throbber
4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 273
`
`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
`-against-
`) IPR NO. 2020-1537
`) US PATENT NO: 10,588,553
` MASIMO CORPORATION, )
`) IPR NO. 2020-1539
`Patent Owner. ) US PATENT NO: 10,588,554
`_________________________)
`VIDEO-RECORDED DEPOSITION OF
`THOMAS WILLIAM KENNY, JR. PH.D.
`VOLUME 2
`Zoom Recorded Videoconference
`04/23/2021
`9:02 a.m. (PDT)
`
`))
`
`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. 2007
`Apple v. Masimo, IPR2021-00208
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 274
` 04/23/2021
` 9:02 a.m. (PDT)
`
` VIDEO-RECORDED DEPOSITION OF THOMAS WILLIAM
`KENNY, JR. Ph.D., VOLUME 2, held virtually via Zoom
`Videoconferencing, before Amanda Gorrono, Certified
`Live Note Reporter, and Notary Public of the State of
`New York.
`
`1
`2
`
`3 4
`
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 275
`
`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
`
`1
`2
`3
`
`4
`
`5
`
`6
`
`7
`8
`
`9
`
`10
`
`11
`12
`
`13
`
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 276
`A P P E A R A N C E S (CONT.D)
`(Via Zoom Videoconferencing):
`ON BEHALF OF PATENT OWNER 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
`
`1
`2
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
` I N D E X
`
`Page 277
`
` WITNESS: EXAMINATION
` THOMAS WILLIAM KENNY, JR. Ph.D.
` CONTINUED EXAMINATION 278
` BY: MR. LARSON
`
` PREVIOUSLY MARKED EXHIBITS IDENTIFIED
` EXHIBIT DESCRIPTION PAGE
` Exhibit 1003 Declaration IPR1520-01520 ..280
` of Dr. Thomas W. Kenny
` Exhibit 1006 Aizawa Patent Application...315
` Exhibit 1008 Japanese Unexamined ........329
` Patent Application
` Publication 2006-296564
` Exhibit 1003 Declaration of Dr. Thomas ..444
` W. Kenny IPR2020-01537
`
`1
`
`2 3
`
`4
`5
`6
`
`7 8
`
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 278
` THE TECH: Stand by. We are on the
`record. This is Volume 2 in the continuing
`deposition of Dr. Thomas W. Kenny in the matter of
`Apple Inc. versus Masimo Corporation filed in the US
`Patent and Trademark Office.
` My name is Billy Fahnert. The court
`reporter is Amanda Gorrono. Today's date is
`April 23, 2021. The time is 9:02 a.m. Pacific
`Daylight Time. The witness is still under oath and
`Counsel may proceed.
`DR. THOMAS WILLIAM KENNY, JR., called as a witness,
`having previously been sworn by a Notary Public of
`the State of New York, was examined and testified as
`follows:
`CONTINUED EXAMINATION
`BY MR. LARSON:
` Q. Good morning, Dr. Kenny.
` A. Good morning.
` Q. Did you discuss your testimony with
`your counsel since you finished testifying yesterday?
` A. No.
` Q. Okay. I want to follow-up on a few
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 279
`things from yesterday before we go on to a couple of
`other topics.
` We discussed quite a bit, you know, a
`convex lens and the optics of a convex lens and I
`guess I just want to get some clarity as to your
`testimony and your understanding.
` Dr. Kenny, you don't dispute that as
`a matter of basic physics, a person of ordinary skill
`in the art would understand that a convex lens
`directs light towards the center of the lens, do you?
` MR. SMITH: Objection; form.
` A. Do you mind if -- I put all the
`materials away yesterday. Do you mind if we pull at
`least one of those Declarations back out? I don't
`know particularly which one you'd want to refer to at
`this time, but let's --
` Q. You're welcome to pull out
`whatever -- sorry.
` A. Go ahead.
` Q. You're welcome to pull out whatever
`materials you want, but my question right now is, is
`simply, I guess, a matter of your understanding of
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 280
`basic physics and what a person of ordinary skill in
`the art would understand. If you think it's helpful
`to have a Declaration, you're welcome to pull out a
`Declaration for that.
` A. Fine.
` Q. I'm primarily going to be asking you,
`again, about your Declaration in IPR1520, so that
`might be the most convenient Declaration to take out.
` A. Right. Which, so which -- so that
`would be?
` Q. That would be Tab -- hold on a
`second.
` THE TECH: Tab 5, perhaps.
` MR. LARSON: Yep, Tab 5.
` (Whereupon, Exhibit 1003, Declaration
`IPR1520-01520 of Dr. Thomas W. Kenny was identified.)
` A. So with respect to the '553 patent --
`oh, '265, sorry. Fair enough.
` So could you repeat that again, now.
` Q. Yeah. You don't dispute that as a
`matter of basic physics, a person of ordinary skill
`in the art would understand that a convex lens
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 281
`directs light towards the center of the lens, do you?
` MR. SMITH: Objection; form.
` A. I think the question, the question is
`too vaguely posed in terms of what the lens does to
`the light. Depends on where the light comes from,
`and its orientation relative to the geometry of the
`lens. It could, it could do that. It might do many
`things.
` Q. So yesterday you testified that there
`are two phenomena with a convex lens-shaped cover.
` Do you recall that testimony?
` A. Yes.
` Q. And you testified that one is that
`light is being directed towards the center and away
`from the edge, correct?
` MR. SMITH: Objection; form.
` A. In the context of a diffuse light
`source scattered or positioned in the space all
`around the lens, associated with the sensors of
`interest in this case. Not as a general statement of
`a convex lens, but in the context of diffuse light
`sources scattered all around.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 282
` So light coming in from all kinds of
`angles, all directions, all orientations, that one of
`ordinary skill in the art would understand that the
`convex lens can have that effect on the diffuse light
`propagation, depending on the details and
`orientations and geometries.
` Q. Okay. And can you explain the
`details and orientations and geometries that might
`impact the effect a convex lens would have on, on the
`direction of light?
` A. So maybe if we looked to Page 55, one
`of our favorite figures from yesterday.
` Q. Uh-huh.
` A. So as we discussed yesterday, light
`coming from a diffuse light source, somewhere in the
`neighborhood below this lens approaches the lens from
`different angles. Remember, this is a 2D
`representation of a 3D situation. So the light rays
`could be propagating in all three axes.
` When they encounter the lens, they
`experience refraction and possibly reflection. And
`one of ordinary skill in the art would understand
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 283
`that, that the addition of the convex lens to the
`Aizawa Declaration reflected on the right -- on the
`left side would lead to increased light collection
`efficiency, which could enhance the signal-to-noise
`ratio and provide more reliable pulse wave detection.
` Q. Well, my question was -- you
`testified just now that in the context of a diffuse,
`a diffuse light source scattered or positioned in a
`space all around the lens, associated with the
`sensors of interest in this case, one of ordinary
`skill in the art would understand that a convex lens
`could have the effect of directing light towards the
`center and away from the edge, correct?
` A. I said it would have the effect of
`increasing light collection efficiency through the
`action of refraction and therefore, concentrating the
`light coming in and that, that would lead to enhanced
`signal-to-noise ratio and ultimately, a more reliable
`detection.
` Q. Well, I said: You testified that one
`is -- that light is being directed towards the
`center, away from the edge, correct? And then you
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 284
`went on to give a long answer and you said, you know,
`given the qualifications that you're providing, that
`a convex lens can have that effect.
` And so are you, are you now saying
`that a person of ordinary skill in the art would not
`believe that a convex lens in the context of a
`diffuse light source scattered or positioned in the
`space that are all around the lens associated with
`the sensors of interest in this case would direct
`light towards the center and away from the edge?
` MR. SMITH: Objection; argumentative.
` A. So we spoke at some length yesterday
`about what the light intensity might look like across
`that surface, underneath the lens where the detectors
`are positioned in this figure, and that it would
`obviously depend on the specifics of the corpuscle
`locations and other aspects of what was going on with
`a specific piece of human anatomy.
` My statement was that I would expect
`one of ordinary skill in the art would understand
`that on average, you know, sampling across many
`different circumstances, that one would expect this
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 285
`circumstance to produce an increased light intensity
`in the neighborhoods underneath where there's
`curvature in the lens, which in this case, are from
`near the edge towards the center. And that if you
`sampled the intensity, you might see a relative
`increase towards the center relative to what you
`would see at the edge.
` I know that's paraphrasing various
`versions of that long statement that I made at
`various times yesterday, but I think they're all
`consistent with what one of ordinary skill in the art
`would understand takes place here.
` Q. I'm just trying to understand if what
`you are -- if your answer is different than what my
`question is.
` Are you just trying to be more
`precise in your answer?
` A. Maybe I forgot or misinterpreted your
`question.
` Q. Would a person of ordinary skill in
`the art believe that a convex lens, in the context of
`a diffuse light source scattered or positioned in the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 286
`space that are all around the lens, associated with
`the sensors at interest in this case, believe that
`the convex lens would have the effect of directing
`light towards the center and away from the edge?
`That's my question.
` MR. SMITH: Objection; form.
` Q. Are you able to answer that question
`yes or no?
` A. So I think that is an
`oversimplified --
` MR. SMITH: Objection; form.
` A. -- and this is why I've been
`answering, perhaps, at length rather than with yes or
`no. I think the question oversimplifies the
`situation.
` Q. And how does the question
`oversimplify the situation?
` A. So we've described the circumstances
`of a, of a distributed diffuse light source, which
`provides light rays coming towards the sensor, many
`different angles and orientations in this
`3-dimensional space and that the effect of the lens
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 287
`on each of those light rays is governed by the laws
`of refraction. One of ordinary skill in the art
`would know that.
` And that the particular effect of the
`lens on a specific light ray will depend upon the
`orientation of the lens and the, and the vector of
`orientation of the light ray. Some rays will be
`deflected in one direction or another. It's --
`there's no general statement that all rays are going
`to be deflected towards the center. One of ordinary
`skill in the art would know that's not true.
` Q. But as a matter of basic physics, if
`you have a convex lens and if you have diffuse light
`that enters that lens, wouldn't a person of ordinary
`skill in the art believe that the convex lens would
`direct light towards the center of the lens?
` MR. SMITH: Objection; form.
` A. Are we talking about some of the
`light or a particular example of the light or all of
`the light? Because the answer is different in those
`three cases.
` Q. The light as a whole.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 288
`
` A. So some of the light will be
`refracted in one direction. Some of the light will
`be refracted -- well, in fact, all of the light will
`be refracted, refracted in all different directions,
`depending on the angles of the individual rays of
`light, which fill pretty much all of the angles
`available in this circumstance, given that we have a
`diffuse light source and not a point source.
` Maybe I can help with a
`counter-example, just so that we understand that
`there's a difference between these different kinds of
`light sources.
` Figure 14 of the '265 patent, I
`believe, shows a collimated light source coming into
`a hemispherical lens, sorry, to a cylindrical lens
`and shows the rays entering and then focusing and
`into a single point. I think one of ordinary skill
`in the art would understand that's a reasonable
`circumstance, what one would expect for a collimated
`light source entering a cylindrical lens.
` We have a diffuse light source and
`one of ordinary skill in the art understands that
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 289
`it's a completely different situation. And one can't
`make the same kinds of simple statements about what
`happens to all the light in the case of a diffuse
`light source because each ray will have a different
`path as a result of the lens.
` Q. And the '265 patent was addressing a
`pulse oximeter, correct?
` A. It included pulse oximeters of one
`kind -- well, of several kinds, many, many examples.
`But that particular illustration is relevant to the
`discussion we're having about the effect of lenses on
`light.
` Q. Do you believe the '265 patent device
`would -- that the light that, that goes to the
`sensor, do you believe that light would be diffuse or
`do you believe it would be collimated?
` A. I -- we need to talk about one of the
`many embodiments in that patent. You want to --
`should I pull the patent out and we can look at a
`particular embodiment?
` Q. Well, I guess I -- you're relying
`Figure 14 of '265 patent and I'm trying to understand
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 290
`
`how you're interpreting that figure.
` Isn't that figure explaining the
`effect of a lens in the context of a device that's
`going to involve diffuse light reaching the
`detector -- or, sorry, light reaching --
` MR. LARSON: Let me restate that.
` Q. You're relying on the '265 patent --
`you're rely on a figure in the '265 patent that is
`providing the context of explaining a device that is
`going to involve diffuse light reaching the lens;
`isn't that correct?
` A. I was referring to that figure as an
`illustration of what one of ordinary skill in the art
`would understand to be the case when collimated light
`encounters a cylindrical lens and finds a focus. I
`think you'll note in that figure, and we could pull
`it up and look at it together, if you like, but all
`of the rays coming into the lens are parallel.
` Q. But my question is, the context of
`the, of the figure in the '265 patent.
` Isn't the context describing a device
`that would actually involve diffuse -- isn't the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 291
`
`context --
` MR. LARSON: Strike that.
` Q. My question is about the context of
`the figure in the '265 patent.
` Isn't the context of that figure a
`description of device in which diffuse light would
`reach the lens?
` A. Maybe we should pull up that patent
`and look at the portion of the specifications that
`describes Figure 14.
` Q. So you don't know without looking at
`the patent?
` A. I didn't memorize that section. All
`I know is -- and what I'm telling you is that one of
`ordinary skill in the art, looking at that
`illustration, would understand that it represents
`collimated light. All the rays are parallel and when
`collimated light, with all the rays travelling in
`parallel, encounter a cylindrical lens, one
`reasonably expects focusing to take place, as shown
`in that figure. The figure is consistent with one of
`ordinary skill's in the art understanding of the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 292
`interaction between collimated light sources and some
`cylindrical lenses.
` I think one of ordinary skill in the
`art would understand that the figure we're looking at
`in my Declaration corresponds to light sources where
`the light rays are absolutely not all parallel. They
`fill all possible angles in three-dimensional space
`and it's a, just a completely different optical
`circumstances.
` Q. So as part of your analysis, did you
`assume that there was a distributed diffuse light
`source, which provided light rays coming towards the
`sensor?
` A. In the case of the prior art examples
`and in the case of the examples that I described and
`analyzed, yes.
` Q. And so just so I make sure I
`understand your testimony, your testimony is that a
`person of skill in the art would not believe that
`diffuse light that goes into a convex lens directs
`light towards the center of the lens?
` MR. SMITH: Objection; form.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 293
`
` Q. Is that accurate?
` A. I think one of ordinary skill in the
`art --
` MR. SMITH: Same objection.
` A. -- if they were being careful, would
`be concerned about that statement being too simple a
`description of what takes place in the case of
`diffuse light source in a convex lens.
` Q. What source would one look at to show
`the result of a diffuse light hitting a convex
`surface --
` MR. LARSON: Let me restate that.
` MR. SMITH: Objection; form.
` Q. What source would one look at to show
`the result of diffuse light hitting a convex surface?
` A. In an experimental setting, for
`example?
` Q. Sure.
` A. Well, it's a cloudy day here in
`San Francisco. If you walk around on the street, you
`don't see crisp shadows. That's consistent with a
`diffuse light source instead of a collimated light
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 294
`source on a sunny day, when there's no clouds and
`light primarily is coming from one direction, the
`sun. And as a consequence of the diffuse light
`source, you see different optical effects, no
`shadows, no edges.
` And if you looked at the way light
`came through a lens, depending on the orientation of
`the lens, the orientation of the light, the general
`character of the source of light, curvature of the
`lens, the index of refraction, you might see various
`things.
` Q. My question was: What source would
`one look to, to show the impact of diffuse light on a
`convex surface?
` MR. SMITH: Objection; form.
` MR. LARSON: Let me restate that.
` Q. What source would you look at to, to
`show the impact of a convex surface on diffuse light
`that enters the lens?
` MR. SMITH: Objection; form.
` A. I guess I'm just not sure of my
`source in this context. I can look outside and do
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 295
`
`experiments. I could look in the library for
`reference materials. I could look for software. I'm
`just not sure what you're -- what "source" means in
`this, in this sentence, in this question.
` Q. A journal article.
` A. I'm sure there are journal articles
`that describe the effect of convex light sources on,
`on -- I'm sorry -- of diffuse light sources and
`optical systems.
` Q. Can you name any?
` A. Off the top of my head, no.
` MR. SMITH: Objection; form.
` Q. Do you cite any in your Declaration?
` A. So most of the references in this
`Declaration are in the context of optical
`physiological sensors of the kind, perhaps, shown by
`the figures that we have in front of us here, where
`there's an object worn on a wrist or on some part of
`the anatomy. Light is directed into and detected on
`the way back out of the tissue.
` I think most of those references and
`the authors and those relying on those materials
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 296
`understand that the light coming back into the sensor
`is coming as if from a diffuse light source. So it
`might be the entirety of the references.
` Q. None of the references you cite in
`your Declarations discuss or explain the impact of a
`convex shape on diffuse light that enters it,
`correct?
` MR. SMITH: Objection; form.
` A. So Inokawa describes the effect of a
`convex lens in the context of the invention disclosed
`in that patent as making it possible to increase the
`light-gathering ability and that, I think, one of
`ordinary skill in the art would understand that you
`could combine that lens-like shape, convex lens-like
`shape shown in Inokawa with Aizawa to increase light
`collection efficiency, which would enhance the
`signal-to-noise ratio and provide more pulse wave
`detection. And that it's based on the effect of
`refraction and concentration of the light coming in
`through the plate after being refracted -- reflected
`by the blood.
` Q. My, my question is different.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 297
` None of the sources you cite in your
`Declarations discuss or explain this description that
`you're providing regarding the impact of a convex
`lens on diffuse light, correct?
` A. I think it's well known to one of
`ordinary skill in the art that if you consider a
`diffuse light source in a lens, you have to account
`for all the difference rays propagating in all
`different directions and that the effect of the lens
`on all of that is going to be complicated.
` Some rays will be deflected towards
`the center; some deflected towards the edge; some
`deflected horizontally or, you know, left and right,
`not closer to the center or the edge.
` It's -- you have all different angles
`possibly coming into this lens. So it's -- there's
`no simple statement that one can make about the
`effect of the lens on all of light.
` Q. So you're saying that it would be
`well known in one of ordinary skill in the art, but
`you agree with me that none of the sources you cite
`in your Declarations discuss or provide this
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 298
`explanation that you're providing regarding the
`impact of a convex lens on diffuse light, correct?
` A. Correct.
` MR. SMITH: Objection; form.
` A. One of ordinary skill in the art
`would understand that you don't have to go into
`excessive, absolute detail on all the laws of physics
`in these disclosures. They assume their audience is
`of ordinary skill and understands these things and,
`and builds from that.
` Q. So you agree that as a matter of
`basic physics, a person of ordinary skill in the art
`would understand that collimated light that enters a
`convex surface will be directed towards the center,
`correct?
` A. If it's along -- if it's aligned down
`the axis of the, you know, axis of symmetry of the
`lens, as shown in Figure 14 of the '265 patent, then
`that, that will be true. If you bring the light in
`from a different angle, that may not be true. But
`the general orientation of that figure shows the lens
`and the light lined up in a way that would produce a
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 299
`
`focus.
` Q. And your opinion is that a convex
`lens would impact diffuse light differently than
`collimated light, correct?
` A. Well, each ray of light is, is
`refracted by the lens according to the laws of
`physics, the amount of refraction, the incoming
`angle, the, the refracted angle, all of those things
`are a function of the directions of the light.
` So if collimated light consists of
`light rays all coming in at the same angle aligned
`with the axis of symmetry of the optical system,
`there will be a focus. Diffuse light is comprised of
`light rays coming with in many angles, perhaps all
`angles and each one of those rays is going to be
`refracted in a way consistent with the laws of
`physics, but they are all going to have different
`geometries coming in and going out.
` Q. So in the case of diffuse light
`entering a convex lens, is it possible to describe
`any overall impact the convex lens will have on that
`light?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 300
`
` A. I think, as explained in the
`specification, that one of ordinary skill in the art,
`that would understand that the convex lens makes it
`possible to increase the light-gathering ability, and
`that the combination of the lens-like shape of
`Inokawa and Aizawa's acrylic plate would increase
`light collection efficiency, which in turn leads to
`enhanced signal-to-noise ratio and ultimately more
`reliable pulse wave detection. The lens shape
`provides us benefit through refraction and
`concentration of the light coming in through the
`plate after it's reflected by the blood.
` Q. That's the conclusion that you're
`putting forward in your Declaration, I'm trying to
`understand the reasoning behind that conclusion.
` And I'm asking you if you can explain
`to me the overall impact, if any, that a convex lens
`has on diffuse light that enters it.
` MR. SMITH: Objection; form.
` A. So we talked about, we talked about
`this yesterday, kind of around and around, that where
`there's curvature in the lens, as opposed to where
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`www.DigitalEvidenceGroup.comDigital Evidence Group C'rt 2021
`
`202-232-0646
`
`

`

`4/23/2021
`
`Apple, Inc. v. Masimo Corp.
`
`Thomas Kenny, Jr. Ph.D., Vol II
`
`Page 301
`there's flat sections, the lens has the effect of
`diffracting -- sorry -- refracting the light. And
`where there's curvature, there is an opportunity for
`diffuse light to be refracted in a way that increases
`the light collection efficiency and thereby improves
`the signal-to-noise ratio at the locations of these
`directors; and that one of ordinary skill in the art,
`would have, I think, general knowledge of the kinds
`of designs and configurations that would produce
`these benefits.
` Q. Yesterday I thought you testifi

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

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.

throbber

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.

Become a Member

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

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket