[00:00:00] Speaker 03:
case is also after Joseph Massimo, 2022, 1891.

[00:00:04] Speaker 03:
There's Marty when you were ready.

[00:00:16] Speaker 01:
May I proceed?

[00:00:17] Speaker 01:
May it please the court?

[00:00:18] Speaker 01:
My name is Brittany Amati and I represent Apple.

[00:00:21] Speaker 01:
In construing the 776 patent claims, the board imported a negative limitation requiring that neither the first nor the second duty cycle can be 0%.

[00:00:31] Speaker 01:
That was error because nothing in the claims or the specification require the exclusion of the duty cycles that are 0%.

[00:00:39] Speaker 01:
In fact, the opposite is true.

[00:00:41] Speaker 01:
Let me start with the claim language.

[00:00:43] Speaker 01:
Nothing in the independent claims defines or limits the value of the duty cycles or implies that it can't be 0%.

[00:00:51] Speaker 01:
In fact, dependent claims 6 and 15 confirm that the duty cycle can in fact be 0%.

[00:00:58] Speaker 01:
If you take a look at dependent claim 6, for example,

[00:01:01] Speaker 01:
It recites the method of claim one wherein said operating the patient monitor in accordance with the first control protocol comprises operating the first control protocol light source in a data off state.

[00:01:15] Speaker 01:
The patent makes clear and Massimo does not dispute

[00:01:18] Speaker 01:
that a data off state means that the light source is off for longer than one drive cycle.

[00:01:24] Speaker 01:
Under the agreed upon construction, where the light source is in a data off state during the drive cycle, the duty cycle is necessarily 0%.

[00:01:34] Speaker 01:
The board disregarded dependent claims 6 and 15, because those claims use the word comprises.

[00:01:40] Speaker 01:
But the mere fact that the claims are written as open-ended claims does not negate the fact that the structure and syntax of the dependent claims requires.

[00:01:50] Speaker 04:
How can there be a 0% cycle?

[00:01:56] Speaker 04:
That means that the system is off.

[00:02:02] Speaker 04:
Correct?

[00:02:03] Speaker 01:
It means that it's off for more than one, or the length of a drive cycle, the individual light source.

[00:02:11] Speaker 01:
And I think that's exactly what the data off sees.

[00:02:14] Speaker 04:
Doesn't it have to be activated at least to some degree in order to work?

[00:02:20] Speaker 01:
So I think notably that independent claims state that the first light source can be one or more light sources.

[00:02:28] Speaker 01:
And so the mere fact that one of those light sources is off doesn't preclude the fact that you can take a measurement, because there are other light sources that can be on.

[00:02:37] Speaker 04:
And so if there's other light sources that are on, then how can you have a 0% duty cycle?

[00:02:46] Speaker 01:
So as the patent explains with respect to the data off state, you can have one of the light sources off for more than one duty cycle and then other light sources turn on for another duty cycle.

[00:02:59] Speaker 04:
So you don't have a situation where everything is off?

[00:03:03] Speaker 01:
That's correct.

[00:03:05] Speaker 01:
That's correct.

[00:03:06] Speaker 01:
And I think that's within the scope of the claims.

[00:03:09] Speaker 02:
The board pointed out, I think you lied on, at least in part on the fact that the specification identifies two of the control states as duty cycles.

[00:03:21] Speaker 02:
And then there's a third distinct interval that's, as Judge Raina pointed out, data off state.

[00:03:29] Speaker 02:
So doesn't that sort of begin and end your case, that there's a third cycle for duty off state, which is other than the other two cycles, which leads one to conclude you can't be at 0% for the first two?

[00:03:42] Speaker 01:
I would respectfully disagree, Your Honor.

[00:03:44] Speaker 01:
And I direct the court to our reply brief at pages 18 and 19, where we lay out the syntax of the limitation in claim one next to the limitation in claim six.

[00:03:54] Speaker 01:
And claim one recites that operating of the patient monitor according to the first control protocol operates the first control protocol light source according to a first duty cycle.

[00:04:05] Speaker 01:
Claim six then uses almost identical language, citing operating the patient monitor in accordance with the first control protocol comprises operating the first control protocol light source in a data off state.

[00:04:20] Speaker 01:
necessarily requires that the first control protocol light source is both operated in accordance with the first duty cycle and operated in a data off state simultaneously.

[00:04:31] Speaker 01:
And that necessarily requires that the duty cycle be 0% because the data off state means, and this is undisputed, that the light source is off for more than one drive cycle.

[00:04:42] Speaker 01:
And so there's nothing in the claims that excludes

[00:04:45] Speaker 01:
a zero percent duty cycle, and to the contrary, the claims confirm that a zero percent duty cycle must be within the scope of claim one.

[00:04:55] Speaker 01:
So I think, Your Honor, with respect to the Board's decision, the Board and Massimo pointed to the claim's separate requirement

[00:05:05] Speaker 01:
that the patient monitor calculate the pulse rate as precluding the duty cycle from being 0%.

[00:05:10] Speaker 01:
But even in the situation where the first light source is off and operating at a 0% duty cycle, the monitor is still able to calculate the pulse rate because the claims expressly make clear that the first light source can include one or more of a plurality of light sources.

[00:05:27] Speaker 01:
And so even if one of those light sources is operating in a data off state or at a 0% duty cycle, there's nonetheless light that is available from other light sources within the device.

[00:05:39] Speaker 01:
In fact, Massimo acknowledged to the board that there's no express teaching in the patent against operating two lights at different duty cycles.

[00:05:48] Speaker 01:
And that's at APPX 1536, lines 1 through 13, and APPX 1539, lines 1 through 10.

[00:05:56] Speaker 01:
So in short, nothing in the claim's requirement to calculate a pulse rate precludes the existence of a 0% duty cycle.

[00:06:08] Speaker 01:
So if I could turn to the specification, as with the claims, the specification confirms that there can, in fact, be a 0% duty cycle, where the specification describes three control engine states, high, low, and data off.

[00:06:24] Speaker 01:
as depicted in figure eight.

[00:06:26] Speaker 01:
The board's construction would exclude that embodiment where the light source operates in a data off state, which is also captured by dependent claims six and 15.

[00:06:37] Speaker 01:
And so we would submit that the board's construction cannot be correct because it excludes that preferred embodiment.

[00:06:45] Speaker 01:
The board also erred in relying on a specific embodiment in the specification.

[00:06:50] Speaker 01:
The board pointed to the fact that the duty cycle described in the specification is between a range of 3.125% and 25%.

[00:06:59] Speaker 01:
But it was error for the board to rely on that embodiment, particularly where there are other broader embodiments in the specification and the claims are not so limited on their face.

[00:07:09] Speaker 01:
So for all those reasons, we ask that this court reverse the board's construction of a duty cycle as excluding duty cycles of 0% and remand for a determination of patentability under the proper construction.

[00:07:22] Speaker 01:
Unless the court has further questions, I'll reserve the remainder of my time.

[00:07:27] Speaker 03:
But only plan construction is at issue here now, not application of the claim to the reference.

[00:07:35] Speaker 00:
That's correct, Your Honor.

[00:07:36] Speaker 03:
Thank you.

[00:07:37] Speaker 03:
We'll save the rest of your time.

[00:07:38] Speaker 00:
Thank you, Your Honor.

[00:07:42] Speaker 03:
Mr. Stoll.

[00:07:46] Speaker 05:
Thank you, Your Honor, and may it please the court, Josh Dole, on behalf of Massimo Corporation.

[00:07:52] Speaker 05:
I heard opposing counsel suggest that the board improperly imported a negative limitation from the specification, and that is not what happened here.

[00:08:01] Speaker 05:
To read from Appendix 17, the board said, the weight of the evidence, including the claimed language,

[00:08:08] Speaker 05:
and specification convinces us that neither the first nor the second duty cycle can be zero percent.

[00:08:15] Speaker 05:
And the board then goes on for two pages to analyze the claim language.

[00:08:19] Speaker 05:
And the board says the claims require the first and second control protocol light sources to generate light so that the patient monitor can calculate a pulse rate based on the light.

[00:08:33] Speaker 05:
Calculating the pulse rate is one of the requirements of the claim.

[00:08:37] Speaker 05:
The board then goes on.

[00:08:38] Speaker 05:
the first and second duty cycles cannot be 0% because the light sources of the first and second protocol light sources would not generate light to enable pulse rate calculation as required by the claims.

[00:08:55] Speaker 05:
So the board found that the claims themselves require a duty cycle greater than 0% because the light sources must be active.

[00:09:05] Speaker 05:
Now, my opponents are not disputing the first part of the board's construction there.

[00:09:10] Speaker 05:
The claims require the first and second protocol light sources to generate light.

[00:09:15] Speaker 05:
I think we agree they have to generate light because we need to calculate the pulse rate.

[00:09:20] Speaker 05:
What my opponents have done is they have speculated that the first control protocol light source may include two light sources, one of which is turned off.

[00:09:30] Speaker 05:
And we just heard one, which would operate in an undefined duty cycle to generate the pulse rate.

[00:09:37] Speaker 05:
There are two reasons that construction or that approach to the claims is not supported by the claim language.

[00:09:46] Speaker 05:
First.

[00:09:48] Speaker 04:
The claims recite... Is it your position that Apple's argument is itself asserting that there has to be a light on all the time?

[00:10:02] Speaker 05:
Yes, Apple's argument requires a light to be on all the time and Apple has acknowledged that in the first control protocol light source.

[00:10:09] Speaker 05:
What Apple has done is pointed to the language in the claims that say that the first control protocol light source may include one or more of a plurality of light sources.

[00:10:19] Speaker 05:
And Apple has said, aha, one of the light sources maybe is off and maybe there's another light source that is on.

[00:10:25] Speaker 04:
But even under that situation, there's always a light on.

[00:10:28] Speaker 05:
That's correct, Your Honor.

[00:10:29] Speaker 05:
There would always be a duty cycle.

[00:10:31] Speaker 05:
And that's what the board pointed out to say.

[00:10:34] Speaker 05:
A person of skill in the art would not think that there was no duty cycle if there were a light source on.

[00:10:40] Speaker 05:
Correct.

[00:10:41] Speaker 05:
The board also pointed out that the claims presume that the individual light sources that comprise the first protocol light source operate as a unit according to the same duty cycle.

[00:10:53] Speaker 05:
And again, that comes out of the claims because the claims say the first control protocol light source operates according to a first duty cycle.

[00:11:02] Speaker 05:
Apple has tried to rewrite the claims to say that one or more of the plurality of light sources operates according to a first duty cycle, but that's not what the claims say.

[00:11:11] Speaker 05:
Additionally, as we've heard, Apple's argument depends on there being at least two light sources in the first control protocol light source.

[00:11:20] Speaker 05:
At least two.

[00:11:21] Speaker 05:
One that's a 0% duty cycle, the light's off.

[00:11:24] Speaker 05:
And one that operates at this other, Judge Raina, as you've mentioned, at this other duty cycle to get the pulse rate.

[00:11:31] Speaker 05:
The problem is that the claims say that the first controlled protocol light source includes one or more of a plurality of light sources.

[00:11:39] Speaker 05:
So within the scope of the claim, there may only be one light, and that light would have to be turned off for Apple's 0% duty cycle to work.

[00:11:49] Speaker 05:
In that case, all the lights are off, there is no duty cycle being, there is no duty cycle, there is no light to generate the pulse rate.

[00:11:57] Speaker 05:
So there are two reasons in the claims why Apple's argument failed.

[00:12:01] Speaker 04:
The board also looked at the specification and found that... This is just something I've been wondering about that I didn't see the answer and it's probably not really germane, but if all the lights are off,

[00:12:15] Speaker 04:
When do they come back on?

[00:12:17] Speaker 04:
I mean, what is it that instigates them to turn back on?

[00:12:21] Speaker 04:
If it can detect, if the lights are off, there's no detection of abnormality in the bloodstream or anything like that, then at the end of the day, what cuts them back on?

[00:12:34] Speaker 05:
Well, in the prior art, which the patent denigrates, there was a sleep mode, and the lights would turn off.

[00:12:41] Speaker 05:
And after a set period of time, the lights would turn back on.

[00:12:45] Speaker 05:
That's the problem that the 776 patent is trying to address.

[00:12:49] Speaker 05:
The 776 patent discusses intermittently reducing the duty cycle so that we save power, but the lights are still active in case there is a patient event or there's some sort of low signal quality, the signal can immediately be bumped back.

[00:13:05] Speaker 04:
So if you're in a low light duty cycle,

[00:13:09] Speaker 04:
and then there's an abnormality or one of these crisis occurs, then it moves on to a higher duty cycle, correct?

[00:13:18] Speaker 05:
Correct Judge Raina, that's absolutely correct, yes, and that's how the system operates.

[00:13:24] Speaker 05:
There's another reason that Apple's 0% duty cycle is incorrect.

[00:13:29] Speaker 05:
And it's because it's inconsistent with the plain meaning of duty cycle.

[00:13:33] Speaker 05:
Here, the board adopted a construction of duty cycle from an electrical engineering dictionary.

[00:13:39] Speaker 05:
And Apple has not appealed that portion of the construction today.

[00:13:43] Speaker 05:
The construction is the ratio of operating time or on time of a light source to the total time period during which the light source is intermittently

[00:13:54] Speaker 05:
If you have a 0% duty cycle, the light source is not intermittently operated.

[00:13:59] Speaker 05:
So that is a second reason that Apple's proposed construction that a duty cycle can be 0% is improper.

[00:14:09] Speaker 05:
My opponent also talked about the specification and what the specification says.

[00:14:14] Speaker 05:
The specification does not use the term 0% duty cycle.

[00:14:17] Speaker 05:
It does not say that when a light is off, it has a 0% duty cycle.

[00:14:22] Speaker 05:
The specification describes a data-off state, Judge Prost, as a separate protocol from a first duty cycle and a second duty cycle or a low and high duty cycle.

[00:14:35] Speaker 05:
The specification actually says in conjunction with an intermittently reduced duty cycle or as an independent sampling mechanism, there may be a data-off time period.

[00:14:46] Speaker 05:
and we see in Figure 8 an example of a system running at a low-duty cycle, a high-duty cycle, and a data off-state.

[00:14:54] Speaker 05:
At Appendix 75, Column 8, the patent explains the low-duty cycle occurs during a first time period, the high-duty cycle occurs during a second time period, and the data off-state occurs during a third time period.

[00:15:09] Speaker 05:
The board correctly stated

[00:15:11] Speaker 05:
the specification, this is at appendix 20, the specification identifies two of the control states as duty cycles and a third distinct time interval as a data off state.

[00:15:23] Speaker 05:
Thus, the claim first and second duty cycles can be the low or high duty cycles, they cannot be the data off state.

[00:15:28] Speaker 04:
And that's true.

[00:15:29] Speaker 04:
If we were to find that the duty off state is not a separate status that's distinguished from duty cycle, then you would lose, is that right?

[00:15:40] Speaker 05:
Well, that's not correct either, because the court would still need to find that the data off state operates at a first duty cycle or a second duty cycle.

[00:15:49] Speaker 04:
Well, if it's not a separate state or has separate status from the duty cycles.

[00:15:58] Speaker 05:
Well, again, remember, the duty cycle, when there's a first duty cycle or a second duty cycle,

[00:16:04] Speaker 05:
the light sources need to be active.

[00:16:07] Speaker 05:
And what we learned from reading the patent is that during the data off state, all the light sources are off.

[00:16:13] Speaker 05:
If we look at column seven, the patent says there may be a data off time period longer than one drive current cycle, where the emitter drivers are turned off, the emitter drivers, not one or more.

[00:16:27] Speaker 05:
If we go further and look at column 8, lines 38 to 40, it says, during a third time interval, the pulse oximeter is able to enter the data off state 818, during which time no sensor samples are processed.

[00:16:42] Speaker 05:
That's because the lights are all turned off.

[00:16:44] Speaker 05:
So even if the data off state were somehow similar to the duty cycles, it still doesn't meet the claim limitation because all the lights are turned off.

[00:16:54] Speaker 05:
And as we learned from the board's decision, the claims require the light sources to be on to measure the pulse rate.

[00:17:01] Speaker 03:
Is this patent expired?

[00:17:03] Speaker 05:
This patent is expired, Your Honor.

[00:17:05] Speaker 03:
Is there litigation going on other than against Apple?

[00:17:09] Speaker 05:
There is not, Your Honor.

[00:17:17] Speaker 05:
I will also just briefly respond to my opponent's suggestion that there was some admission made at oral argument that the patent doesn't exclude zero percent duty cycle.

[00:17:29] Speaker 05:
What was said at oral argument, which is correct, is there is no express statement in the specification saying that two light sources could not operate at different duty cycles.

[00:17:39] Speaker 05:
But what was said was the claims here

[00:17:43] Speaker 05:
prevent a 0% duty cycle.

[00:17:45] Speaker 05:
The full quote from oral argument is in the red brief at page 30.

[00:17:51] Speaker 05:
Apple has not presented any evidence that there's a disclosure in the patent of two light sources operating simultaneously at different duty cycles.

[00:17:59] Speaker 05:
That's not in the patent anywhere.

[00:18:01] Speaker 05:
So the claim construction that Apple has proposed goes well beyond the specification.

[00:18:09] Speaker 05:
With that, if there are no further questions, I will cede the rest of my time.

[00:18:14] Speaker 03:
Well, your duty cycle is not down to zero.

[00:18:18] Speaker 03:
But you make me save the time.

[00:18:19] Speaker 05:
Thank you, Your Honor.

[00:18:20] Speaker 03:
Thank you.

[00:18:22] Speaker 03:
Ms.

[00:18:22] Speaker 03:
Amati has some rebuttal time.

[00:18:26] Speaker 01:
Thank you, Your Honor.

[00:18:29] Speaker 01:
Just a few points in response.

[00:18:32] Speaker 01:
DeGioia, you had asked about whether this patent is asserted.

[00:18:36] Speaker 01:
It is asserted against Apple in a case in California that

[00:18:39] Speaker 01:
currently stayed pending the outcomes of the IPRs, but the patent has been asserted.

[00:18:43] Speaker 01:
Three responses to the points raised by my friends on the other side.

[00:18:49] Speaker 01:
First, I want to come back to claim six and looking at it in connection with claim one.

[00:18:54] Speaker 01:
And this is laid out in our reply brief again at page 18 and 19.

[00:18:59] Speaker 01:
I think I heard counsel say that you can't have the data off state and a zero perspective.

[00:19:08] Speaker 01:
and a duty cycle at the same time.

[00:19:10] Speaker 01:
But claim one and claim six, and claim six is a dependent claim of claim one, claim one recites that the first control protocol light source is operated according to a first duty cycle.

[00:19:25] Speaker 01:
And in turn, claim six recites that it's operated in a data off state.

[00:19:31] Speaker 01:
So in other words, claim one and claim six simultaneously require that the

[00:19:36] Speaker 01:
the device and the first control protocol light source is operated in a data site off state and according to a first duty cycle.

[00:19:46] Speaker 01:
So those two things have to be true at the same time.

[00:19:49] Speaker 01:
And I don't think I heard a response from the other side on claim six.

[00:19:52] Speaker 02:
But wasn't the board's response that the best reading of claims six and 15 is that the data off in the reduced cycle states can operate in conjunction with, not simultaneously?

[00:20:03] Speaker 02:
Wasn't that what the board concluded?

[00:20:06] Speaker 01:
I think the board, well, the board focused on the comprising language in Claim 6, but I submit that the comprising language merely means that there can be additional light sources, which is consistent with Apple's proposed construction.

[00:20:20] Speaker 01:
Nonetheless, Claim 6 requires that the first control protocol light source is operating in a data off state.

[00:20:29] Speaker 01:
and at the same time that it's operating in accordance with the first duty cycle.

[00:20:33] Speaker 01:
So those two things, just looking at the structure and syntax of the claims, have to be true at the same time.

[00:20:40] Speaker 01:
And I believe the second point I'd like to make is with respect to figure eight and the in conjunction with language from the specification, which I think is a slightly different issue.

[00:20:52] Speaker 01:
The board read the in conjunction with language that appears at column seven, lines 11 through 15 in the specification,

[00:20:59] Speaker 01:
to suggest that the data off-state is different from a duty cycle.

[00:21:03] Speaker 01:
But that passage merely distinguishes between using the data off-cycle together with an intermittently reduced cycle, which is a cycle that cycles between low and high duty cycle, and using the data off-state

[00:21:20] Speaker 01:
as an independent sampling mechanism.

[00:21:23] Speaker 01:
And if you take a look at figure eight, which is in our reply brief at pages 10 through 11, I'm sorry, page 13, if you take a look at that, you can see on the left-hand side, the intermittently reduced duty cycle where you have the low duty cycle and the high duty cycle, and next to that, a data off state.

[00:21:42] Speaker 01:
And then to the right of that, on that same figure, you have just the low duty cycle and the data off state operating.

[00:21:50] Speaker 01:
separately where the data off-state is used as an independent sampling mechanism.

[00:21:55] Speaker 01:
So I think that the specification in Figure 8 in particular supports Apple's proposed construction, particularly if you look at it in conjunction with Claim 6.

[00:22:05] Speaker 01:
And then finally, I'd just like to address the sleep mode issue.

[00:22:08] Speaker 01:
The sleep mode is fundamentally different from the data off-state described in the patent for two reasons.

[00:22:14] Speaker 01:
First, as the patent makes clear in Column 1, Lines 59,

[00:22:18] Speaker 01:
through column two, line 24, where a device is operating in sleep mode, the pulse oximeter is not functioning at all.

[00:22:26] Speaker 01:
The claims here require the pulse oximeter to continue to take measurements even during the data off state, as recited in claim six.

[00:22:34] Speaker 01:
And second, the sleep mode relies on the output parameters to determine when the device should go in sleep mode.

[00:22:42] Speaker 01:
Rather, under the claims here, this device is working in,

[00:22:46] Speaker 01:
in a duty cycle or in a drive cycle, and the data off state is determined by that drive cycle.

[00:22:52] Speaker 01:
And if there are no further questions, we would respectfully ask that the board's claim construction be reversed.

[00:23:00] Speaker 03:
Thank you, counsel.

[00:23:01] Speaker 03:
The case is submitted.

[00:23:02] Speaker 01:
Thank you.