throbber
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`Al-Ali
`In re Patent of:
`10,433,776 Attorney Docket No.: 50095-0003IP1
`U.S. Patent No.:
`October 8, 2019
`
`Issue Date:
`Appl. Serial No.: 16/174,144
`
`Filing Date:
`October 29, 2018
`
`Title:
`LOW POWER PULSE OXIMETER
`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`PETITION FOR INTER PARTES REVIEW OF UNITED STATES PATENT
`NO. 10,433,776 PURSUANT TO 35 U.S.C. §§ 311–319, 37 C.F.R. § 42
`
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`TABLE OF CONTENTS
`
`REQUIREMENTS FOR IPR .......................................................................... 2 
`  Grounds for Standing ................................................................................. 2 
`  Challenge and Relief Requested ................................................................. 2 
`THE ’776 PATENT ......................................................................................... 4 
`  Brief Description ........................................................................................ 4 
`  Summary of the Prosecution History ......................................................... 6 
`  Level of Ordinary Skill in the Art .............................................................. 6 
`  Claim Construction ..................................................................................... 7 
`  UNPATENTABILITY GROUNDS ................................................................ 8 
`  GROUND 1A: Claims 1-8 and 11-16 are obvious over Richardson (first
`mapping) ..................................................................................................... 8 
`1.  Overview of Richardson ........................................................................ 8 
`2.  Analysis ............................................................................................... 10 
`  GROUND 1B: Claims 1-9 and 11-16 are obvious over Richardson
`(second mapping) ..................................................................................... 26 
`  GROUND 1C: Claims 9 and 10 are obvious based on Richardson (either
`mapping) and Bindszus ............................................................................ 40 
`1.  Overview of Bindszus ......................................................................... 40 
`2.  Reasons to Combine Richardson and Bindszus .................................. 41 
`3.  Claim 9 ................................................................................................ 44 
`4.  Claim 10 .............................................................................................. 45 
`  GROUND 2A: Claims 1-9 and 11-16 are obvious based on Richardson
`and Turcott (first mapping) ...................................................................... 45 
`1.  Overview of Turcott ............................................................................ 45 
`2.  Reasons to Combine Richardson and Turcott ..................................... 46 
`3.  Analysis ............................................................................................... 48 
`  GROUND 2B: Claims 1-9 and 11-16 are obvious based on Richardson
`and Turcott (second mapping) .................................................................. 55 
`1.  Analysis ............................................................................................... 55 
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`  GROUND 2C: Claims 9 and 10 are obvious based on Richardson and
`Turcott (either mapping) and Bindszus .................................................... 62 
`  PTAB DISCRETION SHOULD NOT PRECLUDE INSTITUTION .......... 63 
`  Factor 1: Institution will increase the likelihood of stay .......................... 63 
`  Factor 2: District Court schedule .............................................................. 63 
`  Factor 3: Apple’s investment in IPR outweighs forced investment in
`litigation to date ........................................................................................ 64 
`  Factor 4: The Petition raises unique issues .............................................. 65 
`  Factor 5: Institution would provide the Board an opportunity to invalidate
`claims that could later be reasserted against others .................................. 66 
`  Factor 6: Other circumstances support institution .................................... 67 
`PAYMENT OF FEES ................................................................................... 67 
`  CONCLUSION .............................................................................................. 67 
`  MANDATORY NOTICES UNDER 37 C.F.R § 42.8(a)(1) ......................... 67 
`  Real Party-In-Interest Under 37 C.F.R. § 42.8(b)(1) ............................... 67 
`  Related Matters Under 37 C.F.R. § 42.8(b)(2) ......................................... 68 
`  Lead And Back-Up Counsel Under 37 C.F.R. § 42.8(b)(3) .................... 68 
`  Service Information .................................................................................. 68 
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`EXHIBITS
`
`U.S. Patent No. 10,433,776 to Al-Ali (“the ’776 Patent”)
`
`Excerpts from the Prosecution History of the ’776 Patent
`
`Declaration of Brian W. Anthony, Ph.D.
`
`U.S. Patent No. 5,555,882 to Richardson et al. (“Richardson”)
`
`U.S. Patent No. 6,178,343 to Bindszus et al. (“Bindszus”)
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`U.S. Patent No. 6,527,729 to Turcott (“Turcott”)
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`U.S. Patent No. 6,473,008 to Kelly et al.
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`U.S. Patent No. 5,254,992 to Keen et al.
`
`U.S. Patent No. 5,924,979 to Swedlow et al.
`
`Tremper, Pulse Oximetry, Anesthesiology, The Journal of the
`American Society of Anesthesiologists, Inc., Vol. 70, No. 1
`(January 1989)
`
`Mendelson, Skin Reflectance Pulse Oximetry: In Vivo
`Measurements from the Forearm and Calf, Journal of Clinical
`Monitoring, Vol. 7, No. 1 (January 1991)
`
`Excerpts from Bronzino, The Biomedical Engineering
`Handbook, CRC Press, Inc. (1995)
`
`Konig, Reflectance Pulse Oximetry – Principles and Obstetric
`Application in the Zurich System, Journal of Clinical
`Monitoring, Vol. 14, No. 6 (August 1998)
`
`Reserved
`
`Scheduling Order, Masimo v. Apple et al., Case 8:20-cv-00048,
`Paper 37 (April 17, 2020)
`
`
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`
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`APPLE-1001
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`APPLE-1002
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`APPLE-1003
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`APPLE-1004
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`APPLE-1005
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`APPLE-1006
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`APPLE-1007
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`APPLE-1008
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`APPLE-1009
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`APPLE-1010
`
`
`APPLE-1011
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`
`APPLE-1012
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`
`APPLE-1013
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`APPLE-1014-1030
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`APPLE-1031
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`iii
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`APPLE-1032
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`APPLE-1033
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`APPLE-1034
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`APPLE-1035
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`Stipulation by Apple
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`Telephonic Status Conference, Masimo v. Apple et al., Case
`8:20-cv-00048, Paper 78 (July 13, 2020)
`
`Joseph Guzman, “Fauci says second wave of coronavirus is
`‘inevitable’”, TheHill.com (Apr. 29, 2020), available at:
`https://thehill.com/changing-america/resilience/natural-
`disasters/495211-fauci-says-second-wave-of-coronavirus-is
`
`“Tracking the coronavirus in Los Angeles County,”
`LATimes.com (Aug. 20, 2020), available at
`https://www.latimes.com/projects/california-coronavirus-cases-
`tracking-outbreak/los-angeles-county/
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`Apple Inc. (“Petitioner” or “Apple”) petitions for Inter Partes Review
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`(“IPR”) under 35 U.S.C. §§311–319 and 37 C.F.R. §42 of claims 1-16 (“the
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`Challenged Claims”) of U.S. Patent No. 10,433,776 (“the ’776 patent”). The ’776
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`Patent discloses a purported improvement to “a sleep-mode pulse oximeter...
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`utilizing conventional sleep-mode power reduction” “where the circuitry is
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`powered down,” and thus “the pulse oximeter is not functioning during sleep
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`mode” which can result in “miss[ed] events, such as patient oxygen desaturation.”
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`APPLE-1001, 1:62-65, 2:14-17. According to the ’776 Patent, the improved pulse
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`oximeter uses physiological measurements and signal statistics to “regulate pulse
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`oximeter power dissipation by causing the sensor interface to vary the sampling
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`characteristics of the sensor port and by causing the signal processor... to vary its
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`sample processing characteristics.” APPLE-1001, 5:17-26.
`
`But the claimed device is not new. To the contrary, the ’776 Patent was
`
`granted without full consideration to the wide body of applicable art. As Dr. Brian
`
`Anthony explains in his accompanying declaration with respect to the applied prior
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`art, patient monitors such as pulse rate detectors and pulse oximeters commonly
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`included these and other features by the ’776 Patent’s earliest effective filing date,
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`and a patient monitor including each feature of the Challenged Claims would have
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`been obvious to a POSITA. APPLE-1003, ¶¶35-107. For example, U.S. Patent
`
`No. 5,555,882 to Richardson et al. (APPLE-1004) discloses the exact limitations of
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`1
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`the ’776 Patent’s proposed solution to the problem found in the prior art “sleep-
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`mode pulse oximeter.” APPLE-1001, 1:62-65, 2:14-17. Much like the ’776
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`Patent, Richardson discloses a pulse oximeter that operates in “State 1[, which] is
`
`the oximeter’s normal operating state” “where both LEDs are turned on and the
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`blood oxygen saturation is monitored” and in “State 2... to detect new noise
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`sources... by turning off the red LED... and measuring ambient noise in the red
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`channel only” while “the infrared channel is still operating” to “monitor pulse rate
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`and otherwise give the appearance of operating normally.” APPLE-1004, 7:58-63,
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`5:53-57, 9:40-47, 6:2-7, 9:52-63. Richardson is not alone, as other references cited
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`herein likewise disclose operating a patient monitor that calculates pulse rate in
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`different power consumption states, as discussed in detail below.
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`
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`REQUIREMENTS FOR IPR
`
` Grounds for Standing
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`Apple certifies that the ’776 Patent is available for IPR. The Petition is
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`being filed within one year of service of a complaint against Apple in Masimo
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`Corporation et al. v. Apple Inc., Case No. 8:20-cv-00048 (C.D. Cal.). Apple is not
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`barred or estopped from requesting this review challenging the Challenged Claims
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`on the below-identified grounds.
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` Challenge and Relief Requested
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`Apple requests an IPR of the Challenged Claims on the grounds set forth in
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`2
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`the table shown below. An explanation of how these claims are unpatentable
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`under the statutory grounds identified below is provided in the form of a detailed
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`description that follow. Additional explanation and support for each ground is set
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`forth in the Declaration of Brian W. Anthony, Ph.D. (APPLE-1003), referenced
`
`throughout this Petition.
`
`Ground
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`Claims
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`§ 103 Basis
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`1A
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`1B
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`1C
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`1-8, 11-16
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`Richardson (APPLE-1004) (first mapping)
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`1-9, 11-16
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`Richardson (second mapping)
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`9, 10
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`Richardson (either mapping) and Bindszus (APPLE-
`1005)
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`2A
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`1-9, 11-16
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`Richardson and Turcott (APPLE-1006) (first
`mapping)
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`2B
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`2C
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`1-9, 11-16
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`Richardson and Turcott (second mapping)
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`9, 10
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`Richardson and Turcott (either mapping) and
`Bindszus
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`
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`Each reference pre-dates the provisional application (filed 7/2/2001) and
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`qualifies as prior art:
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`Reference
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`Date
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`Section
`
`Richardson 9/17/1996 (issued) 102(b)
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`Bindszus
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`1/23/2001 (issued) 102(a)
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`Reference
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`Date
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`Section
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`Turcott
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`10/11/2000
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`102(e)
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`None of these references were cited in any office action by the examiner
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`during prosecution.
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` THE ’776 PATENT
`
` Brief Description
`
`The ’776 Patent relates to “a low power pulse oximeter” having a signal
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`processor that derives physiological measurements, including oxygen saturation,
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`pulse rate, and plethysmograph, from an input signal. APPLE-1001, 4:65-5:16,
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`FIG. 3. The signal processor also derives signal statistics, such as signal strength,
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`noise, and motion artifact. APPLE-1001, 5:16-17, FIG. 3; APPLE-1003, ¶26.
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`The pulse oximeter uses the physiological measurements and signal statistics
`
`to determine “the occurrence of an event or low signal quality condition.” APPLE-
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`1001, 6:28-31; APPLE-1003, ¶27. An event determination is based upon the
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`physiological measurements and “may be any physiological-related indication that
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`justifies the processing of more sensor samples and an associated higher power
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`consumption level, such as oxygen desaturation, a fast or irregular pulse rate or an
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`unusual plethysmograph waveform.” APPLE-1001, 6:31-37. A low signal quality
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`condition is based upon the signal statistics and “may be any signal-related
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`indication that justifies the processing or more sensor samples and an associated
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`higher power consumption level, such as a low signal level, a high noise level or
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`motion artifact.” APPLE-1001, 6:37-42.
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`The pulse oximeter “utilizes multiple sampling mechanisms to alter power
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`consumption.” APPLE-1001, 5:62-64; APPLE-1003, ¶28. One sampling
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`mechanism is “an emitter duty cycle control” that “determines the duty cycle of the
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`current supplied by the emitter drive outputs 482 to both red and IR sensor
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`emitters.” APPLE-1001, 5:64-6:2. “In conjunction with an intermittently reduced
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`duty cycle or as an independent sampling mechanism, there may be a ‘data off’
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`time period longer than one drive current cycle where the emitter drivers... are
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`turned off.” APPLE-1001, 7:11-15. The occurrence of an event or low signal
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`quality triggers a higher duty sensor sampling, allowing high fidelity monitoring of
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`the event and providing a larger signal-to-noise ratio. APPLE-1001, 8:47-61.
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`The sampling mechanisms “modify power consumption by, in effect,
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`increasing or decreasing the number of input samples received and processed.”
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`APPLE-1001, 6:12-14; APPLE-1003, ¶29. “Sampling, including acquiring input
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`signal samples and subsequent sample processing, can be reduced during high
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`signal quality periods and increased during low signal quality periods or when
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`critical measurements are necessary.” APPLE-1001, 6:14-18.
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`5
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`Summary of the Prosecution History
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`In the first office action, original claims 1-16 were rejected. APPLE-1002,
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`59-67. In the response to the first office action, the applicant canceled original
`
`claims 1-16 and added new claims 17-36. APPLE-1002, 86-90.
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`Subsequently, the examiner issued a notice of allowability. APPLE-1002,
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`170-171. As described in detail below, other prior art references—which were
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`never before the examiner—taught the features addressed in the examiner’s
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`statement of reasons for allowance. See APPLE-1002, 170-171; APPLE-1003,
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`¶31.
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` Level of Ordinary Skill in the Art
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`A person of ordinary skill in the art relating to, and at the time of, the ’776
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`Patent (a “POSITA”) would have had a Bachelor of Science degree in an academic
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`discipline emphasizing the design of electrical, computer, or software technologies,
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`in combination with training or at least one to two years of related work experience
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`with capture and processing of data or information, including but not limited to
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`physiological monitoring technologies. APPLE-1003, ¶32. Alternatively, the
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`person could have also had a Master of Science degree in a relevant academic
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`discipline with less than a year of related work experience in the same discipline.
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`Id.
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` Claim Construction
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`Petitioner submits that all claim terms should be construed according to the
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`Phillips standard. Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005); 37
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`C.F.R. § 42.100. Here, based on the evidence below and the prior art’s description
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`of the claimed elements being similar to that of the ’776 patent specification, no
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`formal claim constructions are necessary in this proceeding because “claim terms
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`need only be construed to the extent necessary to resolve the controversy.”
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`Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011).
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`7
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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` UNPATENTABILITY GROUNDS
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` GROUND 1A: Claims 1-8 and 11-16 are obvious1 over
`Richardson (first mapping)
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`1. Overview of Richardson2
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`Richardson discloses a method for detecting and reducing the effects of
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`electromagnetic noise on pulse oximeters. APPLE-1004, 1:11-15, 2:35-37;
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`APPLE-1003, ¶35. In Richardson, a pulse oximeter includes light sources that
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`emit red and infrared light alternately into a patient’s tissue and a photodetector
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`that senses the light transmitted through the tissue. APPLE-1004, 1:37-45, 2:61-
`
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`1 “It is well settled that a disclosure that anticipates under §102 also renders the
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`claim invalid under §103, for anticipation is the epitome of obviousness.”
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`Realtime Data, LLC v. Iancu, 912 F. 3d 1368, 1373 (Fed. Cir. 2019) (citing
`
`Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed. Cir. 1983); Wasica
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`Fin. GmbH v. Cont'l Auto. Sys., Inc., 853 F.3d 1272, 1278 n.3 (Fed. Cir. 2017)
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`(noting the Board's conclusion that a prior art reference rendered certain claims
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`obvious “by virtue of its anticipation of them”).
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`2 General descriptions provided for the references and combinations are
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`incorporated into each subsection addressing/applying those references, as are the
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`discussions of combinations.
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`8
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`62, 4:2-5. Based on the changes in red and infrared light transmission, the pulse
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`oximeter measures a physiological parameter. APPLE-1004, 1:46-61.
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`Richardson’s oximeter measures noise levels in situ, which “may conserve
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`power by reducing LED drive current while maintaining a safe signal-to-noise
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`ratio.” APPLE-1004, 3:3-7. The oximeter operates in one of three states: State 0,
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`State 1, and State 2. APPLE-1004, 5:41-43. In State 0, the oximeter turns off the
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`light sources and monitors the photodetector signal at a given frequency to monitor
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`noise in the oximeter signal. APPLE-1004, 2:57-64, 5:17-24, 5:43-53. The
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`measured noise level is used to select a frequency at which the contribution of
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`noise to the signal is relatively low. APPLE-1004, 3:1-17, 5:53-54, 7:58-63;
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`APPLE-1003, ¶36.
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`After selecting a frequency, the oximeter operates in a normal operating
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`state, State 1, where both light sources are activated alternately at the frequency
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`and the physiological parameter is monitored. APPLE-1004, 5:55-57, 6:66-7:3,
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`7:58-63, 8:46-49. When the oximeter is operating in State 1, the oximeter displays
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`blood saturation values, a pulse waveform, and heart rate estimates and provides an
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`audible pulse tone. APPLE-1004, 9:33-38, 9:43-47; APPLE-1003, ¶37. If the
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`oximeter determines that the signal-to-noise ratio decreases below an acceptable
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`level, it reverts from State 1 to State 0 to search for a new frequency. APPLE-
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`1004, 5:64-67, 7:3-18, 8:41-43, 8:50-64.
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`9
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`The oximeter frequently transitions from State 1 to State 2 to reassess the
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`noise at the current operating frequency. APPLE-1004, 6:1-2, 8:46, 9:39-43;
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`APPLE-1003, ¶38. In State 2, the red light source is turned off, and a new noise
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`level is calculated by measuring the ambient noise in the red channel only.
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`APPLE-1004, 6:2-4, 9:40-43, 9:52-63. In State 2, the infrared channel is
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`operating, and the oximeter monitors the pulse rate, displays a pulse waveform and
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`heart rate estimates, and provides an audible pulse tone. APPLE-1004, 6:4-7,
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`9:43-47. After calculating the new noise level, the oximeter returns to State 1 and
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`operates normally using the new noise level. APPLE-1004, 6:7-10, 9:63-65.
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`2. Analysis
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`For this first mapping of Richardson to the claim elements, claims 1-8 and
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`11-16 are mapped to disclosure in Richardson describing the oximeter transitioning
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`from State 2 (as the first control protocol) to State 1 (as the second control
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`protocol).
`
` Claim 1
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`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:”
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`Richardson discloses a method of operating a patient monitor that processes
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`signals responsive to light attenuated by body tissue. APPLE-1003, ¶41.
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`Richardson discloses a “method... to process photodetection signals obtained with
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`a pulse oximeter.” APPLE-1004, 2:57-59, 1:11-15, 2:35-37. “Detector 29 is
`
`placed upon the finger 14 of a patient 28” as shown in FIG. 1. APPLE-1004, 3:58-
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`67. “Utilizing the placement of the detector 29 at the finger 14, all of the
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`readings... are made possible.” APPLE-1004, 3:67-4:2.
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`APPLE-1004, FIG. 1
`
`
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` “[T]he sensor of the pulse oximeter system... emits light alternately at a red
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`and at an infrared wavelength into the patient’s tissue, and a single photodetector
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`senses the light transmitted through the tissue at each wavelength.” APPLE-1004,
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`1:37-45, 4:2-5; APPLE-1003, ¶42.
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`Richardson discloses that the patient monitor monitors at least a pulse rate of
`
`a patient. APPLE-1003, ¶43. For example, Richardson’s oximeter operates in
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`“State 1[, which] is the oximeter’s normal operating state” “where both LEDs are
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`turned on and the blood oxygen saturation is monitored.” APPLE-1004, 7:58-63,
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`11
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
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`5:53-57. “[I]n State 1, the oximeter is functioning normally and saturation values
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`are presented to the clinician for each detected and accepted pulse.” APPLE-1004,
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`8:46-49, 9:33-38. The pulse oximeter also maintains a “pulse waveform display,
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`heart rate estimates, and audible pulse tone.” APPLE-1004, 9:43-47.
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`1[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;”
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`Richardson’s “system frequently moves from State 1 to State 2... to reassess
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`the noise.” APPLE-1004, 6:1-2, 8:46, 9:39-43. “The purpose of State 2 is to
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`detect new noise sources... by turning off the red LED... and measuring ambient
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`noise in the red channel only.” APPLE-1004, 9:40-43, 6:2-4, 9:52-63. In State 2,
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`“the infrared channel is still operating,” and the sensor emits “an infrared
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`wavelength into the patient’s tissue, and a single photodetector senses the light
`
`transmitted through the tissue.” APPLE-1004, 9:43-47, 1:37-45. “Since the
`
`infrared channel is still operating, the pulse oximeter can maintain its pulse
`
`waveform display, heart rate estimates, and audible pulse tone.” APPLE-1004,
`
`9:43-47. “In State 2, the pulse oximeter... can monitor pulse rate and otherwise
`
`give the appearance of operating normally.” APPLE-1004, 6:4-7; APPLE-1003,
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`12
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`
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`¶44.
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`
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
`
`Accordingly, 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 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.
`
`1[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;”
`
`In Richardson, “[t]he purpose of State 2 is to detect new noise sources... by
`
`turning off the red LED... and measuring ambient noise in the red channel only.”
`
`APPLE-1004, 9:40-43, 6:2-4, 9:52-63. “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.” APPLE-1004, 6:2-10, 9:52-65. As such, the system does
`
`not exit State 2 and return to State 1 until the “new noise level” is calculated.
`
`APPLE-1003, ¶46; APPLE-1004, 6:2-10, 9:52-65. Accordingly, the calculation of
`
`the “new noise level” (a signal quality characteristic of signals received from the
`
`13
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`
`
`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
`
`
`detector) causes a trigger signal to be generated. Id.
`
`1[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 after attenuation by the body tissue of the
`patient using the patient monitor,”
`
`In Richardson, “[a]fter 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.” APPLE-1004, 6:2-10, 9:52-65. “State 1 is the oximeter’s normal operating
`
`state” “where both LEDs are turned on and the blood oxygen saturation is
`
`monitored.” APPLE-1004, 7:58-63, 5:53-57, 6:61-7:3. “[T]he sensor of the pulse
`
`oximeter system... emits light alternately at a red and at an infrared wavelength
`
`into the patient’s tissue, and a single photodetector senses the light transmitted
`
`through the tissue at each wavelength.” APPLE-1004, 1:37-45. “[I]n State 1, the
`
`oximeter is functioning normally and saturation values are presented to the
`
`clinician for each detected and accepted pulse.” APPLE-1004, 8:46-49, 9:33-38.
`
`The pulse oximeter also maintains a “pulse waveform display, heart rate estimates,
`
`and audible pulse tone.” APPLE-1004, 9:43-47; APPLE-1003, ¶47.
`
`As such, Richardson’s oximeter, in response to the trigger signal that causes
`
`14
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`

`
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`
`
`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
`
`
`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. APPLE-1003, ¶48; APPLE-1004, 1:37-45, 5:53-
`
`57, 6:2-10, 6:61-7:3, 7:58-63, 8:46-49, 9:33-65. Accordingly, 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. Id. When 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.
`
`1[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,”
`
`Richardson discloses that “[t]he purpose of State 2 is to detect new noise
`
`sources... by turning off the red LED... and measuring ambient noise in the red
`
`channel only.” APPLE-1004, 9:40-43, 6:2-4, 9:52-63. In State 2, “the infrared
`
`channel is still operating,” and the sensor emits “an infrared wavelength into the
`
`patient’s tissue, and a single photodetector senses the light transmitted through the
`
`15
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`

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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
`
`
`tissue.” APPLE-1004, 9:43-47, 1:37-45. Richardson also discloses that “State 1 is
`
`the oximeter’s normal operating state” where “[t]he LEDs are activated alternately
`
`at a frequency fTMUX.” APPLE-1004, 7:58-63, 5:55-57, 6:66-7:3. Additionally,
`
`“[a] clock controls the sequential output of light from the light emitting diodes and
`
`to a duty cycle of at least 1 in 4” (at least 25%). APPLE-1004, 4:6-10; APPLE-
`
`1003, ¶49.
`
`As such, in State 2, the red light source is turned off and has a duty cycle of
`
`0%, and the infrared light source is operated with a duty cycle of at least 25%.
`
`APPLE-1003, ¶50; APPLE-1004, 9:40-43, 6:2-4, 9:52-63, 4:6-10. In State 1, both
`
`the red and infrared light sources are activated with a duty cycle of at least 25%.
`
`APPLE-1003, ¶50; APPLE-1004, 7:58-63, 5:55-57, 6:66-7:3, 4:6-10.
`
`Accordingly, Richardson discloses that the first control protocol, e.g., State 2,
`
`operates the first control protocol light source according to a first duty cycle, e.g.,
`
`red LED at 0% duty cycle and infrared LED at 25% duty cycle, and the second
`
`control protocol, e.g., State 1, operates the second control protocol light source
`
`according to a second duty cycle, e.g., red and infrared LEDs at 25% duty cycle.
`
`APPLE-1003, ¶50; APPLE-1004, 9:40-43, 6:2-4, 9:52-63, 7:58-63, 5:55-57, 6:66-
`
`7:3, 4:6-10. Accordingly, Richardson teaches operating the patient monitor
`
`according to different duty cycles, under the proper construction of 1[d]. Id.
`
`16
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`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
`
`
`1[e]: “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.”
`
`As previously discussed (supra Ground 1A, 1[d]), Richardson discloses that
`
`the first control protocol, e.g., State 2, operates the first control protocol light
`
`source according to a first duty cycle, e.g., red LED at 0% duty cycle and infrared
`
`LED at a duty cycle of at least 25%, and the second control protocol, e.g., State 1,
`
`operates the second control protocol light source according to a second duty cycle,
`
`e.g., red and infrared LEDs at a duty cycle of at least 25%. APPLE-1003, ¶¶49-50;
`
`APPLE-1004, 9:40-43, 6:2-4, 9:52-63, 7:58-63, 5:55-57, 6:66-7:3, 4:6-10.
`
`Accordingly, the power consumption of the light sources operating according to
`
`the first control protocol, e.g., State 2 where the red LED operates according to a
`
`first duty cycle of 0%, is different than the power consumption of the light sources
`
`operating according to the second control protocol, e.g., State 1 where the red LED
`
`operates according to a second duty cycle of at least 25%. Id.
`
`17
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`
`
`Attorney Docket No. 50095-0003IP1
`IPR of U.S. Patent No. 10,433,776
`
` Claim 2
`
`“2. The method of claim 1, wherein the first control protocol light source
`operates on the first duty cycle having an active time and an inactive time
`according to t

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