UNITED STATES PATENT AND TRADEMARK OFFICE
`———————
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`———————
`NJOY, LLC and NJOY HOLDINGS, INC.,
`Petitioners,
`v.
`JUUL LABS, INC.,
`Patent Owner
`———————
`U.S. PATENT NO. 10,130,123
`———————
`DECLARATION OF JOSEPH C. MCALEXANDER III
`
`
`
`NJOY Exhibit 1003.001
`
`

`

`TABLE OF CONTENTS
`
`Contents
`
`
`
`Page
`
`I. 
`
`INTRODUCTION ........................................................................................... 1 
`
`A.  Qualifications and Compensation ......................................................... 1 
`
`B.  Materials Considered ............................................................................. 4 
`
`II. 
`
`RELEVANT LEGAL STANDARDS ............................................................. 5 
`
`A. 
`
`B. 
`
`C. 
`
`D. 
`
`Claim Construction ............................................................................... 6 
`
`Invalidity ............................................................................................... 7 
`
`Priority Date ........................................................................................ 10 
`
`Person of Ordinary Skill in the Art (“POSA”) .................................... 11 
`
`III.  THE PRIOR ART .......................................................................................... 11 
`
`A. 
`
`Technology Background ..................................................................... 11 
`
`B.  Worm (EX1004) .................................................................................. 22 
`
`C. 
`
`D. 
`
`Thorens (EX1016) ............................................................................... 32 
`
`Levitz (EX1010) .................................................................................. 34 
`
`E.  Weigensberg (EX1006) ....................................................................... 36 
`
`F. 
`
`Lamb (EX1005) ................................................................................... 38 
`
`IV.  THE ’123 PATENT ....................................................................................... 41 
`
`A.  Overview ............................................................................................. 41 
`
`B. 
`
`C. 
`
`Summary of the Challenged Claims ................................................... 44 
`
`Prosecution History ............................................................................. 46 
`
`i
`
`NJOY Exhibit 1003.002
`
`

`

`D.  Meaning of Certain Claim Terms ........................................................ 51 
`
`V. 
`
`THE CHALLENGED CLAIMS ARE UNPATENTABLE .......................... 52 
`
`A.  Ground 1: Worm Anticipates Claims 14, 27 and 32 of the ’123
`Patent ................................................................................................... 53 
`
`1. 
`
`2. 
`
`3. 
`
`Claim 14 .................................................................................... 53 
`
`Claim 27 .................................................................................... 79 
`
`Claim 32: The vaporizer device of claim 27, wherein the
`cartridge comprises the vaporizable material, and wherein
`the vaporizable material comprises a nicotine formulation.
` ................................................................................................... 81 
`
`B. 
`
`C. 
`
`Ground 2: Worm in view of the Knowledge of a POSA Renders
`Obvious Claims 14, 27 and 32 of the ’123 Patent .............................. 83 
`
`Ground 3: Worm in view of Levitz Renders Obvious Claims 14,
`27, and 32 of the ’123 Patent ............................................................... 86 
`
`1. 
`
`Sealed air flow path (limitations [14.E], [14.F], [27.G],
`and [27.H]) ................................................................................ 86 
`
`D.  Ground 4: Thorens and Weigensberg in view of the Knowledge
`of a POSA Renders Obvious Claims 14, 27, and 32 of the ’123
`Patent ................................................................................................. 101 
`
`1. 
`
`2. 
`
`3. 
`
`Claim 14 .................................................................................. 112 
`
`Claim 27 .................................................................................. 127 
`
`Claim 32: The vaporizer device of claim 27, wherein the
`cartridge comprises the vaporizable material, and wherein
`the vaporizable material comprises a nicotine formulation.
` ................................................................................................. 130 
`
`E. 
`
`Grounds 5-8: Grounds 1-4, further in view of Lamb, Render
`Obvious Claims 14, 15, 16, 18, 27, 28, 29, 31, and 32 of the ’123
`Patent ................................................................................................. 132 
`
`ii
`
`NJOY Exhibit 1003.003
`
`

`

`1.  Motivation to Combine each of Grounds 1-4 with Lamb ....... 136 
`
`2. 
`
`3. 
`
`4. 
`
`5. 
`
`6. 
`
`7. 
`
`Claims 14 and 27: a pressure sensor configured to output
`sensor readings, ....................................................................... 144 
`
`Claims 14 and 27: a gasket around the pressure sensor, the
`gasket configured to seal the device air path from the
`sealed air flow path. ................................................................ 147 
`
`Claims 16 and 29: The vaporizer device [body] of claim
`[14] / [27], wherein the pressure sensor comprises a
`MEMS pressure sensor. .......................................................... 149 
`
`Claims 15 and 28: The vaporizer device [body] of claim
`[14] / [27], wherein the pressure sensor comprises a
`capacitive membrane. ............................................................. 151 
`
`Claims 18 and 31: The vaporizer device [body] of claim
`[14] / [27], wherein the sensor readings output by the
`pressure sensor comprise pressure values. .............................. 152 
`
`Claim 32: The vaporizer device of claim 27, wherein the
`cartridge comprises the vaporizable material, and wherein
`the vaporizable material comprises a nicotine formulation.
` ................................................................................................. 156 
`
`VI.  THE PRIOR ART WAS NOT PREVIOUSLY CONSIDERED ................ 157 
`
`VII.  SECONDARY CONSIDERATIONS OF NONOBVIOUSNESS ............. 158 
`
`VIII.  DECLARATION ......................................................................................... 159 
`
`
`
`
`
`
`
`iii
`
`NJOY Exhibit 1003.004
`
`

`

`
`
`I.
`
`I, Joseph C. McAlexander III, hereby declare:
`
`INTRODUCTION
`1.
`I have been retained by Weil, Gotshal & Manges on behalf of
`
`Petitioners NJOY, LLC and NJOY Holdings, Inc. (collectively, “Petitioners” or
`
`“NJOY”) as an independent expert witness in the above-captioned inter partes
`
`review (“IPR”), in which NJOY has requested that the U.S. Patent and Trademark
`
`Office cancel as unpatentable claims 14–16, 18, 27–29, and 31–32 of U.S. Patent
`
`No. 10,130,123 (“’123 Patent”).
`
`2.
`
`I am being compensated on an hourly basis for my work on this case. I
`
`have received no additional compensation for my work on this case, and my
`
`compensation does not depend upon the contents of this declaration or the outcome
`
`of these proceedings.
`
`3.
`
`This declaration sets forth my analyses and opinions based on my
`
`knowledge and experience and the materials I considered.
`
`A. Qualifications and Compensation
`4.
`I am a Registered Professional Engineer (#79454) and the President of
`
`McAlexander Sound, Inc. I hold a Bachelor of Science degree in Electrical
`
`Engineering from North Carolina State University. I am a member of a number of
`
`professional organizations, including the Institute of Electrical and Electronics
`
`Engineers, Inc. (IEEE) and the National Society of Professional Engineers. I have
`
`1
`
`NJOY Exhibit 1003.005
`
`

`

`
`
`been associated with the integrated circuit and electronics industry as a designer and
`
`consultant for the past fifty one (51) years. I am a named inventor on thirty one (31)
`
`U.S. patents and a number of foreign patents, including patents directed to current
`
`sensors, motion sensors, timing and voltage/current control, signal generation and
`
`detection, and conditional response circuits.
`
`5. My skills and experience are in areas of circuit design and analysis,
`
`device fabrication and assembly, testing, marketing, control system design and
`
`analysis, manufacturing operations, and respective areas of quality, reliability, and
`
`defect/failure analysis. Specifically, I have:
`
`designed and managed development, testing, and evaluation of devices
`including Dynamic Random Access Memories (DRAMs), Static
`Random Access Memories (SRAMs), Charge Coupled Devices
`(CCDs), Shift Registers (SRs), and functional circuits including I/O
`buffers for address and data, decoders, clocks, sense amplifiers, fault
`tolerant, parallel-to-serial data paths for video applications, level
`shifters, converters, pumps, and
`logic, as well as wireless
`communication systems and MEMs applications;
`
`managed operations including engineering, training, and quality
`assurance for device fabrication, assembly, test, analysis, and reliability
`assessment, as well as manufacturing control, each of which involved
`both volatile and non-volatile memory;
`
`performed testing, analysis, and control involving use of mechanical
`calibration and measuring equipment, including optical, scanning e-
`beam, IR, capacitive, and laser using phase contrast and Fast Fourier
`Transform (FFT) for High Aspect Ratio Inspection (HARI)
`applications; audio and video system design and installation;
`
`taught courses in solid state device physics, integrated circuit design,
`integrated circuit fabrication, and statistical control;
`
`2
`
`NJOY Exhibit 1003.006
`
`

`

`
`
`
`provided expert services, investigating both process and design
`technologies of various devices (microprocessor and controller,
`memory, programmable logic, card, tag, module, mixed signal, custom,
`and other), systems (PC and peripheral, computer, control, laser
`measurement, switch, architecture, software, and other), and consumer
`products (medical, TV, telephone, VCR, facsimile, copier, lighting,
`game, and other);
`
`provided nuclear radiation hardness testing services for military and
`space clients; and
`
`managed the design and installation of audio sound and video systems
`for private and commercial enterprises.
`6.
`I also have experience performing intellectual property valuation and
`
`patent portfolio work for companies. For example, as a Partner at RMC
`
`Management, I conducted numerous patent portfolio valuations and negotiated
`
`licenses. Also, I was part of a consultant team with ST Microelectronics that
`
`performed patent portfolio valuations and negotiated licenses on behalf of ST
`
`Microelectronics.
`
`7.
`
`Because of my background, training, and experience, I am qualified to
`
`provide the expert opinions regarding the technology described and claimed in the
`
`’123 Patent. A more detailed account of my work experience and other qualifications
`
`is listed in my Curriculum Vitae, EX1027.
`
`8.
`
`I am being compensated at the hourly rate of $625.00. My
`
`compensation is not dependent on the substance of my statements in this
`
`Declaration.
`
`3
`
`NJOY Exhibit 1003.007
`
`

`

`
`
`B. Materials Considered
`9.
`I reviewed all of the documents referenced in this declaration, including
`
`the following exhibits submitted with NJOY’s petition for inter partes review:
`
`No.
`
`1001
`
`1002
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`Exhibit
`
`U.S. Patent No. 10,130,123 (“’123 Patent”)
`
`’123 Patent File History
`
`U.S. Patent Publication No. 2015/0245658 (“Worm”)
`
`U.S. Patent Publication No. 2016/0128389 (“Lamb”)
`
`U.S. Patent Publication No. 2015/0020831 (“Weigensberg)
`
`U.S. Patent No. 8,528,569 (“Newton569”)
`
`U.S. Patent Publication No. 2014/0000638 (“Sebastian”)
`
`U.S. Patent No. 8,499,766 (“Newton766”)
`
`1010 WO 2012/142293 (“Levitz”)
`
`1011
`
`1012
`
`1013
`
`1014
`
`1015
`
`1016
`
`1017
`
`1018
`
`U.S. Patent No. 8,375,957 (“Hon957”)
`
`U.S. Patent Publication No. 2014/0174458 (“Katz”)
`
`U.S. Patent Publication No. 2014/0261495 (“Novak”)
`
`U.S. Patent Publication No. 2017/0318861 (“Thorens II”)
`
`U.S. Patent No. 9,801,415 (“Tu”)
`
`U.S. Patent Publication No. 2014/0318559 (“Thorens”)
`
`EP0277519 (“Roberts”)
`
`EP2110034 (“Fernando”)
`
`4
`
`NJOY Exhibit 1003.008
`
`

`

`
`
`
`
`No.
`
`1019
`
`Exhibit
`
`U.S.I.T.C. Investigation No. 337-TA-1368, Joint Claim Construction
`Chart
`
`1020 MS5637-02BA03 Data Sheet
`
`1021 WO 2015/153443 (“Henry”)
`
`1022
`
`1023
`
`1024
`
`1025
`
`1026
`
`1028
`
`1029
`
`1030
`
`1031
`
`U.S. Patent Publication No. 2016/0374397 (“Jordan”)
`
`U.S. Provisional Pat. No. 62/184,569
`
`EP1736065 (“Hon065”)
`
`Reserved
`
`Honeywell 160PC Low Pressure Sensor Datasheet
`
`U.S. Patent Publication No. 2014/0150810 (“Hon810”)
`
`Screen shots of Internet Archives webpages for Honeywell website
`on November 27, 2004 with Model 163PC01D36 datasheet
`
`Screen shots of Internet Archives webpages for Measurement
`Specialties website on August 12, 2013 with MS5637-02BA03
`datasheet, dated May 22, 2013
`
`JUUL Labs, Inc. v. NJOY, LLC, No. 23-cv-01204 (D. Ariz.) Docket
`(retrieved Nov. 13, 2023)
`
`10.
`
`In forming my opinions, I considered the documents listed above and
`
`my education, training, experience, and knowledge of the field encompassing the
`
`’123 Patent.
`
`II. RELEVANT LEGAL STANDARDS
`11.
`I am not an attorney, so my understanding of patent law is based on
`
`explanations thereof provided to me by counsel. The legal standards set forth below
`
`5
`
`NJOY Exhibit 1003.009
`
`

`

`
`
`are based on the guidance provided by counsel, and I have applied these standards
`
`to my analysis.
`
`A. Claim Construction
`12.
`I understand that the numbered paragraphs at the end of a U.S. patent
`
`specification are the patent “claims” that define the metes and bounds of the alleged
`
`invention. I further understand that certain of the ’123 Patent claims are being
`
`challenged in the present IPR proceeding.
`
`13.
`
`I understand that, in this proceeding, the Board must determine the
`
`scope of the claims by giving the claims their ordinary and customary meaning in
`
`light of the specification, as the claims would be interpreted by one of ordinary skill
`
`in the art.
`
`14.
`
`I understand that patent claims generally include a “transitional” term
`
`or phrase between the claim’s preamble and body, such as “consisting of,”
`
`“consisting essentially of,” and “comprising,” which vary in inclusiveness. I
`
`understand “consisting of” is closed, meaning the claim is limited to the elements
`
`following the transitional phrase and nothing else. I understand “consisting
`
`essentially of” is semi-closed, meaning the claim is limited to the elements following
`
`the transitional phrase and other unrecited elements that do not materially affect the
`
`basic and novel characteristics of the claimed invention. I understand that
`
`“comprising” is open, meaning the claim is not limited to elements following the
`
`6
`
`NJOY Exhibit 1003.010
`
`

`

`
`
`transitional phrase and can encompass other unrecited elements.
`
`B.
`15.
`
`Invalidity
`I understand that NJOY bears the burden of proving the challenged ’123
`
`Patent claims are invalid. I further understand that NJOY must prove this by a
`
`preponderance of the evidence, which means that invalidity must be shown to be
`
`more likely than not.
`
`16.
`
`I understand that a claim may be invalid as anticipated by prior art. I
`
`was informed that prior art anticipates a claim when the prior art discloses each and
`
`every claim element.
`
`17.
`
`I understand that a claim may be invalid as obvious when, as a whole,
`
`it would have been obvious to a POSA at the time of the alleged invention. Thus, I
`
`understand I must analyze obviousness from the perspective of a POSA, and I further
`
`understand I must analyze obviousness based on four factual inquiries: (1) the scope
`
`and content of the prior art; (2) the differences between the claimed invention and
`
`the prior art; (3) the level of ordinary skill in the art; and (4) secondary considerations
`
`of nonobviousness. I have been instructed that I cannot rely on hindsight and that,
`
`instead, I should consider what a POSA had reason to pursue further and routine
`
`steps a POSA would have taken, such as in response to known problems, situations,
`
`or obstacles.
`
`18.
`
`I understand that the following non-exhaustive list of rationales may
`
`7
`
`NJOY Exhibit 1003.011
`
`

`

`
`
`support a conclusion that a claim is obvious: combining prior art elements according
`
`to known methods to yield predictable results; simple substitution of one known
`
`element for another to obtain predictable results; use of a known technique to
`
`improve a similar device (method, or product) in the same way; applying a known
`
`technique to a known device (method, or product) ready for improvement to yield
`
`predictable results; choosing from a finite number of identified, predictable
`
`solutions, with a reasonable expectation of success; and some teaching, suggestion,
`
`or motivation in the prior art that would have led a POSA to modify the prior art
`
`reference or to combine prior art reference teachings to arrive at the claimed
`
`invention.
`
`19.
`
`I was informed that in addition to explicit motivation, motivation to
`
`combine prior art references may be implicit, and may be found in the knowledge of
`
`a POSA or in the nature of the problem to be solved. I understand that an implicit
`
`motivation to combine exists not only when a suggestion may be gleaned from the
`
`prior art as a whole, but when an “improvement” is technology-independent and the
`
`combination of references results in a product or process that is more desirable, for
`
`example because it is stronger, cheaper, cleaner, faster, lighter, smaller, more
`
`durable, or more efficient. I further understand that motivation to combine references
`
`may be found in the nature of the problem to be solved where prior art references
`
`are directed to the same problem.
`
`8
`
`NJOY Exhibit 1003.012
`
`

`

`
`
`20.
`
`I understand that prior art may be relied on for its express disclosures
`
`and teachings. I also understand that prior art may be relied on as teaching features
`
`that are necessarily present in the prior art even if those specific feature are not
`
`expressly or explicitly disclosed.
`
`21.
`
`I understand that before reaching any final conclusion on obviousness,
`
`I must consider objective indicia of nonobviousness, if any such indicia are offered.
`
`I was informed that I must consider these indicia to ensure that, for example, there
`
`were not unanticipated problems, obstacles, or hurdles that may seem easy to
`
`overcome in hindsight but were not readily overcome before the challenged claims’
`
`priority date. I understand that these objective indicia are also known as “secondary
`
`considerations of nonobviousness” and may include long-felt but unmet needs and
`
`unexpected results, among others.
`
`22.
`
`I also understand that any alleged evidence of secondary considerations
`
`of nonobviousness must relate to the scope of the challenged claims. I understand
`
`that for any offered secondary considerations evidence to be given substantial
`
`weight, the proponent of that evidence must establish a “nexus,” meaning a sufficient
`
`connection or tie between that evidence and the “merits,” meaning any novel
`
`elements of the claimed invention. Accordingly, I understand that if the offered
`
`secondary considerations evidence is the result of something other than the merits
`
`of the claim, there is no nexus to the claimed invention. I also understand that the
`
`9
`
`NJOY Exhibit 1003.013
`
`

`

`
`
`Patent Owner bears the burden to prove a nexus exists.
`
`23.
`
`I understand that secondary considerations do not overcome a strong
`
`showing of obviousness.
`
`C.
`24.
`
`Priority Date
`I understand that for patent claims to be entitled to the priority date of
`
`an earlier application (i.e., to benefit from the earlier application’s filing date), the
`
`claims of the later patent must be fully supported by the earlier patent application’s
`
`disclosures. I understand that for the claims to be supported, the earlier application’s
`
`disclosures must be sufficient to allow a person of ordinary skill in the art to
`
`reasonably conclude that the inventors were in possession of the claimed invention.
`
`I further understand that, for purposes of this earlier priority claim, the sufficiency
`
`of disclosure must be supported by each intervening patent application within the
`
`continuation chain.
`
`25.
`
`I understand that the application for the ’123 Patent was filed on
`
`February 10, 2017, and claimed the benefit of U.S. Provisional App. No. 62/294,271,
`
`filed on February 11, 2016. For the purposes of my opinions, I considered the state
`
`of the art and the level of knowledge that a person of ordinary skill in the art would
`
`have possessed as of the earliest claimed priority date, February 11, 2016. Unless I
`
`state otherwise, whenever I explain a principle or some technical subject matter was
`
`known or understood, this refers to the knowledge or understanding of a person of
`
`10
`
`NJOY Exhibit 1003.014
`
`

`

`
`
`ordinary skill in the art as of February 11, 2016.
`
`D.
`26.
`
`Person of Ordinary Skill in the Art (“POSA”)
`I was asked to evaluate the ’123 Patent from the perspective of a POSA
`
`as of the ’123 Patent’s priority date. As I explained above, I evaluated the ’123 Patent
`
`and formed my opinions based on the ’123 Patent’s earliest claimed priority date,
`
`February 11, 2016.
`
`27.
`
`In my opinion, a POSA relevant to the ’123 Patent as of the priority
`
`date would have at least a B.S. degree in Mechanical Engineering, Electrical
`
`Engineering, Industrial Design, Product Design, or similar field, with at least two
`
`years of industry experience in one of these fields; and such POSA would have been
`
`familiar with electrically powered vaporizing articles, their components, or the
`
`underlying technologies.
`
`28. Based on my education, training, and experience, it is my opinion that
`
`I can accurately represent the views of a POSA as of the ’123 Patent’s priority date
`
`for at least claims 14–16, 18, 27–29, and 31–32. Thus, I provide the opinions in this
`
`declaration using the viewpoint of a POSA as of February 11, 2016.
`
`III. THE PRIOR ART
`A. Technology Background
`29. Differential pressure sensors operate by measuring the difference
`
`between two pressures. One of the pressures is a reference pressure. An example of
`
`a reference pressure is ambient air. EX1022, [0101] (“Differential pressure sensors
`
`11
`
`NJOY Exhibit 1003.015
`
`

`

`
`
`measure two air pressures, one ambient and one that changes.”); EX1023, [0083].
`
`Differential pressure sensors operate by exposing one side of the pressure sensor to
`
`one pressure and another side of the pressure sensor to the reference pressure. See
`
`EX1001, 4:56-60 (“Differential pressure sensors may measure the distance between
`
`two pressures, one connected on different sides of the sensor. This includes pressure
`
`sensors in which one side is open/connected to ambient atmosphere (pressure).”).
`
`Therefore, it is important that the reference pressure is isolated from the variable
`
`pressure to detect the difference between the two pressures.
`
`30. Differential pressure sensors have been used in e-cigarettes to detect
`
`when a smoker draws on the device. By the time the ’123 Patent was filed,
`
`differential pressure sensors were used in the tip end of the device and located within
`
`a gasket that sealed the sides of the pressure sensor that measured the different
`
`pressures from one another. EX1023, [0083] (“The differential pressure sensor is
`
`generally set on an end of the device and put into a gasket that seals one side of the
`
`sensor from another side of the sensor.”); EX1022, [0101]. Examples of electronic
`
`cigarettes with pressure sensors at the tip of the device within gaskets or other
`
`enclosures are show in EX1006; EX1007; EX1009; EX1006; and EX1010.
`
`12
`
`NJOY Exhibit 1003.016
`
`

`

`
`
`EX1009, Fig. 51
`
`
`
`EX1009 (U.S. Patent No. 8,499,766 (“Newton766”)), 6:6-9 (“The polymeric
`
`surround 30 also acts as a pressure seal to insure the draw pressure sensor 24 is
`
`properly coupled to detect the negative pressure of the draw.”)
`
`EX1007, Figs. 5a, 5b
`
`
`
`Newton569 discloses a pressure sensor 48 “located by a pressure seal 50” at the
`
`distal end of the battery portion 10. EX1007, 5:42-43, Fig. 5a.
`
`
`1 Colored annotations and highlighting added to figures unless indicated otherwise.
`
`13
`
`NJOY Exhibit 1003.017
`
`

`

`
`
`EX1006, Figs. 23, 24 (Annotated)
`
`
`
`EX1006, [0107] (“A sensor unit 209 occupies the interior of the LED cap 207, and
`
`is an embodiment of the sensor 24 (FIG. 1), but instead of being inside a plastic
`
`housing of its own, the sensor unit 209 is now disposed inside the LED cap 207 in
`
`order to save space.”).
`
`
`
`14
`
`NJOY Exhibit 1003.018
`
`

`

`
`
`EX1010, Fig. 4
`
`EX1010, [0017] (“As can be seen there, the spaces around the sensor are blocked so
`
`no air flow takes place through the cavity of the battery part. During inhalation, air
`
`enters from the side of the Battery and enters the post of the Battery via a groove in
`
`the battery post”).
`
`31. When a smoker draws on the device, restrictions in the air flow path
`
`within the electronic cigarette (sealed air flow path) create a negative pressure. See
`
`EX1004, [0077] (“The air inlet channel can present a restriction to the flow of air so
`
`that the pressure on the interior of the coupler is lower than ambient pressure (and
`
`thus lower than the normal pressure space within the control body shell). This
`
`reduced pressure is transmitted to the pressure sensor in the control body shell by
`
`the pressure channel formed in the coupler. In this manner, a pressure differential
`
`can be created across the pressure sensor between the first end of the pressure sensor
`
`in the pressure reduction space and the second end of the pressure sensor in the
`
`normal pressure space within the shell.”). The differential pressure sensor detects
`
`the reduction in pressure in the electronic cigarette caused by a smoker drawing on
`
`the device as compared to ambient air. See EX1023, [0083] (“When an adult vaper
`
`applies a negative pressure, the sealed side of the differential pressure sensor detects
`
`a pressure drop (vacuum), while the ambient side detects less of a drop due to the
`
`exposure by not being sealed.”); EX1022, [0101].
`
`15
`
`NJOY Exhibit 1003.019
`
`

`

`
`
`32. The differential pressure sensor can output a signal based on its sensor
`
`readings. EX1005, [0004] (“The MEMS-based sensor is within the housing and
`
`configured to detect a pressure on the MEMS-based sensor caused by airflow
`
`through at least a portion of the housing. The MEMS-based sensor is configured to
`
`convert the pressure to an electrical signal, and output the electrical signal.”);
`
`EX1021, 18:27-31 (“In response to a detected airflow, the sensor can be configured
`
`to output a variable signal, which can vary, for example, based upon one or more
`
`properties of the airflow. Such variable output sensor may be utilized in a variety of
`
`embodiments 30 of aerosol delivery devices as described below. Moreover, the
`
`sensor 108 in FIG. 1 and/or the sensor 208 in FIG. 2 may be a variable output sensor
`
`as described herein.”).
`
`33. When a draw is detected, different functions can be activated, such as
`
`the heating element or an inhalation indicator. See EX1004, [0077] (“More
`
`particularly, the control circuit can be configured to establish electrical current flow
`
`from the electrical power source when the pressure sensor detects a reduced pressure
`
`in the pressure reduction space relative to the pressure in the normal pressure space.
`
`Such electrical current flow can energize a heater in the cartridge to vaporize the
`
`aerosol precursor composition.”); EX1021, 23:25-28 (“The variable signal output
`
`from the flex/bend sensor can be used by one or more control elements of the aerosol
`
`delivery device to control the operation of the device. Such operation can encompass
`
`16
`
`NJOY Exhibit 1003.020
`
`

`

`
`
`a variety of functional elements of the device, such as a heating member, a fluid
`
`delivery member, a sensory feedback member, and the like.”).
`
`34. The ’123 Patent does not allege that the pressure sensor is a novel aspect
`
`of the claimed invention. Instead, it discloses that “the pressure sensors described
`
`herein may be any differential pressure sensor….”2 EX1001, 4:49-56; see also
`
`41:56-58. There are different types of differential pressure sensors. The ’123 Patent
`
`also identifies differential sensors that could be used to implement the pressure
`
`sensors. EX1001, 4:49-56 (“In general, the pressure sensors described herein may
`
`be any differential pressure sensor, such as MEMS, capacitive pressures sensors
`
`(e.g., including a capacitive membrane), or any force collector type pressure sensors
`
`that use a transducer to measure pressure or pressure differences (e.g., diaphragm,
`
`piston, etc.), piezoresistive, electromagnetic, piezoelectric, optical, potentiometric,
`
`resonant (including MEMS), etc.”); 41:56-58 (“As mentioned above, other types of
`
`pressures [sic] sensors may be used (e.g., microelectromechanical systems (MEMS)
`
`pressure sensors or any other differential pressure sensor).”).
`
`35. The output of a pressure sensor may include outputting sensor readings.
`
`Worm identifies an exemplary pressure sensor (Model 163PC01D36 manufactured
`
`by Honeywell) that provides puff-actuation (draw detection). EX1004, [0046]. I was
`
`
`2 Emphasis added unless indicated otherwise.
`
`17
`
`NJOY Exhibit 1003.021
`
`

`

`
`
`able to locate a data sheet for this device on the Internet Archives.3 The identified
`
`“[d]ifferential pressure sensor[]” provides “output voltage proportional to applied
`
`pressure.” See EX1026.001 (160PC Low Pressure Sensors Datasheet for differential
`
`pressure sensor model 163PC01D36).
`
`
`
`
`3 The data sheet for the Model 163PC01D36 manufactured by Honeywell is
`available on the Honeywell website captured by the Internet Archives at:
`https://web.archive.org/web/20041127165711/http://honeywell-
`sensor.com.cn/prodinfo/di_silicon_pressure/installation/p87724_1.pdf. See EX1029
`(Screen shots of Internet Archives webpage for Model 163PC01D36 datasheet dated
`November 27, 2004).
`
`18
`
`NJOY Exhibit 1003.022
`
`

`

`
`
`
`
`EX1026.001 (160PC Low Pressure Datasheet) (excerpts)
`
`36. One type of differential pressure sensor is a microelectromechanical
`
`system (“MEMS”) pressure sensor. MEMS-based pressure sensors were
`
`contemplated in an e-cigarette no later than 2008 as disclosed in EP2110034
`
`(“Fernando”). EX1018 (filed April 17, 2008, and published October 21, 2009);
`
`[0039] (“Alternatively, the sensor may be any of: a mechanical device, an optical
`
`device, an opto-mechanical device and a micro electro-mechanical-systems
`
`(MEMS) based sensor.”).
`
`37. When used in an electronic cigarette, a MEMS pressure sensor detects
`
`the pressure in a portion of the electronic cigarette and outputs pressure data,
`
`19
`
`NJOY Exhibit 1003.023
`
`

`

`
`
`including a pressure sensor reading or pressure value. EX1005, [0004] (“The
`
`MEMS-based sensor is within the housing and configured to detect a pressure on the
`
`MEMS-based sensor caused by airflow through at least a portion of the housing. The
`
`MEMS-based sensor is configured to convert the pressure to an electrical signal, and
`
`output the electrical signal.”); see also EX1023, [0087]; [0088] (“Thus, the pressure
`
`and temperature data PTDATA can include at least one of a pressure measurement and
`
`a temperature measurement.”); EX1022, [0105]; [0106].
`
`38. The output from the MEMS pressure sensor can be in pressure units, as
`
`illustrated in a datasheet for a commercial product cited by an electronic cigarette
`
`patent. Jordan identifies a specific MEMS pressure sensor, Model MS5637-
`
`02BA03. EX1023, [0081]; EX1022, [0103] (“The MEMS pressure sensor 525 may
`
`be an MS5637-02BA03 Low Voltage Barometric Pressure Sensor, for example.”). I
`
`was able to locate a copy of the datasheet for this product on the Internet Archives.4
`
`This webpage is contained a downloadable copy of the data sheet from the
`
`manufacturer, Measurement Specialties dated May 22, 2013. EX2029 (Screen shots
`
`of Internet Archives web pages); EX1020 (datasheet referenced in (showing output
`
`
`4 The data sheet for the Model MS5637-02BA03 manufactured by Measurement
`Specialties is available on the Measurement Specialties website captured by the
`Inter