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`Apple, Inc. v. Masimo Corp.
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`Thomas Kenny Jr., Ph.D.
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`Page 1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________________
` APPLE INC.,
`
`))
`
` IPR NO. 2020-1520
`Petitioner, ) US PATENT NO: 10,258,265
`)
`) IPR NO. 2020-1537
`) US PATENT NO: 10,588,553
`)
`) IPR NO. 2020-1539
`Patent Owner. ) US PATENT NO: 10,588,554
`______________________________)
`
`-against-
`
` MASIMO CORPORATION,
`
`VIDEO-RECORDED DEPOSITION OF
`THOMAS WILLIAM KENNY, JR. PH.D.
`VOLUME 1
`Zoom Recorded Videoconference
`04/22/2021
`9:02 a.m. (Pacific Daylight Time)
`
`REPORTED BY: AMANDA GORRONO, CLR
`CLR NO. 052005-01
`
`______________________________________________________
`DIGITAL EVIDENCE GROUP
`1730 M Street, NW, Suite 812
`Washington, D.C. 20036
`(202) 232-0646
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`Masimo Ex. 2006
`Apple v. Masimo, IPR2021-00208
`
`
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 1
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________________
` APPLE INC.,
`
`))
`
` IPR NO. 2020-1520
`Petitioner, ) US PATENT NO: 10,258,265
`)
`) IPR NO. 2020-1537
`) US PATENT NO: 10,588,553
`)
`) IPR NO. 2020-1539
`Patent Owner. ) US PATENT NO: 10,588,554
`______________________________)
`
`-against-
`
` MASIMO CORPORATION,
`
`VIDEO-RECORDED DEPOSITION OF
`THOMAS WILLIAM KENNY, JR. PH.D.
`VOLUME 1
`Zoom Recorded Videoconference
`04/22/2021
`9:02 a.m. (Pacific Daylight Time)
`
`REPORTED BY: AMANDA GORRONO, CLR
`CLR NO. 052005-01
`
`______________________________________________________
`DIGITAL EVIDENCE GROUP
`1730 M Street, NW, Suite 812
`Washington, D.C. 20036
`(202) 232-0646
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`Masimo Ex. 2006
`Apple v. Masimo, IPR2021-00208
`
`
`
`4/22/2021
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`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
` 04/22/2021
` 9:02 a.m. (PDT)
`
`Page 2
`
` VIDEO-RECORDED DEPOSITION OF THOMAS WILLIAM
`KENNY, JR. Ph.D., held virtually via Zoom
`Videoconferencing, before Amanda Gorrono, Certified
`Live Note Reporter, and Notary Public of the State of
`New York.
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`Thomas Kenny Jr., Ph.D.
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`A P P E A R A N C E S
`(Via Zoom Videoconferencing):
`ON BEHALF OF PETITIONER APPLE:
` Dan Smith, Esquire
` Fish & Richardson
` 1717 Main Street
` Suite 5000
` Dallas, Texas 75201
` PHONE: 214-292-4071
` E-MAIL: Dsmith@fr.com
` -AND-
` Andrew B. Patrick, Esquire
` Fish & Richardson
` 1000 Maine Avenue SW
` Washington, D.C. 20024
` PHONE: 202-626-7735
` E-MAIL: Patrick@fr.com
` -AND-
` Hyun Jin In, Ph.D., Esquire
` Fish & Richardson
` 1000 Maine Avenue SW
` Washington, D.C. 20024
` PHONE: 202-626-7765
` E-MAIL: In@fr.com
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`A P P E A R A N C E S (CONT.D)
`(Via Zoom Videoconferencing):
`ON BEHALF OF RESPONDENT MASIMO:
` Stephen W. Larson, Esquire
` Knobbe Martens
` 2040 Main Street
` Irvine, CA 92614
` PHONE: 949-721-5301
` E-MAIL: Stephen.larson@knobbe.com
` -AND-
` Jeremiah S. Helm, Ph.D., Esquire
` Knobbe Martens
` 1717 Pennsylvania Avenue N.W.
` Washington, DC 20006
` PHONE: 202-640-6400
` E-MAIL: Jeremiah.helm@knobbe.com
` -AND-
` Jacob Peterson, Esquire
` Knobbe Martens
` 925 4th Ave #2500
` Seattle, WA 98104
` PHONE: 206-405-2000
` E-MAIL: Jacob.peterson@knobbe.com
`
`ALSO PRESENT:
`Billy Fahnert, Legal Video Specialist/Trial Tech,
`Digital Evidence Group
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` I N D E X
`
` EXPERT WITNESS EXAMINATION
` THOMAS WILLIAM
` KENNY, JR. Ph.D.
` BY MR. LARSON 7
`
` PREVIOUSLY MARKED EXHIBITS IDENTIFIED
` EXHIBIT DESCRIPTION PAGE
` Exhibit 1003 Declaration of Dr. Thomas ... 10
` W. Kenny - IPR2020-1520,
` Exhibit 1006 US Patent Application ....... 31
` Publication No: US
` 2002/0188210 A1
` Exhibit 1003 Declaration of .............. 253
` Dr. Thomas W. Kenny -
` IPR2020-01537
` Exhibit 1003 Declaration of .............. 263
` Dr. Thomas W. Kenny -
` IPR2020-01539
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` THE TECH: We are on the record.
`This is the remote video deposition of
`Dr. Thomas W. Kenny in the matter of Apple, Inc.
`versus Masimo Corporation in the United States Patent
`and Trademark Office IPR Nos. 2020-1520, 2020-1537
`and 2020-1539.
` My name is Billy Fahnert. I am the
`video technician today. The court reporter is
`Amanda Gorrono. We are here on behalf of Digital
`Evidence Group. Today's date is April 22, 2021. The
`time is 9:02 a.m., Pacific Daylight Time.
` All parties have stipulated to the
`witness being sworn in remotely.
` Counsel, please identify yourselves
`for the record and then the witness will be sworn in.
` MR. LARSON: My name is Steve Larson,
`Knobbe Martens. I represent Masimo. With me are my
`partners Jeremiah Helm and Jacob Peterson.
` MR. SMITH: My name is Dan Smith from
`Fish & Richardson. I represent Petitioner, Apple and
`with me are my partners Andrew Patrick and HJ In.
`THOMAS WILLIAM KENNY, JR. Ph.D., called as a witness,
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`Page 7
`having been first duly sworn by a Notary Public of
`the State of New York, was examined and testified as
`follows:
`EXAMINATION BY MR. LARSON:
` Q. Good morning, Dr. Kenny.
` A. Good morning.
` Q. Please state your full name for the
`record.
` A. Thomas William Kenny, Jr.
` Q. Have you been deposed before?
` A. Yes.
` Q. How many times have you been deposed,
`would you say?
` A. I'd say between 10 and 15 times.
` Q. Okay. I'm going to remind you of a
`few of the basic rules.
` You understand that you're under oath
`as though you were in a courtroom, correct?
` A. Correct, yes.
` Q. Is there any reason why you would be
`unable to give truthful and accurate testimony today?
` A. No.
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` Q. Are you taking any medications that
`might affect your testimony today?
` A. No.
` Q. Okay. As I'm sure you know, the
`court reporter is here to take down questions.
`Please give verbal responses. Please wait until I
`complete a question before answering and please let
`me know if you don't understand a question.
` Okay?
` A. Okay.
` Q. You understand? Okay.
` You may ask for a break, at any time.
`However, if there is a pending question, please
`answer before taking the break. Okay?
` A. Okay.
` Q. I want to start by sort of organizing
`the questioning here, in terms of the documents you
`received.
` Did you receive the hard copy
`exhibits that we sent you?
` A. I have five boxes from your firm. I
`haven't opened them yet.
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`Page 9
` Q. Okay. Go ahead and take a moment to
`open the boxes.
` A. All five?
` Q. Well, if you -- yeah, I think open
`all five just so they're all available.
` A. Okay.
` Okay. I opened all five boxes.
`There are, looks like envelopes numbered 1
`through 178.
` Q. Yes. Please take the box that begins
`with the No. 1 and have it near you.
` A. Sure.
` Okay.
` Q. All right. And if you could please
`go to Tab 5 and take out the document there and see
`if our numbering worked.
` A. Okay. Tab 5.
` Q. Can you please open that up and can
`you confirm it's the same document you see on the
`screen, which you would your Declaration in IPR1520,
`previously marked Exhibit 1003 in IPR1520.
` A. Let's see, so it's related to
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`Page 10
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`Patent No. 265, Docket No. 50095-00006 IP1
`Declaration. Lower right corner is stamped
`Apple 1003. I think that's the right document.
` Q. That's it.
` A. I don't -- the numbers you referred
`to, I don't see them on the document, but I think
`we're referring to the same document.
` Q. Right. Okay. So I'm going to start
`by asking you questions about previously marked
`Exhibit 1003 from IPR1520, which we have on the
`screen for your reference. But also, you have a hard
`copy there you can refer to as well, if that's
`easier.
` A. Thank you.
` Q. Okay. Do you recognize the document
`previously marked as Exhibit 1003 that's in front of
`you?
` A. I do.
` (Whereupon, Exhibit 1003, Declaration
`of Dr. Thomas W. Kenny - IPR2020-1520, was
`identified.)
` Q. You submitted this declaration on
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`Page 11
`
`behalf of Apple, correct?
` A. That is correct.
` Q. Now, in this Declaration, you offer
`opinions about certain references, correct?
` A. Correct.
` Q. And if you could turn to page --
`sorry -- to Paragraph 14 of your Declaration.
` A. Okay.
` Q. Do you see a table there entitled
`"Prior Art Reference"?
` A. I do.
` Q. In Paragraph 14, you state you
`reviewed the references in the table entitled "Prior
`Art References," correct?
` A. I reviewed these references, that's
`correct.
` Q. Okay. And the first listed reference
`that you analyzed is US Patent Publication No.
`2002/0188210, correct?
` A. That is correct.
` Q. And in your table here, you call this
`Reference Aizawa, correct?
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` A. Correct.
` Q. Is it okay with you if I refer to
`this -- to that reference as Aizawa throughout the
`deposition?
` A. I think that would be convenience for
`all of us, so yes.
` Q. Okay. And the second prior art
`reference you listed is JP 2006-296564, correct?
` A. Correct.
` Q. And you refer to this one in short
`form as Inokawa, correct?
` A. I do, correct.
` Q. Is it okay if I refer to this
`reference as Inokawa throughout the depositions?
` A. Yes.
` Q. Okay. The third prior art reference
`you analyzed is US Patent Publication No.
`2001/0056243, correct?
` A. Correct.
` Q. And you called this publication
`Ohsaki, correct?
` A. I do.
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`Page 13
` Q. Can I refer to that publication as
`Ohsaki throughout the depositions?
` A. Yes.
` Q. Okay. The fourth prior art reference
`listed is entitled "Design and Evaluation of a New
`Reflectance Pulse Oximeter Sensor," correct?
` A. Yes.
` Q. And you refer to that as
`Mendelson-1988, correct?
` A. Mendelson-1988, yes, correct.
` Q. Okay. Do you mind if I refer to that
`reference as Mendelson-1988 throughout the
`depositions?
` A. That would be fine.
` Q. Okay. And there's some additional
`references listed in your table here.
` Do you see that?
` A. Yes.
` Q. And you also have some shorthand
`names for those references, correct?
` A. Correct.
` Q. Do you mind if I refer to those
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`Page 14
`references by their shorthand names during the
`depositions?
` A. So this would be Mendelson-2006,
`Beyer, Goldsmith and Lo?
` Q. Correct?
` A. That would be fine.
` Q. Beyer or Beyer, Jr., either one?
` A. Either.
` Q. Okay. Did you give your best
`understanding of these references in your
`Declaration?
` A. I did.
` Q. You did your best to provide a true
`and accurate characterization of these references,
`correct?
` A. I did.
` Q. Tell me how you prepared for your
`deposition today.
` A. You want the full history or the
`recent history?
` Q. I guess whatever you consider to be
`preparation for this deposition?
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`Page 15
` A. I'd say the preparation has been
`since the beginning of my engagement. So it began
`with discussions with the attorneys, review of the
`asserted patents, and then examination of the prior
`art references.
` We eventually began preparing
`declarations in response to the individual asserted
`patents, reflecting my view of certain combinations
`of prior art relative to those patents. Those were
`drafted in a collaborative process over many, many
`weeks altogether. Submitted, I believe several
`months ago.
` And then in the last two months, as
`we approached the dates for today's event, I reviewed
`all of those materials again and continued doing so,
`along with some discussions with the attorneys, up
`until last night and here I am.
` Q. And what attorneys did you meet with
`to prepare for your deposition today?
` MR. SMITH: Objection; form.
` A. So I don't know all of the names, but
`it includes the three that are here today.
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`Page 16
` Q. And would you mind naming them for
`the record.
` A. Sure. So that included Dan Smith,
`Andrew Patrick and Hyun Jin In.
` Q. Okay. Anyone else that you can
`remember?
` A. I don't want to mispronounce or
`misspell their names, so I'd prefer not to be on the
`record with, with those, if you will.
` Q. But there were some additional
`attorneys you met with?
` A. Yes.
` Q. How long did you prepare -- how long
`did you spend preparing for your deposition?
` MR. SMITH: Objection; form.
` Q. Let's, let's separate, after you
`filed your Declarations, when you were then looking
`towards your deposition, how much time did you spend
`preparing?
` MR. SMITH: Same objection.
` A. So were you curious about the number
`of hours or?
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` Q. Sure.
` A. I don't have a -- I haven't added
`that up exactly. It's in the neighborhood of 100 to
`200 hours.
` Q. Okay. And approximately how many
`hours did you spend preparing your Declarations?
` MR. SMITH: Objection; form.
` A. That's probably in the same
`neighborhood.
` Q. Let's start with the, the three
`declarations that are the subject of -- primary
`subject of this deposition. But if it's too
`difficult to answer that way, you can just answer for
`all of the Declarations that you submitted in the
`IPRs.
` But you submitted a Declaration in
`IPR1520, 1537 and 1539 for the '265 patent,
`'533 patent and '554 patent, correct?
` A. That's correct.
` Q. And can you tell me approximately how
`long you spent preparing those Declarations?
` MR. SMITH: Objection to form.
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`Page 18
` A. I can give you an, an estimate of the
`full set. It's hard for me, off the fly, without
`going back to the invoices, to break out the
`individuals. But it's, it's an order of 100 to
`200 hours.
` Q. And that would be for the
`declarations I just mentioned and also, the
`declarations in IPR1536 and 1538; is that correct?
` A. And there were several others.
` Q. Okay. So your estimate of all the
`declarations that you submitted on behalf of those
`Apple -- in IPRs that, that challenge Masimo's
`patents is 100 to 200 hours?
` MR. SMITH: Objection; form.
` Q. Correct?
` A. That is correct.
` Q. Okay. Do you have any notes with you
`today?
` A. No. Just what you've -- just what's
`in your boxes.
` Q. Anything on the walls, anything like
`that?
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` A. No, no.
` Q. All right. Now, as you were
`preparing for your deposition, did you discover any
`errors in your Declarations?
` A. None that come to mind.
` Q. Okay. So if you discuss a reference
`in your declarations, I can assume that that analysis
`is an accurate characterization of your understanding
`of the reference; is that fair?
` A. So the materials in the expert
`report --
` Q. Yeah.
` A. -- are an accurate characterization
`of my understanding of those references.
` Q. And just for clarity, we'll refer to
`them as Expert Declarations today; is that okay?
` A. Okay.
` Q. So the materials -- so your
`discussion of prior art references in your Expert
`Declarations are an accurate characterization of your
`understanding of those references; is that correct?
` A. Yes.
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
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`
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`4/22/2021
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`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 20
` Q. Okay. Exhibit 1003, you have in
`front of you, addresses US Patent 10,258,265,
`correct?
` A. Correct.
` Q. Mind if I call that the '265 patent?
` A. Sure.
` Q. Okay. Can you please turn to
`Paragraph 73?
` A. Okay.
` Q. I want to ask you a few questions
`about Ground 1A. Do you see that you start
`discussing Ground 1A in Paragraph 73?
` A. Yes.
` Q. All right. And one thing I want to
`just orient you to the questioning, I want to really
`understand precisely your understanding of the
`combination of Aizawa and Inokawa for Ground 1A; is
`that fair?
` A. That's fair.
` Q. So in Ground 1A, you combine Aizawa
`and Inokawa, correct?
` A. Correct. That's, that's what's
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`
`
`4/22/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 21
`described in this section of this -- I was going to
`call it the report, sorry, Declaration.
` Q. Is if fair to say if you refer to an
`expert report during this deposition, you mean the
`Expert Declaration, correct?
` A. That would be -- yes, thank you.
` Q. All right. Can you please turn to
`Paragraph 92?
` A. Okay.
` Q. And you see there you're, you're
`discussing -- and it's at the bottom of Page 52, but
`you're discussing the claim limitation you've labeled
`as Claim Limitation 1d, "a light permeable cover
`arranged above at least a portion of the housing, the
`light permeable cover comprising a protrusion
`arranged to cover the at least four detectors."
` Did I read that correctly?
` A. Yes, you did.
` Q. So the '265 patent requires, among
`other things, a light-permeable cover with a
`protrusion arranged to cover four detectors, correct?
` MR. SMITH: Objection; form.
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
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`
`
`4/22/2021
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`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 22
` A. So I could just reread what the claim
`language says. It requires "a light-permeable cover
`arranged above at least a portion of the housing, the
`light-permeable cover comprising a protrusion
`arranged to cover the at least four detectors."
` Q. Let me break it down. So it requires
`a light-permeable cover, correct?
` MR. LARSON: Let me restate that.
` Q. The '265 patent requires a
`light-permeable cover, correct?
` MR. SMITH: Objection; form.
` A. Correct.
` Q. Claim 1 of the '265 patent requires a
`light-permeable cover, correct?
` A. Correct.
` Q. All right. And Claim 1 of the '265
`patent also requires that the permeable cover have a
`protrusion, correct?
` MR. SMITH: Objection; form.
` A. It says comprising -- they're a
`"light-permeable cover comprising a protrusion."
` Q. Is, is it your understanding that
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`
`
`4/22/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 23
`Claim 1d requires a light-permeable cover with a
`protrusion?
` A. That's my understanding.
` Q. And Claim 1d -- sorry.
` Claim 1 of the '265 patent requires
`that the light-permeable cover with the protrusion
`cover at least four detectors; is that fair?
` MR. SMITH: Objection; form.
` A. It's a range to cover the at least
`four detectors.
` Q. Okay. Now, if you look at
`Paragraph 93 -- give you a chance to go there -- you
`say, "However, the acrylic plate of Aizawa is flat
`and is not described as including a protrusion,"
`correct?
` A. That is correct.
` Q. So Aizawa uses a flat cover, correct?
` MR. SMITH: Objection; form.
` A. The acrylic plate of Aizawa is flat.
` Q. Right. And if you looked at
`Paragraph 94, you opined that if a person of ordinary
`skill in the art would've been motivated to modify
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`
`
`4/22/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 24
`Aizawa's plate, based on Aizawa's objective of
`improving detection efficiency; is that correct?
` A. Yes. I state that a person of
`ordinary skill in the art "would have been motivated
`and known how to modify the flat shape of Aizawa's
`acrylic plate to achieve a particular, desired
`objective."
` Q. And you go on to say that that
`particular desired objective is improving detection
`efficiency; is that fair?
` A. So for example --
` MR. SMITH: Objection; form.
` A. For example, Aizawa teaches that the
`light-permeable cover helps improve detection
`efficiency.
` Q. Well, you say "a" particular desired
`objective. Let me just ask you:
` When you said "a particular desired
`objective" in the first sentence of Paragraph 94,
`what did you have in mind?
` MR. SMITH: Objection; form.
` A. So it's my opinion that a person of
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`
`
`4/22/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 25
`ordinary skill in the art in view of Aizawa and
`Inokawa would appreciate that there are several
`improvements possible and that they would be
`motivated to, to achieve those particular
`improvements.
` So, for example, one such improvement
`would be to use -- to modify the light-permeable
`cover in order to achieve an improvement in detection
`efficiency.
` Q. Okay. And you said several, "several
`improvements possible."
` What several improvements are you
`referring to?
` MR. SMITH: Objection; form.
` A. So Inokawa, in Paragraph 96, Inokawa
`teaches that the lens makes it possible to increase
`the light-gathering ability of the LED and continue
`describing that benefit in Paragraph 97, discussing
`how the modified cover would allow more light to be
`gathered and refracted towards the light receiving
`cavities of Aizawa.
` Q. Anything else?
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`
`
`4/22/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 26
`
` A. So in paragraphs 98, I describe
`the -- let's see, I'll start in the right place, "by
`choosing the material of the protrusion to be
`scratch-resistant, such as glass, it would be obvious
`for a person of ordinary skill in the art to obtain
`both an improvement in the light-gathering efficiency
`and in scratch-resistance."
` And that in further light of the
`reference in Inokawa, one would be motivated and be
`guided towards a method for creating shapes as
`needed, which provide the benefits as described and,
`and referenced by Aizawa and Inokawa.
` Q. Okay. Anything else?
` A. Nothing I can think of right now.
` Q. So you mentioned detection efficiency
`allowing more light to be gathered and refracted
`towards the light-receiving cavities of Aizawa and
`improving scratch resistance; is that fair?
` A. So Paragraph 96 teaches that the lens
`makes it possible to increase the light-gathering
`ability of the LED.
` Q. No. My question was simply what you
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`
`
`4/22/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 27
`had already mentioned. If you want to look for
`more --
` A. No. I'm just wanting to --
` Q. That's fine.
` So far, at least at the time of my
`question, you had mentioned three things: detection
`efficiency, allowing more light to be gathered and
`refracted towards the light-receiving cavities of
`Aizawa and scratch resistance, correct?
` MR. SMITH: Objection; form.
` A. (Nods.)
` Q. Is that -- I think you need to say
`yes.
` A. Yes. I'm okay, yes.
` Q. Do you want to supplement that? Do
`you want to look further and supplement that?
` A. I'm satisfied with that.
` Q. Okay. Now, in Paragraph 94, the
`first sentence, you say "a person of skill in the art
`would have been motivated to achieve a particular, a
`particular desired objective"; is that correct?
` MR. SMITH: Objection; form.
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`
`
`4/22/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 28
` A. So that particular Paragraph 94 says
`they would be motivated and known how to modify the
`flat shape to achieve a particular objective. For
`example, to improve detection efficiency.
` Q. And I'm just wondering, when you say
`"a particular desired objective" when you wrote
`Paragraph 94, what did you have in mind?
` MR. SMITH: Objection; form.
` A. In Paragraph 94, the motivation is to
`modify the flat shape of Aizawa to achieve a
`improvement in detection efficiency.
` Q. Okay. And can you explain what you
`mean by "detection efficiency"?
` MR. SMITH: Objection; form.
` Q. And I'll just note that you're paging
`through your Declaration, which is entirely fair.
` But can you give me an idea of sort
`of where you're looking as you're -- to answer the
`question?
` A. I'm looking in the sections that
`describe these references and give the high-level
`descriptions of what's in the references.
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`
`
`4/22/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 29
` Q. To be clear, my question for now is,
`is simply what you had in mind when you used the
`phrase "detection efficiency."
` MR. SMITH: Objection; form.
` A. All right. I think I -- so I'm
`sorry. I'm, I'm not understanding where we are now.
` Q. I can --
` A. So Aizawa teaches that the
`light-permeable cover helps improve detection
`efficiency, but does not otherwise provide more
`detail about how, for instance, based on shape or
`material properties.
` Q. But what is detection effic- -- oh,
`sorry.
` Did you finish your answer?
` A. And then by this in Aizawa, it's,
`it's -- well, actually, I want to be sure I describe
`this in a consistent manner.
` Q. Well, let's just make sure there's a
`clear question on the record that you're responding
`to.
` My question right now is: In
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`
`
`4/22/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 30
`
`Paragraph 94 of your Declaration, you refer to
`"detection efficiency," and my question is simply
`what you had in mind when you used the phrase
`"detection efficiency" in Paragraph 94?
` MR. SMITH: Objection; form.
` A. So my understanding of Aizawa is that
`Aizawa describes the use of the light-permeable cover
`to promote adhesion between the detector and the
`wrist and to further improve the detection efficiency
`of the pulse wave.
` In Aizawa, that is described as a
`method for reducing light loss due to reflection at
`the interfaces between the structures.
` Q. And is that what you had in mind when
`you used the phrase "detection efficiency" in
`Paragraph 94?
` A. So this paragraph is referring to
`Aizawa, so my understanding of that phrase, that term
`"detection efficiency" in the context of Aizawa is,
`is as I just described it.
` Q. And so do you see at the end of --
`the cites at the end of Paragraph 94 in your
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`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
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`
`
`4/22/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny Jr., Ph.D.
`
`Page 31
`
`Declaration?
` A. Yes.
` Q. All right. Let's just start,
`actually, with the first cite you have towards the
`middle of your paragraph. It's after the second
`sentence APPLE-1006, this is Paragraph 30.
` So can you, can you -- did I -- is
`that correct, did I read that correctly?
` A. You read that correctly.
` Q. Okay. Can you turn to -- if you go
`to Tab 7 of your binder -- actually, I'm sorry,
`that's Tab 8.
` A. Correct. This is the Aizawa
`reference.
` Q. Yes, yes.
` And so refer now to previously marked
`APPLE-1006, this is the exhibit in IPR2020, which you
`have a hard copy of and it will also be on the
`screen.
` A. Uh-huh.
` (Whereupon, Exhibit 1006, US Patent
`Application Publication No: US 2002/0188210 A1, was
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