`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MASIMO CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2021-00195
`Patent 10,376,190
`____________
`
`
`
`PETITIONER’S MOTION TO FILE SUPPLEMENTAL INFORMATION
`PURSUANT TO 37 C.F.R. § 42.123
`
`
`
`
`
`
`
`
`
`
`
`I.
`
`INTRODUCTION
`
`Case No. IPR2021-00195
`Attorney Docket: 50095-0010IP1
`
`Pursuant to 37 C.F.R § 42.123(a), and under the authorization granted by the
`
`Board on July 7, 2021, Petitioner hereby moves to submit Exhibit 1040
`
`(“Declaration of Jacob Munford”), Exhibit 1041 (“Declaration of Gordon
`
`MacPherson: Mendelson-2003”), and Exhibit 1042 (“Declaration of Gordon
`
`MacPherson: Mendelson-2006”) as supplemental information.
`
`Petitioner requested authorization to file this motion on July 2, 2021, within
`
`one month of the June 3, 2021 date of institution for IPR2021-00195. As
`
`explained in more detail below, Exhibits 1040 to 1042 provide further testimony
`
`supporting the public accessibility and authenticity of prior art references relied
`
`upon in the challenges set forth in the IPR2021-00195 Petition. For at least that
`
`reason, Exhibits 1040 to 1042 are relevant to a claim for which trial has been
`
`instituted. Accordingly, both requirements of 37 C.F.R § 42.123(a) have been met.
`
`Further, counsel for Petitioner and Patent Owner conferred prior to
`
`Petitioner’s request for authorization to submit this motion, and Patent Owner does
`
`not oppose this motion. Petitioner now so moves.
`
`II. BACKGROUND
`
`On November 20, 2020, Petitioner filed a Petition for inter partes review of
`
`claims 1-14 and 16-30 of U.S. Pat. No. 10,376,190 (“the ’190 patent”), which was
`
`assigned case number IPR2021-00195. On May June 3, 2021, the Board instituted
`1
`
`
`
`
`
`
`trial on all challenged claims of the ’190 patent, determining that Petitioner had
`
`Case No. IPR2021-00195
`Attorney Docket: 50095-0010IP1
`
`demonstrated a reasonable likelihood that Petitioner would prevail in showing the
`
`unpatentability of at least one of the challenged claims.
`
`On June 17, 2021, pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner served
`
`Petitioner with objections to evidence, which included assertions that various prior
`
`art references that had been relied upon in the Petition had not been established as
`
`prior art, in addition to objections to the previously-submitted declaration of
`
`librarian Jacob Robert Munford (Exhibit 1026). On June 30, 2021, pursuant to 37
`
`C.F.R. § 42.64(b)(2), and in response to Patent Owner’s objections, Petitioner
`
`served Patent Owner with supplemental evidence including: (1) an additional
`
`declaration from Mr. Munford (“Declaration of Jacob Munford”; Exhibit 1040);
`
`(2) a declaration from IEEE’s Director of Board Governance & IP Operations,
`
`Gordon MacPherson, regarding Mendelson-2003 (“Declaration of Gordon
`
`MacPherson: Mendelson-2003”; Exhibit 1041); and (3) a declaration from IEEE’s
`
`Director of Board Governance & IP Operations, Gordon MacPherson, regarding
`
`Mendelson-2006 (“Declaration of Gordon MacPherson: Mendelson-2006”; Exhibit
`
`1042).
`
`Exhibit 1040 provides further testimony supporting the public accessibility
`
`and authenticity of the prior art references relied upon in the challenges set forth in
`
`the IPR2021-00195 Petition, with supporting appendices.
`2
`
`
`
`
`
`Case No. IPR2021-00195
`Attorney Docket: 50095-0010IP1
`
`Exhibit 1041 provides further testimony supporting the public accessibility
`
`
`
`and authenticity of Mendelson-2003 (Exhibit 1024), which was relied upon in the
`
`challenges set forth in the IPR2021-00195 Petition.
`
`Exhibit 1042 provides further testimony supporting the public accessibility
`
`and authenticity of Mendelson-2006 (Exhibit 1016), which was relied upon in the
`
`challenges set forth in the IPR2021-00195 Petition.
`
`On July 2, 2021, Petitioner requested authorization from the Board to file a
`
`motion to submit the declarations of Jacob Robert Munford and Gordon
`
`MacPherson as supplemental information in each of IPR2021-00193, IPR2021-
`
`00195, IPR2021-00208, and IPR2021-00209. On July 7, 2021, the Board
`
`authorized Petitioner to file a motion to submit supplemental information in each
`
`of the indicated proceedings. In accordance with the Board’s authorization,
`
`Petitioner hereby moves to submit Exhibits 1040 to 1042 as supplemental
`
`information in IPR2021-00195.
`
`
`
`III. ARGUMENTS
`
`Under 37 C.F.R. § 42.123(a), a party may file a motion to submit
`
`supplemental information in accordance with the following two requirements: (1)
`
`“A request for the authorization to file a motion to submit supplemental
`
`information is made within one month of the date the trial is instituted”; and (2)
`3
`
`
`
`
`
`
`“The supplemental information must be relevant to a claim for which the trial has
`
`Case No. IPR2021-00195
`Attorney Docket: 50095-0010IP1
`
`been instituted.”
`
`The instant Motion meets both of these requirements. First, Petitioner
`
`requested authorization to file this motion on July 2, 2021, within one month of the
`
`June 3, 2021 date of institution for IPR2021-00195. Second, Exhibits 1040 to
`
`1042 provide further testimony supporting the public accessibility and authenticity
`
`of prior art references relied upon in the challenges set forth in the IPR2021-00195
`
`Petition and, for at least that reason, Exhibits 1040 to 1042 are relevant to a claim
`
`for which trial has been instituted. See, e.g., Valeo v. Magna Elecs., IPR2014-
`
`01204 Pap. 26 at 5 (PTAB Apr. 10, 2015); Palo Alto Networks, Inc. v. Juniper
`
`Networks, Inc., IPR2013-00369 Pap. 37 at 3 (PTAB Feb. 5, 2014)(“[e]vidence that
`
`allegedly confirms the public accessibility of references that serve as the basis of
`
`the grounds of unpatentability authorized…is relevant to the claims of the…patent
`
`for which this trial was instituted”); Motorola Solutions, Inc. v. Mobile Scanning
`
`Tech., IPR 2013-00093 Pap. 37 at 2-3 (PTAB Jun. 28, 2013).
`
`Moreover, like the supplemental information admitted in Valeo, Palo Alto
`
`Networks, and Motorola Solutions, Inc., Exhibits 1040 to 1042 do not change the
`
`grounds of unpatentability authorized in the proceeding, and instead merely
`
`confirm the public accessibility and authenticity of prior art references originally
`
`provided with the Petition. Further, because Patent Owner has been in possession
`4
`
`
`
`
`
`
`of the supplemental information in the form of supplemental evidence since June
`
`Case No. IPR2021-00195
`Attorney Docket: 50095-0010IP1
`
`30, 2021, which is nearly two months prior to the August 27, 2021 due date of the
`
`Patent Owner’s response, the Patent Owner has reasonable time to review Exhibits
`
`1040 to 1042 and is not prejudiced or otherwise burdened by entry of this
`
`supplemental evidence into the record as supplemental information. Similarly, the
`
`entry of Exhibits 1040 to 1042 now, as supplemental information, would not limit
`
`the Board’s ability to complete this proceeding in a timely fashion.
`
`Accordingly, Petitioner respectfully submits that Exhibits 1040 to 1042
`
`should be submitted into evidence as supplemental information, and requests the
`
`same.
`
`IV. CONCLUSION
`
`Petitioner respectfully requests that the Board grant this motion to submit
`
`Exhibits 1040 to 1042 as supplemental information in IPR2021-00195.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: July 9, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
` /Hyun Jin In/
`W. Karl Renner, Reg. No. 41,265
`Roberto J. Devoto, Reg. No. 55,108
`Hyun Jin In, Reg. No. 70,014
`Fish & Richardson P.C.
`3200 RBC Plaza, 60 South Sixth Street
`Minneapolis, MN 55402
`T: 202-783-5553
`
`5
`
`
`
`
`
`Case No. IPR2021-00195
`Attorney Docket: 50095-0010IP1
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 CFR §§ 42.6(e)(4)(i) et seq., the undersigned certifies that on
`
`July 9, 2021, a complete and entire copy of this “PETITIONER’S MOTION TO
`
`FILE SUPPLEMENTAL INFORMATION PURSUANT TO 37 C.F.R. § 42.123”
`
`and its attached exhibits were provided by electronic mail to the Patent Owner by
`
`serving the correspondence e-mail address of record as follows:
`
`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
`
`Email: AppleIPR2021-0195-190@knobbe.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/Edward G. Faeth/
`Edward G. Faeth
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`(202) 626-6420
`
`
`
`
`
`
`
`6
`
`
`
`
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Poeze, et al.
`In re Patent of:
`10,376,190
`U.S. Patent No.:
`August 13, 2019
`Issue Date:
`Appl. Serial No.: 16/409,304
`Filing Date:
`May 10, 2019
`Title:
`MULTI-STREAM DATA COLLECTION SYSTEM FOR
`NON-INVASIVE MEASUREMENT OF BLOOD
`CONSTITUENTS
`
`Attorney Docket No.: 50095-0010IP1
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`DECLARATION OF JACOB ROBERT MUNFORD
`
`1
`
`APPLE 1040
`Apple v. Masimo
`IPR2021-00195
`
`
`
`
`
`
`
`
`
`
`
`1. My name is Jacob Robert Munford. I am over the age of 18, have personal
`
`knowledge of the facts set forth herein, and am competent to testify to the
`
`same.
`
`2. I earned a Master of Library and Information Science (MLIS) from the
`
`University of Wisconsin-Milwaukee in 2009. I have over ten years of
`
`experience in the library/information science field. Beginning in 2004, I
`
`have served in various positions in the public library sector including
`
`Assistant Librarian, Youth Services Librarian and Library Director. I have
`
`attached my Curriculum Vitae as Appendix A.
`
`3. During my career in the library profession, I have been responsible for
`
`materials acquisition for multiple libraries. In that position, I have cataloged,
`
`purchased and processed incoming library works. That includes purchasing
`
`materials directly from vendors, recording publishing data from the material
`
`in question, creating detailed material records for library catalogs and
`
`physically preparing that material for circulation. In addition to my
`
`experience in acquisitions, I was also responsible for analyzing large
`
`collections of library materials, tailoring library records for optimal catalog
`
`1
`
`2
`
`
`
`search performance and creating lending agreements between libraries
`
`during my time as a Library Director.
`
`
`4. I am fully familiar with the catalog record creation process in the library
`
`sector. In preparing a material for public availability, a library catalog record
`
`describing that material would be created. These records are typically
`
`written in Machine Readable Catalog (herein referred to as “MARC”) code
`
`and contain information such as a physical description of the material,
`
`metadata from the material’s publisher, and date of library acquisition. In
`
`particular, the 008 field of the MARC record is reserved for denoting the
`
`date of creation of the library record itself. As this typically occurs during
`
`the process of preparing materials for public access, it is my experience that
`
`an item’s MARC record indicates the date of an item’s public availability.
`
`
`5. Typically, in creating a MARC record, a librarian would gather various bits
`
`of metadata such as book title, publisher and subject headings among others
`
`and assign each value to a relevant numerical field. For example, a book’s
`
`physical description is tracked in field 300 while title/attribution is tracked in
`
`field 245. The 008 field of the MARC record is reserved for denoting the
`
`creation of the library record itself. As this is the only date reflecting the
`
`inclusion of said materials within the library’s collection, it is my experience
`
`
`
`2
`
`3
`
`
`
`that an item’s 008 field accurately indicates the date of an item’s public
`
`availability.
`
`
`6. This declaration is being drafted as of June 2021. Public and university
`
`libraries in my area have been closed for months due to the COVID-19
`
`pandemic. My state, Pennsylvania, has a travel advisory, which has affected
`
`my ability to travel. In my experience, library catalog records are accurate
`
`descriptions of a library’s collection and my lack of physical access to
`
`libraries at this time creates no doubt in my determinations of authenticity or
`
`availability of the exhibits noted below.
`
`
`7. I have reviewed Exhibit 1024, a copy of an article entitled “Measurement
`
`Site and Photodetector Size Considerations in Optimizing Power
`
`Consumption of a Wearable Reflectance Pulse Oximeter” by Y. Mendelson
`
`and C. Pujary as published in the Proceedings of the 25th Annual
`
`International Conference of the IEEE Engineering in Medicine and Biology
`
`Society, September 17 – 21, 2003 (hereinafter referred to as “2003 IEEE
`
`conference publication”).
`
`
`8. Attached hereto as Appendix MENDELSON01 is a true and correct copy of
`
`the MARC record for the 2003 IEEE conference publication, as held by the
`
`
`
`3
`
`4
`
`
`
`Pennsylvania State University’s library. I secured this record myself from
`
`the library’s public catalog.
`
`
`9. The MARC record contained within Appendix MENDELSON01 accurately
`
`describes the title, author, publisher, and ISBN number of the 2003 IEEE
`
`conference publication. In comparing the listed fields in Appendix
`
`MENDELSON01 to Exhibit 1024, it is my determination that Exhibit 1024
`
`is a true and correct copy of the “Measurement Site and Photodetector Size
`
`Considerations in Optimizing Power Consumption of a Wearable
`
`Reflectance Pulse Oximeter” article, and that the copy of the 2003 IEEE
`
`conference publication in Pennsylvania State University’s library includes
`
`the article in Exhibit 1024.
`
`
`10. The 008 field of the MARC record noted on page 1 of Appendix
`
`MENDELSON01 indicates that the 2003 IEEE conference publication was
`
`first cataloged by the Pennsylvania State University’s library as of February
`
`4, 2004. Based on this information and considering the dates of the
`
`conference, it is my determination that the 2003 IEEE conference
`
`publication, which included the article published as Exhibit 1024, was made
`
`available to the public by the Pennsylvania State University at least as of
`
`February 4, 2004.
`
`
`
`4
`
`5
`
`
`
`
`
`11. Attached hereto as Appendix IEEE02 is a true and correct copy of a
`
`declaration made by Mr. Gordon MacPherson, “Director Board Governance
`
`& IP Operations of The Institute of Electrical and Electronics Engineers,
`
`Incorporated.” Mr. MacPherson’s declaration Appendix IEEE02 states that
`
`the “IEEE publishes and makes available technical articles and standards” as
`
`part of its “ordinary course of business,” and that these publications are
`
`“made available for public download through the IEEE digital library, IEEE
`
`Xplore.”
`
`
`
`12. Mr. MacPherson’s declaration includes, as Exhibit A, an article referred to
`
`as “Y. Mendelson and C. Pujary, ‘Measurement site and photodetector size
`
`considerations in optimizing power consumption of a wearable reflectance
`
`pulse oximeter’, Proceedings of the 25th Annual International Conference of
`
`the IEEE Engineering in Medicine and Biology Society, September 17 – 21,
`
`2003,” which was obtained “through IEEE Xplore, where it is maintained in
`
`the ordinary course of IEEE’s business.” Exhibit A also includes a screen
`
`capture of the IEEE Xplore portal page for the above-noted article.
`
`
`
`
`
`5
`
`6
`
`
`
`13. In comparing the listed fields in Exhibit A of Appendix IEEE02 to Appendix
`
`MENDELSON01 and comparing Exhibit A of Appendix IEEE02 to Exhibit
`
`1024, it is my determination that Exhibit 1024 is a true and correct copy of
`
`the “Measurement site and photodetector size considerations in optimizing
`
`power consumption of a wearable reflectance pulse oximeter” article, and
`
`that the copy of the 2003 IEEE conference publication in Pennsylvania State
`
`University’s library includes the article in Exhibit 1024.
`
`
`14. I have reviewed Exhibit 1016, a copy of an article entitled “A Wearable
`
`Reflectance Pulse Oximeter for Remote Physiological Monitoring” by Y.
`
`Mendelson, R. J. Duckworth, and G. Comtois, as published in the
`
`Proceedings of the 28th Annual International Conference of the IEEE
`
`Engineering in Medicine and Biology Society, August 30 – September 3,
`
`2006 (hereinafter referred to as “2006 IEEE conference publication”).
`
`
`15. Attached hereto as Appendix MENDELSON02 is a true and correct copy of
`
`the MARC record for the 2006 IEEE conference publication, as held by
`
`Cornell University’s library. I secured this record myself from the library’s
`
`public catalog.
`
`
`
`
`
`6
`
`7
`
`
`
`16. The MARC record contained within Appendix MENDELSON02 accurately
`
`describes the title, author, publisher, and ISBN number of the 2006 IEEE
`
`conference publication. In comparing the listed fields in Appendix
`
`MENDELSON02 to Exhibit 1016, it is my determination that Exhibit 1016
`
`is a true and correct copy of the “A Wearable Reflectance Pulse Oximeter
`
`for Remote Physiological Monitoring” article, and that the copy of the 2006
`
`IEEE conference publication in Cornell University’s library includes the
`
`article in Exhibit 1016.
`
`
`17. The 008 field of the MARC record noted on page 1 of Appendix
`
`MENDELSON02 indicates that the 2006 IEEE conference publication was
`
`first cataloged by Cornell University’s library as of December 26, 2007.
`
`Based on this information and considering the dates of the conference, it is
`
`my determination that the 2006 IEEE conference publication, which
`
`included the article published as Exhibit 1016, was made available to the
`
`public by Cornell University at least as of December 26, 2007.
`
`
`
`18. Additionally, I accessed a copy of the 2006 IEEE conference publication
`
`through the Pennsylvania State University’s online library catalog portal.
`
`
`
`
`
`7
`
`8
`
`
`
`19. Attached hereto as Appendix MENDELSON06 is a true and correct copy of
`
`the catalog entry for the 2006 IEEE conference publication as maintained by
`
`the Pennsylvania State University. I secured this record myself from the
`
`library’s public catalog.
`
`
`
`20. Attached hereto as Appendix MENDELSON07 is a true and correct copy of
`
`the table of contents for the 2006 IEEE conference publication. I secured this
`
`record, as provided by the Pennsylvania State University’s library through
`
`the catalog entry for the 2006 IEEE conference publication as shown in
`
`Appendix MENDELSON06, myself.
`
`
`
`21. I have reviewed Appendix MENDELSON10, a copy of an 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. I secured this document
`
`myself through the table of contents for the 2006 IEEE conference
`
`publication as shown in Appendix MENDELSON07.
`
`
`
`22. Attached hereto as Appendix MENDELSON05 is a true and correct copy of
`
`the MARC record for the 2006 IEEE conference publication, as held by the
`
`
`
`8
`
`9
`
`
`
`Pennsylvania State University’s library in its online catalog indicated by the
`
`catalog entry as shown in Appendix MENDELSON06. The Pennsylvania
`
`State University’s online library catalog entry as shown in Appendix
`
`MENDELSON06 directs the user to a portal page within the IEEE’s online
`
`repository, IEEE Xplore, for an article entitled “A Wearable Reflectance
`
`Pulse Oximeter for Remote Physiological Monitoring” by Y. Mendelson, R.
`
`J. Duckworth, and G. Comtois. I secured this record myself from the
`
`library’s public catalog through the table of contents listing as captured in
`
`Appendix MENDELSON07.
`
`
`
`23. The MARC record contained within Appendix MENDELSON05 accurately
`
`describes the title, author, publisher, and ISBN number of the 2006 IEEE
`
`conference publication. In comparing the listed fields in Appendix
`
`MENDELSON05 to Appendix MENDELSON10, it is my determination
`
`that (1) Appendix MENDELSON10 is a true and correct copy of the “A
`
`Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`Monitoring” article by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
`
`published in the 2006 IEEE conference publication, that (2) the digital copy
`
`of the 2006 IEEE conference publication in the Pennsylvania State
`
`University’s library catalog includes the article in Appendix
`
`
`
`9
`
`10
`
`
`
`MENDELSON10, and that (3) the digital copy of the 2006 IEEE conference
`
`publication in the Pennsylvania State University’s library catalog is the same
`
`as the “A Wearable Reflectance Pulse Oximeter for Remote Physiological
`
`Monitoring” article by Y. Mendelson, R. J. Duckworth, and G. Comtois, as
`
`published in the 2006 IEEE conference publication that is made publicly
`
`available by the Pennsylvania State University through the IEEE’s online
`
`repository, IEEE Xplore.
`
`
`
`24. The 008 field of the MARC record noted on page 1 of Appendix
`
`MENDELSON05 indicates that the 2006 IEEE conference publication was
`
`first cataloged by the Pennsylvania State University’s library as of
`
`December 26, 2007. Based on this information and considering the dates of
`
`the conference, it is my determination that the 2006 IEEE conference
`
`publication, which included the article published as Appendix
`
`MENDELSON10, was made available to the public by the Pennsylvania
`
`State University at least as of December 26, 2007.
`
`
`25. Furthermore, I accessed a copy of the 2006 IEEE conference publication
`
`directly through the IEEE’s online repository, IEEE Xplore.
`
`
`
`
`
`10
`
`11
`
`
`
`26. I have reviewed Appendix MENDELSON12, a copy of an 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. I secured this record
`
`myself from the IEEE’s online repository, IEEE Xplore.
`
`
`
`27. Attached hereto as Appendix IEEE01 is a true and correct copy of a
`
`declaration made by Mr. Gordon MacPherson, “Director Board Governance
`
`& IP Operations of The Institute of Electrical and Electronics Engineers,
`
`Incorporated.” Mr. MacPherson’s declaration Appendix IEEE01 states that
`
`the “IEEE publishes and makes available technical articles and standards” as
`
`part of its “ordinary course of business,” and that these publications are
`
`“made available for public download through the IEEE digital library, IEEE
`
`Xplore.”
`
`
`
`28. Mr. MacPherson’s declaration includes, as Exhibit A, an article referred to
`
`as “Y. Mendelson, R. J. Duckworth, and G. Comtois, “A Wearable
`
`Reflectance Pulse Oximeter for Remote Physiological Monitoring”, 2006
`
`International Conference of the IEEE Engineering in Medicine and Biology
`
`Society, August 30, 2006 - September 3, 2006,” which was obtained
`
`
`
`11
`
`12
`
`
`
`“through IEEE Xplore, where it is maintained in the ordinary course of
`
`IEEE’s business.” Exhibit A also includes a screen capture of the IEEE
`
`Xplore portal page for the article referred to as “Y. Mendelson, R. J.
`
`Duckworth, and G. Comtois, “A Wearable Reflectance Pulse Oximeter for
`
`Remote Physiological Monitoring”, 2006 International Conference of the
`
`IEEE Engineering in Medicine and Biology Society, August 30, 2006 -
`
`September 3, 2006.”
`
`
`
`29. In comparing the screen capture of the IEEE Xplore portal in Exhibit A of
`
`IEEE01 to the portal to which I was directed from the Pennsylvania State
`
`University’s library system, it is my determination that the IEEE Xplore
`
`portal represented in Exhibit A is the same IEEE Xplore portal (1) to which I
`
`was directed from the Pennsylvania State University’s library system and (2)
`
`through which I secured the article published as Appendix
`
`MENDELSON10.
`
`
`
`30. Based on this information, it is my determination that the IEEE Xplore
`
`portal to which I was directed from the Pennsylvania State University’s
`
`library system and through which I accessed the IEEE repository and
`
`secured the article published as Appendix MENDELSON10 was authentic.
`
`
`
`12
`
`13
`
`
`
`31. In comparing the screen capture of the IEEE Xplore portal in Exhibit A of
`
`IEEE01 to the IEEE Xplore portal through which I secured the article
`
`published as MENDELSON12, it is my determination that the IEEE Xplore
`
`portal represented in Exhibit A is the same IEEE Xplore portal through
`
`which I secured the article published as Appendix MENDELSON12.
`
`
`
`32. Based on this information, it is my determination that the IEEE Xplore
`
`portal through which I accessed the IEEE repository and secured the article
`
`published as Appendix MENDELSON12 was authentic.
`
`
`
`33. In comparing the listed fields in Exhibit A of Appendix IEEE01 to Appendix
`
`MENDELSON02 and to Appendix MENDELSON05 and comparing
`
`Exhibit A of Appendix IEEE01 to Exhibit 1016 and to Appendix
`
`MENDELSON10, it is my determination that each of Exhibit A of Appendix
`
`IEEE01, Exhibit 1016, and Appendix MENDELSON10 is a true and correct
`
`copy 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.
`
`
`
`
`
`13
`
`14
`
`
`
`34. In comparing Exhibit A of Appendix IEEE01 to Exhibit 1016 and to
`
`Appendix MENDELSON12, it is my determination that each of Exhibit A of
`
`Appendix IEEE01, Exhibit 1016, and Appendix MENDELSON12 is a true
`
`and correct copy 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.
`
`
`
`35. Based on this information, it is my determination that each of Exhibit A of
`
`IEEE01, Exhibit 1016, Appendix MENDELSON10, and Appendix
`
`MENDELSON12 is a true and correct copy 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, and that the 2006 IEEE
`
`conference publication containing Exhibit 1016 was cataloged and made
`
`available to the public by the IEEE through its online repository, IEEE
`
`Xplore, at least as of September 3, 2006.
`
`
`
`36. Based on this information, it is my determination that each of Exhibit A of
`
`IEEE01, Exhibit 1016, Appendix MENDELSON10, and Appendix
`
`
`
`14
`
`15
`
`
`
`MENDELSON12 is a true and correct copy 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, and that the 2006 IEEE
`
`conference publication containing Exhibit 1016 was cataloged and made
`
`available to the public by Cornell University at least as of December 26,
`
`2007.
`
`
`37. Based on this information, it is my determination that each of Exhibit A of
`
`IEEE01, Exhibit 1016, Appendix MENDELSON10, and Appendix
`
`MENDELSON12 is a true and correct copy 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, and that the 2006 IEEE
`
`conference publication containing Exhibit 1016 was cataloged and made
`
`available to the public by the Pennsylvania State University at least as of
`
`December 26, 2007.
`
`
`
`38. I have reviewed Appendix COMTOIS04, a copy of an article entitled “A
`
`noise reference input to an adaptive filter algorithm for signal processing in
`
`a wearable pulse oximeter” by G. Comtois and Y. Mendelson, as published
`
`
`
`15
`
`16
`
`
`
`in the Proceedings of the 2007 IEEE 33rd Annual Northeast Bioengineering
`
`Conference, March 10 – 11, 2007 (hereinafter referred to as “2007 IEEE
`
`conference publication”). I secured this copy of the 2007 IEEE conference
`
`publication through the Pennsylvania State University’s online library
`
`catalog portal.
`
`
`
`39. 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.
`
`
`
`40. 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.
`
`
`
`41. 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
`
`
`
`16
`
`17
`
`
`
`record myself from the library's public catalog through the table of contents
`
`listing as captured in COMTOIS03.
`
`
`
`42. 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.
`
`
`
`43. 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.
`
`
`
`17
`
`18
`
`
`
`
`
`44. 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.
`
`
`
`45. 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
`
`2007 IEEE conference publication in University of Wyoming’s library
`
`includes the article in COMTOIS04.
`
`
`
`46. 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.
`
`
`
`18
`
`19
`
`
`
`
`
`47. 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.
`
`Accordingly, it is my determination that the 2006 IEEE conference
`
`publication containing Exhibit 1016 would have been publicly available at
`
`least as early as the publication date of the 2007 IEEE conference
`
`publication: January 24, 2007.
`
`
`
`48. 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”).
`
`
`
`
`
`19
`
`20
`
`
`
`49. I obtained a copy of the 2007 IEEE EMBS conference publication through
`
`the Pennsylvania State University’s online library catalog portal.
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
