Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
`
`
`
` Paper No. 49
`
` Entered: November 8, 2017
`
`
`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)
`Case IPR2016-01680 (Patent 8,187,433 B2)1
`____________
`
`
`Before ERICA A. FRANKLIN, JON B. TORNQUIST, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.2
`
`ROESEL, Administrative Patent Judge.
`
`
`
`ORDER
`Oral Hearing
`37 C.F.R. § 42.70
`
`
`1 This Order applies to each of the listed cases. We exercise our discretion
`to issue one Order to be docketed in each case. The parties, however, are
`not authorized to use this caption for any subsequent papers.
`2 Administrative Patent Judge Erica A. Franklin replaces former panel
`member Brian P. Murphy, who is no longer with the Patent Trial and Appeal
`Board.
`
`
`571-272-7822
`
`
`
`
`
`
`
`
`
` Paper No. 49
`
` Entered: November 8, 2017
`
`
`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)
`Case IPR2016-01680 (Patent 8,187,433 B2)1
`____________
`
`
`Before ERICA A. FRANKLIN, JON B. TORNQUIST, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.2
`
`ROESEL, Administrative Patent Judge.
`
`
`
`ORDER
`Oral Hearing
`37 C.F.R. § 42.70
`
`
`1 This Order applies to each of the listed cases. We exercise our discretion
`to issue one Order to be docketed in each case. The parties, however, are
`not authorized to use this caption for any subsequent papers.
`2 Administrative Patent Judge Erica A. Franklin replaces former panel
`member Brian P. Murphy, who is no longer with the Patent Trial and Appeal
`Board.
`
`
`
`Case IPR2016-01679 (Patent 7,146,202 B2)
`Case IPR2016-01680 (Patent 8,187,433 B2)
`
`
`We instituted each of the above-identified inter partes reviews. Paper
`10 (IPR2016-01679); Paper 10 (IPR2016-01680). An Amended Scheduling
`Order set December 7, 2017, as the date for oral argument, if requested by
`either party. Paper 15 (IPR2016-01679); Paper 15 (IPR2016-01680).
`Petitioner and Patent Owner each requested an oral hearing pursuant to
`37 C.F.R. § 42.70(a). Papers 40, 43 (IPR2016-01679); Papers 36, 38
`(IPR2016-01680). The requests are granted.
`The hearing for both proceedings will commence at 10:00 AM
`Eastern Time, on Thursday, December 7, 2017, and will be conducted at
`the USPTO Central Headquarters in Alexandria, Virginia (the ninth
`floor of Madison Building East, 600 Dulany Street, Alexandria, Virginia,
`22314). The hearing will be open to the public for in-person attendance that
`will be accommodated on a first-come, first-served basis.
`Each party will have one hour to present its arguments regarding both
`IPR2016-01679 and IPR2016-01680. Petitioner bears the ultimate burden of
`proof that the challenged claims are unpatentable. Accordingly, Petitioner
`will proceed first to present its case regarding the challenged claims for
`which the Board instituted trial. Patent Owner will then have an opportunity
`to respond to Petitioner’s arguments. Thereafter, Petitioner may use any
`time it has reserved for rebuttal to respond to arguments presented by Patent
`Owner. Patent Owner may not reserve rebuttal time.
`The Board will provide a court reporter, and the reporter’s transcript
`will constitute the official record of the hearing. The hearing transcript will
`be entered in the record of this proceeding.
`Under 37 C.F.R. § 42.70(b), demonstrative exhibits, if any, must be
`served at least (7) seven business days before the hearing. Demonstrative
`
`2
`
`
`
`Case IPR2016-01679 (Patent 7,146,202 B2)
`Case IPR2016-01680 (Patent 8,187,433 B2)
`
`exhibits are not evidence, but merely a visual aid at the oral arguments.
`Demonstrative exhibits may not introduce new evidence or raise new
`arguments, but instead, should cite to evidence in the record. The parties are
`directed to St. Jude Medical, Cardiology Division, Inc. v. The Board of
`Regents of the University of Michigan, Case IPR2013-00041 (PTAB Jan. 27,
`2014) (Paper 65) and CBS Interactive Inc. v. Helferich Patent Licensing,
`LLC, Case IPR2013-00033 (PTAB Oct. 23, 2013) (Paper 118) for guidance
`regarding the appropriate content of demonstrative exhibits.
`The Board expects that the parties will meet and confer in good faith
`to resolve any objections to demonstrative exhibits, but if any objections
`cannot be resolved, the parties must file any such objections with the Board
`at least (2) two business days before the hearing. Any objection to
`demonstrative exhibits that is not timely presented will be considered
`waived. The objections should identify with particularity which
`demonstratives and portions thereof are subject to objection, and include a
`short (one sentence or less) statement of the reason for each objection. No
`argument or further explanation is permitted. The Board will consider the
`objections and schedule a conference if deemed necessary. Otherwise, the
`Board will rule on the objections at the hearing.
`The parties shall provide the demonstrative exhibits to the Board by
`emailing them to Trials@uspto.gov at least (3) three business days before
`the hearing. Despite the requirement in § 42.70(b) for parties to file
`demonstratives, the parties shall not file any demonstrative exhibits in these
`cases without prior authorization from the Board.
`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
`
`3
`
`
`
`Case IPR2016-01679 (Patent 7,146,202 B2)
`Case IPR2016-01680 (Patent 8,187,433 B2)
`
`of the oral arguments. Such paper copies shall not become part of the record
`of this proceeding. The parties are reminded that, during the hearing, the
`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.
`The Board expects lead counsel for each party to be present at the oral
`hearing, although any counsel of record may make the actual presentation.
`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.
`Questions regarding specific audio-visual equipment should be
`directed to the Board at (571) 272-9797. Requests for audio-visual
`equipment are to be made (5) five days in advance of the hearing date. The
`request is to be sent to Trials@uspto.gov. If the request is not received
`timely, the equipment may not be available on the day of the hearing.
`It is
`ORDERED that oral argument will commence at 10:00 AM ET on
`December 7, 2017.
`
`
`
`
`4
`
`
`
`Case IPR2016-01679 (Patent 7,146,202 B2)
`Case IPR2016-01680 (Patent 8,187,433 B2)
`
`FOR PETITIONER:
`Matthew W. Johnson
`David B. Cochran
`Vishal V. Khatri
`JONES DAY
`mwjohnson@jonesday.com
`dcochran@jonesday.com
`vkhatri@jonesday.com
`
`
`FOR PATENT OWNER:
`Steven J. Prewitt
`Scott D. Eads
`Karri Kuenzli Bradley
`Nicholas F. Aldrich, Jr.
`Jason A. Wrubleski
`SCHWABE, WILLIAMSON & WYATT, P.C.
`SPrewitt@schwabe.com
`seads@schwabe.com
`kbradley@schwabe.com
`naldrich@schwabe.com
`jwrubleski@schwabe.com
`
`5
`
`
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