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Dexcom, Inc. v. WaveForm Technologies, Inc.

Docket IPR2017-01051, Patent Trial and Appeal Board (Mar. 8, 2017)
Bart Gerstenblith, Benjamin Wood, Elizabeth Roesel, Jon Tornquist, presiding
Case TypeInter Partes Review
Patent
7529574
Patent Owner WaveForm Technologies, Inc.
Petitioner Dexcom, Inc.
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49 Order Conduct of Proceeding: Conduct of Proceeding

Document IPR2017-01051, No. 49 Order Conduct of Proceeding - Conduct of Proceeding (P.T.A.B. Jul. 19, 2019)
Before BENJAMIN D. M. WOOD, JON B. TORNQUIST, and ELIZABETH M. ROESEL, Administrative Patent Judges.
Following issuance of a final written decision in an inter partes review, the Director is required to issue a certificate that, among other things, “incorporat[es] in the patent by operation of the certificate any new or amended claim determined to be patentable.” 35 U.S.C. § 318(b).
To facilitate preparation of an inter partes review certificate, proposed claims 21, 24, and 25 must be rewritten in independent form.
In consideration of the foregoing, it is hereby: ORDERED that, after conferring with Petitioner and no later than August 6, 2019, Patent Owner is authorized to file a paper that presents claims 21, 24, and 25 in independent form for publication in the inter partes review certificate.
Matthew W. Johnson David B. Cochran Calvin P. Griffith
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48 Final Decision: Termination Decision Document

Document IPR2017-01051, No. 48 Final Decision - Termination Decision Document (P.T.A.B. Sep. 12, 2018)
3 This sentence was added by amendment to the Specification during prosecution (Ex. 1004, 119); however, neither party contends that it constitutes new matter that should not be relied upon to construe the meaning of “nubs.” See Schering Corp. v. Amgen Inc., 222 F.3d 1347, 1353 (Fed. Cir. 2000) (the court must determine what the claim term meant at the time the patentee filed the application).
Our finding is further supported by the ’574 patent, whose sparse disclosure demonstrates there was a high level of skill and knowledge in the art regarding the structure, function, and method of making an indwelling analyte sensor with an enzyme layer.
We have considered Patent Owner’s arguments, but are nevertheless persuaded that Petitioner has met its burden of proof and that a preponderance of the evidence shows that Petitioner’s proposed combination would have worked for its intended purpose and had a reasonable expectation of success.
in City of New York v. Illumina, Inc., 620 F. App’x 916, 929 (Fed. Cir. 2015) (relying on disclosure of challenged patent as substantial evidence sufficient to support Board’s finding of a reasonable expectation of success in combining prior art references and synthesizing the claimed nucleotide).
Although Hagiwara discloses forming a heparin- containing plastic coating on nearly the entire outermost surface of the sensor (Ex. 1005, 5:37–41, 5:44–45), Petitioner fails to articulate a sufficient rationale for modifying Wilson’s enzyme layer in view of that teaching.
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47 Hearing Transcript: Hearing Transcript

Document IPR2017-01051, No. 47 Hearing Transcript - Hearing Transcript (P.T.A.B. Aug. 6, 2018)
JUDGE ROESEL: So does Petitioner agree with Patent Owner's claim construction for the term "plate" as being a flat disk-shaped object that is wider in its diameter than it is thick?
So you can look at it either way, but I think it's easiest, Your Honor, to think of it under Graham v. John Case IPR2017-01051 Patent 7,529,574 B2 Deere, Hagiwara has everything except the enzyme in the membrane system that surrounds that cavity and the dielectric around it.
JUDGE ROESEL: But Petitioner agrees that there are -- the prior art teaches various techniques for putting an enzyme layer over a side sensor window, correct?
Dr. Smith testified in his Case IPR2017-01051 Patent 7,529,574 B2 opening declaration that the technique used in Wilson has been successfully employed for manufacturing hundreds of millions of blood glucose test strips.
So their attempt to add Figure 1C to the mix I think, again, it's a little squirrely getting through the various references, but I think they have a real problem there, and again, both -- all of Hagiwara and Wilson, I mean, they haven't put a single piece of prior art in the record that discloses the idea of plates.
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43 Order: Order Oral Hearing

Document IPR2017-01051, No. 43 Order - Order Oral Hearing (P.T.A.B. Jun. 27, 2018)
Our May 10, 2018 Order provided for additional briefing with respect to the grounds newly instituted in Paper 30 and reset the oral argument date for July 13, 2018.
The Board will provide a court reporter, and the reporter’s transcript will constitute the official record of the hearing.
To aid in the preparation of an accurate transcript, each party shall provide a paper copy of any demonstratives to the court reporter on the day of the oral argument.
The parties are reminded that, during the hearing, the Case IPR2017-01051 Patent 7,529,574 B2 presenter should identify clearly each demonstrative exhibit (e.g., by slide or screen number) to ensure the clarity and accuracy of the reporter’s transcript.
If either party anticipates that its lead counsel will not be in attendance at the oral hearing, the party shall advise the Board by email no later than five (5) business days prior to the oral hearing, and such lead counsel shall be available to discuss the matter via conference call if necessary.
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34 Order Conduct of Proceeding: Order Conduct of the Proceeding

Document IPR2017-01051, No. 34 Order Conduct of Proceeding - Order Conduct of the Proceeding (P.T.A.B. May. 10, 2018)
On March 8, 2017, Petitioner filed a Petition (Paper 1) seeking inter parties review.
On January 16, 2018, we entered an Order (Paper 20) changing the oral argument date (Due Date 7), and on March 22, 2018, we entered an Order (Paper 24) modifying the schedule and briefing regarding Patent Owner’s motion to amend.
In response to Paper 30, and the Board’s indication that the oral argument date (Due Date 7) would be reset within the window of July 11– 13, 2018, the parties agreed, as indicated in emails to the Board on May 4, 6, and 9, 2018, to the procedural modifications set forth in this Order.
Patent 7,529,574 B2 testimonial evidence and other evidence,1 all of which shall be limited to the grounds newly instituted in Paper 30; FURTHER ORDERED that, with respect to any new testimonial evidence and other evidence filed with or relied upon in Petitioner’s supplemental brief, the following schedule shall apply: DUE DATE 4a .......................................................................... June 25, 2018 Motion for observation regarding cross-examination Motion to exclude evidence DUE DATE 5a .......................................................................... June 29, 2018 Response to observation Opposition to motion to exclude DUE DATE 6a ............................................................................. July 5, 2018 Reply to opposition to motion to exclude; and FURTHER ORDERED that, oral argument (Due Date 7) is reset for July 13, 2018.
The Board is not granting Petitioner leave to submit arguments and evidence that should have been included in the Petition, but were not.
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30 Order Conduct of Proceeding: Order Conduct of the Proceeding

Document IPR2017-01051, No. 30 Order Conduct of Proceeding - Order Conduct of the Proceeding (P.T.A.B. Apr. 27, 2018)
On April 24, 2018, the Supreme Court held that a final written decision under 35 U.S.C. § 318(a) must decide the patentability of all claims challenged in the petition.
In addition, the Court stated that the language of 35 U.S.C. § 314(b) indicates a “binary choice” whether to institute an inter partes review.
In this case, we instituted an inter partes review of all challenged claims, but based on only one of the grounds of unpatentability presented in the Petition.
If, after conferring, the parties wish to otherwise change the schedule or submit briefing not set forth in the Scheduling Order, the parties must, within one week of the date of this Order, request a conference call with the panel to seek authorization for such changes or briefing.
In consideration of the foregoing, it is hereby: ORDERED that, pursuant to 35 U.S.C. § 314(a), we modify our institution decision to include review of all grounds presented in the Petition; and
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24 Order: Amended Scheduling and Briefing Order

Document IPR2017-01051, No. 24 Order - Amended Scheduling and Briefing Order (P.T.A.B. Mar. 22, 2018)
On March 12, 2018, the parties contacted the Board seeking an extension of the page limit for Patent Owner’s reply concerning its motion to amend and seeking a sur-reply by Petitioner regarding the motion to amend.
The parties asserted that the requested procedural modifications are justified by the change in the allocation of burdens on motions to amend following Aqua Products, Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017).
The parties’ joint request for procedural modifications is reasonable in light of Aqua Products and does not result in a change of the oral argument date.
It is ORDERED that, the page limit for Patent Owner’s reply regarding its motion to amend shall be eighteen (18) pages; FURTHER ORDERED that, on or before by April 18, 2018, Petitioner may file a sur-reply of no more than six (6) pages responding to Patent Owner’s reply regarding its motion to amend; provided that, Petitioner’s sur-reply may not include new testimonial evidence and may not include new prior art grounds of unpatentability; FURTHER ORDERED that, the Due Date Appendix of our Scheduling Order (Paper 8) is amended as follows:
Matthew Johnson David Cochran Calvin P. Griffith
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