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`IPR2016-01679
`Patent 7,146,202
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`Trials@uspto.gov
`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`DEXCOM, INC.
`Petitioner,
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`v.
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`WAVEFORM TECHNOLOGIES, INC.
`Patent Owner
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`Before BRIAN P. MURPHY, JON B. TORNQUIST, and
`ELIZABETH M. ROESEL, Administrative Patent Judges
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`PATENT OWNER’S OBJECTIONS UNDER
`37 C.F.R. § 42.64(b)(1) TO EVIDENCE SERVED
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`IPR2016-01679
`Patent 7,146,202
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner WaveForm Technologies,
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`Inc. files these objections to evidence served by Petitioner Dexcom, Inc. on
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`August 17, 2017 in support of its Reply in this inter partes review. This notice is
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`being timely filed within 5 business days of service of the evidence.
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`Exhibits 1014, 1015, 1016, and 1017
`In its decision to institute this IPR, the Board expressly excluded these four
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`exhibits from consideration pursuant to 37 C.F.R. § 42.104(b). See Paper 10 at 18
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`n. 11. Patent Owner relied on that exclusion in its Patent Owner Response by not
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`addressing argument relating to the excluded references. See id. at 29 (“[T]he inter
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`partes review is limited to the grounds of unpatentability listed above, and no other
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`grounds of unpatentability are authorized for inter partes review”). Patent Owner
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`therefore objects to these exhibits under 37 C.F.R. § 42.23, the Administrative
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`Procedures Act (5 U.S.C. §§ 551 et seq.), and the Due Process Clause (see U.S.
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`Const. am. 5).
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` Exhibits 1018 and 1019
`These exhibits go to the same argument for which excluded Exhibits 1014-
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`1017 were offered. Petitioner failed to support the argument with admissible
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`evidence in its Petition, and Patent Owner relied on the exclusion of that evidence
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`in its Response. Petitioner should not be permitted to add new evidence in its
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`-2-
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`IPR2016-01679
`Patent 7,146,202
`Reply relating to the previously unsupported argument. Accordingly, these exhibits
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`are submitted in violation of 37 C.F.R. § 42.23(b) and Patent Owner objects to
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`them under 37 C.F.R. § 42.23, the Administrative Procedures Act (5 U.S.C. §§ 551
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`et seq.), and the Due Process Clause (see U.S. Const. am. 5).
` Exhibit 1021
`Petitioner submitted this exhibit to support an argument raised for the first
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`time on Reply, which is directly contrary to multiple clear admissions made in the
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`Petition. Specifically, Petitioner unambiguously admitted in its Petition that the
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`’202 sensor is a “wire.” Patent Owner relied on those admissions in its Patent
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`Owner Response, and has had no fair opportunity to address or respond to new
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`arguments presented in the Reply that are contrary to those admissions. Patent
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`Owner therefore objects to this exhibit under 37 C.F.R. § 42.23, the Administrative
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`Procedures Act (5 U.S.C. §§ 551 et seq.), and the Due Process Clause (see U.S.
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`Const. am. 5).
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`Date: August 24, 2017
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`Respectfully submitted,
`SCHWABE, WILLIAMSON & WYATT, P.C.
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`By:
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`/Scott D. Eads/
`Scott D. Eads
`Reg. No.: 41,726
`1211 SW Fifth Avenue, Suite 1900
`Portland, OR 97204
`Phone: (503) 796-2928
`Facsimile: (503) 796-2900
`Email: SEads@schwabe.com
`Attorney for Patent Owner
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on the 24th day
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`of August, 2017, a complete and entire copy of these PATENT OWNER’S
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`OBJECTIONS UNDER 37 C.F.R. § 42.64(b)(1) TO EVIDENCE SERVED
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`was provided via electronic mail to the Petitioner’s known representatives at the e-
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`mail addresses noted below:
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`Matthew W. Johnson
`JONES DAY
`One Mellon Center
`500 Grant Street
`Pittsburgh, PA 15219
`mwjohnson@jonesday.com
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`David B. Cochran
`JONES DAY
`901 Lakeside Avenue
`Cleveland, Ohio 44114
`dcochran@jonesday.com
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`Vishal V. Khatri
`JONES DAY
`51 Louisiana Avenue, N.W.
`Washington, D.C. 20001
`vkhatri@jonesday.com
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`Respectfully submitted,
`SCHWABE, WILLIAMSON & WYATT, P.C.
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`By: /Scott D. Eads/
`Scott D. Eads, Reg. No.: 41,726
`Attorney for Patent Owner
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`-4-
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