[00:00:01] Speaker 04:
Massimo Operation Versus Apple, 2022, 1972, 73, 75, and 76.

[00:00:10] Speaker 04:
Mr. Lawson.

[00:00:15] Speaker 00:
Thank you.

[00:00:18] Speaker 00:
So this second appeal includes the same optics and adhesion errors in the first appeal.

[00:00:25] Speaker 00:
But I'm going to focus on some unique claims that are at issue in this appeal.

[00:00:29] Speaker 00:
And these are claims directed to parallel connected detectors.

[00:00:33] Speaker 01:
Can I just ask you, I don't have well in hand what's an issue in various cases.

[00:00:41] Speaker 01:
One issue we hadn't discussed in the first argument is this one to three millimeter question.

[00:00:47] Speaker 01:
What case did that arise?

[00:00:48] Speaker 01:
Where does that arise?

[00:00:50] Speaker 00:
You see that in the first appeal, but we'll also see that in the third appeal.

[00:00:52] Speaker 00:
OK, then I'll hold my questions.

[00:00:54] Speaker 00:
We may get to that in the third appeal.

[00:00:55] Speaker 00:
OK, thank you.

[00:00:56] Speaker 00:
We will get to that.

[00:01:05] Speaker 04:
of the protrusion height issue.

[00:01:10] Speaker 00:
We do have a specific protrusion height issue with regard to certain dependent claims.

[00:01:15] Speaker 00:
Yes.

[00:01:16] Speaker 00:
And I believe, and I'm just confirming to make sure, I want to make sure I address that, but I believe that comes up in the...

[00:01:39] Speaker 00:
Oh, I apologize, Your Honor.

[00:01:41] Speaker 00:
I need to address that in this appeal, because it doesn't come up in the third appeal.

[00:01:44] Speaker 00:
So I can start with that.

[00:01:45] Speaker 00:
That would be helpful.

[00:01:46] Speaker 01:
So Judge Laurie clearly knows the case better than anyone else.

[00:01:49] Speaker 00:
Apparently, that is the case.

[00:01:50] Speaker 00:
And thank you.

[00:01:53] Speaker 00:
Let me start with that, then, before I move to the parallel detectors, if that's OK.

[00:01:57] Speaker 00:
So yeah, Massimil.

[00:02:00] Speaker 00:
told the world specific protrusion heights that would provide an order of magnitude increase in signal.

[00:02:08] Speaker 00:
And put those protrusion heights, those specific protrusion heights, into dependent claims that the board found obvious.

[00:02:15] Speaker 00:
And first of all, there's no dispute that none of the combined references teach the claimed range.

[00:02:25] Speaker 00:
The petitioner relied on simply the knowledge of a person of skill in the art, and in particular a consideration of what comfort, it's one considering comfort, what ranges that would lead a person of skill in the art to.

[00:02:39] Speaker 00:
In 1716 and 1733, we think the board certainly erred by at least not addressing our specifications explanation of the incredible light increase, order of magnitude improvement that you received.

[00:02:53] Speaker 01:
But didn't, I mean, did you ever rebut, they had an, I may be confusing issues, but my recollection is they had an expert that said there's a finite

[00:03:02] Speaker 01:
number of ways you could go.

[00:03:04] Speaker 01:
And I didn't see that you refuted that proposition with your expert or otherwise.

[00:03:10] Speaker 01:
I don't know what person skilled in the art has to be to know what comfort level or whatever goes along with a particular size.

[00:03:18] Speaker 01:
It can't be very big, right?

[00:03:19] Speaker 01:
There's not a monumental range that we could be talking about here, right?

[00:03:24] Speaker 01:
So if there's a finite range, and it's pretty small, your expert didn't seem to refute or disagree with their expert that there's a finite number under our case laws, and that couldn't happen.

[00:03:37] Speaker 00:
Well, we, of course, believe our expert did rebut the testimony, but let's assume for discussion that the court disagrees.

[00:03:43] Speaker 00:
Well, I'm happy to have you show us what he did, but in the event.

[00:03:48] Speaker 00:
First of all, Apple's own expert testimony was that there's a universe of potential lens designs available here.

[00:03:56] Speaker 00:
So this does not fit into the case law where there is a limited number of choices and one would simply choose one choice.

[00:04:03] Speaker 00:
There's a universe of potential designs.

[00:04:05] Speaker 00:
Also, Apple's expert relied primarily on Osaki to try to provide some opinion about what his shapes would be.

[00:04:13] Speaker 00:
But Apple's expert testified he couldn't even describe or explain the dimensions of Osaki.

[00:04:19] Speaker 00:
And so we believe that testimony is unsupported.

[00:04:23] Speaker 00:
And we know that unsupported expert testimony is not substantial evidence.

[00:04:27] Speaker 00:
And if you look at the board's opinion, which is fairly short on this issue, we just don't think that the board's opinion

[00:04:34] Speaker 00:
is supported by substantial evidence that it would have been obvious to create a protrusion with these particular protrusion heights.

[00:04:44] Speaker 00:
It's certainly in view of Apple's expert testimony that there's many options in view of the fact that he relied on Osaki that he couldn't even describe the shape of.

[00:04:54] Speaker 00:
We think that shows it's not supported by substantial evidence.

[00:05:00] Speaker 00:
And if Your Honor has more questions.

[00:05:01] Speaker 00:
I do, actually.

[00:05:02] Speaker 03:
That was perfect.

[00:05:03] Speaker 03:
I'm glad you asked.

[00:05:04] Speaker 03:
So it seems like, at least in IPR 1713, Dr. King's declaration cited to a patent.

[00:05:11] Speaker 03:
This is the 513 patent, which he then said describes a protrusion on a biological measurement device that causes a subject's tissue to deform by a depth of about 2 to 20 millimeters.

[00:05:24] Speaker 03:
Do you agree that that was also something that was being relied on with respect to this whole protrusion height issue?

[00:05:34] Speaker 00:
I certainly don't think that constitutes substantial evidence for the fact that these particular heights would provide the benefit that the patent teaches.

[00:05:44] Speaker 00:
And I think, in particular, when the board didn't even address Apple's expert's testimony, that there's a universal potential design choices, and the fact that, in our view, he primarily relied on Osaki.

[00:05:58] Speaker 00:
And Osaki couldn't explain the dimensions there.

[00:06:03] Speaker 00:
claims that provide this substantial improvement in the art, our view as an expert with those claim ranges in front of him simply provides testimony that those claim ranges would have been obvious, especially in view of all of his other testimony.

[00:06:22] Speaker 00:
We don't think that provides substantial evidence support.

[00:06:24] Speaker 00:
Now, unless your honor has more questions, if I can move on to parallel data streams.

[00:06:34] Speaker 00:
So in this issue, we have some unique claims directed to parallel connected detectors.

[00:06:38] Speaker 00:
And we believe that the court should reverse the board's decision on those claims, because the board premises analysis on starting with an Aizawa embodiment that had four detectors and choosing to add a second ring of four detectors, even though Aizawa itself already has an eight ring embodiment of detectors.

[00:07:01] Speaker 00:
So rather than starting with Ozawa's existing embodiment with eight sensors, the board arbitrarily found a percent of skill in the art to start with Ozawa's four ring detectors and had a second ring spaced further away from the LED.

[00:07:19] Speaker 00:
The board relied on a motivation to increase signal strength and improve power consumption, but the board ignored Apple's expert's admission that, quote,

[00:07:29] Speaker 00:
To produce the same likely waveform and do with a reduction in power from the LEDs, slight skip, there's more signal available in the region close to the center versus out at the end.

[00:07:40] Speaker 00:
So there was no dispute that the far ring of detectors would receive less signal.

[00:07:46] Speaker 00:
The board then reasoned that connecting the second stream in parallel would compensate for the relative decrease in light that reaches the outer ring.

[00:07:56] Speaker 00:
But that's a problem created by the first step that the board said would be taken by a person of skill in the art.

[00:08:01] Speaker 00:
In other words, a person of skill in the art would add a second outer ring of detectors.

[00:08:06] Speaker 00:
Undisputed, they would receive less light.

[00:08:08] Speaker 00:
So the solution would be to connect the two rings in parallel to compensate for the decrease in light at the outer ring.

[00:08:15] Speaker 00:
provide more power, which of course would lead to other issues like noise and complexity.

[00:08:20] Speaker 00:
And so, you know, under, in RenewBase, the board needs to provide a rational connection between the facts it finds and the choices it makes.

[00:08:28] Speaker 00:
And we simply think the board's analysis here, you know, starting with Aizawa, ignoring the eight detector embodiment, adding a second farther ring further away from the LED, and then connecting it in parallel to compensate for the decrease in power, we don't think that

[00:08:45] Speaker 00:
supported by substantial evidence.

[00:08:47] Speaker 00:
We don't think that is a rational connection.

[00:08:50] Speaker 00:
There's a rational connection between what the board found and the choices that the board made.

[00:08:55] Speaker 01:
Wasn't there something pointed to by either the expert or the board about pointing in this regard to Mendelson?

[00:09:01] Speaker 01:
And there's a table in Mendelson that gives reasons why it would be optimal, right?

[00:09:07] Speaker 00:
Yes.

[00:09:07] Speaker 00:
Apple's expert relied on, I believe it was Mendelson 799,

[00:09:13] Speaker 00:
Well, Mendelsohn 2003 was the reference actually being used to change Izawa.

[00:09:22] Speaker 00:
But when it came time to explain why a person of skill in the art would see a benefit to adding a second ring in Izawa, Apple's expert relied on Mendelsohn 799

[00:09:37] Speaker 00:
But it was undisputed that the benefits you see from Mendelsohn 799 were from individual detectors, not detectors connected in parallel.

[00:09:46] Speaker 00:
Now, Apple's expert also relied on Mendelsohn 2003.

[00:09:48] Speaker 00:
You sense where it's going to go.

[00:09:51] Speaker 00:
In our view, and we know from cases like.

[00:09:54] Speaker 03:
Why don't I just ask the question?

[00:09:56] Speaker 00:
Sure.

[00:09:56] Speaker 03:
Do you agree that Mendelsohn 2003 discloses that the two lanes of detectors are each

[00:10:01] Speaker 03:
Parallelly connected.

[00:10:03] Speaker 00:
Sorry, could you repeat that question?

[00:10:04] Speaker 03:
Do you agree that Mendelsohn 2003 discloses that the two rings of detectors are connected in parallel?

[00:10:11] Speaker 00:
We do agree that Mendelsohn 2003 discloses that.

[00:10:17] Speaker 00:
When it comes to Mendelsohn 2003,

[00:10:19] Speaker 00:
We know that, of course, conclusory expert testimony is not substantial evidence.

[00:10:24] Speaker 00:
We know that expert testimony that contradicts a reference is not substantial evidence.

[00:10:28] Speaker 00:
And when you look at Mendelsohn 2003, and you look at Mendelsohn 2003 as a whole, what Mendelsohn 2003 is doing is performing experiments to determine whether a wider range, a larger photodetector region would be an improvement.

[00:10:42] Speaker 00:
And so he connected the detectors in two different rings in parallel, in part because the detectors were so big, they wouldn't fit in one ring like in Izala.

[00:10:50] Speaker 00:
But he did it so he could experiment on what the impact would be if you just used one ring, sorry, one ring, or both sets of rings.

[00:10:59] Speaker 00:
And when you get to the conclusion of Mendelson, what this all points to, is Mendelson says in a functional actual physiological sensor,

[00:11:08] Speaker 00:
the goal is to provide a single large area of detection.

[00:11:13] Speaker 00:
And so we don't think a person of skill in the art, starting with Ozawa, who wants to improve light concentration, would first of all ignore Ozawa's eight ring embodiment and choose to start with the four, sorry, eight detector embodiment, start with the four detector embodiment, and then look to Mendelssohn, the Mendelssohn reference, to

[00:11:37] Speaker 00:
then connect the two in parallel.

[00:11:40] Speaker 00:
We just don't think that that's a reasonable interpretation of that reference.

[00:11:43] Speaker 00:
We don't think that.

[00:11:44] Speaker 01:
But you understand why this seems to be a challenge, given where our case law is on motivation to combine.

[00:11:51] Speaker 01:
I mean, we are talking about what's in the various references.

[00:11:54] Speaker 01:
There's a finite amount of choices.

[00:11:57] Speaker 01:
And there's no teaching away argument made.

[00:12:00] Speaker 01:
And so we're talking about it might have some drawbacks, it might have some pluses.

[00:12:06] Speaker 01:
It's a little different than the cases that you may want to rely on in terms of failure to find the motivation.

[00:12:14] Speaker 00:
Well, what I would say is

[00:12:17] Speaker 00:
In particular, when it comes to the parallel data streams, when you have these two different steps, I think we need to look at the board's actual analysis and the path that it took to arrive at these claims.

[00:12:27] Speaker 00:
I mean, Massimo's spec teaches the advantage of having parallel connected detectors and the algorithms to calculate that and the inventive improvement from that.

[00:12:37] Speaker 00:
And so when you're going back and starting with Aizawa, ignoring the eight detector embodiments, starting with the four detector embodiment, adding a second one farther away from the center because you want to improve light concentration, which doesn't make much sense.

[00:12:51] Speaker 00:
And then connecting them in parallel, because there is a reference that did that for experimental purposes that teaches that they should be used together, we think that there's not a rational connection between those facts and the board's conclusion.

[00:13:05] Speaker 00:
We don't think there's substantial evidence of work for what the board did.

[00:13:09] Speaker 00:
That analysis, in our view, makes little sense.

[00:13:13] Speaker 00:
And I will reserve.

[00:13:14] Speaker 00:
I have two housekeeping questions.

[00:13:16] Speaker 03:
Oh, sure.

[00:13:16] Speaker 03:
Stay quiet for a second.

[00:13:17] Speaker 03:
Do you agree that we find there's a motivation to combine the references based on improving adhesion?

[00:13:22] Speaker 03:
There's no need to address the motivation to improve detection efficiency.

[00:13:33] Speaker 00:
I'm not sure about the answer to that question.

[00:13:35] Speaker 00:
I think there's particular claim limitations here that are necessary to be satisfied.

[00:13:40] Speaker 00:
And so I think that's why the board engaged in this analysis of having two different rings of detectors.

[00:13:45] Speaker 03:
When you stand back up if you change your arms.

[00:13:47] Speaker 00:
I would confirm, but I believe the answer is no.

[00:13:49] Speaker 03:
I have one more.

[00:13:49] Speaker 00:
Yes.

[00:13:50] Speaker 03:
So let me get to the second one.

[00:13:51] Speaker 03:
The second one is, do you agree with Apple's argument that for IPR 1733, even if we agree that the board erred, we need to remand for the board to make a finding on other

[00:14:01] Speaker 03:
combinations of references the board instituted but did not decide on.

[00:14:06] Speaker 00:
We agree that the board didn't reach those issues.

[00:14:10] Speaker 00:
However, as far as remand, I think you can tell from the record, because you can certainly tell from the record in the first appeal and the second appeal that there's not substantial evidence support for that conclusion.

[00:14:19] Speaker 00:
And when this court, from its own review of the record, concludes the board could not reach that decision, there's not a path, given the evidence, then the proper remedy is to reverse, rather than remand.

[00:14:30] Speaker 00:
If this court believes there is a path, if properly explained, then the proper remedy is to remand.

[00:14:43] Speaker 02:
Would you like me to start with the protrusions or can I start with the parallel detectors?

[00:14:51] Speaker 02:
We'll start with the parallel detectors then.

[00:14:57] Speaker 02:
The court's decision, the board's decision, is supported by substantial evidence.

[00:15:01] Speaker 02:
And if we just look at the combination, which is Aizawa and Mendelson 2003, the one of skill in the art is presumed to know both references.

[00:15:09] Speaker 02:
And Mendelson 2003 has an explicit teaching that having two co-sensitive rings is a design improvement with respect to power consumption and signal strength.

[00:15:19] Speaker 02:
One of skill in the art, seeking to improve Aizawa would know about this benefit, and that benefit would motivate him or her to make the combination and improve the Aizawa sense.

[00:15:33] Speaker 02:
The board cited evidence, including the teaching of the reference itself, as well as our expert, and that is substantial evidence sufficient to

[00:15:41] Speaker 01:
And it explicitly talks about battery life.

[00:15:44] Speaker 02:
Absolutely.

[00:15:44] Speaker 02:
And that's table one, Your Honor, that you noted.

[00:15:47] Speaker 02:
And so that really should be the end of this particular challenge.

[00:15:50] Speaker 02:
Substantial evidence supports the decision.

[00:15:53] Speaker 02:
Unless you have questions.

[00:15:55] Speaker 02:
With respect to the protrusions,

[00:16:02] Speaker 02:
The board made a finding that is supported by substantial evidence that there is a finite number of design choices.

[00:16:08] Speaker 02:
And the board relied on our expert, which explained that.

[00:16:11] Speaker 01:
So what's the range?

[00:16:12] Speaker 01:
I mean, I have some reservations about this issue.

[00:16:16] Speaker 01:
I think it's hard, because nothing was said.

[00:16:18] Speaker 01:
And the expert, you're right.

[00:16:20] Speaker 01:
I don't think their expert rebutted your expert saying there was a finite.

[00:16:24] Speaker 01:
But did he identify what that finite number of choices were?

[00:16:30] Speaker 02:
So let me address that, because I do think that we have here is the application of KSR's design choice theory that is not the most typical.

[00:16:42] Speaker 02:
So typically you might have literally one or two, put it on the top or put it on the bottom, and you've identified very specifically a concrete number of choices.

[00:16:53] Speaker 02:
our expert and the evidence shows that you can define the finite number functionally.

[00:17:00] Speaker 02:
It's based on the scale of these devices.

[00:17:04] Speaker 02:
And so Dr. Kenney explained that these devices are on the order of millimeters.

[00:17:08] Speaker 02:
And as a practical matter,

[00:17:10] Speaker 02:
There really aren't that many choices when you're talking about such a small area, but he did more.

[00:17:15] Speaker 02:
He also explained that given the competing concerns about comfort and having to still depress into the skin, that would define a finite number of

[00:17:26] Speaker 01:
Choices that one has did he articulate what that finite number of choices?

[00:17:32] Speaker 02:
Well, he did not give a specific number to it and we would submit that under ksr which requires us to Apply a flexible approach to motivation to combine there shouldn't be a per se rule that says you have to identify a specific number again, I think I

[00:17:48] Speaker 02:
the evidence that the board had, and then found from which it found.

[00:17:52] Speaker 01:
Well, do you think it's just inherent or common sense that we would know what the upper limit was, given the choices of comfort and all of that stuff, that anyone would know that?

[00:18:03] Speaker 02:
I think that a person with a skill in the art would know that.

[00:18:06] Speaker 02:
And I think that's the test, not whether those lay people would know.

[00:18:08] Speaker 02:
But what Dr. Kennedy testified is that one with a skill in the art would understand there were a finite number of choices.

[00:18:14] Speaker 02:
was not rebutted.

[00:18:16] Speaker 02:
And the board relied on that testimony, and that testimony is in fact substantial evidence.

[00:18:22] Speaker 02:
It is not conclusory.

[00:18:23] Speaker 02:
He explained the parameters and why, again citing some references showing the general scale of these wearable devices.

[00:18:30] Speaker 02:
And I take your point, Judge Prost.

[00:18:33] Speaker 02:
This is not like the other cases where you have a specific number or there's a reference that gives specific numbers for bounds.

[00:18:39] Speaker 02:
But this

[00:18:40] Speaker 02:
issue design choices in the finite number thereof is a question of fact.

[00:18:45] Speaker 02:
And through the lens that we have to evaluate the sufficiency of the findings, suggest evidence, we think the board did enough here.

[00:18:53] Speaker 03:
Was there at least a statement to the fact that it was on the order of millimeters or something like that?

[00:18:57] Speaker 02:
That is exactly right, Your Honor.

[00:18:58] Speaker 02:
And I pulled the sights when you asked me about it so we can have them for the record.

[00:19:03] Speaker 02:
So in Appendix 2425,

[00:19:07] Speaker 02:
through 2426, which is paragraph 147, our expert talks about on the order of millimeters, and he cites some corroborating evidence about the journal sizes.

[00:19:18] Speaker 02:
As well, he says it again, because I think the citation you identified, appendix 3624, paragraph 64, he does also, again, talk about the 2 to 22 millimeters.

[00:19:28] Speaker 02:
And so this is not conclusory testimony.

[00:19:30] Speaker 02:
He is explaining why he understands the order of magnitude of these devices and the narrow range, the narrow acceptable design choices in order to accomplish the dual functions.

[00:19:42] Speaker 02:
And so it's not conclusory evidence.

[00:19:44] Speaker 02:
And this court has held correctly that an expert's opinion can be all that is necessary to affirm a substantial evidence standard.

[00:19:58] Speaker 02:
If the court has no further questions, I will see the balance of my time.

[00:20:02] Speaker 04:
Thank you, Ms.

[00:20:04] Speaker 04:
Tagnan.

[00:20:04] Speaker 04:
The last one has two minutes.

[00:20:06] Speaker 00:
Thank you, Your Honor.

[00:20:09] Speaker 00:
Certainly, we agree that there's not a finite number of choices.

[00:20:13] Speaker 00:
And certainly, if there are, they haven't been identified in the record.

[00:20:16] Speaker 00:
And it's important to remember that when selecting a particular height, we're talking about selecting a particular shape for the lens.

[00:20:24] Speaker 00:
And Apple's expert testified there's universal potential choices.

[00:20:27] Speaker 00:
And so there'd be a consideration under the greatest curvature theory.

[00:20:31] Speaker 00:
Where is that greatest curvature?

[00:20:32] Speaker 00:
Is it in your detector?

[00:20:34] Speaker 00:
Is it going to provide some increase in light?

[00:20:36] Speaker 00:
Now, I won't go into it in this appeal.

[00:20:37] Speaker 00:
The argument was that overall, Lenswood

[00:20:41] Speaker 00:
somehow increased light or constant shred light overall.

[00:20:44] Speaker 00:
But that's something that under Apple's petitions, a person of skill in the art would take into account when selecting a particular size.

[00:20:53] Speaker 00:
Also, they would take into account infusion.

[00:20:55] Speaker 00:
And what Apple's expert testified at length was that to really understand the impact of a lens on the light, where the light is focused and concentrated, you have to engage in a complex ray trace analysis that Apple's expert never did in this case, and that he actually hadn't done before.

[00:21:12] Speaker 00:
And you would consider

[00:21:14] Speaker 00:
many different factors, the location of the detectors, the location of LED.

[00:21:18] Speaker 00:
You would consider location of corpuscles within the wrist.

[00:21:21] Speaker 00:
And all that a personal skill net would rely on in a process of trial and error, he called it, to arrive at a particular lens shape.

[00:21:28] Speaker 00:
And so none of that is considered by Apple's expert.

[00:21:32] Speaker 00:
We believe the testimony is conclusory, not supported.

[00:21:35] Speaker 00:
And so I will stop there.

[00:21:40] Speaker 04:
Thank you, Council.