dr. Anthony, contends that
`“[w]hen the oximeter is operated according to the second control protocol,
`e.g., State 1, the oximeter processes signals responsive to light attenuated by
`body tissue and monitors at least a pulse rate of a patient to display a pulse
`waveform and heart rate estimates.” Id. (citing Ex. 1003 ¶ 48).
`At this stage of the proceeding, Petitioner’s stated position is
`supported on the record before us. Although these limitations require
`“activating a second control protocol light source in accordance with the
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`IPR2020-01524
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`second control protocol,” we read Petitioner’s position as mapping this
`second control protocol light source to “both the red and infrared light
`sources are activated alternately,” (Pet. 15; Ex. 1003 ¶ 48). See Ex. 1004
`1:37–45 (“emits light alternately at a red and at an infrared wavelength”).
`To the extent having two distinct wavelengths (red and infrared) emitting
`alternatively impacts the analysis of “a second control protocol light source,”
`the parties should address this during the trial. We also understand that
`“calculating the measurement values of the pulse rate, the measurement
`values responsive to light from the second control protocol light source,”
`encompasses Richardson’s pulse rate monitor and determination of pulse
`waveform and heart rate estimates. See Ex. 1004, 1:37–45, 5:53–57, 6:2–10,
`6:61–7:3, 7:58–63, 8:46–49, 9:33–65.
`
`v. “[d] wherein said operating of the patient monitor
`according to the first control protocol operates the first
`control protocol light source according to a first duty
`cycle and said operating of the patient monitor according
`to the second control protocol operates the second control
`protocol light source according to a second duty cycle,”
`On this record, the cited evidence supports Petitioner’s undisputed
`contentions regarding this limitation. Pet. 15–16. Specifically, Petitioner
`notes that in State 2 the red LED is turned off and ambient noise is measured
`in the red channel only but the infrared channel is still operating and the
`sensor is emitting an infrared wavelength. Pet. 15 (citing Ex. 1004, 9:40–43,
`6:2–4, 9:52–63). Petitioner contrasts State 2 with State 1 wherein the
`oximeter operates normally with the LEDs activated alternatively at
`frequency fTMUX. Pet. 16 (citing Ex. 1004, 7:58–63, 5:55–57, 6:66–7:3). In
`State 1, “‘[a] clock controls the sequential output of light from the light
`
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`IPR2020-01524
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`emitting diodes and to a duty cycle of at least 1 in 4’ (at least 25%).” Id.
`(quoting Ex. 1004, 4:6–10) (citing Ex. Ex. 1003 ¶ 49).
`According to Petitioner, Richardson teaches operating the patient
`monitor according to different duty cycles:
`State 2 = red light off (0% duty cycle) and infrared light on (at
`i)
`least 25% duty cycle); and,
`State 1 = red light on (at least 25% duty cycle) and infrared
`light on (at least 25% duty cycle).
`See Pet. 16. Petitioner, relying on the testimony of Dr. Anthony, contends
`that “Richardson discloses that the first control protocol, e.g., State 2,
`operates the first control protocol light source according to a first
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