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In Re Abbott Diabetes Care Inc.

September 28, 2012

IN RE ABBOTT DIABETES CARE INC.


Appeal from the United States Patent and Trademark Office, Board of Patent Appeals and Interferences. (Reexamination Nos. 90/007,903, 90/007,910)

The opinion of the court was delivered by: Prost, Circuit Judge.

Before LOURIE, PROST, and WALLACH, Circuit Judges.

Abbott Diabetes Care, Inc. ("Abbott") appeals from ex parte reexamination proceedings in which the Board of Patent Appeals and Interferences ("Board") rejected numerous claims of U.S. Patents Nos. 6,175,752 ("'752 patent") and 6,565,509 ("'509 patent"). Ex parte Abbott Diabetes Care Inc., No. 2010-006873, 2011 WL 180171 (B.P.A.I. Jan. 18, 2011) ("'752 BPAI Op."), reh'g denied, 2011 WL 1661489 (B.P.A.I. Apr. 29, 2011) ("'752 Reh'g Denial"); Ex parte Abbott Diabetes Care Inc., No. 2010-009711, 2011 WL 180180 (B.P.A.I. Jan. 18, 2011) ("'509 BPAI Op."), reh'g denied, 2011 WL 1661491 (B.P.A.I. Apr. 29, 2011) ("'509 Reh'g Denial"). Because the Board's rejections were based on unreasonable claim constructions and because the U.S. Patent and Trademark Office ("PTO") concedes that the examiner's official notice rejections should be withdrawn, we vacate-in-part and remand.

I. BACKGROUND

Abbott owns the '752 patent and the '509 patent. Both patents share a common specification that describes methods and devices "for the in vivo monitoring of an analyte using an electrochemical sensor to provide information to a patient about the level of the analyte" in the bloodstream. '752 patent col.1 ll.8-10; '509 patent col.1

ll.11-14. Specifically, the specification describes methods and devices for monitoring glucose levels for diabetics. '752 patent col.1 ll.13-21; '509 patent col.1 ll.17-25. The specification notes that a variety of devices exist for monitoring glucose levels in the blood stream, but some of these devices include sensor guides that are "typically bulky and do not allow for freedom of movement." '752 patent col.1 ll.51-54; '509 patent col.1 ll.55-59. According to the "Background of the Invention" portion of the specification, these prior art systems also feature external wires and cables connecting the various components that restrict the movements and daily life activities of the user:

[T]he sensor guides or the sensors include cables or wires for connecting the sensor to other equipment to direct signals from the sensor to an analyzer. The size of the sensor guides and presence of cables and wires hinders the convenient use of these devices for everyday applications. There is a need for a small, compact device that can operate the sensor and provide signals to an analyzer without substantially restricting the movements and activities of a patient.

'752 patent col.1 ll.55-63; '509 patent col.1 ll.58-67.

The first claims of each patent are representative. Claim 1 of the '752 patent recites:

1. A sensor control unit comprising: a housing adapted for placement on skin and adapted to receive a portion of an electrochemical sensor ex-tending out of the skin having a plurality of contact pads; a plurality of conductive contacts disposed on the housing and configured for coupling to the plurality of contact pads on the electrochemical sensor; and an rf transmitter disposed in the housing and coupled to the plurality of conductive contacts for transmitting data obtained using the electrochemical sensor.

(Emphasis added).

Claim 1 of the '509 patent, which was amended during reexamination, recites the following:

1. A sensor assembly to monitor an analyte, the sensor assembly comprising: a flexible transcutaneous electrochemical sensor comprising nonleachable, analyte-responsive enzyme, the sensor having a distal end and a proximal end defining the length of the sensor, such that a portion of the sensor lies above the skin when transcutaneously positioned; and a sensor control unit adapted for placement on skin and adapted for receiving a portion of the proximal end of the transcutaneous electrochemical sensor, the sensor control unit comprising a rf transmitter that is configured and arranged to intermittently and repeatedly transmit data related to analyte-dependent signals generated by the electrochemical sensor, wherein the portion of the sensor above the skin is maintained in a ...


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