Paper No. ____
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` Filed: July 21, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
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`IBG LLC and
`INTERACTIVE BROKERS LLC,
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`Petitioners
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`v.
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` TRADING TECHNOLOGIES INTERNATIONAL, INC.
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`Patent Owner
`_________________
`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
`_________________
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`PATENT OWNER’S MOTION TO SEAL
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` Filed: July 21, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`IBG LLC and
`INTERACTIVE BROKERS LLC,
`
`Petitioners
`
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
`_________________
`
`PATENT OWNER’S MOTION TO SEAL
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`I.
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`Introduction
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`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
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`Patent Owner requests that the confidential versions of two exhibits to the
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`Declaration of Christopher Thomas, i.e., Exhibits 2294 and 2295, be sealed under
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`37 C.F.R. § 42.54. Good cause to seal these documents exists because Exhibits
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`2294 and 2295, contain information identified by Patent Owner and third parties as
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`sensitive, non-public information that a business would not make public. Patent
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`Owner contacted Petitioners regarding this Motion, and Petitioners 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
`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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`2
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`protective orders governing the exchange and submission of confidential
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`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
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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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`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 two exhibits attached to the
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`Declaration of Christopher Thomas, which are confidential third-party materials in
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`3
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`their entirety, containing business strategy information and confidential
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`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
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`admissions/statements: 2294 (excerpts of district court Deposition Transcript of J.
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`Mellor marked “Confidential - Attorneys’ Eyes Only”); 2295 (excerpts of district
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`court Deposition Transcript of R. Ferraro vol. II marked “Confidential”). To Patent
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`Owner’s knowledge, these transcripts have not, and should not, be made public.
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`IV. Good Cause Exists for Sealing the Confidential Information
`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 Protective
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`Order. In this case, the third parties have also objected to the release of their
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`confidential business information into the public domain. The information of third
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`parties in the entirety of Exhibits 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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`4
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`Petitioners have signed acknowledgements to the Default Protective Order, all
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`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
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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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`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 will be filed, as appropriate. For Exhibits 2294 and
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`2295, the entirety of the documents are confidential.
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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: /Kevin D. Rodkey/
` Kevin D. Rodkey, Reg. No. 65,506
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`5
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`the Board grant this motion to seal.
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`Date: July 21, 2016
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`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
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`CERTIFICATE OF SERVICE
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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 July 21, 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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`PTAB@skgf.com
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`Date: July 21, 2016
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`/Valencia Daniel/
`Valencia Daniel
`Litigation Legal Assistant
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`Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP
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`6
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