Burnside, Samantha J.
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`
`Johnson, Matthew W. <mwjohnson@JonesDay.com>
`Tuesday, June 26, 2018 2:27 PM
`Aldrich, Nika F.; Burnside, Samantha J.; Cochran, David B.; Griffith, Calvin P.
`AgamatrixCounsel; Eads, Scott D.; Wrubleski, Jason A.; Bradley, Karri K.
`RE: IPR2017-01051 [IWOV-pdx.FID3943743]
`
`Nika,
`The Scheduling Order in this case states that absent leave, “no further substantive paper is permitted after the reply.”
`There are procedures for requesting permission for filings of substance outside of the normal course of a trial. None of
`those have been followed here. Dr. Smith’s declaration in Exhibit 2031 is substantive and appears to be an end run
`around the Board’s June 22nd order that Patent Owner is not authorized to file new evidence or declarations in sur‐reply.
`Absent leave from the panel, the declaration should be expunged.
`Matt
`
`Matthew Johnson
`Partner
`JONES DAY® ‐ One Firm Worldwide℠
`One Mellon Center
`500 Grant Street
`Pittsburgh, PA 15219‐2502
`+1.412.394.9524
`+1.412.394.7959 (facsimile)
`mwjohnson@jonesday.com
`
`From: Aldrich, Nika F.
`Sent: Tuesday, June 26, 2018 4:07 PM
`To: Johnson, Matthew W. ; Burnside, Samantha J. ; Cochran, David B. ; Griffith, Calvin P.
`Cc: AgamatrixCounsel ; Eads, Scott D. ; Wrubleski, Jason A. ; Bradley, Karri K.
`Subject: RE: IPR2017‐01051 [IWOV‐pdx.FID3943743]
`
`Matt,
`
`Thanks for your email. I understand that, due to a clerical error, Exhibit 2031 was not emailed last night with the rest of
`the documents. I understand that has been remedied.
`
`Regarding your assertion that a party may not file a declaration in support of a motion to exclude, would you please
`point me to the authority on which you rely?
`
`Thanks,
`
`Schwabe Williamson & Wyatt
`
`Nika F. Aldrich
`Shareholder
`Direct: 503‐796‐2494
`Mobile: 206‐778‐9678
`
`1
`
`WAVEFORM TECHNOLOGIES, INC.
`Exhibit 2033-1 (IPR2017-01051)
`Dexcom, Inc. v. WaveForm Technologies, Inc.
`
`
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`
`Johnson, Matthew W. <mwjohnson@JonesDay.com>
`Tuesday, June 26, 2018 2:27 PM
`Aldrich, Nika F.; Burnside, Samantha J.; Cochran, David B.; Griffith, Calvin P.
`AgamatrixCounsel; Eads, Scott D.; Wrubleski, Jason A.; Bradley, Karri K.
`RE: IPR2017-01051 [IWOV-pdx.FID3943743]
`
`Nika,
`The Scheduling Order in this case states that absent leave, “no further substantive paper is permitted after the reply.”
`There are procedures for requesting permission for filings of substance outside of the normal course of a trial. None of
`those have been followed here. Dr. Smith’s declaration in Exhibit 2031 is substantive and appears to be an end run
`around the Board’s June 22nd order that Patent Owner is not authorized to file new evidence or declarations in sur‐reply.
`Absent leave from the panel, the declaration should be expunged.
`Matt
`
`Matthew Johnson
`Partner
`JONES DAY® ‐ One Firm Worldwide℠
`One Mellon Center
`500 Grant Street
`Pittsburgh, PA 15219‐2502
`+1.412.394.9524
`+1.412.394.7959 (facsimile)
`mwjohnson@jonesday.com
`
`From: Aldrich, Nika F.
`Sent: Tuesday, June 26, 2018 4:07 PM
`To: Johnson, Matthew W. ; Burnside, Samantha J. ; Cochran, David B. ; Griffith, Calvin P.
`Cc: AgamatrixCounsel ; Eads, Scott D. ; Wrubleski, Jason A. ; Bradley, Karri K.
`Subject: RE: IPR2017‐01051 [IWOV‐pdx.FID3943743]
`
`Matt,
`
`Thanks for your email. I understand that, due to a clerical error, Exhibit 2031 was not emailed last night with the rest of
`the documents. I understand that has been remedied.
`
`Regarding your assertion that a party may not file a declaration in support of a motion to exclude, would you please
`point me to the authority on which you rely?
`
`Thanks,
`
`Schwabe Williamson & Wyatt
`
`Nika F. Aldrich
`Shareholder
`Direct: 503‐796‐2494
`Mobile: 206‐778‐9678
`
`1
`
`WAVEFORM TECHNOLOGIES, INC.
`Exhibit 2033-1 (IPR2017-01051)
`Dexcom, Inc. v. WaveForm Technologies, Inc.
`
`
`
`naldrich@schwabe.com
`Vcard LinkedIn
`
`Ideas fuel industries. Learn more at:
`www.schwabe.com
`
`From: Johnson, Matthew W. <mwjohnson@JonesDay.com>
`Sent: Tuesday, June 26, 2018 4:34 AM
`To: Burnside, Samantha J. <SBurnside@SCHWABE.com>; Cochran, David B. <dcochran@JonesDay.com>; Griffith, Calvin
`P. <cpgriffith@JonesDay.com>
`Cc: AgamatrixCounsel <AgamatrixCounsel@SCHWABE.com>; Eads, Scott D. <SEads@SCHWABE.com>; Aldrich, Nika F.
`<NAldrich@SCHWABE.com>; Wrubleski, Jason A. <JWrubleski@SCHWABE.com>; Bradley, Karri K.
`<KBradley@SCHWABE.com>
`Subject: RE: IPR2017‐01051 [IWOV‐pdx.FID3943743]
`
`Counsel,
`It appears that Exhibit 2031 was filed without leave of the panel. There is no provision for filing new testimonial
`evidence with a motion to exclude. All filings not contemplated by the rules are only permissible by leave of the Board.
`Further, Exhibit 2031 was not served, so it is untimely.
`Please let us know if you will be contacting the Board to request a conference call to request leave to file motions to
`accept untimely Exhibit 2031 that was filed outside of the rules without leave.
`We will plan to contact the panel on Wednesday to request that the exhibit be expunged if we do not hear from you.
`Regards,
`Matt Johnson
`
`Matthew Johnson
`Partner
`JONES DAY® ‐ One Firm Worldwide℠
`One Mellon Center
`500 Grant Street
`Pittsburgh, PA 15219‐2502
`+1.412.394.9524
`+1.412.394.7959 (facsimile)
`mwjohnson@jonesday.com
`
`From: Burnside, Samantha J. <SBurnside@SCHWABE.com>
`Sent: Monday, June 25, 2018 11:28 PM
`To: Johnson, Matthew W. <mwjohnson@JonesDay.com>; Cochran, David B. <dcochran@JonesDay.com>; Griffith, Calvin
`P. <cpgriffith@JonesDay.com>
`Cc: AgamatrixCounsel <AgamatrixCounsel@SCHWABE.com>
`Subject: IPR2017‐01051 [IWOV‐pdx.FID3943743]
`
`Counsel,
`
`Attached is Patent Owner’s Corrected Motion to Exclude Evidence that was filed with the PTAB this evening.
`2
`
`WAVEFORM TECHNOLOGIES, INC.
`Exhibit 2033-2 (IPR2017-01051)
`Dexcom, Inc. v. WaveForm Technologies, Inc.
`
`
`
`Schwabe Williamson & Wyatt
`
`Samantha J. Burnside
`Legal Assistant
`Direct: 503‐796‐7472
`sburnside@schwabe.com
`
`Ideas fuel industries. Learn more at:
`www.schwabe.com
`
`__________________________________________________________
`
`NOTICE: This email may contain material that is confidential, privileged and/or attorney work product for the sole use of
`the intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly
`prohibited. If you are not the intended recipient, please contact the sender and delete all copies.
`***This e‐mail (including any attachments) may contain information that is private, confidential, or protected by
`attorney‐client or other privilege. If you received this e‐mail in error, please delete it from your system without copying
`it and notify sender by reply e‐mail, so that our records can be corrected.***
`
`__________________________________________________________
`
`NOTICE: This email may contain material that is confidential, privileged and/or attorney work product for the sole use of
`the intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly
`prohibited. If you are not the intended recipient, please contact the sender and delete all copies.
`***This e-mail (including any attachments) may contain information that is private, confidential, or protected
`by attorney-client or other privilege. If you received this e-mail in error, please delete it from your system
`without copying it and notify sender by reply e-mail, so that our records can be corrected.***
`
`3
`
`WAVEFORM TECHNOLOGIES, INC.
`Exhibit 2033-3 (IPR2017-01051)
`Dexcom, Inc. v. WaveForm Technologies, Inc.
`
`
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