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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.
`____________
`
`Case IPR2021-00208
`Patent 10,258,266
`____________
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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. IPR2021-00208
`Attorney Docket: 50095-0007IP1
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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 July 7, 2021, Petitioner hereby moves to submit Exhibit 1040
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`(“Declaration of Jacob Munford”) and Exhibit 1041 (“Declaration of Gordon
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`MacPherson: Mendelson-2003”) as supplemental information.
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`Petitioner requested authorization to file this motion on July 2, 2021, within
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`one month of the June 3, 2021 date of institution for IPR2021-00208. As
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`explained in more detail below, Exhibits 1040 and 1041 provide 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 IPR2021-00208 Petition. For at least that
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`reason, Exhibits 1040 and 1041 are relevant to a claim for which trial has been
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`instituted. 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 November 20, 2020, Petitioner filed a Petition for inter partes review of
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`claims 1-6, 8-16, 18, and 19 of U.S. Pat. No. 10,258,266 (“the ’266 patent”), which
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`was assigned case number IPR2021-00208. On May June 3, 2021, the Board
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`instituted trial on all challenged claims of the ’266 patent, determining that
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`Petitioner had demonstrated a reasonable likelihood that Petitioner would prevail
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`Case No. IPR2021-00208
`Attorney Docket: 50095-0007IP1
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`in showing the unpatentability of at least one of the challenged claims.
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`On June 17, 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 various prior
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`art 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 1026). On June 30, 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: (1) an additional
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`declaration from Mr. Munford (“Declaration of Jacob Munford”; Exhibit 1040);
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`and (2) a declaration from IEEE’s Director of Board Governance & IP Operations,
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`Gordon MacPherson, regarding Mendelson-2003 (“Declaration of Gordon
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`MacPherson: Mendelson-2003”; Exhibit 1041).
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`Exhibit 1040 provides further testimony supporting the public accessibility
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`and authenticity of the prior art references relied upon in the challenges set forth in
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`the IPR2021-00208 Petition, with supporting appendices.
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`Exhibit 1041 provides further testimony supporting the public accessibility
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`and authenticity of Mendelson-2003 (Exhibit 1024), which was relied upon in the
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`challenges set forth in the IPR2021-00208 Petition.
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`Case No. IPR2021-00208
`Attorney Docket: 50095-0007IP1
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`On July 2, 2021, Petitioner requested authorization from the Board to file a
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`motion to submit the declarations of Jacob Robert Munford and Gordon
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`MacPherson as supplemental information in each of IPR2021-00193, IPR2021-
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`00195, IPR2021-00208, and IPR2021-00209. On July 7, 2021, the Board
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`authorized Petitioner to file a motion to submit supplemental information in each
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`of the indicated proceedings. In accordance with the Board’s authorization,
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`Petitioner hereby moves to submit Exhibits 1040 and 1041 as supplemental
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`information in IPR2021-00208.
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`III. ARGUMENTS
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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 July 2, 2021, within one month of the
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`June 3, 2021 date of institution for IPR2021-00208. Second, Exhibits 1040 and
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`1041 provide further testimony supporting the public accessibility and authenticity
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`of prior art references relied upon in the challenges set forth in the IPR2021-00208
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`Case No. IPR2021-00208
`Attorney Docket: 50095-0007IP1
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`Petition and, for at least that reason, Exhibits 1040 and 1041 are relevant to a claim
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`for which trial has been instituted. See, e.g., Valeo v. Magna Elecs., IPR2014-
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`01204 Pap. 26 at 5 (PTAB Apr. 10, 2015); Palo Alto Networks, Inc. v. Juniper
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`Networks, Inc., IPR2013-00369 Pap. 37 at 3 (PTAB Feb. 5, 2014)(“[e]vidence that
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`allegedly confirms the public accessibility of references that serve as the basis of
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`the grounds of unpatentability authorized…is relevant to the claims of the…patent
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`for which this trial was instituted”); Motorola Solutions, Inc. v. Mobile Scanning
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`Tech., IPR 2013-00093 Pap. 37 at 2-3 (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., Exhibits 1040 and 1041 do not change the
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`grounds of unpatentability authorized in the proceeding, and instead merely
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`confirm the public accessibility and authenticity of prior art references originally
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`provided with the Petition. Further, because Patent Owner has been in possession
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`of the supplemental information in the form of supplemental evidence since June
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`30, 2021, which is nearly two months prior to the August 27, 2021 due date of the
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`Patent Owner’s response, the Patent Owner has reasonable time to review Exhibits
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`1040 and 1041 and is not prejudiced or otherwise burdened by entry of this
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`supplemental evidence into the record as supplemental information. Similarly, the
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`entry of Exhibits 1040 and 1041 now, as supplemental information, would not
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`Case No. IPR2021-00208
`Attorney Docket: 50095-0007IP1
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`limit the Board’s ability to complete this proceeding in a timely fashion.
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`Accordingly, Petitioner respectfully submits that Exhibits 1040 and 1041
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`should be submitted into evidence as supplemental information, and requests the
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`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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`Exhibits 1040 and 1041 as supplemental information in IPR2021-00208.
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`Dated: July 9, 2021
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`Respectfully submitted,
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`
` /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
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`Case No. IPR2021-00208
`Attorney Docket: 50095-0007IP1
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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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`July 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: AppleIPR2021-0208-266@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
`
`Poeze, et al.
`In re Patent of:
`U.S. Patent No.: 10,258,266
`Issue Date:
`April 16, 2019
`Appl. Serial No.: 16/212,537
`Filing Date:
`December 6, 2018
`Title:
`MULTI-STREAM DATA COLLECTION SYSTEM FOR
`NON-INVASIVE MEASUREMENT OF BLOOD
`CONSTITUENTS
`
`Attorney Docket No.: 50095-0007IP1
`
`
`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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`1
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`APPLE 1040
`Apple v. Masimo
`IPR2021-00208
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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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`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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`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 June 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 1024, a copy of an article entitled “Measurement
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`Site and Photodetector Size Considerations in Optimizing Power
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`Consumption of a Wearable Reflectance Pulse Oximeter” by Y. Mendelson
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`and C. Pujary as published in the Proceedings of the 25th Annual
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`International Conference of the IEEE Engineering in Medicine and Biology
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`Society, September 17 – 21, 2003 (hereinafter referred to as “2003 IEEE
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`conference publication”).
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`8. Attached hereto as Appendix MENDELSON01 is a true and correct copy of
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`the MARC record for the 2003 IEEE conference publication, as held by the
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`Pennsylvania State University’s library. I secured this record myself from
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`the library’s public catalog.
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`9. The MARC record contained within Appendix MENDELSON01 accurately
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`describes the title, author, publisher, and ISBN number of the 2003 IEEE
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`conference publication. In comparing the listed fields in Appendix
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`MENDELSON01 to Exhibit 1024, it is my determination that Exhibit 1024
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`is a true and correct copy of the “Measurement Site and Photodetector Size
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`Considerations in Optimizing Power Consumption of a Wearable
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`Reflectance Pulse Oximeter” article, and that the copy of the 2003 IEEE
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`conference publication in Pennsylvania State University’s library includes
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`the article in Exhibit 1024.
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`10. The 008 field of the MARC record noted on page 1 of Appendix
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`MENDELSON01 indicates that the 2003 IEEE conference publication was
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`first cataloged by the Pennsylvania State University’s library as of February
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`4, 2004. Based on this information and considering the dates of the
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`conference, it is my determination that the 2003 IEEE conference
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`publication, which included the article published as Exhibit 1024, was made
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`available to the public by the Pennsylvania State University at least as of
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`February 4, 2004.
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`11. Attached hereto as Appendix IEEE02 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 IEEE02 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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`12. Mr. MacPherson’s declaration includes, as Exhibit A, an article referred to
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`as “Y. Mendelson and C. Pujary, ‘Measurement site and photodetector size
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`considerations in optimizing power consumption of a wearable reflectance
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`pulse oximeter’, Proceedings of the 25th Annual International Conference of
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`the IEEE Engineering in Medicine and Biology Society, September 17 – 21,
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`2003,” which was obtained “through IEEE Xplore, where it is maintained in
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`the ordinary course of IEEE’s business.” Exhibit A also includes a screen
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`capture of the IEEE Xplore portal page for the above-noted article.
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`13. In comparing the listed fields in Exhibit A of Appendix IEEE02 to Appendix
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`MENDELSON01 and comparing Exhibit A of Appendix IEEE02 to Exhibit
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`1024, it is my determination that Exhibit 1024 is a true and correct copy of
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`the “Measurement site and photodetector size considerations in optimizing
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`power consumption of a wearable reflectance pulse oximeter” article, and
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`that the copy of the 2003 IEEE conference publication in Pennsylvania State
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`University’s library includes the article in Exhibit 1024.
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`14. I have reviewed Exhibit 1015, a copy of an article entitled “Design and
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`Evaluation of a New Reflectance Pulse Oximeter Sensor” by Y. Mendelson,
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`et al., as published in the Journal of the Association for the Advancement of
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`Medical Instrumentation, Vol. 22, No. 4, 1988 (hereinafter referred to as
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`“1988 publication”).
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`15. Attached hereto as Appendix MENDELSON03 is a true and correct copy of
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`the MARC record for the 1988 publication held by the Pennsylvania State
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`University’s library. I secured this record myself from the library’s public
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`catalog.
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`16. The MARC record contained within Appendix MENDELSON03 accurately
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`describes the title, author, publisher, and ISSN number of the Journal of the
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`Association for the Advancement of Medical Instrumentation. The 949 field
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`of a MARC record is used for institution-specific notations and the 949
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`fields of this MARC record indicate the Pennsylvania State University’s
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`issue level holdings for the Journal of the Association for the Advancement
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`of Medical Instrumentation, demonstrating that the Pennsylvania State
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`University’s collection contains volumes 17 – 22. These journal holdings
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`clearly include Volume 22, No. 4, which corresponds to the 1988
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`publication. In comparing the listed fields in Appendix MENDELSON03 to
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`Exhibit 1015, it is my determination that Exhibit 1015 is a true and correct
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`copy of the “Design and Evaluation of a New Reflectance Pulse Oximeter
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`Sensor” article, and that the copy of the 1988 publication in Pennsylvania
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`State University’s library includes the article in Exhibit 1015.
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`17. The 008 field of the MARC record noted on page 1 of Appendix
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`MENDELSON03 indicates that the Journal of the Association for the
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`Advancement of Medical Instrumentation was first cataloged by the
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`Pennsylvania State University’s library as of August 8, 1983. The 362 field
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`of the MARC record indicates Pennsylvania State University’s acquisition of
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`this material ceased as of Vol. 22, No. 6. Based on this information, it is my
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`determination that the 1988 publication, which included the article published
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`as Exhibit 1015, was made available to the public by the Pennsylvania State
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`University shortly after initial publication in August 1988.
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`18. I have been retained on behalf of the Petitioner to provide assistance in the
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`above-illustrated matter in establishing the authenticity and public
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`availability of the documents discussed in this declaration. I am being
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`compensated for my services in this matter at the rate of $100.00 per hour
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`plus reasonable expenses. My statements are objective, and my
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`compensation does not depend on the outcome of this matter.
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`19. I declare under penalty of perjury that the foregoing is true and correct. I
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`hereby declare that all statements made herein of my own knowledge are
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`true and that all statements made on information and belief are believed to
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`be true; and further that these statements were made the knowledge that
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`willful false statements and the like so made are punishable by fine or
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`imprisonment, or both, under Section 1001 of Title 18 of the United States
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`Code.
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`Dated: 6/30/2021
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`Jacob Robert Munford
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`APPENDIX A
`APPENDIX A
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`Appendix A - Curriculum Vitae
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`Education
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`University of Wisconsin-Milwaukee - MS, Library & Information Science, 2009
`Milwaukee, WI
`● Coursework included cataloging, metadata, data analysis, library systems,
`management strategies and collection development.
`● Specialized in library advocacy and management.
`
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`Grand Valley State University - BA, English Language & Literature, 2008
`Allendale, MI
`● Coursework included linguistics, documentation and literary analysis.
`● Minor in political science with a focus in local-level economics and
`government.
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`Professional Experience
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`Researcher / Expert Witness, October 2017 – present
`Freelance
`Pittsburgh, Pennsylvania
`● Material authentication and public accessibility determination. Declarations
`of authenticity and/or public accessibility provided upon research
`completion. Depositions provided on request.
`● Research provided on topics of public library operations, material
`publication history, digital database services and legacy web resources.
`● Past clients include Apple, Fish & Richardson, Erise IP, Baker Botts and
`other firms working in patent law.
`
`
`
`Library Director, February 2013 - March 2015
`Dowagiac District Library
`Dowagiac, Michigan
`● Executive administrator of the Dowagiac District Library. Located in
`Southwest Michigan, this library has a service area of 13,000, an annual
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`operating budget of over $400,000 and total assets of approximately
`$1,300,000.
`● Developed careful budgeting guidelines to produce a 15% surplus during the
`2013-2014 & 2014-2015 fiscal years.
`● Using this budget surplus, oversaw significant library investments including
`the purchase of property for a future building site, demolition of existing
`buildings and building renovation projects on the current facility.
`● Led the organization and digitization of the library's archival records.
`● Served as the public representative for the library, developing business
`relationships with local school, museum and tribal government entities.
`● Developed an objective-based analysis system for measuring library services
`- including a full collection analysis of the library's 50,000+ circulating
`items and their records.
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`
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`November 2010 - January 2013
`Librarian & Branch Manager, Anchorage Public Library
`Anchorage, Alaska
`● Headed the 2013 Anchorage Reads community reading campaign including
`event planning, staging public performances and creating marketing
`materials for mass distribution.
`● Co-led the social media department of the library's marketing team, drafting
`social media guidelines, creating original content and instituting long-term
`planning via content calendars.
`● Developed business relationships with The Boys & Girls Club, Anchorage
`School District and the US Army to establish summer reading programs for
`children.
`
`
`June 2004 - September 2005, September 2006 - October 2013
`Library Assistant, Hart Area Public Library
`Hart, MI
`● Responsible for verifying imported MARC records and original MARC
`cataloging for the local-level collection as well as the Michigan Electronic
`Library.
`● Handled OCLC Worldcat interlibrary loan requests & fulfillment via
`ongoing communication with lending libraries.
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`Professional Involvement
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`Alaska Library Association - Anchorage Chapter
`● Treasurer, 2012
`
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`Library Of Michigan
`● Level VII Certification, 2008
`● Level II Certification, 2013
`
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`Michigan Library Association Annual Conference 2014
`● New Directors Conference Panel Member
`
`
`Southwest Michigan Library Cooperative
`● Represented the Dowagiac District Library, 2013-2015
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`
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`Professional Development
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`Library Of Michigan Beginning Workshop, May 2008
`Petoskey, MI
`● Received training in cataloging, local history, collection management,
`children’s literacy and reference service.
`
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`Public Library Association Intensive Library Management Training, October 2011
`Nashville, TN
`● Attended a five-day workshop focused on strategic planning, staff
`management, statistical analysis, collections and cataloging theory.
`
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`Alaska Library Association Annual Conference 2012 - Fairbanks, February 2012
`Fairbanks, AK
`● Attended seminars on EBSCO advanced search methods, budgeting,
`cataloging, database usage and marketing.
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`APPENDIX MENDELSON01
`APPENDIX MENDELSONOI
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`DECLARATION OF GORDON MACPHERSON
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`I, Gordon MacPherson, am over twenty-one (21) years of age. I have never been
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`A. 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.
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`11. Y. Mendelson and C. Pujary, “Measurement site and photodetector size
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`oximeter” was published in the Proceedings of the 25th Annual International
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