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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE INC.,
`Petitioner,
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`v.
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`MASIMO CORPORATION,
`Patent Owner.
`____________
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`Case IPR2020-01713
`Patent 10,624,564
`____________
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`PETITIONER’S MOTION TO FILE SUPPLEMENTAL INFORMATION
`PURSUANT TO 37 C.F.R. § 42.123
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`I.
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`INTRODUCTION
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`Case No. IPR2020-01713
`Attorney Docket: 50095-0023IP1
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`Pursuant to 37 C.F.R § 42.123(a), and under the authorization granted by the
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`Board on June 3, 2021, Petitioner hereby moves to submit Exhibit 1049
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`(“Declaration of Jacob Munford”) as supplemental information.
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`Petitioner requested authorization to file this motion on June 2, 2021, within
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`one month of the May 5, 2021 date of institution for IPR2020-01713. As
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`explained in more detail below, Exhibit 1049 provides further testimony
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`supporting the public accessibility and authenticity of prior art references relied
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`upon in the challenges set forth in the IPR2020-01713 Petition. For at least that
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`reason, Exhibit 1049 is relevant to a claim for which trial has been instituted.
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`Accordingly, both requirements of 37 C.F.R § 42.123(a) have been met.
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`Further, counsel for Petitioner and Patent Owner conferred prior to
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`Petitioner’s request for authorization to submit this motion, and Patent Owner does
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`not oppose this motion. Petitioner now so moves.
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`II. BACKGROUND
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`On September 30, 2020, Petitioner filed a Petition for inter partes review of
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`claims 1-30 of U.S. Pat. No. 10,624,564 (“the ’564 patent”), which was assigned
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`case number IPR2020-01713. On May 5, 2021, the Board instituted a trial on all
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`challenged claims of the ’564 patent, determining that Petitioner had demonstrated
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`a reasonable likelihood that Petitioner would prevail in showing the unpatentability
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`Case No. IPR2020-01713
`Attorney Docket: 50095-0023IP1
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`of at least one of the challenged claims.
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`On May 19, 2021, pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner served
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`Petitioner with objections to evidence, which included assertions that prior art
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`references that had been relied upon in the Petition had not been established as
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`prior art, in addition to objections to the previously-submitted declaration of
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`librarian Jacob Robert Munford (Exhibit 1027). On May 28, 2021, pursuant to 37
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`C.F.R. § 42.64(b)(2), and in response to Patent Owner’s objections, Petitioner
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`served Patent Owner with supplemental evidence including an additional
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`declaration from Mr. Munford with appendices (“Declaration of Jacob Munford”;
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`Exhibit 1049).
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`Exhibit 1049 provides further testimony supporting the public accessibility
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`and authenticity of Exhibit 1010, which is relied upon to support the obviousness
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`of claim 16 in the IPR2020-01713 Petition, with supporting appendices.
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`On June 2, 2021, Petitioner requested authorization from the Board to file a
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`motion to submit the declaration of Jacob Robert Munford as supplemental
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`information in IPR2020-01713. On June 3, 2021, the Board authorized Petitioner
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`to file a motion to submit supplemental information in each of the indicated
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`proceedings. In accordance with the Board’s authorization, Petitioner hereby
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`moves to submit Exhibit 1049 as supplemental information in IPR2020-01713.
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`III. ARGUMENTS
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`Case No. IPR2020-01713
`Attorney Docket: 50095-0023IP1
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`Under 37 C.F.R. § 42.123(a), a party may file a motion to submit
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`supplemental information in accordance with the following two requirements: (1)
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`“A request for the authorization to file a motion to submit supplemental
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`information is made within one month of the date the trial is instituted”; and (2)
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`“The supplemental information must be relevant to a claim for which the trial has
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`been instituted.”
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`The instant Motion meets both of these requirements. First, Petitioner
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`requested authorization to file this motion on June 2, 2021, within one month of
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`the May 5, 2021 date of institution for IPR2020-01713. Second, Exhibit 1049
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`provides further testimony supporting the public accessibility and authenticity of
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`Exhibit 1010 relied upon to support the obviousness challenge to claim 16 as set
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`forth in the IPR2020-01713 Petition. For at least that reason, Exhibit 1049 is
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`relevant to a claim for which trial has been instituted. See, e.g., Valeo v. Magna
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`Elecs., IPR2014-01204 Pap. 26 at 5 (PTAB Apr. 10, 2015); Palo Alto Networks,
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`Inc. v. Juniper Networks, Inc., IPR2013-00369 Pap. 37 at 3 (PTAB Feb. 5, 2014);
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`Motorola Solutions, Inc. v. Mobile Scanning Tech., IPR 2013-00093 Pap. 37 at 2-3
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`(PTAB Jun. 28, 2013).
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`Moreover, like the supplemental information admitted in Valeo, Palo Alto
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`Networks, and Motorola Solutions, Inc., Exhibit 1049 does not change the grounds
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`of unpatentability authorized in the proceeding, and instead merely confirms the
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`Case No. IPR2020-01713
`Attorney Docket: 50095-0023IP1
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`public accessibility and authenticity of a prior art reference originally provided
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`with the Petition. Further, because Patent Owner has been in possession of the
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`supplemental information in the form of supplemental evidence since May 28,
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`2021, which is over two months prior to the August 4, 2021 due date of the Patent
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`Owner’s response, the Patent Owner has reasonable time to review Exhibit 1049
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`and is not prejudiced or otherwise burdened by entry of this supplemental evidence
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`into the record as supplemental information. Similarly, the entry of Exhibit 1049
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`now, as supplemental information, would not limit the Board’s ability to complete
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`this proceeding in a timely fashion.
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`Accordingly, Petitioner respectfully submits that Exhibit 1049 should be
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`submitted into evidence as supplemental information, and requests the same.
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`IV. CONCLUSION
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`Petitioner respectfully requests that the Board grant this motion to submit
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`Exhibit 1049 as supplemental information in IPR2020-01713.
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`Case No. IPR2020-01713
`Attorney Docket: 50095-0023IP1
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`Respectfully submitted,
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`/Usman Khan/
`W. Karl Renner, Reg. No. 41,265
`Andrew Patrick, Reg. No. 55,108
`Usman A. Khan, Reg. No. 70,439
`Fish & Richardson P.C.
`3200 RBC Plaza, 60 South Sixth Street
`Minneapolis, MN 55402
`T: 202-783-5553
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`Dated: June 9, 2021
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`Case No. IPR2020-01713
`Attorney Docket: 50095-0023IP1
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR §§ 42.6(e)(4)(i) et seq., the undersigned certifies that on
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`June 9, 2021, a complete and entire copy of this “PETITIONER’S MOTION TO
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`FILE SUPPLEMENTAL INFORMATION PURSUANT TO 37 C.F.R. § 42.123”
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`and its attached exhibits were provided by electronic mail to the Patent Owner by
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`serving the correspondence e-mail address of record as follows:
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`Joseph R. Re
`Stephen W. Larson
`Jarom D. Kesler
`Jacob L. Peterson
`Knobbe, Martens, Olson, & Bear, LLP
`2040 Main St., 14th Floor
`Irvine, CA 92614
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`Email: AppleIPR2020-1713-564@knobbe.com
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`/Edward G. Faeth/
`Edward G. Faeth
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`(202) 626-6420
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`Jeroen Poeze et al.
`In re Patent of:
`U.S. Patent No.: 10,624,564
`Issue Date:
`April 21, 2020
`Appl. Serial No.: 16/725,292
`Filing Date:
`December 23, 2019
`Title:
`MULTI-STREAM DATA COLLECTION SYSTEM FOR
`NONINVASIVE MEASUREMENT OF BLOOD
`CONSTITUENTS
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`Attorney Docket No.: 50095-0023IP1
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`
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`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`DECLARATION OF JACOB ROBERT MUNFORD
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`APPLE 1049
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`1
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`1. My name is Jacob Robert Munford. I am over the age of 18, have personal
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`knowledge of the facts set forth herein, and am competent to testify to the
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`same.
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`2. I earned a Master of Library and Information Science (MLIS) from the
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`University of Wisconsin-Milwaukee in 2009. I have over ten years of
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`experience in the library/information science field. Beginning in 2004, I
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`have served in various positions in the public library sector including
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`Assistant Librarian, Youth Services Librarian and Library Director. I have
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`attached my Curriculum Vitae as Appendix A.
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`3. During my career in the library profession, I have been responsible for
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`materials acquisition for multiple libraries. In that position, I have cataloged,
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`purchased and processed incoming library works. That includes purchasing
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`materials directly from vendors, recording publishing data from the material
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`in question, creating detailed material records for library catalogs and
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`physically preparing that material for circulation. In addition to my
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`experience in acquisitions, I was also responsible for analyzing large
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`collections of library materials, tailoring library records for optimal catalog
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`1
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`2
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`search performance and creating lending agreements between libraries
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`during my time as a Library Director.
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`4. I am fully familiar with the catalog record creation process in the library
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`sector. In preparing a material for public availability, a library catalog record
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`describing that material would be created. These records are typically
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`written in Machine Readable Catalog (herein referred to as “MARC”) code
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`and contain information such as a physical description of the material,
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`metadata from the material’s publisher, and date of library acquisition. In
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`particular, the 008 field of the MARC record is reserved for denoting the
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`date of creation of the library record itself. As this typically occurs during
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`the process of preparing materials for public access, it is my experience that
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`an item’s MARC record indicates the date of an item’s public availability.
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`5. Typically, in creating a MARC record, a librarian would gather various bits
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`of metadata such as book title, publisher and subject headings among others
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`and assign each value to a relevant numerical field. For example, a book’s
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`physical description is tracked in field 300 while title/attribution is tracked in
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`field 245. The 008 field of the MARC record is reserved for denoting the
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`creation of the library record itself. As this is the only date reflecting the
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`2
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`3
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`inclusion of said materials within the library’s collection, it is my experience
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`that an item’s 008 field accurately indicates the date of an item’s public
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`availability.
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`6. This declaration is being drafted as of May 2021. Public and university
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`libraries in my area have been closed for months due to the COVID-19
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`pandemic. My state, Pennsylvania, has a travel advisory, which has affected
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`my ability to travel. In my experience, library catalog records are accurate
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`descriptions of a library’s collection and my lack of physical access to
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`libraries at this time creates no doubt in my determinations of authenticity or
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`availability of the exhibits noted below.
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`7. I have reviewed Exhibit 1010, a copy of an article entitled “A Wearable
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`Reflectance Pulse Oximeter for Remote Physiological Monitoring” by Y.
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`Mendelson, R. J. Duckworth, and G. Comtois, as published in the
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`Proceedings of the 28th Annual International Conference of the IEEE
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`Engineering in Medicine and Biology Society, August 30 – September 3,
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`2006 (hereinafter referred to as “2006 IEEE conference publication”).
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`3
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`4
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`8. Attached hereto as Appendix MENDELSON02 is a true and correct copy of
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`the MARC record for the 2006 IEEE conference publication, as held by
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`Cornell University’s library. I secured this record myself from the library’s
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`public catalog.
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`9. The MARC record contained within Appendix MENDELSON02 accurately
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`describes the title, author, publisher, and ISBN number of the 2006 IEEE
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`conference publication. In comparing the listed fields in Appendix
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`MENDELSON02 to Exhibit 1010, it is my determination that Exhibit 1010
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`is a true and correct copy of the “A Wearable Reflectance Pulse Oximeter
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`for Remote Physiological Monitoring” article, and that the copy of the 2006
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`IEEE conference publication in Cornell University’s library includes the
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`article in Exhibit 1010.
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`10. The 008 field of the MARC record noted on page 1 of Appendix
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`MENDELSON02 indicates that the 2006 IEEE conference publication was
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`first cataloged by Cornell University’s library as of December 26, 2007.
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`Based on this information and considering the dates of the conference, it is
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`my determination that the 2006 IEEE conference publication, which
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`included the article published as Exhibit 1010, was made available to the
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`public by Cornell University at least as of December 26, 2007.
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`11. Additionally, I accessed a copy of the 2006 IEEE conference publication
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`through the Pennsylvania State University’s online library catalog portal.
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`12. Attached hereto as Appendix MENDELSON06 is a true and correct copy of
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`the catalog entry for the 2006 IEEE conference publication as maintained by
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`the Pennsylvania State University. I secured this record myself from the
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`library’s public catalog.
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`13. Attached hereto as Appendix MENDELSON07 is a true and correct copy of
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`the table of contents for the 2006 IEEE conference publication. I secured this
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`record, as provided by the Pennsylvania State University’s library through
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`the catalog entry for the 2006 IEEE conference publication as shown in
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`Appendix MENDELSON06, myself.
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`14. I have reviewed Appendix MENDELSON10, a copy of an article entitled “A
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`Wearable Reflectance Pulse Oximeter for Remote Physiological
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`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
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`published in the 2006 IEEE conference publication. I secured this document
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`myself through the table of contents for the 2006 IEEE conference
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`publication as shown in Appendix MENDELSON07.
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`15. Attached hereto as Appendix MENDELSON05 is a true and correct copy of
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`the MARC record for the 2006 IEEE conference publication, as held by the
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`Pennsylvania State University’s library in its online catalog indicated by the
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`catalog entry as shown in Appendix MENDELSON06. The Pennsylvania
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`State University’s online library catalog entry as shown in Appendix
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`MENDELSON06 directs the user to a portal page within the IEEE’s online
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`repository, IEEE Xplore, for an article entitled “A Wearable Reflectance
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`Pulse Oximeter for Remote Physiological Monitoring” by Y. Mendelson, R.
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`J. Duckworth, and G. Comtois. I secured this record myself from the
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`library’s public catalog through the table of contents listing as captured in
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`Appendix MENDELSON07.
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`16. The MARC record contained within Appendix MENDELSON05 accurately
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`describes the title, author, publisher, and ISBN number of the 2006 IEEE
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`conference publication. In comparing the listed fields in Appendix
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`MENDELSON05 to Appendix MENDELSON10, it is my determination
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`6
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`that (1) Appendix MENDELSON10 is a true and correct copy of the “A
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`Wearable Reflectance Pulse Oximeter for Remote Physiological
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`Monitoring” article by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
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`published in the 2006 IEEE conference publication, that (2) the digital copy
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`of the 2006 IEEE conference publication in the Pennsylvania State
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`University’s library catalog includes the article in Appendix
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`MENDELSON10, and that (3) the digital copy of the 2006 IEEE conference
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`publication in the Pennsylvania State University’s library catalog is the same
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`as the “A Wearable Reflectance Pulse Oximeter for Remote Physiological
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`Monitoring” article by Y. Mendelson, R. J. Duckworth, and G. Comtois as
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`published in the 2006 IEEE conference publication that is made publicly
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`available by the Pennsylvania State University through the IEEE’s online
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`repository, IEEE Xplore.
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`17. The 008 field of the MARC record noted on page 1 of Appendix
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`MENDELSON05 indicates that the 2006 IEEE conference publication was
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`first cataloged by the Pennsylvania State University’s library as of
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`December 26, 2007. Based on this information and considering the dates of
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`the conference, it is my determination that the 2006 IEEE conference
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`publication, which included the article published as Appendix
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`MENDELSON10, was made available to the public by the Pennsylvania
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`State University at least as of December 26, 2007.
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`18. Furthermore, I accessed a copy of the 2006 IEEE conference publication
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`directly through the IEEE’s online repository, IEEE Xplore.
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`19. I have reviewed Appendix MENDELSON12, a copy of an article entitled “A
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`Wearable Reflectance Pulse Oximeter for Remote Physiological
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`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
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`published in the 2006 IEEE conference publication. I secured this record
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`myself from the IEEE’s online repository, IEEE Xplore.
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`20. Attached hereto as Appendix IEEE01 is a true and correct copy of a
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`declaration made by Mr. Gordon MacPherson, “Director Board Governance
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`& IP Operations of The Institute of Electrical and Electronics Engineers,
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`Incorporated.” Mr. MacPherson’s declaration Appendix IEEE01 states that
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`the “IEEE publishes and makes available technical articles and standards” as
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`part of its “ordinary course of business,” and that these publications are
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`“made available for public download through the IEEE digital library, IEEE
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`Xplore.”
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`21. Mr. MacPherson’s declaration includes, as Exhibit A, an article referred to
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`as “Y. Mendelson, R. J. Duckworth, and G. Comtois, “A Wearable
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`Reflectance Pulse Oximeter for Remote Physiological Monitoring”, 2006
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`International Conference of the IEEE Engineering in Medicine and Biology
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`Society, August 30, 2006 - September 3, 2006,” which was obtained
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`“through IEEE Xplore, where it is maintained in the ordinary course of
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`IEEE’s business.” Exhibit A also includes a screen capture of the IEEE
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`Xplore portal page for the article referred to as “Y. Mendelson, R. J.
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`Duckworth, and G. Comtois, “A Wearable Reflectance Pulse Oximeter for
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`Remote Physiological Monitoring”, 2006 International Conference of the
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`IEEE Engineering in Medicine and Biology Society, August 30, 2006 -
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`September 3, 2006.”
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`22. In comparing the screen capture of the IEEE Xplore portal in Exhibit A of
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`IEEE01 to the portal to which I was directed from the Pennsylvania State
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`University’s library system, it is my determination that the IEEE Xplore
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`portal represented in Exhibit A is the same IEEE Xplore portal (1) to which I
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`was directed from the Pennsylvania State University’s library system, which
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`I described above, and (2) through which I secured the article published as
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`Appendix MENDELSON10.
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`23. Based on this information, it is my determination that the IEEE Xplore
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`portal to which I was directed from the Pennsylvania State University’s
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`library system and through which I accessed the IEEE repository and
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`secured the article published as Appendix MENDELSON10 was authentic.
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`24. In comparing the screen capture of the IEEE Xplore portal in Exhibit A of
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`IEEE01 to the IEEE Xplore portal through which I secured the article
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`published as MENDELSON12, it is my determination that the IEEE Xplore
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`portal represented in Exhibit A is the same IEEE Xplore portal through
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`which I secured the article published as Appendix MENDELSON12.
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`25. Based on this information, it is my determination that the IEEE Xplore
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`portal through which I accessed the IEEE repository and secured the article
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`published as Appendix MENDELSON12 was authentic.
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`26. In comparing the listed fields in Exhibit A of Appendix IEEE01 to Appendix
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`MENDELSON02 and to Appendix MENDELSON05 and comparing
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`10
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`11
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`Exhibit A of Appendix IEEE01 to Exhibit 1010 and to Appendix
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`MENDELSON10, it is my determination that each of Exhibit A of Appendix
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`IEEE01, Exhibit 1010, and Appendix MENDELSON10 is a true and correct
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`copy of the article entitled “A Wearable Reflectance Pulse Oximeter for
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`Remote Physiological Monitoring” by Y. Mendelson, R. J. Duckworth, and
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`G. Comtois, as published in the 2006 IEEE conference publication.
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`27. In comparing Exhibit A of Appendix IEEE01 to Exhibit 1010 and to
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`Appendix MENDELSON12, it is my determination that each of Exhibit A of
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`Appendix IEEE01, Exhibit 1010, and Appendix MENDELSON12 is a true
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`and correct copy of the article entitled “A Wearable Reflectance Pulse
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`Oximeter for Remote Physiological Monitoring” by Y. Mendelson, R. J.
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`Duckworth, and G. Comtois, as published in the 2006 IEEE conference
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`publication.
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`28. Based on this information, it is my determination that each of Exhibit A of
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`IEEE01, Exhibit 1010, Appendix MENDELSON10, and Appendix
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`MENDELSON12 is a true and correct copy of the article entitled “A
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`Wearable Reflectance Pulse Oximeter for Remote Physiological
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`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois as
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`published in the 2006 IEEE conference publication, and that the 2006 IEEE
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`conference publication containing Exhibit 1010 was cataloged and made
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`available to the public by the IEEE through its online repository, IEEE
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`Xplore, at least as of September 3, 2006.
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`29. Based on this information, it is my determination that each of Exhibit A of
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`IEEE01, Exhibit 1010, Appendix MENDELSON10, and Appendix
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`MENDELSON12 is a true and correct copy of the article entitled “A
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`Wearable Reflectance Pulse Oximeter for Remote Physiological
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`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
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`published in the 2006 IEEE conference publication, and that the 2006 IEEE
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`conference publication containing Exhibit 1010 was cataloged and made
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`available to the public by Cornell University at least as of December 26,
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`2007.
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`30. Based on this information, it is my determination that each of Exhibit A of
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`IEEE01, Exhibit 1010, Appendix MENDELSON10, and Appendix
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`MENDELSON12 is a true and correct copy of the article entitled “A
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`Wearable Reflectance Pulse Oximeter for Remote Physiological
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`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
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`12
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`13
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`published in the 2006 IEEE conference publication, and that the 2006 IEEE
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`conference publication containing Exhibit 1010 was cataloged and made
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`available to the public by the Pennsylvania State University at least as of
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`December 26, 2007.
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`31. I have reviewed Appendix COMTOIS04, a copy of an article entitled “A
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`noise reference input to an adaptive filter algorithm for signal processing in
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`a wearable pulse oximeter” by G. Comtois and Y. Mendelson, as published
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`in the Proceedings of the 2007 IEEE 33rd Annual Northeast Bioengineering
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`Conference, March 10 – 11, 2007 (hereinafter referred to as “2007 IEEE
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`conference publication”). I secured this copy of the 2007 IEEE conference
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`publication through the Pennsylvania State University’s online library
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`catalog portal.
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`
`
`32. Attached hereto as Appendix COMTOIS02 is a true and correct copy of the
`
`catalog entry for the 2007 IEEE conference publication as maintained by the
`
`Pennsylvania State University. I secured this record myself from the
`
`library’s public catalog.
`
`
`
`13
`
`
`
`
`
`14
`
`
`
`33. Attached hereto as Appendix COMTOIS03 is a true and correct copy of the
`
`table of contents for the 2007 IEEE conference publication. I secured this
`
`record, as provided by the Pennsylvania State University’s library through
`
`the catalog entry for the 2007 IEEE conference publication as shown in
`
`Appendix COMTOIS02, myself.
`
`
`
`34. Attached hereto as Appendix COMTOIS01 is a true and correct copy of the
`
`MARC record for the 2007 IEEE conference publication, as held by the
`
`Pennsylvania State University’s library in its online catalog. I secured this
`
`record myself from the library's public catalog through the table of contents
`
`listing as captured in COMTOIS03.
`
`
`
`35. The MARC record contained within Appendix COMTOIS01 accurately
`
`describes the title, author, publisher, and ISBN number of the 2007 IEEE
`
`conference publication. In comparing the listed fields in Appendix
`
`COMTOIS01 to COMTOIS04, it is my determination that COMTOIS04 is a
`
`true and correct copy of the “A noise reference input to an adaptive filter
`
`algorithm for signal processing in a wearable pulse oximeter” article, and
`
`that the copy of the 2007 IEEE conference publication in the Pennsylvania
`
`State University’s library includes the article in COMTOIS04.
`
`
`
`14
`
`15
`
`
`
`
`
`36. The 008 field of the MARC record noted on page 1 of Appendix
`
`COMTOIS01 indicates that the 2007 IEEE conference publication was first
`
`cataloged by the Pennsylvania State University’s library as of January 24,
`
`2007. Based on this information and considering the dates of the conference,
`
`it is my determination that the 2007 IEEE conference publication, which
`
`included the article published as Appendix COMTOIS04, was made
`
`available to the public by the Pennsylvania State University at least as of
`
`January 24, 2007.
`
`
`
`37. Attached hereto as Appendix COMTOIS05 is a true and correct copy of the
`
`MARC record for the 2007 IEEE conference publication, as held by
`
`University of Wyoming’s library in its online catalog. I secured this record
`
`myself from the library's public catalog.
`
`
`
`38. The MARC record contained within Appendix COMTOIS05 accurately
`
`describes the title, author, publisher, and ISBN number of the 2007 IEEE
`
`conference publication. In comparing the listed fields in Appendix
`
`COMTOIS05 to COMTOIS04, it is my determination that the copy of the
`
`
`
`15
`
`16
`
`
`
`2007 IEEE conference publication in University of Wyoming’s library
`
`includes the article in COMTOIS04.
`
`
`
`39. The 008 field of the MARC record noted on page 1 of Appendix
`
`COMTOIS05 indicates that the 2007 IEEE conference publication was first
`
`cataloged by University of Wyoming’s library as of January 24, 2007. Based
`
`on this information and considering the dates of the conference, it is my
`
`determination that the 2007 IEEE conference publication, which included
`
`the article published as COMTOIS04, was made available to the public by
`
`University of Wyoming at least as of January 24, 2007.
`
`
`
`40. In reviewing the listed citations at page 2 of COMTOIS04, it is my
`
`determination that the “A noise reference input to an adaptive filter
`
`algorithm for signal processing in a wearable pulse oximeter” article cites
`
`the article entitled “A Wearable Reflectance Pulse Oximeter for Remote
`
`Physiological Monitoring” by Y. Mendelson, R. J. Duckworth, and G.
`
`Comtois, as published in the 2006 IEEE conference publication. As noted
`
`above, I have also determined that Exhibit 1010 and MENDELSON10 are
`
`true and correct copies of the article entitled “A Wearable Reflectance Pulse
`
`Oximeter for Remote Physiological Monitoring” by Y. Mendelson, R. J.
`
`
`
`16
`
`17
`
`
`
`Duckworth, and G. Comtois, as published in the 2006 IEEE conference
`
`publication. Accordingly, it is my determination that the 2006 IEEE
`
`conference publication containing Exhibit 1010 would have been publicly
`
`available at least as early as the publication date of the 2007 IEEE
`
`conference publication: January 24, 2007.
`
`
`
`41. I have reviewed COMTOIS10, a copy of an article entitled “A Comparative
`
`Evaluation of Adaptive Noise Cancellation Algorithms for Minimizing
`
`Motion Artifacts in a Forehead-Mounted Wearable Pulse Oximeter” by G.
`
`Comtois, Y. Mendelson, and P. Ramuka, as published in the Proceedings of
`
`the 29th Annual International Conference of the IEEE EMBS Cité
`
`Internationale, Lyon, France, August 23 – 26, 2007 (hereinafter referred to
`
`as “2007 IEEE EMBS conference publication”).
`
`
`
`42. I obtained a copy of the 2007 IEEE EMBS conference publication through
`
`the Pennsylvania State University’s online library catalog portal.
`
`
`
`43. Attached hereto as Appendix COMTOIS06 is a true and correct copy of the
`
`catalog entry for the 2007 IEEE EMBS conference publication as
`
`
`
`17
`
`18
`
`
`
`maintained by the Pennsylvania State University. I secured this record
`
`myself from the library’s public catalog.
`
`
`
`44. Attached hereto as Appendix COMTOIS07 is a true and correct copy of the
`
`table of contents for the 2007 IEEE EMBS conference publication. I secured
`
`this record, as provided by the Pennsylvania State University’s library
`
`through the catalog entry for the 2007 IEEE EMBS conference publication
`
`as shown in Appendix COMTOIS06, myself.
`
`
`
`45. Attached hereto as Appendix COMTOIS08 is a true and correct copy of the
`
`MARC record for the 2007 IEEE EMBS conference publication, as held by
`
`the Pennsylvania State University’s library in its online catalog. I secured
`
`this record myself from the library's public catalog through the table of
`
`contents listing as captured in COMTOIS07.
`
`
`
`46. The MARC record contained within Appendix COMTOIS08 accurately
`
`describes the title, author, publisher, and ISBN number of the 2007 IEEE
`
`EMBS conference publication. In comparing the listed fields in Appendix
`
`COMTOIS08 to COMTOIS10, it is my determination that COMTOIS10 is a
`
`true and correct copy of the “A Comparative Evaluation of Adaptive Noise
`
`
`
`18
`
`19
`
`
`
`Cancellation Algorithms for Minimizing Motion Artifacts in a Forehead-
`
`Mounted Wearable Pulse Oximeter” article, and that the copy of the 2007
`
`IEEE EMBS conference publication in the Pennsylvania State University’s
`
`library includes the article in COMTOIS10.
`
`
`
`47. The 008 field of the MARC record noted on page 1 of Appendix
`
`COMTOIS08 indicates that the 2007 IEEE EMBS conference publication
`
`was first cataloged by the Pennsylvania State University’s library as of June
`
`5, 2008. Based on this information and considering the dates of the
`
`conference, it is my determination that the 2007 IEEE EMBS conference
`
`publication, which included the article published as COMTOIS10, was made
`
`available to the public by the Pennsylvania State University at least as of
`
`June 5, 2008.
`
`
`
`48. Attached hereto as Appendix COMTOIS09 is a true and correct copy of the
`
`MARC record for the 2007 IEEE EMBS conference publication, as held by
`
`Library of Congress in its online catalog. I secured this record myself from
`
`the Library’s public catalog.
`
`
`
`
`
`19
`
`20
`
`
`
`49. The MARC record contained within Appendix COMTOIS09 accurately
`
`describes the title, author, publisher, and ISBN number of the 2007 IEEE
`
`EMBS conference publication. In comparing the listed fields in Appendix
`
`COMTOIS09 to COMTOIS10, it is my determination that the copy of the
`
`2007 IEEE EMBS conference publication in the Library of Congress
`
`includes the article in COMTOIS10.
`
`
`
`50. The 008 field of the MARC record noted on page 1 of Appendix
`
`COMTOIS09 indicates that the 2007 IEEE EMBS conference publication
`
`was first cataloged by the Library of Congress as of June 5, 2008. Based on
`
`this information and considering the dates of the conference, it is my
`
`determination that the 2007 IEEE EMBS conference publication, which
`
`included the article published as COMTOIS10, was made available to the
`
`public by the Library of Congress at least as of June 5, 2008.
`
`
`
`51. In reviewing the listed citations at page 4 of COMTOIS10, it is my
`
`determination that the “A Comparative Evaluation of Adaptive Noise
`
`Cancellation Algorithms for Minimizing Motion Artifacts in a Forehead-
`
`Mounted Wearable Pulse Oximeter” article cites the article entitled “A
`
`Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`
`
`20
`
`21
`
`
`
`Monitoring” by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
`
`published in the 2006 IEEE conference publication. As noted above, I have
`
`also determined that Exhibit 1010 and Appendix MENDELSON10 are true
`
`and correct copies of the article entitled “A Wearable Reflectance Pulse
`
`Oximeter for Remote Physiological Monitoring” by Y. Mendelson, R. J.
`
`Duckworth, and G. Comtois, as published in the 2006 IEEE conference
`
`publication. Accordingly, it is my determination that the 2006 IEEE
`
`conference publication containing Exhibit 1010 would have been publicly
`
`available at least as early as the publication date of the 2007 IEEE EMBS
`
`conference publication, June 5, 2008.
`
`
`
`52. I have been retained on behalf of the Petitioner to provide assistance in the
`
`above-illustrated matter in establishing the authenticity and public
`
`availability of the documents discu
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