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`Paper No. ______
`Filed: June 21, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`IBG LLC;
`INTERACTIVE BROKERS LLC;
`TRADESTATION GROUP, INC.; and
`TRADESTATION SECURITIES, INC.,
`
`Petitioners,
`v.
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
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`Patent Owner.
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`CBM2016-00054
`U.S. Patent 7,693,768
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`PATENT OWNER’S MOTION TO SEAL
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`I.
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`Introduction
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`CBM2016-00054
`U.S. Patent 7,693,768
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`Patent Owner requests that the confidential version of its Patent Owner’s
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`Demonstratives (Exhibit 2359) be sealed under 37 C.F.R. § 42.54.
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`Good cause to seal this exhibit exists because a public version of the Patent
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`Owner’s Demonstratives has also been filed, and because the unredacted Patent
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`Owner’s Demonstratives contain information identified by Petitioners as sensitive,
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`non-public information, that a business would not make public. Patent Owners
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`contacted 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
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`post-grant review are open and available for access by the public, but a party may
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`file a 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
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`made available to the public, except as otherwise ordered. A party
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`intending a document or thing to be sealed shall file a motion to seal
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`concurrent with the filing of the document or thing to be sealed. The
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`document or thing shall be provisionally sealed on receipt of the
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`1
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`motion and remain so pending the outcome of the decision on the
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`CBM2016-00054
`U.S. Patent 7,693,768
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`motion.
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`It is, however, only “confidential information” that is protected from
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`disclosure. 35 U.S.C. § 326(a)(7)(“The Director shall prescribe regulations -- . . .
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`providing for protective orders governing the exchange and submission of
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`confidential information”). In that regard, the Office Trial Practice Guide, 77 Fed.
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`Reg. 48756, 48760 (Aug. 14, 2012) provides:
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`The rules aim to strike a balance between the public’s interest in
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`maintaining a complete and understandable file history and the
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`parties’ interest in protecting truly sensitive information.
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`* * *
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`Confidential Information: The rules identify confidential information
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`in a manner consistent with Federal Rule of Civil Procedure
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`26(c)(1)(G), which provides for protective orders for trade secret or
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`other confidential research, development, or commercial information.
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`§ 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 to the
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`requested relief, 37 C.F.R. § 42.20(c).
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`2
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`A motion to seal is also required to include a proposed protective order and
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`CBM2016-00054
`U.S. Patent 7,693,768
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`a 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
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`scope 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 Petitioners’ confidential
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`information appearing on page 26 of Patent Owner’s Demonstratives. Specifically,
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`the confidential information contains information related to internal technical
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`specifications. Patent Owner obtained the confidential information in a related
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`U.S. District Court proceeding1 involving Patent Owner and Petitioners. Patent
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`Owner has been previously authorized by Petitioners to present this information in
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`the present Covered Business Method proceeding pursuant to the protective order
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`in that District Court proceeding and the default protective order, attached hereto
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`as Exhibit A. Patent Owner has been advised by counsel for Petitioners that this
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`information has not been published or otherwise been made public.
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`1 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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`3
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`In total, the confidential material only appears on one page of the 32 page
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`CBM2016-00054
`U.S. Patent 7,693,768
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`presentation. To Patent Owner’s knowledge, this business information has not,
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`and should not, be made public. Further, this Board previously granted a Motion
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`to Seal in a related proceeding that contained the same confidential information at
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`issue. TradeStation Group, Inc. v. Trading Technologies Int’l, Inc., CBM2015-
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`00161, Paper 130, at 2-3.
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`IV. Good Cause Exists for Sealing the Confidential Information
`Petitioners have asserted that the information on page 26 of Patent Owner’s
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`Demonstratives is either confidential or highly confidential under the protective
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`order in the corresponding district court litigation. Through these designations,
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`Petitioners represented to Patent Owner that the information on page 26 of Patent
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`Owner’s Demonstratives consists of sensitive information that a business would
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`not make public. Thus, good cause exists for sealing the information in this
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`proceeding. 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 agreed to use the Default Protective Order located in
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`Appendix B of the Trial Practice Guide and attached hereto as Exhibit A. In
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`accordance with this Default Protective Order, both confidential and non-
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`confidential versions of the Patent Owner’s Demonstratives have been filed.
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`4
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`VI. Conclusion
`Based on Patent Owner’s and Petitioners’ representations and the limited
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`CBM2016-00054
`U.S. Patent 7,693,768
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`scope of the protection sought, there is good cause to grant the motion to seal. 37
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`C.F.R. § 42.54. For all the reasons set forth above, Patent Owner respectfully
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`requests that the Board grant this motion to seal.
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`
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`Date: June 21, 2017
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`Respectfully submitted,
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`MCDONNELL BOEHNEN HULBERT &
`BERGHOFF LLP
`
`/Leif R. Sigmond Jr./
`
`Leif R. Sigmond Jr.,
`Lead Counsel, Reg. No. 35,680
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`Counsel for Patent Owner
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`300 South Wacker Drive
`Chicago, Illinois 60606
`(312) 913-0001
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`5
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`CBM2016-00054
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`CBM2016-00054
`U.S. Patent 7,693,768
`US. Patent 7,693,768
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`EXHIBIT A
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`EXHIBIT A
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`CBM2016-00054
`U.S. Patent 7,693,768
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`UNITED STATES PATENT AND TRADEMARK
`OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
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`
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`IBG LLC, INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC.,
`TRADESTATION SECURITIES, INC.,
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
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`CBM2016-00054
`Patent No. 7,693,768
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`STANDING PROTECTIVE ORDER
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board U.S.
`Patent and Trademark Office P.O.
`Box 1450
`Alexandria, VA 22313-1450
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`CBM2016-00054
`U.S. Patent 7,693,768
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`This standing protective order governs the treatment and filing of
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`confidential information, including documents and testimony.
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`1. Confidential information shall be clearly marked
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`“PROTECTIVE ORDER MATERIAL.”
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`2. Access to confidential information is limited to the following
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`individuals who have executed the acknowledgment appended to this
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`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
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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)
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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
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`CBM2016-00054
`U.S. Patent 7,693,768
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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
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`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
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`that person. The party opposing disclosure to that person shall have
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`the burden of proving that such person should be restricted from
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`access to confidential information.
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`(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
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`access 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
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`the person they are supporting who receives confidential
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`CBM2016-00054
`U.S. Patent 7,693,768
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`information.
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`3. Persons receiving confidential information shall use reasonable efforts
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`to maintain the confidentiality of the information, including:
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`(A) Maintaining such information in a secure location to which
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`persons not authorized to receive the information shall not have
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`access;
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`(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
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`that 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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`CBM2016-00054
`U.S. Patent 7,693,768
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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
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`the reasons why the information is confidential and should not
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`be made available to the public. The submission shall be
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`treated as confidential and remain under seal, unless, upon
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`motion of a party and after a hearing on the issue, or sua
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`sponte, the Board determines that the documents or
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`information do not to qualify 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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`CBM2016-00054
`U.S. Patent 7,693,768
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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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`Information designated as confidential that is disclosed to
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`another party during discovery or other proceedings before the Board
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`shall be clearly marked as “PROTECTIVE ORDER MATERIAL”
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`and shall 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:
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`CBM2016-00054
`U.S. Patent 7,693,768
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
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`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
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`ACKNOWLEDGEMENT FOR ACCESS
`TO PROTECTIVE ORDER MATERIAL
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`I
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`, affirm that I have read the Protective Order; that I will
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`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
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`prior to any disclosure to such support staff I informed or will inform them of the
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`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
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`CBM2016-00054
`U.S. Patent 7,693,768
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`District of Virginia for purposes of enforcing the terms of the Protective Order and
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`providing remedies for its breach.
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`Date:
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`By:
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`CBM2016-00054
`U.S. Patent 7,693,768
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`Case CBM2016-00054
`U.S. Patent 7,693,768
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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 June 21, 2017, via email directed to
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`counsel of record for the Petitioner at the following:
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`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
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`Lori A. Gordon
`lgordon-PTAB@skgf.com
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`Richard M. Bemben
`rbemben-PTAB@skgf.com
`
`John C. Phillips
`CBM41919-0013CP1@fr.com
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`PTAB@skgf.com
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`Date: June 21, 2017
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`
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`
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`/Leif R. Sigmond Jr./
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`
`
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