Paper No. ____
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` Filed: June 27, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`IBG LLC, INTERACTIVE BROKERS LLC, TRADESTATION GROUP, INC.,
`TRADESTATION SECURITIES, INC., TRADESTATION TECHNOLOGIES,
`INC., and IBFX, INC.
`.
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`Petitioner
`v.
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` TRADING TECHNOLOGIES INTERNATIONAL, INC.
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`Patent Owner
`_________________
`Case CBM2015-00181
`U.S. Patent 7,676,411
`_________________
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`PATENT OWNER’S MOTION TO SEAL
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` Filed: June 27, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`IBG LLC, INTERACTIVE BROKERS LLC, TRADESTATION GROUP, INC.,
`TRADESTATION SECURITIES, INC., TRADESTATION TECHNOLOGIES,
`INC., and IBFX, INC.
`.
`
`Petitioner
`v.
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` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`Case CBM2015-00181
`U.S. Patent 7,676,411
`_________________
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`PATENT OWNER’S MOTION TO SEAL
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`I.
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`Introduction
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`Patent Owner requests that the confidential versions of its Patent Owner’s
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`Response, Exhibits 2172 (Declaration of J. Knobloch), 2169 (Declaration of C.
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`Thomas), and eight exhibits to the Declaration of C. Thomas, i.e., Exhibits 2224;
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`2225; 2232; 2247; 2270; 2286; 2294; 2295 be sealed under 37 C.F.R. § 42.54.
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`Good cause to seal these documents exists because a public version of the Patent
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`Owner’s Response and Declarations have also been filed, and because the
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`unredacted Patent Owner’s Response, unredacted Declarations (Exhibits 2172 and
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`2169), and Exhibits 2224; 2225; 2232; 2247; 2270; 2286; 2294; and 2295, contain
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`information identified by Patent Owner and third parties as sensitive, non-public
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`information, that a business would not make public. Patent Owners contacted
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`Petitioners regarding this Motion, and they do not oppose.
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`II. Governing Rules and PTAB Guidance
`Under 35 U.S.C. § 326(a)(1), the default rule is that all papers filed in a post-
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`grant review are open and available for access by the public, but a party may file a
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`concurrent motion to seal and the information at issue is sealed pending the
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`outcome of the motion.
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`Similarly, 37 C.F.R. § 42.14 provides:
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`The record of a proceeding, including documents and things,
`shall be made available to the public, except as otherwise
`ordered. A party intending a document or thing to be sealed
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`shall file a motion to seal concurrent with the filing of the
`document or thing to be sealed. The document or thing shall
`be provisionally sealed on receipt of the motion and remain so
`pending the outcome of the decision on the motion.
`It is, however, only “confidential information” that is protected from disclosure. 35
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`U.S.C. § 326(a)(7)(“The Director shall prescribe regulations -- . . . providing for
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`protective orders governing the exchange and submission of confidential
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`information”). In that regard, the Office Trial Practice Guide, 77 Fed. Reg. 48756,
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`48760 (Aug. 14, 2012) provides:
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`The rules aim to strike a balance between the public’s interest
`in maintaining a complete and understandable file history and
`the parties’ interest in protecting truly sensitive information.
`* * *
`Confidential Information: The rules identify confidential
`information in a manner consistent with Federal Rule of Civil
`Procedure 26(c)(1)(G), which provides for protective orders
`for trade secret or other confidential research, development, or
`commercial information. § 42.54.
`The standard for granting a motion to seal is “for good cause,” 37 C.F.R.
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`§ 42.54, and the moving party has the burden of proof in showing entitlement to
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`the requested relief, 37 C.F.R. § 42.20(c).
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`A motion to seal is also required to include a proposed protective order and a
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`certification that the moving party has in good faith conferred or attempted to
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`confer with the opposing party in an effort to come to an agreement as to the scope
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`of the proposed protective order for this CBM review. 37 C.F.R. § 42.54.
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`III.
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`Identification of Confidential Information
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`The confidential information consists of:
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`(1) Trading Technologies International, Inc.’s internal financial information
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`appearing in the Declaration of J. Knobloch, Ex. 2172, who currently serves as the
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`Director of Intellectual Property, Licensing and Litigation, and relating to the
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`amount of money derived from royalty and settlement payments. See Exhibit 2172,
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`¶ 11. In total, the confidential material is less than 1 line of printed text in the six
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`page Declaration of J. Knobloch. The surrounding text makes clear that royalty and
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`settlement payments are discussed, with only the dollar amount redacted. Patent
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`Owner certifies that its detailed royalty information has not been published or
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`otherwise been made public.
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`(2) Other third-party business strategy information and third-party
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`admissions/statements appearing in the Declaration of J. Knobloch, ¶ 9. In total,
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`the confidential material is less than 3 lines of printed text in the six page
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`Declaration of J. Knobloch. The surrounding text makes clear that two specifically
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`named individuals, third parties Raymond Deux and Goldenberg Hehmeyer, made
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`business sensitive statements in the context of a passage on licensing TT products.
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`To Patent Owner’s knowledge, this business strategy information has not, and
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`should not, be made public.
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`(3) Third-party business strategy information and third-party
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`admissions/statements appearing in the Declaration of C. Thomas, Ex. 2169,
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`¶¶ 127-28. The surrounding text makes clear that two specifically named
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`individuals, third parties Raymond Deux and Charles McElveen, made sensitive
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`business statements in the context of competitive analysis. In total, it is less than 7
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`lines of printed text in the 153 page Declaration of C. Thomas. To Patent Owner’s
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`knowledge, this business strategy information has not, and should not, be made
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`public.
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`(4) Eight exhibits attached to the Declaration of C. Thomas which are
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`confidential third-party materials in their entirety, containing business strategy
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`information and confidential admissions/statements (i.e., Exhibits 2224 (excerpts
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`of district court Deposition Transcript of D. Martin marked “Highly
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`Confidential”); 2225 (excepts of district court Deposition Transcript of C.
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`McElveen marked as containing “Confidential Material”); 2232 (excerpts of
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`district court Deposition Transcript of E. Lapan marked as “Highly Confidential”);
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`2247 (excerpts of district court Deposition Transcript of R. Deux marked as
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`“Confidential Videotape Deposition”); 2270 (eSpeed_PTX0036 (district court trial
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`exhibit marked “Highly Confidential”)); 2286 (excerpts of district court Deposition
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`Transcript of N. Garrow marked “Confidential”); 2294 (excerpts of district court
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`Deposition Transcript of J. Mellor marked “Confidential Attorneys’ Eyes Only”);
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`2295 (excerpts of district court Deposition Transcript of R. Ferraro vol. II marked
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`“Confidential”). All but one of these, an e-mail chain used as a (sealed) trial
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`exhibit, are deposition transcripts from various litigations, designated with
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`confidentiality legends. To Patent Owner’s knowledge, these transcripts and emails
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`have not, and should not, be made public.
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`(5) Use of the confidential information noted above in items (1)-(4) in two
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`paragraphs of Patent Owner’s Response. In total, the confidential material is less
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`than 8 lines of printed text in the entire Patent Owner’s Response.
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`IV. Good Cause Exists for Sealing the Confidential Information
`In Laird Tech. v Graftech Intl. Holdings, the Board found that royalty
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`information that has not been published or otherwise been made public “is
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`sensitive financial information that a business would not make public” and
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`establishes good cause for granting a motion to seal. IPR2014-00023, paper 30;
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`IPR2014-00024, paper 28; IPR2014-00025, paper 27 at 4 (PTAB 2014). The facts
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`are the same here—redacted information in Exhibit 2172 ¶ 11 consists of royalty
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`information that has not been published or otherwise been made public and that is
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`sensitive financial information that a business would not make public. Moreover,
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`all of the nonconfidential information will be publically available in the non-
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`confidential versions of the documents that have been filed. Accordingly, there is
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`good cause to grant this motion to seal.
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`In Athena Automation Ltd. v. Husky Injection Molding Systems Ltd.,
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`IPR2013-00167, paper 25 at 2 (PTAB 2013), the Board permitted Patent Owner to
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`file redacted versions of exhibits that third parties had objected to entering the
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`public domain because they contained their confidential information. The Board
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`stated that as long as the documents were under seal, “we see no reason why the
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`entirety of these documents, which are being relied on by Patent Owner, should not
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`be available for Petitioner to use in these proceedings.” Id. Accordingly, the Board
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`permitted the third-party exhibit to be sealed, shielding the information from the
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`public while still making it available to the parties under the terms of a PO. In this
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`case, the third parties have also objected to the release of the their confidential
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`business information into the public domain. The information of third parties in
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`part in Exhibits 2172, ¶ 9, 2169, ¶¶ 127-28 and in the entirety of Exhibits 2224;
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`2225; 2232; 2247; 2270; 2286; 2294; and 2295 is confidential business strategy
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`information and/or testimony that has not been published or otherwise been made
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`public and that is sensitive information that a business would not make public. As
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`Petitioners have signed acknowledgements to the Default Protective Order, all
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`parties to the proceedings―Patent Owner and Petitioners―will still be able to rely
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`on these third party statements and exhibits in their entirety, while respecting the
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`confidentiality designations of the third parties through a motion to seal.
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`Accordingly, there is good cause to grant this motion to seal.
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`V.
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`Proposed Protective Order
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`The parties have signed acknowledgements for the Default Protective Order
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`located in Appendix B of the Trial Practice Guide, indicating agreement to treat the
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`materials in accordance with the Default Protective Order. In accordance with the
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`terms of the Default Protective Order, both confidential and non-confidential
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`versions of the documents have been filed.
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`VI. Conclusion
`Based on Patent Owner’s representations and the limited scope of the
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`protection sought, there is good cause to grant the motion to seal. 37 C.F.R. §
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`42.54. For all the reasons set forth above, Patent Owner respectfully requests that
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`Respectfully Submitted,
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`By: /Rachel L. Emsley/
`Rachel L. Emsley, Reg. No. 63,558
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`the Board grant this motion to seal.
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`Date: June 27, 2016
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`8
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`CERTIFICATE OF SERVICE
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`The undersigned hereby certifies that a copy of the foregoing Patent
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`Owner’s Motion to Seal was served on June 27, 2016, via email directed to
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`counsel of record for the Petitioner at the following:
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`Robert Sokohl
`rsokohl-PTAB@skgf.com
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`Lori Gordon
`lgordon-ptab@skgf.com
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`Richard Bemben
`rbemben-PTAB@skgf.com
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`John C. Phillips
`CBM41919-0008CP1@fr.com
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`PTAB@skgf.com
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`Date: June 27, 2016
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`
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`/Lisa C. Hines/
`Lisa C. Hines
`Litigation Clerk
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`Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP
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`9
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