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DEXCOM, INC. v. Abbott Diabetes Care Inc.

Docket IPR2022-00605, Patent Trial and Appeal Board (Feb. 15, 2022)
Cynthia Hardman, Jeffrey Fredman, Ryan Flax, presiding
Case TypeInter Partes Review
Patent
10945649
Patent Owner Abbott Diabetes Care Inc.
Petitioner DEXCOM, INC.
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29 Final Written Decision original: Final Written Decision original

Document IPR2022-00605, No. 29 Final Written Decision original - Final Written Decision original (P.T.A.B. Jul. 10, 2023)
Petitioner, supported by Dr. Fletcher’s testimony, establishes that a person of ordinary skill in the art “looking to minimize pain by providing automatic needle-based insertion of a medical device (such as a glucose sensor [as taught in Brister]) would have logically considered Gravesen’s apparatus.” Ex. 1003 (Fletcher Decl.) ¶ 23; Pet. 4.
Rather than according the limitation no patentable weight, we view it as broadly covering all ways of configuring the compression spring to retract the second slidable body and the needle while the glucose sensor remains at the insertion site.
As an initial matter, we note that Patent Owner does not dispute Petitioner’s arguments that the compression spring is configured to achieve at least some of the recited functions, i.e., to expand and to retract the second slidable body and the needle in a linear direction away from the insertion site.
In sum, we find that the compression spring in the proposed Gravesen/Brister device described in the Petition is in fact “configured to expand and to retract the second slidable body and the needle ... while the glucose sensor remains at the insertion site” without any additional structure.
Here, the Reply argues that a person of ordinary skill in the art would have used friction to retain a sensor at the insertion site, and would have understood how to use Gravesen’s “stages” to implement a push rod, and cites Dr. Fletcher’s testimony for support.
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28 Other Hearing transcript: Other Hearing transcript

Document IPR2022-00605, No. 28 Other Hearing transcript - Other Hearing transcript (P.T.A.B. May. 17, 2023)
Now -- MS. HARDMAN: Counsel, in the petitioner's reply on page nine, there's a statement that a POSITA would understand the portion of the interior of Gravesen's housing shown in its figures to be an alcove and thus a recess.
But since they made this argument in their response in our reply, Dr. Fletcher explained in his supplemental declaration at length why POSITA would have naturally combined that push rod with the Gravesen embodiment.
Patent 10,945,649 B2 acknowledged the fact that Petitioner's POSITA is a college grad with one year of design experience, and they were doing a complete refabrication of the Gravesen combination of figures 1 and 9, which already started off with 10 substitutions or deletions.
The -- like this started with the last point the cylindrical shape and counsel properly said under Phillips we look at the intrinsic record, but patent owner continues to run from its own specification and the 1300 embodiment.
It was saying you have a skilled artisan read Yodfat in one room, walks down the hall and tells their friends, say, hey, this reference uses a circular, centrally located, recessed rotor.
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24 Order Other: Order Setting Oral Argument

Document IPR2022-00605, No. 24 Order Other - Order Setting Oral Argument (P.T.A.B. Mar. 29, 2023)
“The purpose of the pre-hearing conference is to afford the parties the opportunity to preview (but not argue) the issues to be discussed at the hearing, and to seek the Board’s guidance as to particular
During the hearing, the parties are reminded to identify clearly and specifically each paper referenced (e.g., by slide or screen number for a demonstrative) to ensure the clarity and accuracy of the court reporter’s transcript and for the benefit of all participants appearing electronically.
If at any time during the hearing, counsel encounters technical or other difficulties that fundamentally undermine counsel’s ability to adequately represent its client, please let the panel know immediately, and adjustments will be made.
The Board defines a LEAP practitioner as a patent agent or attorney having three (3) or fewer substantive oral arguments in any federal tribunal, including PTAB.
The Board will grant up to fifteen minutes of additional argument time to that party, depending on the length of the proceeding and the PTAB’s hearing schedule.
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10 Institution Decision Grant: Institution Decision

Document IPR2022-00605, No. 10 Institution Decision Grant - Institution Decision (P.T.A.B. Jul. 27, 2022)
Patent Owner cites the Examiner’s Notice of Allowance, where the Examiner stated that Lai “fails to disclose the additional combination of a second slidable body, needle and compression spring as claimed,” and “[t]he prior art of record fails to make obvious these missing features.” Id. at 70 (quoting Ex. 1002, 467), 75.
Patent 10,945,649 B2 Gravesen discloses various embodiments that allow quick penetration and withdrawal of the needle while the inserted cannula simultaneously remains within the body tissue, such that the patient experiences a more comfortable sensation.
On this record, Petitioner, supported by Dr. Fletcher’s testimony, sufficiently establishes that a person of ordinary skill in the art “looking to minimize pain by providing automatic needle-based insertion of a medical device (such as a glucose sensor [as taught in Brister]) would have logically considered Gravesen’s apparatus.” Ex. 1003 ¶ 23; Pet. 4.
In particular, Petitioner contends that a person of ordinary skill in the art would have been motivated to modify Gravesen’s lever 211 to comprise a cylindrical rotor received within a recess of the housing, as allegedly taught by Yodfat.
Petitioner also asserts that a person of ordinary skill in the art would have been motivated to incorporate Yodfat’s recess into Gravesen’s housing because it would “give[] the advantage of allowing the user to load the torsion spring themselves ... at the desired time,” thereby preventing unintentional or premature firing of the insertion device.
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11 Order Other: Scheduling Order

Document IPR2022-00605, No. 11 Order Other - Scheduling Order (P.T.A.B. Jul. 27, 2022)
For example, reasonable expenses and attorneys’ fees incurred by any party may be levied on a person who impedes, delays, or frustrates the fair examination of a witness.
To satisfy this requirement, Patent Owner should request a conference call with the Board no later than two weeks prior to DUE DATE 1.
Note that the Board may not be able to honor the parties’ preferences due to, among other things, the availability of hearing room resources, the needs of the panel, and USPTO
The Board defines a LEAP practitioner as a patent agent or attorney having three (3) or fewer substantive oral arguments in any federal tribunal, including PTAB.
All practitioners are expected to have a command of the factual record, the applicable law, and Board procedures, as well as the authority to commit the party they represent.
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4 Notice Notice filing date accorded: Notice NOTICE OF FILING DATE ACCORDED...

Document IPR2022-00605, No. 4 Notice Notice filing date accorded - Notice NOTICE OF FILING DATE ACCORDED TO PETITION AND TIME FOR FILING PATENT OWNER PRELIMINARY RESPONSE (P....

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15 Pet Reply to PO Resp: Petitioners Reply Brief

Document IPR2022-00605, No. 15 Pet Reply to PO Resp - Petitioners Reply Brief (P.T.A.B. Jan. 11, 2023)

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