`Trials@uspto.gov
`Tel: 571-272-7822
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` Paper 43
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` Entered: May 28, 2013
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`CRS ADVANCED TECHNOLOGIES, INC.
`Petitioner
`
`v.
`
`FRONTLINE TECHNOLOGIES, INC.
`Patent Owner
`____________________
`
`CBM2012-00005 (SCM)
`Patent 6,675,151
`
`___________________
`
`
`
`Before SALLY C. MEDLEY, THOMAS L. GIANNETTI, and JENNIFER
`S. BISK, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`DECISION
`CRS Motion to Seal
` 37 C.F.R. § 42.14
`
`
`
`On May 20, 2013, the Board received from CRS a motion to file
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`documents under seal. Paper 39; “Motion.” The motion is dismissed
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`without prejudice to refile a motion to seal in accordance with this order.
`
`
`
`
`
`Case CBM2012-00005
`Patent 6,675,151
`
`
`Background
`
`Along with its motion, CRS filed a publically available redacted reply
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`to Frontline’s response (Paper 41); a non-publically available reply to
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`Frontline’s response (Paper 40); two non-publically available exhibits (Exs.
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`1015 and 1016); and a publically available proposed protective order (Ex.
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`1018). CRS represents that the proposed protective order is a copy of a
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`protective ordered entered by the District Court in the related litigation
`
`styled Frontline Techs., Inc., v. CRS, Inc., No. 2:07-cv-2457 (E.D. Pa. filed
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`June 18, 2007). In its motion, CRS submits that the parties have agreed that
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`the proposed protective order, previously entered by the District Court,
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`governs the treatment of confidential materials before the Board. Motion 2.
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`
`
`Analysis
`
`The record files for a covered business method patent review shall be
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`made available to the public, except that a document filed with a motion to
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`seal shall be treated as sealed until the motion is decided. 35 U.S.C. §
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`326(a)(1); 37 C.F.R. § 42.14. A party may file a motion to seal where the
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`motion contains a proposed protective order, such as the default protective
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`order set forth in the Office Patent Trial Practice Guide. The standard for
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`granting a motion to seal is good cause. 37 C.F.R. § 42.54(a).
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`A protective order governs the treatment of confidential portions of
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`documents, testimony and other information designated as confidential, as
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`well as the filing of confidential documents or discussion of such
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`information in papers filed with the Board. The Board has the authority to
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`enforce the terms of a protective order entered in a proceeding. Office
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`Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48770 (Aug. 14, 2012).
`
`2
`
`
`
`Case CBM2012-00005
`Patent 6,675,151
`
`Because of the above, it is important that the Board understand and agree to
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`the terms of any proposed protective order filed with the Board. As such,
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`the Board has a default protective order that the parties may follow. When a
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`party deviates from the default protective order, the party should explain the
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`differences between the proposed protective order and the default protective
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`order. A protective order that deviates from the Board’s default protective
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`order must nonetheless include certain terms as outlined in the Office
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`Practice Guide. Id. (“The Protective Order shall include the following
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`terms:”).
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`CRS and Frontline are involved in a related litigation; Frontline
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`Techs., Inc., v. CRS, Inc., No. 2:07-cv-2457 (E.D. Pa. filed June 18, 2007).
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`A protective order was entered in that case (Ex. 1018). In the motion, CRS
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`avers that the parties have agreed that the related litigation protective order
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`(“proposed protective order”) governs the treatment of confidential materials
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`before the Board. Motion 2. CRS provides no explanation of the contents
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`of the proposed protective order, how it differs from the Board’s default
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`protective order, or how the proposed protective order complies with the
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`Office Patent Trial Practice Guide, such as by providing the terms that the
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`Board requires for its proceedings.
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`For instance, the Office Patent Trial Practice Guide states that a
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`protective order shall include terms setting forth that certain U.S. Patent and
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`Trademark Office (USPTO) employees have access to the confidential
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`information. A cursory review of the proposed protective order reveals that
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`UPSTO employees are not covered by the proposed protective order.
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`Moreover, CRS has not shown that the proposed protective order includes
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`provisions for maintaining certain documents in this proceeding
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`3
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`Case CBM2012-00005
`Patent 6,675,151
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`confidential. Thus, the proposed protective order does not appear to provide
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`for certain required terms.
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`The proposed protective order also appears to be over-inclusive in that
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`it contains terms and conditions that would not apply to the proceeding
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`before the Board. To the extent that CRS believes that it and Frontline are
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`bound by the proposed protective order for this proceeding, CRS has not
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`explained why the Board would be obliged to enforce the order having terms
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`and conditions seemingly not applicable to the proceeding before the Board.
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`As the moving party, CRS bears the burden to show why the Board should
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`take on the role of enforcing the proposed protective order. Without such an
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`explanation, we would not do so.
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`Lastly, the Board appreciates CRS’ efforts to follow the Office Patent
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`Trial Practice Guide insofar as it submitted a confidential and non-
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`confidential version of its reply. However, the motion to seal must explain
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`why the information redacted from the non-confidential version of the reply
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`is confidential and should not be made publicly available. Office Patent
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`Trial Practice Guide, 77 Fed. Reg. 48756, 48770 (Aug. 14, 2012). We have
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`reviewed the redacted and non-redacted versions of the reply and can only
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`surmise why the redacted portion has been omitted. However, the burden is
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`on CRS to show good cause why the confidential (redacted) portion should
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`not be made publicly available. That CRS has not done. Accordingly, the
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`motion is dismissed for this additional reason.
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`
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`Conclusion
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`The motion is dismissed without prejudice for CRS to file a substitute
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`motion to seal in compliance with this order. The Board will maintain CRS’
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`4
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`
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`Case CBM2012-00005
`Patent 6,675,151
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`non-redacted reply and Exhibits 1015 and 1016 under seal. If CRS does not
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`renew its motion to seal by the due date set forth below, the Board shall
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`make such documents publicly available.
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`
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`It is
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`Order
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`ORDERED that CRS motion to seal is dismissed without prejudice for
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`CRS to file a substitute motion to seal in accordance with this order no later
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`than June 5, 2013.
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`
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`
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`PETITIONER:
`
`E. Robert Yoches
`Finnegan, Henderson, Farabow
`Garrett & Dunner, LLP
`bob.yoches@finnegan.com
`
`
`
`PATENT OWNER:
`
`John P. Donohue, Jr.
`John E. McGlynn
`Woodcock Washburn
`Donohue@woodcock.com
`mcglynn@woodocock.com
`
`
`5
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`
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