Paper No. ____
` Filed: January 20, 2017
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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., and
`TRADESTATION SECURITIES, INC.
`
`Petitioners
`
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`
`Case CBM2016-00054
`U.S. Patent 7,693,768
`_________________
`
`PATENT OWNER’S MOTION TO SEAL
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` Filed: January 20, 2017
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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., and
`TRADESTATION SECURITIES, INC.
`
`Petitioners
`
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`
`Case CBM2016-00054
`U.S. Patent 7,693,768
`_________________
`
`PATENT OWNER’S MOTION TO SEAL
`
`
`
`
`
`
`
`
`
`Case CBM2016-00054
`U.S. Patent 7,693,768
`
`
`I.
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`Introduction
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`Patent Owner requests that the confidential versions of its Patent Owner’s
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`Response (Paper 20), Exhibits 2172 (Declaration of J. Knobloch), 2169
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`(Declaration of C. Thomas), and 37 exhibits to the Declaration of C. Thomas,
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`i.e., Exhibits 2143, 2144, 2154, 2224, 2225, 2232, 2247, 2270, 2286, 2294,
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`2295, 2501, 2502, 2503, 2504, 2506, 2507, 2508, 2509, 2510, 2511, 2512, 2513,
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`2514, 2515, 2516, 2517, 2518, 2520, 2521, 2522, 2524, 2525, 2526, 2527, 2529,
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`and 2530 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
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`Patent 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
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`and 2169), and Exhibits 2143, 2144, 2154, 2224, 2225, 2232, 2247, 2270, 2286,
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`2294, 2295, 2501, 2502, 2503, 2504, 2506, 2507, 2508, 2509, 2510, 2511, 2512,
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`2513, 2514, 2515, 2516, 2517, 2518, 2520, 2521, 2522, 2524, 2525, 2526, 2527,
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`2529, and 2530, contain information identified by Patent Owner, third parties,
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`and Petitioners as sensitive, non-public information, that a business would not
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`make public. Patent Owners contacted Petitioners regarding this Motion, and
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`they do not oppose.
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`0
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`Case CBM2016-00054
`U.S. Patent 7,693,768
`
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`II. Governing Rules and PTAB Guidance
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`Under 35 U.S.C. § 326(a)(1), the default rule is that all papers filed in a
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`post-grant review are open and available for access by the public, but a party
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`may file a concurrent motion to seal and the information at issue is sealed
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`pending the 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,
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`shall be made available to the public, except as otherwise
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`ordered. A party intending a document or thing to be sealed
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`shall file a motion to seal concurrent with the filing of the
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`document or thing to be sealed. The document or thing
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`shall be provisionally sealed on receipt of the motion and
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`remain so pending the outcome of the decision on the
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`motion.
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`It is, however, only “confidential information” that is protected from disclosure.
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`35 U.S.C. § 326(a)(7)(“The Director shall prescribe regulations -- . . . providing
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`for 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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`1
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`Case CBM2016-00054
`U.S. Patent 7,693,768
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`The rules aim to strike a balance between the public’s
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`interest in maintaining a complete and understandable file
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`history and the parties’ interest in protecting truly sensitive
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`information.
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`* * *
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`Confidential Information: The rules identify confidential
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`information in a manner consistent with Federal Rule of
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`Civil Procedure 26(c)(1)(G), which provides for protective
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`orders for trade secret or other confidential research,
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`development, or commercial information. § 42.54.
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`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
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`to 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
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`and a certification that the moving party has in good faith conferred or attempted
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`to confer with the opposing party in an effort to come to an agreement as to the
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`scope of the proposed protective order for this CBM review. 37 C.F.R. § 42.54.
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`2
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`Case CBM2016-00054
`U.S. Patent 7,693,768
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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
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`information appearing in the Declaration of J. Knobloch, Ex. 2172, who
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`currently serves as the Director of Intellectual Property, Licensing and
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`Litigation, and relating to the amount of money derived from royalty and
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`settlement payments. See Exhibit 2172, ¶ 11. In total, the confidential material is
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`less than 1 line of printed text in the six-page Declaration of J. Knobloch. The
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`surrounding text makes clear that royalty and settlement payments are discussed,
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`with only the dollar amount redacted. Patent Owner certifies that its detailed
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`royalty information has not been published or 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
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`specifically named individuals, third parties Raymond Deux and Goldenberg
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`Hehmeyer, made business sensitive statements in the context of a passage on
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`licensing TT products. To Patent Owner’s knowledge, this business strategy
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`information has not, and should not, be made public.
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`3
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`U.S. Patent 7,693,768
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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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`129-30. The surrounding text makes clear that two specifically named
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`individuals, third parties Raymond Deux and Charles McElveen, made
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`sensitive business statements in the context of competitive analysis. In total, it
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`is less than 7 lines of printed text in the 169-page Declaration of C. Thomas. To
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`Patent Owner’s knowledge, this business strategy information has not, and
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`should not, be made public.
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`(4) Other confidential information appearing in the Declaration of C.
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`Thomas, Ex. 2169 at ¶¶ 71, 113, 122, 124, 125, 181, 189 consists of discussions
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`of Petitioners’ own confidential information. Patent Owner obtained the
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`confidential information in a related U.S. District Court proceeding* involving
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`Patent Owner and Petitioners. Patent Owner has been previously authorized by
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`Petitioners to present this information in the present Covered Business Method
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`proceeding pursuant to the protective order in that District Court proceeding
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`* This proceeding is Trading Techs. Int’l, Inc. v. BCG Partners, Inc., Case No. :10-
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`cv-00715 (N.D. Ill.) (consolidated with Trading Techs. Int’l, Inc. v. IBG LLC, Case
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`No. 1:10-cv-00721 (N.D. Ill.) and Trading Techs. Int’l, Inc. v. TradeStation Sec.,
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`Inc., Case No. 1:10-cv-00884 (N.D. Ill.)).
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`4
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`Case CBM2016-00054
`U.S. Patent 7,693,768
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`and the default protective order, attached hereto as Exhibit A. Patent Owner
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`has been advised by counsel for Petitioners that this information has not been
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`published or otherwise been made public.
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`(5) 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
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`(excerpts 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
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`Confidential”); 2247 (excerpts of district court Deposition Transcript of R.
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`Deux marked as “Confidential Videotape Deposition”); 2270
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`(eSpeed_PTX0036 (district court trial exhibit marked “Highly Confidential”));
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`2286 (excerpts of district court Deposition Transcript of N. Garrow marked
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`“Confidential”); 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”). All
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`but one of these, an e-mail chain used as a (sealed) trial exhibit, are deposition
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`transcripts from various litigations, designated with confidentiality legends. To
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`5
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`Case CBM2016-00054
`U.S. Patent 7,693,768
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`Patent Owner’s knowledge, these transcripts and emails have not, and should
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`not, be made public.
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`(6) 29 exhibits attached to the Declaration of C. Thomas which are
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`Petitioners’ own confidential information, obtained by Patent Owner in
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`accordance with item (4), above.
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`(7) Use of the confidential information noted above in items (1)-(6) in
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`Patent Owner’s Response. In total, the confidential material is less than three
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`pages in the entire Patent Owner’s Response, which totals 93 pages.
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`IV. Good Cause Exists for Sealing the Confidential Information
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`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
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`facts are the same here—redacted information in Exhibit 2172 ¶ 11 consists of
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`royalty information that has not been published or otherwise been made public
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`and that is sensitive financial information that a business would not make
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`public. Moreover, all of the nonconfidential information will be publically
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`available in the non-confidential versions of the documents that have been
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`filed. Accordingly, there is good cause to grant this motion to seal.
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`6
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`Case CBM2016-00054
`U.S. Patent 7,693,768
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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
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`to 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
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`not be available for Petitioner to use in these proceedings.” Id. Accordingly, the
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`Board permitted the third-party exhibit to be sealed, shielding the information
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`from the public while still making it available to the parties under the terms of a
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`PO. 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.
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`The information of third parties in part in Exhibits 2172, ¶ 9, 2169, ¶¶
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`129-30 and in the entirety of Exhibits 2224; 2225; 2232; 2247; 2270; 2286;
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`2294; and 2295 is confidential business strategy information and/or testimony
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`that has not been published or otherwise been made public and that is sensitive
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`information that a business would not make public. Any non-confidential
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`information will be publically available in the non-confidential versions of the
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`documents that have been filed.
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`Moreover, Petitioners have asserted that the other identified information is
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`either confidential or highly confidential under the protective order in the
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`7
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`Case CBM2016-00054
`U.S. Patent 7,693,768
`
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`corresponding district court litigation. Through these designations, Petitioners
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`represented to Patent Owner that the information at issue consists of sensitive
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`information that a business would not make public and that good cause thus
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`exists for sealing the information in this proceeding. Accordingly, there is good
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`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 agreed to use the Default Protective Order located in
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`Appendix B of the Trial Practice Guide and attached hereto as Appendix A. In
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`accordance with this Default Protective Order, both confidential and non-
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`confidential versions of the documents have been filed.
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`VI. Conclusion
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`Based on Patent Owner’s and Petitioners’ representations and the limited
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`scope of the protection sought, there is good cause to grant the motion to seal.
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`37 C.F.R. § 42.54. For all the reasons set forth above, Patent Owner
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`respectfully requests that the Board grant this motion to seal.
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`Respectfully submitted,
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`Dated: January 20, 2017
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`
`
`By:
`
`
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`8
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`
`
`/Cole B. Richter/
`Cole B. Richter,
`Back-up Counsel for Patent
`Owner
`Reg. No. 65,398
`McDonnell Boehnen Hulbert &
`Berghoff LLP
`
`
`
`Case CBM2016-00054
`U.S. Patent 7,693,768
`
`
`300 South Wacker Drive
`Chicago, Illinois 60606
`(312) 913-0001 Telephone
`(312) 913-0002 Facsimile
`
`9
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`EXHIBIT A
`
`EXHIBIT A
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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.,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`
`
`CBM2016-00054
`Patent No. 7,693,768
`
`
`
`STANDING PROTECTIVE ORDER
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board U.S.
`Patent and Trademark Office P.O.
`Box 1450
`Alexandria, VA 22313-1450
`
`
`
`This standing protective order governs the treatment and filing of
`
`confidential information, including documents and testimony.
`
`1. Confidential information shall be clearly marked “PROTECTIVE
`
`ORDER MATERIAL.”
`
`2. Access to confidential information is limited to the following
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`individuals 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
`
`proceeding and other persons who are named parties to the
`
`proceeding.
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`(B) Party Representatives. Representatives of record for a party in
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`the proceeding.
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`(C) Experts. Retained experts of a party in the proceeding who
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`further certify in the Acknowledgement that they are not a competitor
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`to any party, or a consultant for, or employed by, such a competitor
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`with respect to the subject matter of the proceeding.
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`(D) In-house counsel. In-house counsel of a party.
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`(E) Other Employees of a Party. Employees, consultants or other
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`persons performing work for a party, other than in-house counsel and
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`in-house counsel’s support staff, who sign the Acknowledgement
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`shall be extended access to confidential information only upon
`
`2
`
`
`
`agreement of the parties or by order of the Board upon a motion
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`brought by the party seeking to disclose confidential information to
`
`that person. The party opposing disclosure to that person shall have
`
`the burden of proving that such person should be restricted from
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`access to confidential information.
`
`(F) The Office. Employees and representatives of the Office who
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`have a need for access to the confidential information shall have such
`
`access without the requirement to sign an Acknowledgement. Such
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`employees and representatives shall include the Director, members of
`
`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
`
`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
`
`informed of the terms and requirements of the Protective Order by
`
`the person they are supporting who receives confidential information.
`
`3. Persons receiving confidential information shall use reasonable efforts
`
`to maintain the confidentiality of the information, including:
`
`(A) Maintaining such information in a secure location to which
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`3
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`
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`persons not authorized to receive the information shall not have
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`access;
`
`(B) Otherwise using reasonable efforts to maintain the confidentiality
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`of the information, which efforts shall be no less rigorous than those
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`the 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
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`to the confidential information understand and abide by the
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`obligation to maintain the confidentiality of information received that
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`is designated 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. 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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`4
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`
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`made available to the public. The submission shall be treated
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`as 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
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`the information submitted to the Board, the submitting party
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`shall 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
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`not be made available to the public. The non-confidential
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`version of 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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`(B) Documents and Information Exchanged Among the Parties.
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`5
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`
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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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` Standard Acknowledgement of Protective Order. The following form
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`may be used to acknowledge a protective order and gain access to
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`information covered by the protective order:
`
`
`
`6
`
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`
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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.,
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`
`
`CBM2016-00054
`Patent No. 7,693,768
`
`
`
`ACKNOWLEDGEMENT FOR ACCESS
`TO PROTECTIVE ORDER MATERIAL
`
`I , affirm that I have read the Protective Order; that I will
`
`abide by its terms; that I will use the confidential information only in connection
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`with this proceeding and for no other purpose; that I will only allow access to
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`support staff who are reasonably necessary to assist me in this proceeding; that
`
`prior to any disclosure to such support staff I informed or will inform them of the
`
`
`
`
`
`requirements of the Protective Order; that I am personally responsible for the
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`requirements of the terms of the Protective Order and I agree to submit to the
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`jurisdiction of the Office and the United States District Court for the Eastern
`
`District of Virginia for purposes of enforcing the terms of the Protective Order and
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`providing remedies for its breach.
`
`
`
`Date: __________
`
`By: __________________________
`
`
`
`
`
`
`
`Case CBM2016-00054
`U.S. Patent 7,693,768
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing Patent
`
`Owner’s Motion to Seal was served on January 20, 2017, via email directed to
`
`counsel of record for the Petitioner at the following:
`
`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori A. Gordon
`lgordon-PTAB@skgf.com
`
`Richard M. Bemben
`rbemben-PTAB@skgf.com
`
`John C. Phillips
`CBM41919-0013CP1@fr.com
`
`PTAB@skgf.com
`
`Date: January 20, 2017
`
`/Cole B. Richter/
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