Trials@uspto.gov
`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________
`
`APPLE, INC.,
`Petitioner,
`
`v.
`
`OMNI MEDSCI, INC.,
`Patent Owner.
`___________
`
`IPR2021-00453
`Patent 10,517,484
`___________
`
`
`Record of Oral Hearing
`Held: May 5, 2022
`_____________
`
`
`
`
`Paper # 20
`Entered: June 22, 2022
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`
`
`
`
`
`
`Before GRACE KARAFFA OBERMANN, BRIAN McNAMARA, and
`SHARON FENICK, Administrative Patent Judges.
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`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________
`
`APPLE, INC.,
`Petitioner,
`
`v.
`
`OMNI MEDSCI, INC.,
`Patent Owner.
`___________
`
`IPR2021-00453
`Patent 10,517,484
`___________
`
`
`Record of Oral Hearing
`Held: May 5, 2022
`_____________
`
`
`
`
`Paper # 20
`Entered: June 22, 2022
`
`
`
`
`
`
`
`
`Before GRACE KARAFFA OBERMANN, BRIAN McNAMARA, and
`SHARON FENICK, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`IPR2021-00453
`Patent 10,517,484
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`THOMAS BROUGHAN, ESQUIRE
`Sidley Austin, LLP
`1501 K Street, N.W. #600
`Washington, D.C. 20005
`
`
`
`ON BEHALF OF PATENT OWNER:
`
`
`THOMAS LEWRY, ESQUIRE
`Brooks Kushman
`1000 Town Center # 2200
`Southfield, MI 40075
`
`
`
`
`
`The above-entitled matter came on for hearing on Thursday,
`
`May 5, 2022, commencing at 1:00 p.m., EDT, at the U.S. Patent and
`Trademark Office, by video, before Julie Souza, Notary Public.
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`IPR2021-00453
`Patent 10,517,484
`
` P R O C E E D I N G S
` - - - - -
`JUDGE MCNAMARA: Good afternoon everybody. This is Judge
`
`McNamara. I have with me Judges Obermann and Fenick and also on the
`public line are two U.S. PTO examiners who are on detail at the Patent Trial
`& Appeal Board. They are Leith Shafi and Larry Thrower. This is the oral
`hearing in IPR 2021-00453, Apple, Inc. v. Omni Medsci, Inc.
`As we are conducting this hearing as a video hearing, I have a couple
`of things I need to say at the beginning as a preliminary. First, our primary
`concern is your right to be heard so if at any time during the proceeding you
`encounter any technical difficulties or for any other reason feel there is
`something about the hearing that fundamentally undermines your ability to
`adequately represent your client let us know immediately and one way to do
`that is to contact the team member who provided you the connection
`information. We do know sometimes people's connections tend to be a
`problem.
`The second one, when not speaking please mute yourself so we can
`avoid extraneous background noise. Third, every time you do speak please
`identify yourself. That is to help the court reporter get an accurate transcript.
`Fourth, we have the entire record. That includes the demonstratives and the
`papers and the exhibits, so clearly and explicitly by slide or page number
`identify the subject matter that you are referring to in your discussion. You
`might want to consider pausing a couple of seconds after you identify that.
`That will give us time to find it in the record. In addition, please be aware
`that members of the public might be listening to the oral hearing so if at any
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`Patent 10,517,484
`point you're going to have any confidential information that you're going to
`want to discuss, identify that beforehand so we can take steps to address that
`in a separate session, and finally after we adjourn I would ask that counsel
`remain on the line in case there are any questions concerning -- for the court
`reporter, questions concerning terminology spellings and that sort of thing
`like that.
`Aside from that, if I could begin with counsel for Petitioner if you
`could please introduce yourselves.
`MR. BROUGHAN: This is Tom Broughan of Sidley Austin on
`behalf of Petitioner Apple. With me in the room is Jeff Kushan, lead
`counsel on this matter.
`JUDGE MCNAMARA: Thank you. And Patent Owner.
`MR. LEWRY: Yes. Good afternoon, Judges. My name is Tom
`Lewry. I'm representing Omni Medsci. In the room with me today is also
`John Leroy, a lawyer, and the principal of Omni Medsci Dr. Mohammed
`Islam.
`JUDGE MCNAMARA: All right. The Petitioner of course in these
`hearings has the burden of proof, so the Petitioner will present its case in
`chief and any objections it wants to raise at the beginning and then the
`Patent Owner will respond. The Petitioner can reserve up through half of its
`time for a rebuttal and then the Patent Owner will have an opportunity to use
`up to half of its time for surrebuttal. Each side will have 45 minutes per side
`and that is about where things stand.
`I do note that the Patent Owner has objected to some of the
`Petitioner's demonstratives, so we'll hear argument during the course of this
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`Patent 10,517,484
`hearing concerning that but we are not going to rule on those objections right
`now. As the Petitioner goes first however, I would suggest that you keep in
`mind that at some point we may elect not to consider the demonstratives or
`the subject matter that is objected to. As I understand it the slides 7 to 10
`include figure 2A which did appear in the petition but in the slides they also
`include some annotations to drive cycle modulation that may be the subject
`of the Patent Owner's objection. Slide 12 as well includes figure 2C which
`did not appear in the petition but did appear in the decision to institute. The
`version that appears in the demonstratives I believe also includes an
`annotation that was not in the decision to institute. So we'll hear more about
`that I'm sure from Patent Owner during the hearing, but I just wanted to alert
`Petitioner as you're going through your demonstratives that that could be an
`issue for you at a later point.
`I assume everyone is ready to proceed so we will begin with the
`Petitioner. Is there some amount of time that I will try to alert you to
`concerning, you know, for rebuttal?
`MR. BROUGHAN: We'd like to reserve 15 minutes for rebuttal,
`Your Honor.
`JUDGE MCNAMARA: Okay. As I said I will try to alert you. Keep
`track of your own time in the event that we get distracted but, you know, I
`will try to alert you. I'm turning on my little timer. All right. Please
`proceed.
`MR. BROUGHAN: Good afternoon. Tom Broughan on behalf of
`Petitioner Apple and may it please the Court.
`This is the third IPR that's gone to oral argument on an Omni patent in
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`Patent 10,517,484
`this family. At issue today is the '484 patent. The independent claims in this
`patent have the same limitation that was the central issue in the two prior
`IPRs and the IPR today involves the same combination of prior art that was
`at issue there, Lisogurski plus Carlson.
`If you would go to slide 5 of Petitioner's demonstratives, please. As
`with prior patents, the independent claims of this one contain lots of
`elements but Omni challenges whether the art discloses just one of them and
`that is they challenge whether the art shows a wearable device that's
`configured to increase the signal-to-noise ratio by increasing a pulse rate of
`at least one LED or some (indiscernible).
`Omni raises many of the same arguments that it did in the prior
`proceedings but it takes a slightly different angle here. Here, Omni has tried
`to make this case about Lisogurski's cardiac cycle modulation and cardiac
`cycle modulation only and it does that in a few ways. It tries to cabin
`Apple's arguments in the petition to cardiac cycle modulation. But as you'll
`see in a moment, that's not correct.
`Omni also tries to cabin Lisogurski's teachings about LED firing rate
`to say that only cardiac cycle modulation can change it and they do that to
`argue that configuring Lisogurski to increase its firing rate would change
`cardiac cycle principles -- cardiac cycle modulation's principle of operation.
`But its arguments fail for three reasons. First, sampling rate is part of
`drive cycle modulation and Apple relied on sampling rate in the petition.
`Second, Lisogurski's cardiac cycle modulation meets this element as the
`Board has previously found and third, Apple proposed a combination with
`Carlson and when adding Carlson's teachings into Lisogurski Apple was not
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`Patent 10,517,484
`limited to adding its teachings of increasing the firing rate of an LED to
`cardiac cycle modulation.
`JUDGE MCNAMARA: Counsel, this is Judge McNamara. A quick
`question for you. You said that the sampling rate disclosures in Lisogurski
`relate to drive cycle modulation. You did discuss in the petition sampling
`rate but the petition, as I recall, does not actually use the term drive cycle
`modulation. Can you explain why that happened?
`MR. BROUGHAN: Yes. We identified sampling rate but we did not
`include the words drive cycle modulation in the petition. But whether those
`words are in the petition or not is irrelevant because when you look at
`Lisogurski's teachings about sampling rate and its disclosures about
`sampling rate it provides that sampling rate is a feature of drive cycle
`modulation. So even though we didn't call out drive cycle modulation and
`say sampling rate is part of it, Lisogurski explains that that's what sampling
`rate is. So by discussing sampling rate in the petition we were discussing a
`feature of drive cycle modulation and it's proper for us to continue
`discussing sampling rate and to further explain that Lisogurski uses
`sampling rate to describe parts of drive cycle modulation.
`JUDGE MCNAMARA: Okay. One other quick question for you. As
`I understand your arguments in the petition and in the Petitioner reply, you
`also contend that cardiac cycle modulation alone improves the signal-to-
`noise ratio for example, as required by this particular limitation. Is that a
`correct understanding?
`MR. BROUGHAN: Yes, Your Honor.
`JUDGE MCNAMARA: Okay. Another question for you concerning
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`Patent 10,517,484
`Lisogurski. Is there any disclosure in Lisogurski of using cardiac cycle
`modulation alone without drive cycle modulation?
`MR. BROUGHAN: I'm pausing for a second because I'm not certain.
`What Lisogurski does describe is it says that you can use any combination of
`modulation techniques and it doesn't say drive cycle modulation always has
`to be used which suggests that there aren't scenarios where only cardiac
`cycle modulation would be used. But Lisogurski certainly teaches that you
`can use both of them at the same time and that you can also use additional
`algorithms for changing features of the LED firing such as servo algorithms
`to change that as the device operates.
`JUDGE MCNAMARA: Okay. Thank you. Go ahead with your
`presentation.
`MR. BROUGHAN: So I'm going to start by addressing the three
`elements that we mapped to the increasing signal-to-noise ratio by
`increasing pulse rate limitation and then I'll switch to some dependent claims
`and address some issues there.
`If you would turn to slide 10, please. Underlying all these pulse rate
`arguments is the distinction between cardiac cycle modulation and drive
`cycle modulation. Slide 10 shows figure 2C of Lisogurski and as Your
`Honor noted, the Board discussed this figure in the Institution decision and
`the Board recognized in the Institution decision pages 18 and 19 that the top
`half of this figure depicts cardiac cycle modulation and the bottom half
`depicts drive cycle modulation. When you look at the top you can see that
`cardiac cycle modulation is pulsing the red LED synchronously with the
`cardiac cycle, in particular during the diastole period.
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`Patent 10,517,484
`So the dotted line circles around the figure at the top show individual
`slices of time and they point down to features of drive cycle modulation at
`the bottom and show that at the same time as cardiac cycle modulation the
`device is pulsing the red LED lights leaving spaces where there's no light
`shining between them and cardiac cycle modulation is pulsing
`approximately once per second for 1 Hz and drive cycle modulation is
`pulsing approximately once per millisecond or 1 kilohertz.
`So let's turn to the first issue. If we can go back to slide 6, please. At
`the top is a passage from the petition and this is one of the features we relied
`on to meet this limitation and we explained that Lisogurski's embodiments
`where the firing rate of an LED is correlated to the sampling rate of an
`analog to digital converter meets this element and at the bottom of this page
`is a passage from Lisogurski at 33, lines 47 to 52 and this passage in
`Lisogurski provides that,
`"Sampling rate modulation may be correlated with light drive signal
`modulation."
`And we know from these disclosures in Lisogurski that when it
`changes the sampling rate it can also change the LED firing rate and we
`know this because of how it's described throughout the reference. For
`example, the very next sentence of this passage at the bottom provides that,
`"Varying the sampling rate may reduce power consumption by
`reducing emitter drive time," that's the LED and emitter rate, "and by
`lowering utilization of an analog to digital converter."
`So that's the analog to digital converter. So varying the sampling rate
`changes how both these components function. We also know this because of
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`Patent 10,517,484
`other descriptions (indiscernible). If we could go to slide 7.
`JUDGE MCNAMARA: Counsel, again Judge McNamara. Let me
`ask you a little bit about what sampling rate we're talking about here. It
`talks, you know, the top sentence in that demonstrative talks about the
`sampling rate of the analog to digital converter and then it says sampling rate
`modulation may be correlated with the light drive signal modulation. So is
`the sampling the sampling of the signal or is the sampling -- does the
`sampling the correlation of the sampling with the light drive signal mean
`that you change or modulate the actual firing rate of the LED?
`MR. BROUGHAN: So it can mean both. Let me direct you to a slide
`which I think may help, well, two slides. It'll take me a moment to precisely
`answer your question but if you'll go to slide 8 and the passage at the top
`Lisogurski explains that the sampling rate may represent the amount of time
`between the on periods of drive cycle modulation and it provides that the
`time between the on periods may be the length of an off period and gives an
`example of period 229 of figure A and period 220 is a time between the
`firing of an LED and that's why no LEDs are fired.
`And if you go to slide 9. This has a passage from Lisogurski in the
`middle, column 35 at lines 24 to 31 that we discussed in the petition and
`here Lisogurski is saying that when you decrease the duration of the off
`period what you're doing is you're increasing the emitter firing rate and that
`this process, this action relates to an increased sampling rate. So Lisogurski
`changes the sampling rate by increasing it. It can also increase
`the firing rate of the LED as this passage right above the figure explains and
`so Lisogurski does use sampling rate to refer to --
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`JUDGE MCNAMARA: The duration changes the rate?
`MR. BROUGHAN: No, no (audio interference).
`JUDGE MCNAMARA: Excuse me, but there appears to be some
`cross-talk here. Could -- let's have everybody mute for just a second. Okay.
`And then Petitioner's counsel please resume.
`MR. BROUGHAN: Thank you. And so this passage is saying when
`you decrease the duration of the off period, in other words when no LED is
`firing, make that shorter you're going to increase the LED firing rate and you
`can see that visually in figure 2A. If you make the off period 220 shorter
`then you would be able to fit more pulses of the LED in the same time span.
`So instead of showing six it might show eight, for example, because that off
`period is shorter.
`JUDGE MCNAMARA: Counsel, again this is Judge McNamara and
`this goes to this question of what is the firing rate. Is the firing rate the, you
`know, in this kind of example that you're showing am I still firing the LEDs
`at the same rate of just doing it more often, you know, instead of the off time
`and the on time. I mean, the on time I'm firing the LED at a certain rate and
`then the off time I'm not firing it, then I'm firing it again and then I'm not
`firing it and if I just change the amount of time between the on, you know, if
`I just let's say decrease the off time I'm not really changing the firing rate of
`the LED, am I?
`MR. BROUGHAN: You are, Your Honor, because the firing rate is
`how many times it pulses in a given amount of time. So if an LED is
`pulsing once per second then in between each pulse you would have maybe
`a little bit less than one second. If instead you changed it so that in between
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`each pulse you have a quarter of a second then you'd be firing the LED four
`times in that same second instead of just once and that's what's being
`described here. In this figure 2A each bar is one pulse of an LED. So when
`you shorten the time between pulses that's when you increase your rate of
`pulsing in a given unit of time. Does that answer your question?
`JUDGE MCNAMARA: I understand what you're saying. Okay.
`Thank you.
`MR. BROUGHAN: And so I think there's a few things to take away
`from this disclosure in Lisogurski. First is that Omni had argued that we
`relied only on cardiac cycle modulation in the petition but that's not true.
`We relied on sampling rate which is a feature of drive cycle modulation and
`second, Omni had argued that the only time Lisogurski showed changing the
`LED firing rate was during cardiac cycle modulation but that's not true either
`because in these passages right here Lisogurski shows changing the LED
`firing rate in accordance with sampling rate which is part of drive cycle
`modulation and this overall process would operate the increased signal-to-
`noise ratio.
`If you go to slide 13, Lisogurski provides that increasing the sampling
`rate may result in more accurate and reliable physiological information and
`our expert, Dr. Anthony, explained that the skilled person would understand
`that this occurs because both firing rate and sampling rate when you increase
`it will typically increase signal-to-noise ratio and this testimony is also
`consistent with testimony from Omni's expert.
`If you go to slide 14, at the bottom is a quote from their expert's
`deposition which we have looked at in previous IPRs and there the expert
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`admitted that when you increase the pulse rate of an LED you will increase
`the signal-to-noise ratio.
`So with that I'd like to turn to the second feature of Lisogurski that
`meets this claim element and that's cardiac cycle modulation. If you would
`turn to slide 17. Cardiac cycle modulation will track the user's heartrate
`because it's tracking the cardiac cycle and it can do so by varying the firing
`rate which is what the passage of Lisogurski at the top shows. At the bottom
`is testimony from our expert who explained that Lisogurski's device will
`increase the LED firing rate whenever a patient's heartrate increases and thus
`Lisogurski's device will increase its pulse rate to be synchronous with the
`heartrate which results in an increase of signal-to-noise ratio (indiscernible).
`If you go to slide 19. The Board previously relied on this feature to
`find that Lisogurski taught this claim element. It found that Lisogurski
`teaches increasing LED pulse rates to match the increased cardiac cycle and
`that Lisogurski's system therefore is configured to increase signal-to-noise
`ratio by increasing the pulse rate and as part of this the Board relied on
`Lisogurski's teachings, Dr. Anthony's testimony, but also admissions from
`the Patent Owner.
`If you go back to slide 18. Omni previously admitted that cardiac
`cycle modulation is a technique for increasing signal-to-noise ratio. Now in
`this proceeding Omni tries to walk that admission back and they say no, no,
`no, it doesn't increase signal-to-noise ratio, it just maintains it. But Omni's
`argument ignores that the natural effect of increasing the LED firing rate.
`If you go to slide 24. This is a figure that Omni and its expert used to
`try to show that increasing the firing rate of the LED will not affect signal-
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`to-noise ratio and this figure is incorrect for a few reasons. First, if you
`switch from 1 Hz to say, 2 or 3 Hz that's doubling or tripling the amount of
`measurements available and as Dr. Anthony explained at paragraph 180 of
`his declaration that we looked at a moment ago, more measurements means
`a higher signal-to-noise ratio and this isn't trivial. This is instead of one
`measurement per second you have two or three. This is a significant, you
`know, 100 percent to 200 percent increase.
`The second reason this figure is wrong is that the figure doesn't
`account for the distribution of noise. It assumes a flat uniform distribution
`and that is contrary to the record. For example, Lisogurski states that noise
`in a system where they're testing thinking (phonetic) models using Gaussian
`noise which is like a normal distribution as it peaked, then the distribution
`decays over time. It then decays as you move away from it.
`It's also contrary to Carlson. If you look at slide 23 this is the figure
`7B from Carlson and Carlson shows that noise has a peak right around zero
`Hz and then as the frequency increases from zero the amount of noise falls
`off vociferously (phonetic) so it's the same sort of exponential decay that
`you would get in Gaussian noise and in Carlson it's showing the same
`frequency range that Omni's expert showed. Omni's expert showed that the
`noise level was constant from zero to 10 Hz but if you look at Carlson it
`shows that it's more like an L shape where there's a sharp drop. So when
`you increase from, for example, 1 Hz to to 2 or 3 Hz there is a change in the
`overall noise level and the Board was correct in its previous finding that
`cardiac cycle modulation does in fact increase signal-to-noise ratio and that
`it does so when it increases the firing rate of an LED.
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`If I can move to the third issue which is the combination of Lisogurski
`and Carlson. If you go to slide 30. We relied on the combination of
`Lisogurski and Carlson to teach this element as well and at the top is an
`example from Lisogurski that's describing two modes of operation and the
`system will operate in the first mode of operation using a modulation
`technique and Lisogurski explains that the system may detect a change in
`background noise or change in ambient light and that as a result of this it
`will change to a second mode. In this second mode the system can take a
`number of actions and Lisogurski provides a few examples. He says, for
`example, the system can stop cardiac cycle modulation.
`As another example the system can alter the cardiac cycle modulation
`technique. All Lisogurski is doing here is trying to increase the signal-to-
`noise ratio in response to that change in noise (phonetic) and we explained
`that a skilled person looking at this would have understood that other options
`were available for trying to increase the signal-to-noise ratio.
`One such option is described in Carlson which teaches one way of
`dealing with an increase in environmental noise and Carlson explains that
`when the device encounters environmental noise you can increase the
`frequency such that it's outside the frequency spectrum of that noise and
`Carlson teaches that this could be in one example 1,000 Hz but he also says
`that it could be an other frequency such as 2,000 Hz or even higher and we
`explained that when you apply this teaching to Lisogurski the skilled person
`would understand that in the second mode of operation Lisogurski could
`increase the firing rate of the LED to, for example, 1,000 or 2,000 Hz as
`taught by Carlson and that doing so would improve signal-to-noise ratio and
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`IPR2021-00453
`Patent 10,517,484
`based on this we argued that the claim was obvious and the Board relied on
`this exact same combination and explanation in prior cases to conclude that
`this claim element was obvious as well.
`Now, in response to this Omni raises one main argument and it asserts
`that this combination wouldn't work because it would change cardiac cycle
`modulation's principle of operation. If you would go to slide 30 -- 33. First,
`Omni's argument here is again based on its attempt to limit Apple to
`modifying cardiac cycle modulation's firing rate but our argument is not so
`limited. We're not proposing to make cardiac cycle modulation fire at 1,000
`Hz. We're proposing that the LED fires at 1,000 Hz and it's one LED that's
`doing cardiac cycle modulation, the same LED that's doing the drive cycle
`modulation or that's pulsing. So there's nothing inconsistent with adding a
`higher frequency to cardiac cycle modulation or alongside of cardiac cycle
`modulation.
`For example, if you look at the second quote from Lisogurski on this
`slide it provides that cardiac cycle modulation may be an envelope on the
`order of 1 Hz so proposed on a 1 kilohertz drive cycle modulation. This was
`the same thing we saw in figure 2C showing the two operating at the same
`time.
`
`Now if you go back to slide 30, in the second mode of operation or
`that where Lisogurski can switch to it provides that the system can stop
`cardiac cycle modulation or alter the cardiac cycle modulation technique.
`Well, if Lisogurski stops cardiac cycle modulation then if we increase the
`firing rate of the LED to 1,000 Hz or 2,000 Hz as taught by Carlson, that
`wouldn't affect cardiac cycle modulation's operation at all and so it couldn't
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`IPR2021-00453
`Patent 10,517,484
`possibly change its principle of operation because it's not currently running,
`and second, even if cardiac cycle modulation were running there's nothing
`wrong with having cardiac cycle modulation operate alongside or on top of a
`much higher firing rate in the LED such as 1,000 Hz or 2,000 Hz as we saw
`earlier.
`If you go back to slide 33. Even if you were to conclude that Apple
`proposed modifying only cardiac cycle modulation firing rate and not the
`firing rate more generally, that still wouldn't break cardiac cycle modulation
`as Omni contends. If you look at the bottom quote on the screen which is
`Lisogurski at column 5, lines 41 to 47, Lisogurski explains that while
`cardiac cycle modulation techniques may generally be related to the cardiac
`cycle they're not necessarily precisely correlated to the cardiac cycle.
`So in response to the change in noise like Lisogurski does in the
`second mode of operation, there would be nothing wrong with temporarily
`changing cardiac cycle modulation's firing rate to address further noise
`before returning to a rate that would track the heartrate, and so as the Board
`has previously found Lisogurski and Carlson teach increasing a pulse rate to
`increase signal-to-noise ratio and should find that again here. So if there's
`no questions on this I'd like to move to ground 2 and go to slide 36.
`I'll start with claims 3, 8 and 6 and shown here at the bottom are
`claims 3 and 6, sorry, 3 and 16, 8 isn't depicted but it's substantially similar
`to 3 and claims 3 and 8 both specify that the wearable device is configured
`to identify an object and claim 16 specifies the wearable device is
`configured to detect an object. But the claim uses these two terms and these
`two phrases to mean the same thing and I think it's helpful to start with the
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`claim language.
`If you look at claim 3 it says identify an object and then it says
`nothing further about what to do with that. It doesn't say that you identify
`the type of object. It doesn't say that you identify how many objects. It just
`says identify an object, in other words determine whether an object is
`present or not.
`If you look at claim 16 it says to detect an object and like claim 3 it
`doesn't require any further action based on that detection. The claim is just
`directed to detecting whether an object is present or not.
`So the claims are using these words and these phrases in the same
`way, to refer to determining whether an object is present or whether it's not
`present and this reading of the claims is consistent with the specification as
`well. If you go to slide 37. In one example the specification discusses
`something called change detection and it provides a change detection may
`help to identify objects that change in the field of view and so this sentence
`is using detection and identify in a very similar way and it's using it to say
`that this change in detection feature identifies objects that change within the
`field of view. It doesn't say nowhere has a new object appeared or has an
`object disappeared. It's not saying that you identify what the object is, that
`you identify what the change is, just is there a change or is there not a
`change and so that is the same concept as detecting. Determine whether an
`object is there or not.
`JUDGE MCNAMARA: Counsel, this is Judge McNamara again.
`When I read that sentence though it says change detection may help to
`identify objects that change in the field of view. That could also suggest to
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`me that it helps to distinguish between one object and another.
`MR. BROUGHAN: In other parts of the specification if they want to
`distinguish between things the specification will call it out, identify and
`distinguish, determine and distinguish, determine and classify, identify and
`classify, but this is not requiring any bit of classification. It's not requiring
`any bit of determining what something is. It's just identify what is change
`(indiscernible) and, you know, you also need to consider this in the context
`of the claim language itself which just says identify an object. It's not even
`identifying a change. It's just identifying an object. Is an object present or is
`it not present? And so these things together I think show that the plain and
`ordinary meaning of these words in the spec is to discover or determine the
`existence of (indiscernible).
`If we go to slide 38. To meet these features we rely on the probe-off
`feature of Lisogurski. At the top is part of the petition and we explain that
`Lisogurski's sensor has the ability to detect when it has fallen off and we
`explained that the sensor can identify when an object such as a wrist or an
`ear is in range of a sensor and when that object is no longer in range of the
`sensor the system will generate a probe-off signal indicating that the sensor
`has fallen off the person.
`This is described more fully in the passage from Lisogurski that's on
`the bottom of the screen which is what we have cited and this passage is
`describing a scenario where the system is operating to detect a physiological
`parameter and it gives an example of a blood oxygen saturation of what it
`might be detecting. As the system is measuring this it may detect a signal
`that's indicative of an error such as a physi
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