`Trials@uspto.gov
`Tel: 571-272-7822
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`
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` Paper 47
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` Entered: June 18, 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
`____________________
`
`Case CBM2012-00005
`Patent 6,675,151C1
`
`___________________
`
`
`
`Before SALLY C. MEDLEY, THOMAS L. GIANNETTI, and JENNIFER
`S. BISK, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`ORDER
`Conduct of the Proceeding
` 37 C.F.R. § 42.5
`
`
`
`On June 13, 2013, the following individuals participated in a
`
`conference call:
`
`(1) Mr. Aaron Capron, and Mr. Darrel Karl, counsel for CRS;
`
`(2) Mr. John Donohue, and Mr. John McGlynn, counsel for Frontline;
`
`
`
`Case CBM2012-00005
`Patent 6,675,151
`
`and
`
`(3) Sally Medley, Thomas Giannetti, and Jennifer Bisk,
`
`Administrative Patent Judges.
`
`The purpose of the conference call was to discuss CRS’ substitute
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`motion to file certain documents under seal (Paper 45;1 “substitute motion to
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`seal”) and the accompanying proposed protective order (Ex. 1019). In the
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`substitute motion to seal, CRS moves for the Board to maintain
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`Exhibits 1015 and 1016, along with CRS’ Reply, confidential and
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`unavailable to the public.
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`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
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`to 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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`As explained during the call, the substitute motion to seal does not
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`provide an explanation, to the Board’s satisfaction, of the differences
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`between the parties’ proposed protective order and the Board default
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`protective order. The Board does not know why the parties would include
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`certain terms in the proposed protective order such as the provision styled
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`“Prosecution Bar.” The terms of at least that paragraph seem to conflict
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`directly with the Board’s guidelines. See, e.g., Office Patent Trial Practice
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`Guide, 77 Fed. Reg. 48756, 48771, para. (h) (Aug. 14, 2012). Yet, in the
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`substitute motion to seal there is no explanation why such terms need be
`
`
`1 Paper number assigned by the PRPS electronic system.
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`2
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`
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`Case CBM2012-00005
`Patent 6,675,151
`
`included in the parties’ proposed protective order.
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`As also explained during the call, the Board was not persuaded by the
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`arguments made in the substitute motion to seal that CRS’ Reply need be
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`sealed. There was some discussion about whether the parties could
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`possibly submit a redacted version of Exhibits 1015 and 1016, and modify
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`CRS’ Reply so that it would not be necessary to maintain any documents
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`under seal. However, the parties could not agree during the call.
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`The Board suggested that since the sole fact articulated on page 15 of
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`CRS’ Reply is not in dispute, then the parties may stipulate to that fact
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`whereby CRS need not rely on Exhibits 1015 and 1016 in support of such
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`fact. The parties were concerned that if they agreed upon such a stipulation,
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`then the record would not be complete for purposes of appeal. However,
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`counsel for the respective parties did not articulate a basis for the concern,
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`nor does the Board see one. If the parties can agree that the fact is admitted,
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`then there would be no occasion to burden this proceeding with documents
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`that must be maintained sealed in the first instance. Counsel for the
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`respective parties indicated that they needed some time to consider this
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`option. The parties are strongly encouraged to reach agreement as to this
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`option.
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`Lastly, the schedule was discussed. Backup counsel for CRS
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`indicated that lead counsel for CRS has a trial date the day prior to the
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`default scheduled oral argument date for this proceeding. Counsel for the
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`parties indicated that they may request jointly that the August 13, 2013
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`default oral argument date be moved to either an earlier or later date. As
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`explained, such a request may be denied, since there are many factors that
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`the Board must consider in scheduling AIA oral arguments. Moreover, CRS
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`3
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`Case CBM2012-00005
`Patent 6,675,151
`
`has two backup counsel such that either one may present oral argument for
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`the scheduled date. Counsel for CRS made no indication that either backup
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`counsel would be unavailable to do so. For this additional reason, the Board
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`may not grant a request to alter the oral argument date.
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`For the reasons provided above, it is
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`ORDERED that the parties confer and attempt to agree to stipulate to
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`the fact found on page 15 of CRS’ Reply. If the parties come to such
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`agreement, CRS shall file, by June 20, 2013, a publically available substitute
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`CRS Reply, with reference to Exhibits 1015 and 1016 removed and
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`indicating per a footnote on page 15 that the stated fact is admitted by
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`Frontline; and
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`FURTHER ORDERED that if the parties cannot agree with the
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`above, the parties must, by June 20, 2013, arrange a conference call with the
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`Board.
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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
`
`4
`
`
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