Filed on behalf of: Software Rights Archive, LLC Paper ____
`
`By: Martin M. Zoltick, Lead Counsel
`Nancy J. Linck, Back-up Counsel
`Rothwell, Figg, Ernst & Manbeck, P.C.
`607 14th St., N.W., Suite 800
`Washington, DC 20005
`Telephone: 202-783-6040
`Facsimile: 202-783-6031
`E-mail: mzoltick@rfem.com
` nlinck@rfem.com
`
`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`FACEBOOK, INC., LINKEDIN CORP., and TWITTER, INC.
`Petitioners
`
`v.
`
`SOFTWARE RIGHTS ARCHIVE, LLC
`Patent Owner
`_______________
`
`Case IPR2013-00479
`Patent 5,832,494
`_______________
`
`
`PATENT OWNER’S MOTION TO SEAL
`
`
`
`
`
`
`
`
`
`
`
`By: Martin M. Zoltick, Lead Counsel
`Nancy J. Linck, Back-up Counsel
`Rothwell, Figg, Ernst & Manbeck, P.C.
`607 14th St., N.W., Suite 800
`Washington, DC 20005
`Telephone: 202-783-6040
`Facsimile: 202-783-6031
`E-mail: mzoltick@rfem.com
` nlinck@rfem.com
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`FACEBOOK, INC., LINKEDIN CORP., and TWITTER, INC.
`Petitioners
`
`v.
`
`SOFTWARE RIGHTS ARCHIVE, LLC
`Patent Owner
`_______________
`
`Case IPR2013-00479
`Patent 5,832,494
`_______________
`
`
`PATENT OWNER’S MOTION TO SEAL
`
`
`
`
`
`
`
`
`
`
`
`I.
`
`Introduction
`
`Pursuant to 37 CFR § 42.54, Patent Owner Software Rights Archive, LLC,
`
`(“SRA”) respectfully submits this Motion to Seal Exhibit 2114, Declaration of
`
`Amy Langville (“Langville Declaration”). The Langville Declaration (Exhibit
`
`2114), which includes reference to confidential sensitive business information of
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`third parties that SRA is under a contractual obligation to maintain in confidence,
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`is being filed concurrently with this Motion in support of the Patent Owner
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`Response. Below, Patent Owner explains that good cause exists for placing the
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`Langville Declaration under seal.
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`II. Applicable Legal Principles for Sealing Confidential Information
`
`There is a strong public policy for making all information filed in a quasi-
`
`judicial administrative proceeding open to the public, especially in an inter
`
`partes review which determines the patentability of claims in a patent and
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`therefore affects the rights of the public. St. Jude Medical, Cardiology Division,
`
`Inc. v. Volcano Corp., IPR2013-00258, Decision to Revised Motion to Seal 37
`
`C.F.R. §§ 42.14 and 42.54, Paper 28 at 2. Under 35 U.S.C. § 316(a)(1), the
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`default rule is that all papers filed in an inter partes review are open and
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`available for access by the public; and a party may file a concurrent motion to
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`seal and the information at issue is sealed pending the outcome of the motion.
`
`Id.
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`
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`1
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`
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`It is, however, only “confidential information” that is protected from
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`disclosure. 35 U.S.C. § 316(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”). Id. In that regard, the Office Patent Trial Practice
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`Guide, 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012), provides:
`
`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.
`
`* * *
`identify confidential
`Confidential Information: The rules
`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. § 42.54.
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`Patent Owner, as the moving party, has the burden of proof in showing entitlement to
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`the requested relief. Id.
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`2
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`III. Good Cause Exists for Sealing Exhibit 2114, Declaration of Amy
`Langville
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`
`
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`With Patent Owner’s Response, Patent Owner is submitting the Langville
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`Declaration to support arguments for patentability of claims challenged in this
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`proceeding. In paragraphs 25, 112, and 113 of her declaration, Dr. Langville
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`makes reference to certain facts about confidential licenses to the patents under
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`review. Because the Langville Declaration includes reference to this confidential
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`business information of third parties, Patent Owner submits that sealing Exhibit
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`2114 is appropriate.1
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`SRA is under a contractual obligation to maintain certain information
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`regarding the licensing of the patents in confidence. The confidential information
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`included in the Langville Declaration has not been made, and will not be made,
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`available to the public. Public disclosure of the terms of the license could hurt the
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`third party signatories by disclosing confidential financial information and
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`business practices.
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`SRA is cognizant of the general public policy for providing full public
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`access to inter partes review papers. In seeking this motion to seal, SRA is
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`merely attempting to comply with its contractual obligations, and thus SRA has
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`1 Patent Owner will submit a non-confidential version of the Langville Declaration
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`with the confidential information from paragraphs 25, 112, and 113 redacted.
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`
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`3
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`
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`narrowly tailored its request. In addition, the public’s interest in these
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`proceedings is addressed by Patent Owner’s submission of the remaining portions
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`of the Langville Declaration. The thrust of Patent Owner’s argument, and how
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`the confidential information relates thereto, is discernible from the remaining
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`portions of Dr. Langville’s declaration.
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`Accordingly, Patent Owner submits that good cause exists for maintaining
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`the confidential information set forth in Exhibit 2114, Declaration of Amy
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`Langville under seal and urges the Board to grant the present Motion to Seal.
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`IV. 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 has not been published or otherwise made public. Further,
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`the confidentiality of this information has been consistently maintained by the
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`Patent Owner during this proceeding, and any related proceedings.
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`V. Certification of Conference with Opposing Parties Pursuant to 37 C.F.R.
`§42.54
`
`
`
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`Patent Owner has attempted to confer in good faith with Petitioners. Patent
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`Owner has proposed use of the default protective order set forth in the Office
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`Patent Trial Practice Guide to govern the handling of confidential information in
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`this proceeding. No agreement has been reached at this time.
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`VI. Proposed Protective Order
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`The Protective Order attached hereto as Appendix A corresponds to the
`4
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`
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`default protective order set forth in the Office Patent Trial Practice Guide. Patent
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`Owner agrees to use the attached protective order to govern the handling of
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`confidential information in this proceeding. Accordingly, Patent Owner
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`respectfully requests entry of the Proposed Protective Order.
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`VII. Conclusion
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`For the above reasons, Patent Owner SRA respectfully requests that Exhibit
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`2114, Declaration of Amy Langville, be treated as confidential information and
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`be placed under seal.
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`Date: May 19, 2014
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`
`
`
`
` By:
`
`
`
`
`
`
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`Respectfully submitted,
`
`
`/s/ Martin M. Zoltick
`Martin M. Zoltick, Reg. No. 35,745
`Nancy J. Linck, Reg. No. 31,920
`ROTHWELL, FIGG, ERNST &
`MANBECK, P.C.
`607 14th Street, N.W., Suite 800
`Washington, DC 20005
`Phone: 202-783-6040
`Facsimile: 202-783-6031
`
`Attorneys for Patent Owner Software
`Rights Archive, LLC
`
`5
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`
`
`APPENDIX A
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`FACEBOOK, INC., LINKEDIN CORP., and TWITTER, INC.
`Petitioners
`
`v.
`
`SOFTWARE RIGHTS ARCHIVE, LLC
`Patent Owner
`_______________
`
`Case IPR2013-00478
`Patent 5,544,352
`_______________
`
`PROTECTIVE ORDER
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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 ‘‘PROTECTIVE
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`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 order:
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`6
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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 proceeding.
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`(B) Party Representatives. Representatives of record for a party in the
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`proceeding.
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`(C) Experts. Retained experts of a party in the proceeding who further
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`certify in the Acknowledgement that they are not a competitor to any party, or
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`a consultant for, or employed by, such a competitor with respect to the
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`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 in-
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`house counsel’s support staff, who sign the Acknowledgement shall be
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`extended access to confidential information only upon agreement of the
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`parties or by order of the Board upon a motion brought by the party seeking
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`to disclose confidential information to that person. The party opposing
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`disclosure to that person shall have the burden of proving that such person
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`should be restricted from access to confidential information.
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`(F) The Office. Employees and representatives of the Office who have
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`a need for access to the confidential information shall have such access
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`without the requirement to sign an Acknowledgement. Such employees and
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`7
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`representatives shall include the Director, members of the Board and their
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`clerical staff, other support personnel, court reporters, and other persons
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`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
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`reasonably necessary to assist those persons in the proceeding shall not be
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`required to sign an Acknowledgement, but shall be informed of the terms
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`and requirements of the Protective Order by the person they are supporting
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`who receives confidential information.
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`3. Persons receiving confidential information shall use reasonable
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`efforts 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 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 the
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`recipient uses to maintain the confidentiality of information not 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 obligation to
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`maintain the confidentiality of information received that is designated as
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`
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`8
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`
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`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 maintaining a
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`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 under
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`seal, together with a non-confidential description of the nature of the
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`confidential information that is under seal and the reasons why the
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`information is confidential and should not be made available to the public.
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`The submission shall be treated as confidential and remain under seal,
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`unless, upon 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 information do not to
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`qualify for confidential treatment.
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`(ii) Where confidentiality is alleged as to some but not all of the
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`information submitted to the Board, the submitting party shall file
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`confidential and non-confidential versions of its submission, together with a
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`Motion to Seal the confidential version setting forth the reasons why the
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`information redacted from the non-confidential version is confidential and
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`9
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`should not be made available to the public. The nonconfidential version of
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`the submission shall clearly indicate the locations of information that has
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`been redacted. The confidential version of the submission shall be filed
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`under seal. The redacted information shall remain under seal unless, upon
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`motion of a 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 qualify for
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`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 another party
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`during discovery or other proceedings before the Board shall be clearly
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`marked as ‘‘PROTECTIVE ORDER MATERIAL’’ and shall be produced in
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`a manner that maintains its confidentiality.
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`(j) Standard Acknowledgement of Protective Order. The following
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`form 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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`
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`10
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`FACEBOOK, INC., LINKEDIN CORP., and TWITTER, INC.
`Petitioners
`
`v.
`
`SOFTWARE RIGHTS ARCHIVE, LLC
`Patent Owner
`_______________
`
`Case IPR2013-00478
`Patent 5,544,352
`_______________
`
`Standard Acknowledgment for Access to
`Protective Order Material
`
`I
`
`, affirm that I have read the
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`Protective Order; that I will abide by its terms; that I will use the
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`confidential information only in connection with this proceeding and for no
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`other purpose; that I will only allow access to support staff who are
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`reasonably necessary to assist me in this proceeding; that prior to any
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`requirements of the Protective Order; that I am personally responsible for
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`the requirements of the terms of the Protective Order and I agree to submit
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`to the jurisdiction of the Office and the United States District Court for the
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`Eastern District of Virginia for purposes of enforcing the terms of the
`11
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`Protective Order and providing remedies for its breach.
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`Signed
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`
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`12
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`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 19th day of May, 2014, a true and correct copy
`
`Case IPR2013-00479
`
`
`
`
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`of the foregoing PATENT OWNER’S MOTION TO SEAL was served by
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`electronic mail, upon the following lead and backup counsel of record for
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`Petitioners Facebook, Inc., LinkedIn Corp. and Twitter, Inc.:
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`Heidi L. Keefe – Lead Counsel for all Petitioners
`Cooley LLP
`1299 Pennsylvania Ave., N.W., Suite 700
`Washington, DC 20004
`Ph: 650-843-5001
`Fx: 650-849-7400
`E-mails: hkeefe@cooley.com
`
`Mark R. Weinstein – Backup Counsel for Facebook, Inc.
`Cooley LLP
`1299 Pennsylvania Ave., N.W., Suite 700
`Washington, DC 20004
`Ph: 650-843-5007
`Fx: 650-849-7400
`E-mail: mweinstein@cooley.com
`
`David Silbert – Backup Counsel for LinkedIn Corp. and Twitter, Inc.
`Keker & Van Nest LLP
`633 Battery Street
`San Francisco, CA 94111
`Ph: 415-391-5400
`Fx: 415-397-7188
`E-mail: djs@kvn.com
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`/s/ Erik van Leeuwen
`Erik van Leeuwen
`Litigation Operations Coordinator
`Rothwell, Figg, Ernst & Manbeck, P.C.
`
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