`571-272-7822
`
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`
`
`
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` Paper 57
`
`
`Entered: June 11, 2019
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DEXCOM, INC.,
`Petitioner,
`
`v.
`
`WAVEFORM TECHNOLOGIES, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-01679
`Patent 7,146,202 B2
`____________
`
`
`
`
`Before ERICA A. FRANKLIN, JON B. TORNQUIST, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`ROESEL, Administrative Patent Judge.
`
`
`
`
`ORDER
`Granting Unopposed Motions to Expunge
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`IPR2016-01679
`Patent 7,146,202 B2
`
`
`Petitioner moves for an order expunging Exhibits 1030–32, 2027,
`2039, 2041–48, 2051–53, 2055, 2060–61, 2076, and 2082–83 and Papers 28
`and 36, all of which were filed on the confidential record. Paper 55. Patent
`Owner moves for an order expunging Exhibit 1041 and replacing it with a
`redacted version prepared by Patent Owner and filed by Petitioner.
`Paper 56; Ex. 1041 (redacted version filed June 6, 2019).
`Exhibits 1030–32 and 1041 and Paper 36 (Petitioner’s Reply) were
`the subject of Petitioner’s Motion to Seal (Paper 38), and the remaining
`exhibits and Paper 28 (Patent Owner’s Response) were the subject of Patent
`Owner’s motion to seal (Paper 30) and Petitioner’s response supporting that
`motion (Paper 32). Redacted versions of Exhibit 2027 and Papers 28 and 36
`were filed on the public record. Ex. 2027 (public version); Papers 29, 37.
`Our rules provide that, after final judgment in a trial, a party may file
`a motion to expunge confidential information from the record. 37 C.F.R.
`§ 42.56. Petitioner represents that the documents Petitioner seeks to
`expunge disclose confidential technical and business information, the
`majority of which was associated with Patent Owner’s arguments regarding
`secondary considerations of nonobviousness. Paper 55, 2. Petitioner further
`represents that Patent Owner does not oppose Petitioner’s motion to
`expunge. Id.
`Patent Owner represents that Exhibit 1041 is a transcript of the
`deposition of its employee, Ellen Anderson, disclosing confidential technical
`and business information relating to the development, design, manufacture,
`testing, and regulatory approval of Patent Owner’s glucose monitoring
`products. Paper 56, 2, 5. Patent Owner further represents that Petitioner
`does not oppose Patent Owner’s motion to expunge Exhibit 1041. Id. at 2.
`
`2
`
`
`
`IPR2016-01679
`Patent 7,146,202 B2
`
`
`The information contained in the exhibits and papers that Petitioner
`seeks to expunge was not relied upon by us in rendering any decision. See
`Paper 53 (Final Written Decision), 2 n.2 (“We rely on the public, redacted
`versions of Patent Owner’s Response and Petitioner’s Reply.”); id. at 3 n.3
`(“We rely on the public, redacted version of Exhibit 2027.”); id. at 31, 48
`(concluding that Petitioner had not met its burden of proof to show
`obviousness, even without considering Patent Owner’s evidence of
`secondary considerations of non-obviousness).
`Patent Owner represents that the only submissions relying on
`Exhibit 1041 were the parties’ briefs on Petitioner’s motion to exclude
`evidence (Papers 41, 46) and that Patent Owner does not seek to expunge the
`portions of Exhibit 1041 that were relied upon in those briefs. Paper 56, 2.
`We dismissed Petitioner’s motion to exclude as moot without discussing or
`relying on Exhibit 1041. Paper 53, 48–49.
`The Board’s judgment was affirmed by the United States Court of
`Appeals for the Federal Circuit on April 3, 2019, and the Court’s mandate
`issued on May 10, 2019.
`In view of the foregoing, we determine that Petitioner has provided
`good cause for granting its motion (Paper 55) and that Patent Owner has
`provided good cause for granting its motion (Paper 56).
`
`3
`
`
`
`IPR2016-01679
`Patent 7,146,202 B2
`
`
`Accordingly, it is hereby:
`ORDERED that Petitioner’s motion to expunge Exhibits 1030–32,
`2027, 2039, 2041–48, 2051–53, 2055, 2060–61, 2076, and 2082–83 and
`Papers 28 and 36, which have been filed on the confidential record, is
`granted;
`FURTHER ORDERED that Patent Owner’s motion to expunge and
`replace Exhibit 1041, which has been filed on the confidential record, is
`granted; and
`FURTHER ORDERED that Exhibits 1030–32, 1041, 2027, 2039,
`2041–48, 2051–53, 2055, 2060–61, 2076, and 2082–83 and Papers 28 and
`36, which have been filed on the confidential record, shall be expunged.
`
`
`
`4
`
`
`
`IPR2016-01679
`Patent 7,146,202 B2
`
`FOR PETITIONER:
`
`Matthew Johnson
`David Cochran
`Calvin Griffith
`JONES DAY
`mwjohnson@jonesday.com
`dcochran@jonesday.com
`cpgriffith@jonesday.com
`
`
`FOR PATENT OWNER:
`
`Scott Eads
`Karri Bradley
`Nicholas Aldrich, Jr.
`Jason Wrubleski
`SCHWABE, WILLIAMSON & WYATT, P.C.
`seads@schwabe.com
`kbradley@schwabe.com
`naldrich@schwabe.com
`jwrubleski@schwabe.com
`
`5
`
`
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