UNITED STATES PATENT AND TRADEMARK OFFICE
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`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
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`
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`GOOGLE INC.
`Petitioner
`
`v.
`
`SMARTFLASH LLC
`Patent Owner
`
`U.S. Patent No. 8,794,516
`
`_____________________
`
`Covered Business Method Review Case No. Unassigned
`
`_____________________
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`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`
`
`GOOGLE INC.
`Petitioner
`
`v.
`
`SMARTFLASH LLC
`Patent Owner
`
`U.S. Patent No. 8,794,516
`
`_____________________
`
`Covered Business Method Review Case No. Unassigned
`
`_____________________
`
`
`
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`
`
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`
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`This standing protective order governs the treatment and filing of
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`
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`confidential information, including documents and testimony.
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`1. Confidential information shall be clearly marked ‘‘PROTECTIVE ORDER
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`MATERIAL.’’
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`2. Access to confidential information is limited to the following individuals
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`who have executed the acknowledgment appended to this order:
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`(A) Parties. Persons who are owners of a patent involved in the
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`proceeding and other persons who are named parties to the
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`proceeding.
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`(B) Party Representatives. Representatives of record for a party in the
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`proceeding.
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`(C) Experts. Retained experts of a party in the proceeding who further
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`certify in the Acknowledgement that they are not a competitor to any
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`party, or a consultant for, or employed by, such a competitor with
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`respect to the subject matter of the proceeding.
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`(D)
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`In-house counsel. In-house counsel of a party.
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`(E) Other Employees of a Party. Employees, consultants or other persons
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`performing work for a party, other than in-house counsel and in-house
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`counsel’s support staff, who sign the Acknowledgement shall be
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`extended access to confidential information only upon agreement of
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`1
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`the parties or by order of the Board upon a motion brought by the
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`party seeking to disclose confidential information to that person. The
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`party opposing disclosure to that person shall have the burden of
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`proving that such person should be restricted from access to
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`confidential information.
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`(F) The Office. Employees and representatives of the Office who have a
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`need for access to the confidential information shall have such access
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`without the requirement to sign an Acknowledgement. Such
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`employees and representatives shall include the Director, members of
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`the Board and their clerical staff, other support personnel, court
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`reporters, and other persons acting on behalf of the Office.
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`(G) Support Personnel. Administrative assistants, clerical staff, court
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`reporters and other support personnel of the foregoing persons who
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`are reasonably necessary to assist those persons in the proceeding
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`shall not be required to sign an Acknowledgement, but shall be
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`informed of the terms and requirements of the Protective Order by the
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`person they are supporting who receives confidential information.
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`3.
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`Persons receiving confidential information shall use reasonable efforts to
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`maintain the confidentiality of the information, including:
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`2
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`(A) Maintaining such information in a secure location to which persons
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`not authorized to receive the information shall not have access;
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`(B) Otherwise using reasonable efforts to maintain the confidentiality of
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`the information, which efforts shall be no less rigorous than those the
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`recipient uses to maintain the confidentiality of information not
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`received from the disclosing party;
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`(C) Ensuring that support personnel of the recipient who have access to
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`the confidential information understand and abide by the obligation to
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`maintain the confidentiality of information received that is designated
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`as confidential; and
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`(D) Limiting the copying of confidential information to a reasonable
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`number of copies needed for conduct of the proceeding and
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`maintaining a record of the locations of such copies.
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`4.
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`Persons receiving confidential information shall use the following
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`procedures to maintain the confidentiality of the information:
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`(A) Documents and Information Filed With the Board.
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`(i) A party may file documents or information with the Board
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`under seal, together with a non-confidential description of the
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`nature of the confidential information that is under seal and the
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`reasons why the information is confidential and should not be
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`3
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`made available to the public. The submission shall be treated as
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`confidential and remain under seal, unless, upon motion of a
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`party and after a hearing on the issue, or sua sponte, the Board
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`determines that the documents or information do not to qualify
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`for confidential treatment.
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`(ii) Where confidentiality is alleged as to some but not all of the
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`information submitted to the Board, the submitting party shall
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`file confidential and non-confidential versions of its
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`submission, together with a Motion to Seal the confidential
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`version setting forth the reasons why the information redacted
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`from the non-confidential version is confidential and should not
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`be made available to the public. The nonconfidential version of
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`the submission shall clearly indicate the locations of
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`information that has been redacted. The confidential version of
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`the submission shall be filed under seal. The redacted
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`information shall remain under seal unless, upon motion of a
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`party and after a hearing on the issue, or sua sponte, the Board
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`determines that some or all of the redacted information does not
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`qualify for confidential treatment.
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`4
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`(B) Documents and Information Exchanged Among the Parties.
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`Information designated as confidential that is disclosed to another
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`party during discovery or other proceedings before the Board shall be
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`clearly marked as ‘‘PROTECTIVE ORDER MATERIAL’’ and shall
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`be produced in a manner that maintains its confidentiality.
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`5.
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`Subpoenas or Court Orders
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`(A)
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`If at any time Confidential Material is subpoenaed by any court,
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`arbitral, administrative, or legislative body, the Party to whom the
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`subpoena or other request is directed shall immediately give prompt
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`written notice thereof to every Party who has produced such
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`Discovery Material and to its counsel and shall provide each such
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`Party with an opportunity to move for a protective order regarding the
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`production of Protected Materials implicated by the subpoena.
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`(B)
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`If a Producing Party does not take steps to prevent disclosure of such
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`documents within ten business days of the date written notice is given,
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`the party to whom the referenced subpoena is directed may produce
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`such documents in response thereto, but shall take all reasonable
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`measures to have such documents treated in accordance with terms of
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`this Protective Order.
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`5
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`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`
`
`GOOGLE INC.
`Petitioner
`
`v.
`
`SMARTFLASH LLC
`Patent Owner
`
`U.S. Patent No. 8,794,516
`
`_____________________
`
`Covered Business Method Review Case No. Unassigned
`
`_____________________
`
`
`
`
`
`Acknowledgment for Access to Protective Order Material
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`
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`I _______________________________, affirm that I have read the
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`Protective Order; that I will abide by its terms; that I will use the confidential
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`information only in connection with this proceeding and for no other purpose; that
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`I will only allow access to support staff who are reasonably necessary to assist me
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`in this proceeding; that prior to any disclosure to such support staff I informed or
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`will inform them of the requirements of the Protective Order; that I am personally
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`responsible for the requirements of the terms of the Protective Order and I agree to
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`6
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`submit to the jurisdiction of the Office and the United States District Court for the
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`Eastern District of Virginia for purposes of enforcing the terms of the Protective
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`Order and providing remedies for its breach.
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`
`DATE:_____________
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`SIGNED______________________________________________
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`7
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`CERTIFICATE OF SERVICE
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`I hereby certify that, on May 13, 2015, I caused a true and correct copy of
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`the foregoing Proposed Protective Order and supporting materials to be served via
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`Federal Express Priority Overnight to the below addresses:
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`Davidson Berquist Jackson & Gowdey LLP
`8300 Greensboro Drive
`Suite 500
`McLean, VA 22102
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`Kilpatrick Townsend & Stockton LLP
`Two Embarcadero Ctr.
`8th Floor
`San Francisco, CA 94111-3834
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`/Andrew M. Holmes/
`Andrew M. Holmes
`
`
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`
`
`Date: May 13, 2015
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`8
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