`571-272-7822
`
`
`
`
`Paper: 34
`Entered: May 10, 2018
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DEXCOM, INC.,
`Petitioner,
`
`v.
`
`WAVEFORM TECHNOLOGIES, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01051
`Patent 7,529,574 B2
`____________
`
`
`
`Before BART A. GERSTENBLITH, JON B. TORNQUIST, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`ROESEL, Administrative Patent Judge.
`
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`IPR2017-01051
`Patent 7,529,574 B2
`
`
`On March 8, 2017, Petitioner filed a Petition (Paper 1) seeking inter
`parties review. On September 15, 2017, we instituted inter partes review
`(Paper 7) and entered a Scheduling Order (Paper 8). On December 5, 2017,
`Patent Owner filed a Response (Paper 17) and a Contingent Motion to
`Amend (Paper 18). 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.
`On April 27, 2018, we entered an Order (Paper 30) modifying our
`Institution Decision in view of SAS Institute Inc. v. Iancu, 138 S. Ct. 1348
`(2018), to include review of all grounds presented in the Petition. On
`May 3, 2018, each party filed a request for oral argument. Papers 31, 32.
`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.
`In consideration of the foregoing, it is hereby:
`ORDERED that, the provision of the Scheduling Order (Paper 8) that
`states “any arguments for patentability not raised in the [Patent Owner]
`response will be deemed waived” (id. at 7) is vacated to the extent that
`Patent Owner may rely on arguments and evidence submitted with the Patent
`Owner Preliminary Response (Paper 5) with respect to the grounds newly
`instituted in Paper 30;
`FURTHER ORDERED that, not later than June 11, 2018, Petitioner
`may file a supplemental brief of up to 5,600 words, along with new
`
`2
`
`
`
`IPR2017-01051
`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.
`
`
`
`
`
`1 This provision reflects the parties’ agreement. The Board is not granting
`Petitioner leave to submit arguments and evidence that should have been
`included in the Petition, but were not.
`
`3
`
`
`
`IPR2017-01051
`Patent 7,529,574 B2
`
`PETITIONER:
`Matthew Johnson
`David Cochran
`Calvin P. Griffith
`JONES DAY
`mwjohnson@jonesday.com
`dcochran@jonesday.com
`cpgriffith@jonesday.com
`
`PATENT OWNER:
`Scott Eads
`Karri Bradley
`Nicholas Aldrich
`Jason Wrubleski
`SCHWABE, WILLIAMSON & WYATT, P.C.
`seads@schwabe.com
`kbradley@schwabe.com
`NAldrich@schwabe.com
`JWrubleski@schwabe.com
`
`
`
`4
`
`
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