Appeal No. 2012-1289

United States Court of Appeals for the

Federal Circuit

BIOSIG INSTRUMENTS, INC.,

Plaintiff-Appellant,

– v. –

NAUTILUS, INC.,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CASE NO. 10-CV-7722,

JUDGE ALVIN K. HELLERSTEIN

PLAINTIFF-APPELLANT’S SUPPLEMENTAL RESPONSE BRIEF ON REMAND

DANIEL C. MULVENY KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, Pennsylvania 19087 (610) 667-7706

MARK D. HARRIS PROSKAUER ROSE LLP 11 Times Square New York, New York 10036 (212) 969-3000 JOHN E. ROBERTS PROSKAUER ROSE LLP One International Place Boston, Massachusetts 02110 (617) 526-9600

Counsel for Plaintiff-Appellant Biosig Instruments, Inc.

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................... ii

PRELIMINARY STATEMENT ............................................................................... 1

ARGUMENT ............................................................................................................. 3

I. The Supreme Court’s Decision in Nautilus II Does Not Require This Court to Reassess Biosig’s Patent ................................... 3

II. Nautilus Relies Exclusively on “Post Hoc” Legal Argument ............... 9

III. Policy Rationales Cannot Justify Invalidating the ’753 Patent ........... 13

CONCLUSION ........................................................................................................ 17

ii

TABLE OF AUTHORITIES

Page(s)

Cases:

Biosig Instruments, Inc. v. Nautilus, Inc., 715 F.3d 891 (Fed. Cir. 2013) ................................................................passim

Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403 (1902)....................................................................................... 11

General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364 (1938)................................................................................. 12, 13

Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014) ............................................................................passim

PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299 (Fed. Cir. 2008) ....................................................................... 5

United Carbon Co. v. Binney & Smith Co., 317 U.S. 228 (1942)......................................................................................... 5

Other Authorities:

Joseph E. Root, Rules of Patent Drafting (2011) .................................................... 14

Robert C. Faber, Faber on Mechanics of Patent Claim Drafting § 10:8:1 (6th ed. 2013) ................................................................................................. 14

Stephen A. Becker, Patent Applications Handbook § 2:9 (2013) ........................... 14

 

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PRELIMINARY STATEMENT

Despite this Court’s directive, Nautilus devotes little space to discussing the

impact of the Supreme Court’s decision on this case. See Nautilus, Inc. v. Biosig

Instruments, Inc., 134 S. Ct. 2120 (2014) (“Nautilus II”). Instead, Nautilus prefers

to rehash a series of arguments that this Court squarely rejected the last time

around. That cursory treatment is unsurprising, as the Supreme Court’s decision

changed little about how this Court should approach the definiteness inquiry. The

main lesson from Nautilus II is that definiteness must be analyzed from the

perspective of the skilled artisan at the time of patenting, rather than that of a court

viewing the patent “post hoc.” Nautilus II, 134 S. Ct. at 2130. Since this Court

already espoused the skilled artisan’s viewpoint at the appropriate time in its

previous analysis, Nautilus II in no way undermines the Court’s prior

determination. See Biosig Instruments, Inc. v. Nautilus, Inc., 715 F.3d 891 (Fed.

Cir. 2013) (“Nautilus I”)

If anything, this Court’s conclusion in Nautilus I is on solider footing

following Nautilus II. Nautilus’s sole support for its position on indefiniteness

comes from speculation and supposition by lawyers, many years after the fact,

about what a skilled artisan might have thought. After Nautilus II, that kind of

argumentation is unsustainable, particularly when the record is replete with

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unrebutted expert evidence showing that a skilled artisan would have understood

the metes and bounds of the ’753 patent.

Bereft of evidentiary support for its position, Nautilus resorts to broad policy

arguments divorced from the facts of the case. With the benefit of some twenty

years’ hindsight, Nautilus contends that the patent could have been drafted in a

clearer fashion, and therefore should be invalidated. It also advocates invalidation

as a way to send a message to patent owners who might be tempted to draft

deliberately ambiguous claims. Neither of those reasons supports the result

Nautilus wants.

The Supreme Court forbids the very approach that Nautilus promotes in its

policy arguments. Nautilus’s complaint that Claim 1 could have been drafted more

exactly cannot be the standard to judge definiteness because “absolute precision”

in claiming is “unattainable.” Nautilus II, 134 S. Ct. at 2129. Its other policy

theory fails because Nautilus has failed to provide any proof that a skilled artisan

would find Claim 1 to be indefinite in the first instance. It sends quite the wrong

message to patent owners to deem a patent claim indefinite, where the only true

evidence shows that skilled artisans knew what it meant.

Accordingly, as this Court previously concluded, and in accord with the

standard articulated by the Supreme Court, the ’753 patent informed a skilled

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artisan of the bounds of the invention with reasonable certainty at the time of

filing. The district court’s holding of indefiniteness should therefore be reversed.

ARGUMENT

I. The Supreme Court’s Decision in Nautilus II Does Not Require This Court to Reassess Biosig’s Patent

Nautilus is incorrect that the Supreme Court’s decision in Nautilus II

requires this Court to perform “a different and less forgiving” evaluation of the

’753 patent. (Naut. Supp. Br. 8.) The only aspect of this Court’s previous

formulation for definiteness that the Supreme Court rejected was its invocation of

the phrases “insolubly ambiguous” and “amenable to construction.” See Nautilus

II, 134 S. Ct. at 2130. As Biosig has demonstrated, although this Panel mentioned

those phrases, its decision in no way turned on them. (See Biosig Supp. Br. 7-9.)

Rather, the Panel properly viewed Claim 1 from the perspective of a skilled artisan

at the time of patenting, and considered whether the claim language provided such

an artisan with reasonable notice of the patent’s bounds, just as the Supreme Court

has demanded. The mere inclusion of two now-disapproved phrases does not

undermine in any way the validity of this Court’s analysis in Nautilus I.

Nautilus makes three attempts to explain why this Court’s analysis in

Nautilus I is purportedly at odds with Nautilus II. (See Naut. Supp. Br. 12-13.)

None is persuasive.

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First, this Court did not apply the “wrong standard” in Nautilus I. (Id. at 12

(emphasis omitted).) Rather, this Court correctly considered whether a skilled

artisan reading Claim 1 in light of the specification and prosecution history would

understand the bounds of the claimed invention. The majority explicitly

considered whether the claim language—not a judicial construction of that

language (id.)—provided the requisite notice. See, e.g., Nautilus I, 715 F.3d at 899

(holding that the “claim language, specification, and the figures … provide

sufficient clarity to skilled artisans”); see also Biosig Supp. Br. 8-9 (collecting

passages from Nautilus I showing that the majority considered Claim 1 itself, not a

construction of the claim).

To the extent that the concurrence analyzed the district court’s construction

of “spaced relationship,” rather than the claim language itself, that was only

because Nautilus had not conditionally cross-appealed that construction. Nautilus

I, 715 F.3d at 906 (Schall, J., concurring). In the concurrence’s view, the failure to

cross-appeal meant that Nautilus was stuck with the district court’s construction,

and there was no need for the Court to reinterpret the term. Id. In addition to that

procedural point, moreover, Judge Schall endorsed the majority’s reading of the

intrinsic patent evidence, agreeing that it “‘discloses certain inherent parameters …

which to a skilled artisan may be sufficient to understand the metes and bounds of

“spaced relationship.”’” Id. at 905 (quoting id. at 899 (majority op.)) (emphasis

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added). Thus, all three Judges on the Panel applied the correct test and reached the

same conclusion.

Second, contrary to Nautilus’s contention, there was nothing improper about

this Court’s consideration of statements by the PTO examiner during the

reexamination proceeding. (See Naut. Supp. Br. 12-13.) This Court held that the

examiner’s statements were evidence of how a skilled artisan reading the ’753

patent would interpret Claim 1. See Nautilus I, 715 F.3d at 900. That is perfectly

appropriate, because a PTO examiner is presumed to have a measure of expertise

in the art and to be familiar with the level of ordinary skill therein. See

PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1304 (Fed. Cir. 2008)

(quotation omitted). While Nautilus is correct that the examiner’s statement in

2007 would not help the skilled artisan to “innovate around the patent the day it

issued,” that is beside the point. (Naut. Supp. Br. 13.) The Court did not think that

the examiner’s statement put skilled artisans on notice of the bounds of Claim 1,

but rather that it reflected the understanding that skilled artisans already had. And

evidence of a skilled artisan’s understanding of a claim is plainly probative of

definiteness. See, e.g., United Carbon Co. v. Binney & Smith Co., 317 U.S. 228,

233-34 (1942).1

                                                            1  Moreover, in one of its two examples (see Naut. Supp. Br. 13), Nautilus employs

selective quotation to create the misimpression that this Court relied on post-filing

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For the same reasons, Nautilus’s complaint that Dr. Lekhtman’s declaration

was “15 years too late” is mistaken. (Naut. Supp. Br. 22.) Dr. Lekhtman’s

declaration is evidence of how a skilled artisan would have understood the scope of

Claim 1 in 1992, and is therefore relevant to the definiteness inquiry. Dr.

Lekhtman specifically demonstrated through reference to contemporaneous

publications that it was commonly known in 1992 how to measure EMG signals

and which variables affected that measurement. (See JA 243 (¶ 90).)

Third, the expert declarations on which this Court relied did not present

“multiple competing interpretations” of Claim 1. (Naut. Supp. Br. 13.) As an

initial matter, the Supreme Court’s decision has no bearing on this argument.

Nothing in Nautilus II speaks to any “conflict[]” between the expert declarations.

(Id.) Nautilus already lodged essentially the same attacks on Biosig’s experts in its

pre-Nautilus II briefing to this Court, without success. (See Naut. App. Br. 43-44.)

Evidently, by renewing its challenges to Biosig’s expert declarations under the

                                                                                                                                                                                                

evidence. The full quote from the decision (with the words Nautilus omitted in italics) is: “The functionality of the claimed heart rate monitor as recited in claim 1, described in the specification, and which provided the basis for overcoming the PTO’s office action rejections during the reexamination, sheds further light on the meaning of ‘spaced relationship.’” Nautilus I, 715 F.3d at 899. The full quote thus shows exactly the opposite of what Nautilus claims: This Court relied on intrinsic evidence, available to the skilled artisan at the relevant time, to construe the term “spaced relationship.” 

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guise of discussing Nautilus II, Nautilus hopes to surreptitiously relitigate an

unrelated issue on which it lost.

Dr. Lekhtman and Dr. Galiana did not express opposing views on the

meaning of “spaced relationship.” Although Dr. Galiana did not explicitly employ

the words “a priori balancing” as Dr. Lekhtman did, she plainly understood that

electrode configuration is vital to equalizing EMG detection at both sides of the

monitor. Indeed, Dr. Galiana emphasized that the “two detected EMG signals on

opposite hands” must “have substantially the same amplitude and phase” (JA

1030-31, 1034 (emphasis in original)), which can be accomplished by adjusting the

spacing of the electrodes (JA 1030-31). She then explained that a lab technician

reading the ’753 patent was able to determine the operative “spaced relationship”

with minimal experimentation. (Id. at 1049-50.) There is no better evidence of

Claim 1’s clarity to a skilled artisan than that. Her declaration fully comports with

Dr. Lekhtman’s on the key point in this appeal: The claimed “spaced relationship”

could easily be ascertained by a person of skill in the art.

Nor did Drs. Lekhtman and Galiana conflict on whether the electrodes could

be “closely spaced.” Dr. Lekhtman did not state that “closely spaced” electrodes

would never achieve the desired functionality. Rather, he explained that Fujisaki’s

specific configuration of wide electrodes used in conjunction with narrow spacing

would not permit EMG detection to be equalized at both sides of the monitor. (Id.

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at 241.) Dr. Lekhtman did not suggest, however, that other electrode

configurations with narrow spacing—like Dr. Galiana’s—would necessarily fail.

Finally, contrary to Nautilus’s characterization, Dr. Yanulis did not

“embrac[e] competing interpretations” of “spaced relationship.” (Naut. Supp. Br.

13.) Indeed, on the sole page cited by Nautilus for this point (JA 1670), Dr.

Yanulis explained that a person of skill would know to adjust the electrode spacing

at the left and right sides of the monitor until the EMGs detected at both sides were

equal. That mirrors what Dr. Lekhtman asserted in his declaration, and it is

precisely the position that Biosig has espoused throughout this litigation. (See,

e.g., JA 242 (¶ 82); Nautilus I, 715 F.3d at 900.)2

This Court has previously considered the Lekhtman, Galiana, and Yanulis

declarations and found no inconsistency within or among the three. In fact, the

                                                            2 Nautilus is flatly wrong when it alleges that Biosig has taken inconsistent positions on the meaning of “spaced relationship.” (Naut. Supp. Br. 23.) From day one, it has been Biosig’s position that in isolation, a “spaced relationship” is just a space; but when read in conjunction with Claim 1’s “whereby” clause, it becomes clear that the “spaced relationship” must be set so that EMG detection is the same at both sides of the monitor. (See, e.g., JA 2827-29; JA 2833-34; Dkt. No. 22 in Case No. 10-cv-7722, at 4.) Nautilus at one time shared that view, acknowledging that the “whereby” clause clarifies the bounds of the “spaced relationship.” (See Biosig Supp. Br. 17-18.) This Court also agreed that the “whereby” clause “sheds further light on the meaning of ‘spaced relationship,’” Nautilus I, 715 F.3d at 899. There is no credible position that the two limitations are unlinked.

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Court held that Dr. Galiana’s declaration “supported” Dr. Lekhtman’s, and that Dr.

Yanulis’s declaration “confirmed” the other two. Nautilus I, 715 F.3d at 901.

Moreover, the Court plainly considered all three declarations to be competent

evidence when it relied on them for its definiteness determination. See id. at 900-

01. Accordingly, although Nautilus would like to relitigate the issue, this Court

has already rejected Nautilus’s attacks on Biosig’s experts.

In sum, Nautilus has failed to establish a single respect in which this Court’s

reasoning in Nautilus I has been undermined by Nautilus II. Since the balance of

Nautilus’s supplemental brief merely recycles arguments that this Court has

already rejected, those arguments should be disallowed again, for the same reasons

that the Court explained in Nautilus I.

II. Nautilus Relies Exclusively on “Post Hoc” Legal Argument

The most telling aspect of Nautilus’s supplemental brief is its attempt to

demonstrate Claim 1’s lack of clarity without citing a shred of actual evidence

regarding what a skilled artisan would understand. (Naut. Supp. Br. 14-21.)

Instead, over the course of seven pages, Nautilus engages only in self-serving

speculation about what a skilled artisan “might” think, based on the conjectures of

its attorneys. If that were the only proof in the case, it would be insufficient to

show indefiniteness; and measured against the array of expert opinions that Biosig

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proffered, it cannot remotely justify the district court’s grant of summary judgment

to Nautilus.

If Nautilus II teaches anything, it is that a definiteness analysis needs to be

conducted from the perspective of a skilled artisan at the time of filing, not that of

a lawyer or judge acting “post hoc.” 134 S. Ct. at 2130. Yet, the purported

“uncertainty” that Nautilus attributes to Claim 1 is based entirely on a dubious

legalistic analysis of the ’753 patent undertaken by its lawyers in 2014. For

example, Nautilus contends that a skilled artisan reading the ’753 patent in 1992

would invoke the rule against superfluity to understand the patent (Naut. Supp. Br.

15-16) or would count the number of words between claim limitations before

deciding whether the limitations are linked (id. at 17). But Nautilus presents no

evidence showing that a skilled artisan would have engaged in such a

hypertechnical and legalistic analysis of the claim text.

The primary “ambiguity” in Claim 1 claimed by Nautilus concerns whether

the “spaced relationship” plays a role in EMG equalization. (See id. at 14-21.) But

on that point, the evidentiary record is clear: A skilled artisan would understand

the connection between the two. Indeed, this Court has already so held, stating that

the skilled artisan would know to “apply a test and determine the ‘spaced

relationship’ as pertaining to the function of substantially removing EMG signals.”

Nautilus I, 715 F.3d at 901.

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Notwithstanding the record and this Court’s previous holding, Nautilus

contends that a skilled artisan might think that there is no relationship between the

claimed spacing and the function of cancelling EMGs because Claim 1 does not

explicitly link the two. (See Naut. Supp. Br. 17-18.)3 But a patent need not spell

out what a skilled artisan already knows. See, e.g., Carnegie Steel Co. v. Cambria

Iron Co., 185 U.S. 403, 437 (1902) (noting that the patent drafter “may assume that

what was already known in the art … was known to” the skilled artisan). And the

record is undisputed that a skilled artisan reading the ’753 patent would have

understood the linkage between the two limitations, as well as how to determine

the proper “spaced relationship,” without needing explicit instructions. See, e.g.,

Nautilus I, 715 F.3d at 900. Therefore, although Nautilus’s lawyers claim as part

of their litigation strategy to be confused about whether the “spaced relationship”

plays a role in achieving the desired functionality, the record shows that skilled

artisans would not.4

                                                            3 Nautilus’s first and second “clues,” purportedly suggesting that electrode spacing plays no role in EMG-cancellation, are really one and the same: Supposedly, the skilled artisan would think that the “spaced relationship” was unconnected to the claimed functionality because the patent does not expressly link the two. (Naut. Supp. Br. 17.) The link between “spaced relationship” and EMG detection and cancellation, however, is indisputable. See supra n. 2.

4 Nautilus does not even attempt to explain why a skilled artisan would be confused by an isolated statement made by the PTO examiner in rejecting a claim

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In a final thrust of desperation, Nautilus suggests that even if “spaced

relationship” was linked to the functional limitation, Claim 1 is ambiguous because

it is unclear whether it would encompass a monitor with electrodes composed of a

theoretical new material that somehow “inherently” detects equal EMG signals at

both sides of the heart monitor, regardless of the spacing. (Naut. Supp. Br. 19

(emphasis in original).) It is telling that the best ambiguity Nautilus’s attorneys

could conjure up concerns a magical substance that likely could not exist in the

real world.5 In any event, the record shows that a skilled artisan would understand

Claim 1 to cover any heart monitor where EMG equalization is a function of the

“spacing, size, shape, and materials of the electrodes.” Nautilus I, 715 F.3d at 900

(emphasis added).

This case is thus nothing like the tungsten-filament patent in General

Electric Co. v. Wabash Appliance Corp., 304 U.S. 364 (1938) (cited in Naut. Supp.

                                                                                                                                                                                                

that was later amended by Biosig and approved by the examiner. (Naut. Supp. Br. 18.)

5 Throughout this litigation, Nautilus’s attorneys have repeatedly put forward hypothetical ambiguities, only to abandon them when new possibilities came to mind. At the Supreme Court, Nautilus argued that it was unclear whether Claim 1 covered monitors that might equalize EMG signals through unspecified “additional circuitry” or a “special sleeve,” instead of through the electrode configuration. (Sup. Ct. Pet’r Br. 48; Sup. Ct. Pet’r Reply Br. 20.) The relentless effort by Nautilus’s attorneys to attribute ambiguity to Claim 1 only highlights the absence of any real confusion experienced by skilled artisans.

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Br. 20-21). There, the patent provided no structural description of the tungsten

grains that purportedly carried out the novel function of preventing filament bulbs

from burning out. Id. at 370-72. Here, by contrast, the ’753 patent provides

substantial detail: It explains to a skilled artisan that electrodes configured to

detect equal EMG signals from both hands, plus a differential amplifier, can

achieve the desired functionality of eliminating EMG noise and enabling the

measurement of ECG signals. Although the patent is silent regarding one aspect of

the invention—the precise method for configuring the electrodes to equalize EMG

detection—the record shows that a skilled artisan already knew how to do that.

Accordingly, this patent satisfies definiteness.

III. Policy Rationales Cannot Justify Invalidating the ’753 Patent

Perhaps recognizing the inherent weakness of its attack on Biosig’s patent,

Nautilus resorts to so-called policy considerations to convince this Court to

invalidate Claim 1. According to Nautilus, if the Court upholds Claim 1 as

definite, it “would fuel the temptation for patent applicants to gain economic

leverage through claim-scope obfuscation.” (Naut. Supp. Br. 24 (capitalization

omitted).) In effect, Nautilus argues that this Court should use this case to send a

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message to misfeasors, who otherwise would deliberately craft ambiguous claims

in an effort to monopolize more than what they invented.6

Even if Nautilus were correct that ambiguous claiming is widespread,

invalidating Biosig’s patent is not the solution. The ’753 patent must be judged on

its own merits. Indeed, the Supreme Court in Nautilus II instructed this Court to

evaluate Claim 1 pursuant to its announced standard for definiteness, not according

to some supposed policy concerns. 134 S. Ct. at 2131. And under the appropriate

analysis, it is clear that Claim 1 meets the definiteness standard and Nautilus has

failed to show otherwise.7 Thus, this case is not an appropriate vessel to carry a

policy message to address Nautilus’ purported concerns about widespread

indefiniteness.

                                                            6 Nautilus’s claim that “[p]atent attorneys are trained to include some ambiguous claims in their patent applications” is greatly exaggerated. (Naut. Supp. Br. 24.) Notwithstanding Nautilus’s citation to a single PLI binder, competent attorneys do not deliberately draft ambiguous claims. See, e.g., Robert C. Faber, Faber on Mechanics of Patent Claim Drafting § 10:8:1, at 10-46 (6th ed. 2013) (“[I]t is important to recognize that claim language must be extremely precise.”); Stephen A. Becker, Patent Applications Handbook § 2:9 (2013) (“Language in the claim should not enable more than one interpretation of the claim to be reasonably made.”); Joseph E. Root, Rules of Patent Drafting 293 (2011) (“Avoid contextual ambiguity by concretely defining the bounds of the claim.”).

7 If Nautilus is right that ambiguous patents abound, then this Court will have

plenty of opportunities in the future to send a message when it confronts a patent that actually is ambiguous. 

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Nautilus’s contention that “Dr. Lekhtman was in the best position to avoid

… ambiguity” in the patent is irrelevant. (Naut. Supp. Br. 21 (capitalization

omitted).) Nautilus argues that because Dr. Lekhtman could have been more

explicit about the linkage between the spaced relationship and the claimed function

of cancelling EMGs—and because he could have spelled out the steps for

determining the precise spacing for a given set of electrodes, but did not—the

claim must be indefinite. (Id. at 21-23.) In advancing this position, Nautilus

completely disregards the standard for definiteness announced in Nautilus II.

The Nautilus II test is not whether a claim is as detailed or clear as possible,

but whether it provides a skilled artisan with reasonable certainty of an invention’s

bounds. Nautilus II, 134 S. Ct. at 2129. Here, the evidence demonstrates that a

skilled artisan would understand the bounds of Claim 1. See Nautilus I, 715 F.3d

at 901. That is all that is required. Further, Nautilus presents no evidence that a

skilled artisan was unable to discern with reasonable certainty the bounds of the

invention. It is of no moment that, in the eyes of Nautilus’s attorneys, Claim 1

supposedly could have been even clearer. Since the skilled artisan could

understand the bounds of Claim 1, the claim was sufficiently clear.

Indeed, because “absolute precision” in claiming is “unattainable,” Nautilus

II, 134 S. Ct. at 2129, Nautilus’s “greater clarity was possible” test (Naut. Supp.

Br. 22) is fundamentally misguided. If anything, it is Nautilus’s position that

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would raise serious policy concerns: Should Nautilus’s argument carry the day,

unscrupulous infringers would have the incentive to challenge readily

understandable claim language on the ground that some detail might have been

made clearer. And pursuant to Nautilus’s formulation, a patentee could not rely on

the skilled artisan’s knowledge in drafting a claim; rather, he would have to

explicitly spell out every elementary point pertaining to his invention in an endless

pursuit of absolute precision, or risk invalidity for failing to be as explicit as

possible when that patent is litigated years after the filing date. That is not and

cannot be the test prescribed in Nautilus II.

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CONCLUSION

For the reasons explained above, and in Biosig’s original brief on the merits

and its supplemental brief, this Court should again reverse the district court’s grant

of summary judgment to Nautilus.

August 29, 2014 Respectfully submitted,

s/ Mark D. Harris MARK D. HARRIS

DANIEL C. MULVENY MARK D. HARRIS KESSLER TOPAZ PROSKAUER ROSE LLP MELTZER & CHECK LLP Eleven Times Square 280 King of Prussia Road New York, NY 10036 Radnor, PA 19087 (212) 969-3000 (610) 667-7706 JOHN E. ROBERTS

PROSKAUER ROSE LLP One International Place Boston, MA 02110 (617) 526-9600

Attorneys for Plaintiff-Appellant Biosig Instruments, Inc.

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1

CERTIFICATE OF SERVICE

I, Robyn Cocho, being duly sworn according to law and being over the age

of 18, upon my oath depose and say that:

Counsel Press was retained by PROSKAUER ROSE LLP, Attorneys for

Plaintiff-Appellant to print this document. I am an employee of Counsel Press.

The undersigned hereby certifies that on August 29, 2014, the foregoing

Plaintiff-Appellant’s Supplemental Response Brief on Remand was filed with

the Clerk of Court using the CM/ECF System, which will serve via e-mail notice

of such filing to any of the following counsel registered as CM/ECF users:

James E. Geringer Jeffrey S. Love John D. Vandenberg Philip Warrick Klarquist Sparkman, LLP One World Trade Center Suite 1600 121 S. W. Salmon Street Portland, OR 97204 503.595.5300 Attorneys for Defendant-Appellee

Six paper copies will be filed with the Court within the time provided in the

Court’s rules.

August 29, 2014 /s/ Robyn Cocho Robyn Cocho Counsel Press