Trials@uspto.gov
`571-272-7822
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`Paper # 28
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`Entered: April 5, 2022
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MASIMO CORPORATION,
`Patent Owner.
`___________
`
`IPR2020-01722
`Patent 10,470,695 B2
`___________
`
`Record of Oral Hearing
`Held: February 9, 2022
`_____________
`
`
`
`
`Before JOSIAH C. COCKS, ROBERT L. KINDER, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
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`

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`IPR2020-01722
`Patent 10,470,695 B2
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`
`DAN SMITH, ESQUIRE
`
`Fish & Richardson
`
`1000 Maine Avenue, S.W.
`
`Washington, D.C. 20024
`
`ON BEHALF OF PATENT OWNER:
`
`
`
`
`
`
`ALSO PRESENT, OBSERVING:
`
`KARL RENNER
`Fish & Richardson
`
`SHANNON LAM
`JAROM KESLER
`Knobbe, Martens, Olson, & Bear, LLP
`
`The above-entitled matter came on for hearing on Wednesday,
`February 9, 2022, commencing at 2:15 p.m., EDT, at the U.S. Patent and
`Trademark Office, by video/by telephone, before Julie Souza, Notary Public.
`
`JOHN GROVER, ESQUIRE
`Knobbe, Martens, Olson & Bear, LLP
`2040 Main Street
`Irvine, CA 92614
`
`
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`IPR2020-01722
`Patent 10,470,695 B2
`
`
` PROCEEDINGS
`JUDGE KINDER: Good morning everyone. I guess our west coast
`
`friends are still in the morning, so it is 2:15. We're going to go ahead and
`start with the next proceeding. Today we're here to do oral hearing in IPR
`2020-01722 and with me on the panel today are Judges Cocks and Wieker,
`and again I'm Rob Kinder and if we can get a formal introduction of counsel
`for Petitioner, let me know who's present and who will be arguing.
`
`MR. SMITH: Thank you, Your Honor. This is Dan Smith for
`Petitioner Apple. I'll be arguing and with me also is my colleague, Karl
`Renner.
`
`JUDGE KINDER: All right, Mr. Smith. Thank you. And for Patent
`Owner who is present and who will be arguing?
`
`MR. GROVER: Yes. This is John Grover for Patent Owner. Also in
`the room is Shannon Lam and Jarom Kesler.
`
`JUDGE KINDER: Thank you. So today's oral argument in this
`proceeding will be one hour per side. Very much the same things we talked
`about earlier today. We want to make sure everyone is clear so when you
`start talking if you change counsel please introduce yourself at the
`beginning. If you produce an exhibit, please state the exhibit clearly or if it's
`a demonstrative slide number give the slide number clearly. It helps if you
`can give a brief pause to allow the panel time to find that and flip to it. The
`Petitioner will open its case but may reserve time for a rebuttal. How much
`time would you like to reserve today, Mr. Smith, right?
`MR. SMITH: Yes, Your Honor. We'd like to reserve 30 minutes.
`JUDGE KINDER: All right. Mr. Grover, how much time would the
`Patent Owner like to reserve for its surrebuttal?
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`IPR2020-01722
`Patent 10,470,695 B2
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`MR. GROVER: I just need 15 minutes, Your Honor.
`JUDGE KINDER: Great. Same rules we talked about refer to those
`new, counsel should only unmute themselves when speaking and the Judges
`will try to do that as well but sometimes we forget. I mentioned identifying
`the papers clearly and give us a few seconds to flip to them. If there are
`problems like we've had recently, any audio lag or anything like that in the
`problems try to bring those to our attention immediately and we will pause
`the proceeding and we won't eat into your time, I will still give you your full
`time and we can conduct the hearing via audio without the video so that's
`our backup and as you know one Judge today is actually on audio today but
`participating. All right. I think that is it, unless any questions. Mr. Smith?
`MR. SMITH: No, thank you, Your Honor.
`JUDGE KINDER: All right, Mr. Grover. Do you have any questions
`before we begin?
`MR. GROVER: No, Your Honor.
`JUDGE KINDER: All right. Mr. Smith, the podium is yours
`whenever you're ready. Thank you.
`MR. SMITH: Thank you, Your Honor. I don't actually have a
`podium but I'll take the virtual podium from you. Good afternoon, Your
`Honors, and may it please the Court. As I mentioned I'm Dan Smith for
`Petitioner Apple. I'm joined by my colleague, Karl Renner and as you
`mentioned this is a hearing on case IPR 2020-01722 which is dealing with
`the '695 patent.
`If you could go to slide 2, please. So a total of seven grounds of
`unpatentability were originally instituted against the '695 patent drawing
`from either of two primary references, Sarantos and Ackermans.
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`IPR2020-01722
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`Specifically grounds 1A through 1D are based on various combinations with
`the Sarantos reference and grounds 2A through 2C are based on various
`combinations of the Ackermans reference.
`Go to slide 3. So the issues in this case were narrowed considerably
`by Masimo's statutory disclaimer which is in the case record as Exhibit
`2004. As a result of this disclaimer the only challenged claims that remain
`in force are dependent claims 6, 14 and 21, all of which are directed to a
`single feature and that is the addition of a diffuser to the physiological
`monitoring device of the independent claims.
`Go to slide 4. So only two grounds are directed to claims that remain
`in force after the disclaimer and those are ground 1 based on the
`combination of Sarantos, Mendelson-1991 and Chin and ground 2C based
`on the combination of Ackermans and Chin. All the issues discussed today
`will deal with those two grounds.
`Let's go to slide 5. So our plan for this hearing is to start with brief
`overviews of the '695 patent and the asserted prior art. We'll then cover
`issue 1 which is related to Masimo's arguments on tissue thickness followed
`by issue 2 which is related to Masimo's experiment discussed in its Patent
`Owner response. We do not plan to address issues 3 and 4 during our direct
`and we're happy to stand on the briefing on those.
`So without further ado we'll start with an overview of the '695 patent.
`Let's go to slide 7. So '695 patent is directed to a non-invasive optical-based
`physiological monitoring system of a type that is no doubt familiar to Your
`Honors at this point in the day. Looking at figure 3 on the bottom right of
`slide 7. In this device light from emitter 302 at the top is attenuated by
`tissue of the user's finger 102 and is then detected by the detector 310 at the
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`IPR2020-01722
`Patent 10,470,695 B2
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`bottom of the finger. Now this annotated figure 3 highlights in yellow the
`subject of the only claims in question in this case and that is the diffuser 304
`which is positioned between the emitter and the user's finger in which is
`configured to spread light emitted from the emitter 302 prior to reaching a
`tissue measurement site. The record demonstrates that the claimed diffuser
`was neither new nor nonobvious to a POSITA.
`Let's go to slide 8. So as previously discussed, claims 6, 14 and 21
`are all directed to the addition of a diffuser to the physiological monitoring
`device described in the '695 patent. Then just real briefly I'd like to go to --
`since the claims are brief I'd like to go ahead and read claim 6 which is
`representative. Claim 6 recites the physiological monitoring device of claim
`1 further comprising a diffuser which receives, spreads and emits the spread
`light wherein the emitted spread light is directed at the tissue measurement
`site and on this slide you've also got the text of claims 14 and 21 which are
`similar to claim 6.
`So moving on to slide 10, we'll give a brief overview of the asserted
`prior art and we'll start with the Chin reference. So the Chin reference
`teaches a pulse oximeter that, as shown in the quote on this slide includes an
`optional optical diffuser 180 for diffusing the light from an emitter. Figure
`7B shown at the bottom of the slide shows the placement by Chin of its
`diffuser over the emitter 176.
`Now central to one of the issues in dispute are the locations on the
`body where Chin's diffuser augmented device can be used and importantly
`and contrary to Masimo's repeated characterizations Chin does not require
`applications of its diffuser at any particular location. On the contrary Chin
`expressly describes placement of its device on any body part. This is the
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`IPR2020-01722
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`portion of Chin that you'll hear quite a bit about in our presentation here is
`column 5, lines 55 through 56 and it's cited throughout Petitioner's briefing,
`for example, at page 5 of our reply and as we'll discuss in greater detail Chin
`offers an example in which its diffuser is positioned on a sensor used on a
`finger which is the very site described by one of the primary references with
`which it's combined.
`Go to slide 11. So in light of this disclosure we return to the primary
`references to explore what a POSITA would have found obvious and we
`begin with Sarantos, and in particular Sarantos combined with Mendelson-
`1991. Both references describe pulse oximetry devices having centrally
`located emitters surrounded by plural detectors and viewed by a POSITA
`Sarantos and Mendelson-1991 would combine with the light blocking wall
`of Sarantos implemented using a single structure taught by Mendelson-1991.
`Masimo has not disputed this aspect of the Sarantos-based ground and in
`fact rather than debate this recalling Masimo disclaimed the independent
`claims.
`Let's go to slide 12, please. So as with Sarantos and Mendelson,
`Ackermans teaches a medical optical sensor including a centrally located
`emitter surrounded by multiple photodetectors and again Masimo does not
`dispute that Ackermans teaches all elements of the independent claims.
`Let's go to slide 13. So the petition sets forth evidence substantiating
`how and why a POSITA would have found it obvious to add Chin's diffuser
`to both the combined devices of Sarantos and Mendelson-1991 and the
`device of Ackermans. The basic configuration of Chin's diffuser in both
`combinations are shown in the petition in the figure shown at the bottom of
`this slide. Now in both combinations Chin's diffuser shown in green is
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`IPR2020-01722
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`positioned consistent with Chin's disclosure between the emitter shown in
`purple and the figure and the tissue measurement site and as described by
`Chin, the diffuser spreads the light from the emitters on to the tissue
`measurement site and then consistent with the operation of Chin light is
`reflected by tissue at the measurement site and detected by the
`photodetectors shown in blue surrounding the central emitters.
`Now Dr. Anthony's declaration offers a POSITA's perspective that
`includes a lengthy discussion on why a POSITA would have been motivated
`to combine Chin with the combined device of Sarantos and Mendelson and
`that discussion is at paragraphs 96 through 99 of Dr. Anthony's declaration,
`Exhibit 1003 and also with the device of Ackermans. That discussion is in
`the same document, paragraphs 160 through 163.
`Go to slide 14. So now we'll move on to our first issue and discuss
`Masimo's ineffectual arguments regarding tissue thickness. Let's go to slide
`15. So Masimo's argument is simply that Chin's sensor is designed for use
`in what it calls thin tissue measurement sites. Now in this regard Masimo
`repeatedly and unjustifiably characterizes Chin's device as a nostril sensor, a
`location that it characterizes as a thin tissue site and Masimo argues that
`Chin's diffuser would be inapplicable at thick tissue measurement sites and
`asserts that Sarantos-Mendelson 1991 and Ackermans are directed solely to
`such thick tissue sites.
`With this Masimo contrives a bright line distinction not called out by
`Chin or any other reference on the record between thick tissue and thin
`tissue devices and argues that techniques using one type of device are
`wholly inapplicable to the other.
`Let's go to slide 16. So why is Masimo's distinction contrived simply
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`because it's contrary to the explicit disclosures of the references themselves.
`For example, the quote shown here on slide 16 from Chin contradicts
`Masimo's characterization. Let's look at that quote which is from column 5,
`lines 55 through 56. I'm just going to go ahead and read what's quoted there.
`So Chin says that,
`"The sensor could be any type of sensor such as a durable sensor or a
`disposable sensor. It could attach to any body part, such as the earlobe,
`finger, etc."
`So this disclosure from Chin is inconstant with Masimo's
`characterization of the prior art for a couple of reasons. For example,
`Masimo would have you believe that the devices of Chin and Ackermans are
`incompatible because Chin is directed to what Masimo characterizes as a
`thickness only thin tissue sites and Ackermans is supposedly directed to only
`thick tissue sites. But the references tell us otherwise. As the Chin
`reference explicitly discloses that its sensor can be used on the same body
`parts as Ackermans's sensor, specifically the finger and the earlobe as shown
`in the quote on the slide and compare the disclosure of Chin at column 5,
`lines 55 through 56, the disclosure in Ackermans at column 1, lines 21
`through 22 and in addition more glaringly the quote from Chin from column
`5 said the Chin sensor can be used on any body part. Masimo's
`characterization of Chin is directed solely to thin tissue ignores this explicit
`disclosure from the reference.
`Now Masimo will likely argue today, as they did in their surreply that
`this statement from Chin is just a general statement regarding pulse oximetry
`devices from Chin and that it's not applicable to the specific device Chin
`describes. However, the statement in column 5 does not appear in Chin's
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`IPR2020-01722
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`background section and it's describing a prior art or any general
`characterization of pulse oximetry. It in fact refers to the sensor described in
`Chin and again, this is the quote from column 5, lines 55 through 56 of Chin
`and when it's read in context it's clear that the quote is discussing Chin's
`sensor device.
`Let's go to slide 17. So further it was well known that reflectance
`pulse oximeters like those described in Sarantos and Ackermans could be
`used in virtually any place on the human body as described in the Webster
`reference quoted here on this slide and that's Apple Exhibit 1021.
`Go to slide 18 please. Finally, Masimo's characterization of the prior
`art references has no basis in the references themselves. None of the
`asserted prior art references describe their devices as only applicable to thick
`or thin tissue and in fact none of the references even use the terms thick and
`thin when describing tissue measurement sites.
`Go to slide 20. These categories of thick and thin tissue and the
`alleged incompatibility of techniques across the categories appear to have
`been entirely contrived by Masimo and its expert. They're not supported by
`the record evidence and even if such a dichotomy existed, which Patent
`Owner has not shown, Chin specifically describes that its device including
`its diffuser can be used at any body part, including most notably a finger
`which is one of the sensor sites disclosed in the primary reference
`Ackermans. Move on to slide 25.
`JUDGE COCKS: Mr. Smith?
`MR. SMITH: Yes.
`JUDGE COCKS: This is Judge Cocks. Could you provide a site to
`the portion of Ackermans referencing application of its sensor on a finger?
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`MR. SMITH: Yes, I can. Give me one second. I believe that's
`column 1, lines 21 through 22.
`JUDGE COCKS: Thank you.
`MR. SMITH: So on slide 25, and moving on to our second issue we'll
`discuss the experiment described in Masimo's Patent Owner response and
`why its results are unavailing to the prior art combinations in question in this
`case.
`
`Slide 26. So the Patent Owner response describes an experiment
`performed by Masimo's expert Dr. Madisetti. In this experiment Dr.
`Madisetti plays two different diffusing films over the emitter of a pulse
`oximeter and he used the combined device to illuminate a block of material
`designed to mimic human tissue. Dr. Madisetti then measured the amount of
`reflected light received by the single photodetector of the combined device
`and Masimo has not shown the results of this experiment are indicative to
`the performance of any of the asserted prior art devices.
`Let's go to slide 27. First, the devices of Sarantos and Ackermans
`include a plurality of photodetectors as opposed to the single photodetector
`that's described or is present used in the device in the experiment. The
`detectors shown in green in the figures at the bottom of slide 27 specifically
`looking at the left figure from Sarantos we see that the photodetectors that
`are outlined in green cover a large portion of the area surrounding the central
`emitter. Light that's reflected form the tissue measurement site and hits any
`area covered by these photodetectors will be detected by the device.
`Let's go to slide 28. In contrast the pulse oximeter used in Masimo's
`experiment includes a single photodetector as shown in the figure at the
`bottom of slide 28. It's taken from Dr. Madisetti's declaration at page 1 of the
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`appendix and we can see in this figure that the single photodetector of the
`device covers a considerably smaller area than the multiple detectors in
`Sarantos and in fact light that is spread away from the central emitter by a
`diffuser in Masimo's single detector device, if light is spreading in directions
`other than towards that single detector it's not likely to be detected. By
`contrast, in the multiple detector devices like Sarantos, a large portion of the
`area surrounding the central emitter is covered by multiple photodetectors
`meaning that more of the light wave in the detectors than in a single detector
`device that has the less area of the surface of the device covered by
`detectors.
`Let's go to slide 30. So the devices described in Sarantos, Mendelson-
`1991 and Ackermans all have multiple detectors while the device in Dr.
`Madisetti's experiment only has one. Masimo thus has not shown that the
`results of the experiment are indicative of the performance of either the
`combined device of Sarantos, Mendelson and Chin or the combined device
`of Ackermans and Chin. Importantly, Masimo's arguments that rely on
`these experimental results to show that Chin's diffuser would lead to a
`reduction in received light, those arguments must fail and with that I'll
`reserve my remaining time for rebuttal unless there are questions, Your
`Honors.
`JUDGE COCKS: This is Judge Cocks. Not for me. Thank you.
`MR. SMITH: Thank you.
`JUDGE KINDER: Thank you. This is Judge Kinder. It sounds like
`the panel does not have any questions at this time but I think you have a
`little bit of time left but your rebuttal is 30 minutes so that should be
`sufficient. Mr. Grover, whenever you're ready you may begin Patent
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`IPR2020-01722
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`Owner's response.
`MR. GROVER: Appreciate it, Your Honor. John Grover for the
`Patent Owner Masimo Corporation. Much like the Petitioner said, the Patent
`Owner has disclaimed all the claims of the '695 patent except for dependent
`claims 6, 14 and 21 and for the purpose of this IPR and my arguments today,
`claims 6, 14 and 24 stand or fall together. The claims add a diffuser to a
`wrist worn monitor and even though claim 14 is a method claim my
`arguments -- I'm going to treat them collectively so that they stand and fall
`together in my arguments today.
`Additionally, there are only two grounds left of interest as the
`Petitioner said. Ground 1D and it consists of a combination reference which
`I'm going to refer to as the base reference, that's Sarantos combined with
`Mendelson and further combined with Chin. Ground 2C is the base
`reference Ackermans, also combined with Chin. So as I discuss -- as you
`might imagine today I'm going to discuss Chin in some detail and rather than
`be repetitive I might bounce back and forth between ground 1 and ground 2.
`I'll try and be very clear which ground I'm talking about by referencing the
`base references of Sarantos combined with Mendelson or Ackermans by
`itself. But if anybody gets confused as to which ground I'm talking about,
`please interrupt me and let me know and I'll back up.
`Let's start with the fact that adding a diffuser to an optical sensor
`reduces the amount of light. I'm going to go into great detail as to why in a
`minute, but just keep that in your head as I start talking about the prior art.
`Let's turn to slide 7 and I'm going to start with Sarantos. Sarantos is a
`wrist worn health monitor and it shapes it's detector specifically to try and
`get as much light as it possible can and I think even the Petitioner mentioned
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`in this, but if we look at slide 7 there's two representations. One's a real
`representation and one's a simulation of where Sarantos expects the light and
`Sarantos says before me, you used to have a square detector and that really
`didn't cover where I expect most of the light and so therefore it changed the
`shape of the detectors in order to be sure it was covering where it thought it
`would have the most effect of increased light. It also in other figures
`arranges those, they call them high aspect ratio detectors, around in a
`circular pattern in order to ensure that it's getting more light and in fact
`Sarantos says that there's a significant improvement in measurable light by
`specifically designing their sensor and shaping their detectors.
`Remember this figure 6, and let's move on to Mendelson which is
`slide 8. On slide 8 you'll see that Mendelson arranges its detectors there in
`blue in a circle. So if you think back to what we just looked at the
`distribution of light in Sarantos, Mendelson is creating the same circle and
`putting their detectors over where that light is expected to be. In fact,
`Mendelson's arrangement here is such that Mendelson teaches that it's
`maximizing the detected backscatter of light so not just increasing like
`Sarantos and Mendelson, its arrangement is to maximize the amount of light.
`So for ground 1 the combination of Sarantos and Mendelson, there's just no
`question that their arrangement and design of their sensor is to try and
`maximize the amount of light they're seeing.
`Let's go to ground 2C and if you'll please move to slide 12 I'll talk a
`little bit about the other base reference which is Ackermans. I've shown
`figure 1 here but figure 2 is an alternate figure where the emitter is a little bit
`smaller. The emitter's in red and the detector is in blue and the detector is
`actually a ring. It's a solid ring that's a 3D structure that comes in and out of
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`the page. I just want to make sure that that's apparent from that figure and
`Ackermans has its own version of figure 6 from Sarantos showing where it
`expects the light. That's figures 3A and 3B and what it's showing is
`Ackermans is trying to carefully see the inner and outer radius of where it
`expects the light and then it's going to size the detector, this ring detector, to
`be exactly that size of the reflected light. So Ackermans itself is also
`designing its ring detector to try and capture the most available light. So
`what we see is that ground 1D's base is Sarantos-Mendelson and ground 2C's
`base of Ackermans, both those base references are trying to maximize light.
`Let's talk a little bit about what Dr. Madisetti found when he
`conducted his experiment with the diffuser. If we could move quickly to
`slide 26, please. Slide 26, we see the results of Dr. Madisetti's careful
`experiment. Dr. Madisetti took a reflective sensor with an emitter and a
`detector and he ran a base line which is the first no diffuser row to try and
`find out well, what does this sensor as a base line, what sort of light does it
`see when it is run at traditional wave lengths and currents that are found in
`this art, red, infrared, 100 milliamps and 50 milliamps and for each set of
`variables Dr. Madisetti ran three experiments and you can see the numbers
`there. The numbers aren't a unit number like millivolts (phonetic). Just to
`be clear the numbers are a range between 1 and zero. This device outputs a
`range between zero which as no light and 1 which is completely saturating
`the detector, meaning no more light can be detected. So within that range
`the output is a particular set of numbers and those can be seen there.
`Dr. Madisetti then added two commercially available diffusers, a
`Berry diffuser and a Luminit diffuser, and ran those exact same tests with
`those exact same parameters and what he found was there was a distinct loss
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`of light in the addition of the diffusers. For the Berry it was somewhere
`between 40 and 50 percent and for the Luminit it was somewhere between
`14 and 17 percent, so this is the only actual evidence in the record that Dr.
`Madisetti ran these experiments and came up with the proof that there is less
`light when you add a diffuser. There's no --
`JUDGE KINDER: This is Judge Kinder.
`MR. GROVER: Sure.
`JUDGE KINDER: I guess can you address the Petitioner's argument
`that this is a single detector whereas their prior art would envision multiple
`photodetectors I guess surrounding the sensor?
`MR.GROVER: Sure, Judge Kinder. Yes, I'm happy to talk about that
`for a minute. So the question really is trying to skirt the issue because what
`we're really trying to decide here is given the base references in either
`ground which are multidetector references would one of ordinary skill go out
`into the universe and find a diffuser? That's really the question we're asking.
`We're not asking would they add more detectors, we're asking would they
`find a diffuser. So the real comparison is with a diffuser or without a
`diffuser and if you think about a diffuser, diffusers spread light over a wider
`area. Sarantos had specifically designed his sensors for his high aspect ratio
`shaped detectors to be in a specific place and Ackermans, well let me just
`finish that thought.
`So for Sarantos, he designed the sensors to be in a specific place with
`respect to the light. If you spread that light out, there's less light there. Now
`if Sarantos had one detector, then maybe there would be less light but maybe
`there would be more light with multiple detectors but the multiple detector
`question is really missing the issue. The issue is whether or not the diffuser
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`actually reduces light and if you look at actually the patent at issue -- let me
`just make sure I get the cite right, I apologize. Yes, it's right here. So if you
`look at the patent at issue on column 8, 15 to 19, the disclosure says that that
`diffuser which is very important to the '695 disclosure, that diffuser has an
`efficiency of something about 70 percent. So obviously what that means is
`up to 30 percent is lost which correlates to what Dr. Madisetti found.
`Diffusers cause the reduction in light.
`Looking at -- just finishing my thought with ground 2 and Ackermans.
`Ackermans is trying to minimize the size of its sensor and it's doing to try
`and avoid noise that comes from motion and so as it minimizes its detector it
`found its exact desired shape of the ring detector. If I was to spread that
`light, there would be less light within that ring.
`So, 1) Dr. Madisetti's experiment is unrebutted by any testimony from
`Petitioner's expert. They could have done their own experiment to show that
`Dr. Madisetti was incorrect. They even could have submitted their own
`expert testimony. They chose not to. They chose to rely instead on attorney
`argument. Now, that attorney argument is rooted in the fact that there's
`more detectors taught in some of the prior art but recognize that the prior art
`doesn't have a diffuser in it. It's undisputed that both base references with
`prior art do not contain a diffuser. So whether or not those same gains
`would happen in those references is simply unknown. All right. Let me
`move back to -- does that answer your question? Okay.
`JUDGE KINDER: You addressed it. Thank you.
`MR. GROVER: Okay. Thank you. Let me just reset. Both grounds,
`ground 1D with the base of Sarantos-Mendelson and ground 2C with the
`base reference of Ackermans is seeking to maximize the light. The addition
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`of a diffuser Dr. Madisetti has shown contradicts this purpose directly. So
`there needs to be some important reason for someone having either base
`reference, a person of ordinary skill having either base reference, to look out
`into the universe and say what we need, what we should add is a diffuser and
`the Petitioner just hasn't met its burden in showing that.
`Let's talk about the reasons the Petitioner provides. The first reason is
`that the Petitioner is going to look to Chin to provide their addition of a
`diffuser. So moving to Chin, let's start with slide 20 maybe. Chin focuses
`on two improvements. It has a heater so that you get more blood volume.
`This makes intuitive sense. If you heat up your tissue you get more blood
`volume there, and it creates an offset between the emitter and detector and
`that offset increases the path link and that is an improvement that is sought
`by Chin. So looking at slide 20 it's hard to show the heater with more
`volume but Chin does show this improved path link idea. Figure 5B is the
`prior art Chin admits that having a little bit of an offset in the prior art was
`available but says, look, that offset is about the same as the tissue thickness
`that you see there as being width which is 3 to 5 millimeters. I put that in a
`highlight in our slide 20.
`When we compare that with figure 5F you can see that the length
`between the emitter and the detector, that offset has to be much greater than
`the width. So L is much greater than T. You can see that in the highlighted
`section. That is the offset improvement of Chin. There's also some reflected
`surfaces in figure 5F. If you permit me a short tangent, I want to talk about
`those reflected surfaces because I'm going to come back to them and I want
`to make sure we're all on the same page with what that means.
`So if we can move to slide 21 for this tangent. You can see on slide
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`21 that figure 5C has no reflected surfaces. It does have the heater 60 and it
`has the offset emitter and detector but it doesn't have any reflected surfaces
`and what Chin says in column 7, lines 15 to 20 is that the light that hits the
`edge of the