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`Filed on behalf of Clearlamp, LLC
`By:
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`Matthew L. Cutler (mcutler@hdp.com)
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`Bryan K. Wheelock (bwheelock@hdp.com)
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`Harness, Dickey & Pierce, PLC
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`7700 Bonhomme, Suite 400
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`St. Louis, MO 63105
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`Tel: (314) 726-7500
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`Fax: (314) 726-7501
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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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`LKQ CORPORATION
`Petitioner
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`v.
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`CLEARLAMP, LLC
`Patent Owner
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`_____________
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`Case IPR2013-00020
`Patent 7,297,364
`_____________
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`PATENT OWNER’S MOTION FOR ENTRY OF PROTECTIVE
`ORDER AND TO SEAL UNDER 37 C.F.R. 42.54
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`Pursuant to the Board’s June 28, 2013 Order (Paper 32), and for the reasons
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`discussed more fully below, Patent Owner Clearlamp, LLC (hereinafter, “Patent
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`Owner” or “Clearlamp”) respectfully submits this Motion to Seal the following
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`documents:
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`(1) portions of the transcript of the deposition of Robert Sandau (Ex. 2016);
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`(2) an LKQ document entitled “LKQ Corporation Analysis of Income as a
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`percentage of revenue”, bearing Bates Number LKQ0004213 (Ex.
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`2011);
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`(3) LKQ’s verified Supplemental Response to Clearlamp’s Interrogatory No.
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`1 in the underlying District Court litigation (Ex. 2006); and
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`(4) the claim chart accompanying Clearlamp’s infringement contentions in
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`the underlying litigation (Ex. 2018).
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`Because these documents are discussed in (5) portions of its Patent Owner’s
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`Response and (6) portions of the Declaration of Mr. Irving S. Rappaport (Ex.
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`2009), Clearlamp also moves to seal full versions of those documents.
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`Additionally, Clearlamp also requests that the full version of a testing document,
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`specifically (7) Exh. 2012 (American Bumper test package) also be sealed because
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`it contains confidential information concerning General Motors’ lamp testing
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`protocols.
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`Each of these documents are filed concurrently with this Motion. Patent
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`Owner Clearlamp is also filing redacted public versions of the Patent Owner’s
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`Response, Rappaport Declaration, Sandau deposition transcript, and American
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`Bumper Test Package.
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`I.
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`Good Cause Exists for Sealing Certain Confidential Information
`The Office Patent Trial Practice Guide provides that “the rules aim to strike
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`a balance between the public’s interest in maintaining a complete and
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`understandable file history and the parties’ interest in protecting truly sensitive
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`information.” 77 FED. REG. 48756, 48760 (Aug. 14, 2012). Further, those rules
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`“identify confidential information in a manner consistent with Federal Rule of
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`Civil Procedure 26(c)(1)(G), which provides for protective orders for trade secret
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`or other confidential research, development, or commercial information.” Id.
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`(citing 37 C.F.R. § 42.54).
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`Each of the exhibits summarized in Table 1 below (the “Proposed Sealed
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`Exhibits”) contains either information that LKQ maintains is sensitive and
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`confidential business technical, financial, and/or strategy information of Petitioner,
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`or information that concerns third parties’ (General Motors and Volvo)
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`confidential vehicle lamp testing processes.
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`The Proposed Sealed Exhibits are discussed in detail in, and portions of
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`them are reproduced in, Patent Owner’s Responses and Mr. Rappaport’s
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`Declaration. Thus, the relevant portions of Patent Owner’s Responses and Mr.
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`Rappaport’s Declaration (Ex. 2009) should be sealed for the same reasons
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`enumerated in Table 1 below. Contemporaneously with this motion, Clearlamp is
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`filing redacted, public versions of its Response and Mr. Rappaport’s Declaration;
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`those versions mask the confidential information subject to this Motion.
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`Exh.
`Nos.
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`2016
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`TABLE 1 – Proposed Sealed Exhibits
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`Summary of Contents
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`Good Cause for Filing Under Seal
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`Portions of the transcript
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`Per LKQ, this documents contains a non-
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`from the Deposition of
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`public discussion of LKQ’s confidential
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`Robert Sandau (22:3-17;
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`business activities and strategies
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`24:13-25:10; 28:5-14;
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`concerning the portion of its business
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`33:22-25; 34:16-19; 34:21;
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`that is directed to refurbishing vehicle
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`34:23-35:9; 35:11-12;
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`lamps and offering those lamps for sale.
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`35:14; 35:16-21; 35:24-
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`This information was also designated as
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`36:7; 36:9-19; 36:22-37:2;
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`confidential under the Protective Order
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`37:9-13; 37:15-38:2; 38:5-
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`entered by the district court in the
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`7; 38:9-11; 38:16-17;
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`underlying litigation. Further, with
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`38:19-20; 41:10-13; 73:2-4)
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`respect to Mr. Sandau’s deposition
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`statements regarding the personality of
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`LKQ personnel (e.g., 41:10-13),
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`Clearlamp understands that LKQ asserts
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`those statements are personal
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`confidential and have little relevance to
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`the merits of any substantive issue, and
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`that there would thus be no harm to the
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`public’s interest in restricting access to
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`statement's about someone’s personality
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`2011
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`LKQ0004213 (LKQ
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`Per LKQ, this document contains non-
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`Corporation Analysis of
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`public, confidential financial information
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`Income as a percentage of
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`regarding LKQ’s revenues and income
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`revenue”
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`from its sales of refurbished vehicle
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`lamps. This information was also
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`designated as confidential under the
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`Protective Order entered by the district
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`court in the underlying litigation.
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`2006
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`LKQ’s September 20, 2012
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`Per LKQ, this document contains
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`verified Supplemental
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`description of LKQ’s non-public,
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`Response to Clearlamp’s
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`confidential detailed description of the
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`Interrogatory No. 1
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`process by which it refurbishes vehicle
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`lamps. This information was also
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`designated as confidential under the
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`Protective Order entered by the district
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`court in the underlying litigation.
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`2018 Claim chart accompanying
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`This document reflects information
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`Clearlamp’s infringement
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`(screenshots and narrative) from an LKQ
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`contentions in the
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`video which shows the process LKQ
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`underlying district court
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`uses to refurbish lamps. Clearlamp is
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`litigation
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`informed by LKQ that this video is not
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`publicly available and shows
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`confidential information regarding
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`LKQ’s lamp refurbishing process. The
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`LKQ information reflected in this
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`document was also designated as
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`confidential under the Protective Order
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`entered by the district court in the
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`underlying litigation.
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`2012 American Bumper test
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`Pages 5–7 of Exh. 2012 describes
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`package, entitled “SPO –
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`“General Motors Engineering Standards”
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`Headlamp Refinishing
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`for “Thermal Cured Abrasion Resistant
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`Project,” pp. 5–7
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`Coatings for Lighting Applications.”
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`General Motors has informed Clearlamp
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`that this information is not publicly
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`available, and is competitively sensitive
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`insofar as it reveals GM’s internal
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`standards for lamp coatings. Further,
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`Clearlamp’s Patent Owner’s Response
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`does not reflect these testing standards;
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`rather, they provide background
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`information concerning the data and
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`testing that is relied on in Clearlamp’s
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`Response.
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`II. Certification of Non-Publication
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`On behalf of Patent Owner, undersigned counsel certifies the information
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`sought to be sealed by this Motion to Seal has not, to their knowledge and based on
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`LKQ’s representations, been published or otherwise made public. Efforts to
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`maintain the confidentiality of this information have been undertaken by Patent
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`Owner and Petitioner in a related district court proceeding between the parties in
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`the U.S. District Court for the Northern District of Illinois (C.A. No. 1:12-cv-
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`02533 JHL).
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`III. Certification of Conference with Opposing Party Pursuant to 37 C.F.R.
`§ 42.54
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`Patent Owner has in good faith conferred with Petitioner and has reached
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`agreement with Petitioner as to the scope of the proposed Protective Order.
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`IV. Proposed Protective Order
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`The parties have agreed to a stipulated protective order, which Clearlamp
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`respectfully requests be entered in place of the default protective order. A clean
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`copy of the parties’ stipulated proposed protective order is attached as Exhibit
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`2019. Further, Clearlamp appreciates the Board’s guidance during the June 26,
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`2013 conference call and, further to that guidance, submits as Exhibit 2020 a
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`redlined version of the parties’ stipulated order, which shows changes from the
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`default protective order.
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`As shown on the redlined version, the parties stipulated protective order is
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`substantially similar to the default protective order. Specifically, there are only
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`four substantive changes from the default protective order in the parties’ proposed
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`order:
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`First: Paragraph two is amended to specify that confidential information is
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`to be “marked ‘PROTECTIVE ORDER MATERIAL.’” Good cause exists for this
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`amendment because, this will allow for further clarity in identifying who may
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`receive confidential material as a part of this proceeding.
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`Second: Paragraph 2 is amended such that the entry “Parties. Persons who
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`are owners of a patent involved in the proceeding and other persons of are named
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`parties to the proceeding” is deleted from the listing of who may receive
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`confidential information under the protective order. The effect of this deletion is
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`that employees and principals of Clearlamp and LKQ may not receive confidential
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`information. This harmonizes the Protective Order with the Protective Order
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`entered in the underlying litigation, which restrict party personnel from receiving
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`material produced as “Highly Confidential” material in that litigation. “Highly
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`Confidential” information is defined in the district court’s Protective Order as
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`“information within the scope of Rule 26(c)(1)(G) that is current or future business
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`or technical trade secrets and plans more sensitive or strategic than Confidential
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`information, the disclosure of which is likely to significantly harm that person’s
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`competitive position, or the disclosure of which would contravene an obligation of
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`confidentiality to a third person or to a Court.”)
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`Further, the restriction equally affects both parties, who are represented by
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`outside counsel in this proceeding. Clearlamp thus respectfully submits that good
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`cause exists for this change.
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`Third: Similarly, Paragraph 2 is further amended such that the entry “In
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`house counsel: In house counsel of a party” is also deleted from Paragraph 2’s
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`listing of who may receive confidential information. Like party personnel, the
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`district court’s Protective Order restricts in-house counsel from receiving “Highly
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`Confidential” material. Thus, like the change described in the preceding section,
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`this change seeks to harmonize this proceeding’s Protective Order with the district
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`court Protective Order. Accordingly, Clearlamp respectfully submits that good
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`cause exists for this change.
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`Fourth: Paragraph 2.B of the parties’ stipulated protective order (and the
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`default protective order) requires Experts receiving confidential information to sign
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`an acknowledgement that they are not a competitor to any part, or a consultant for,
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`or employed by, such a competitor with respect to the subject matter of the
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`proceeding. The parties’ stipulated protective order adds the following sentence to
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`this provision: “Any expert who was previously disclosed according to the terms
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`of the protective order the in the underlying litigation, Clearlamp, LLC v. LKQ
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`Corp., Case No. 1:12-cv-02533 (N.D. Ill.) are not required to also sign the
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`Acknowledgement.” The protective order in the underlying litigation includes
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`procedures for how a party must identify its experts to the parties’ opponent, and
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`also includes an undertaking. Those procedures and undertaking are substantially
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`equivalent to the procedures and Acknowledgement in the default protective order.
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`Thus, the parties’ proposal to except experts that were previously identified in their
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`litigation from the disclosure and Acknowledgement requirements will result in
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`efficiencies, in that it will remove the need for parties to exchange the required
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`information twice (once in litigation, and once in this proceeding). Clearlamp
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`respectfully submits that good cause exists for entering this change.
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`V. Conclusion
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`Accordingly, Clearlamp requests that the parties’ stipulated Protective Order
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`be entered in this proceeding in place of the default protective order, that Exhibits
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`2011, 2006, and 2018 be sealed, and that the unredacted versions of Exhibits 2016,
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`2009, 2012, and Patent Owner’s Response also be sealed.
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`*********
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`Dated: July 1, 2013
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`Case IPR2013-00020
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`Respectfully submitted by:
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`/Matthew L. Cutler/
`MATTHEW L. CUTLER, Reg. No. 43574
`BRYAN K. WHEELOCK, Reg. No. 31441
`HARNESS, DICKEY & PIERCE, PLC
`7700 Bonhomme Ave., Suite 400
`Clayton, MO 63105
`Telephone: (314) 726-7500
`Facsimile: (314) 726-7501
`mcutler@hdp.com
`bwheelock@hdp.com
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`Attorneys for Patent Owner,
`Clearlamp, LLC
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`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6 (e)(4)
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`It is hereby certified that on this 1st day of July, 2013, a copy of the
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`foregoing document was served via Electronic Mail upon the following:
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`Alan L. Barry
`Jason Engel
`Benjamin E. Weed
`K&L Gates LLP
`70 West Madison Street, Suite 3100
`Chicago, Illinois 60602
`Phone: (312) 372-1121
`Fax: (312) 827-8000
`alan.barry@klgates.com
`jason.engel@klgates.com
`benjamin.weed@klgates.com
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`Attorneys for Defendant LKQ Corporation
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`/Matthew L. Cutler/
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`61121387.1
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