`Filed: July 25, 2014
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
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`TARGET CORPORATION
`Petitioner
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`v.
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`DESTINATION MATERNITY CORPORATION
`Patent Owner
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`__________________
`
`Case IPR2013-00532
`Patent No. RE43,531 E
`__________________
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY, Administrative Patent Judges.
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`
`PETITIONER’S MOTION TO SEAL DOCUMENTS PURSUANT TO
`STIPULATED PROTECTIVE ORDER AND 37 C.F.R. § 42.14
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`Case No. IPR2013-00532
`Patent No. RE43,531 E
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`I.
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`Introduction
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`Pursuant to the Stipulated Protective Order entered in this proceeding, see
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`Paper 25 (the “Protective Order”), and 37 C.F.R. § 42.14, Petitioner Target
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`Corporation (“Petitioner”) hereby moves to seal the following, all of which are
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`filed contemporaneously with this Motion and are collectively referred to as the
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`“Proposed Sealed Documents”:1
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`• Petitioner’s exhibits numbered 1068, 1070, 1071, 1072, 1080, 1081,
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`1082, 1083, 1089, 1092, 1095, 1096, 1097, 1098, 1099, 1100, 1101,
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`1102, 1103, 1104, 1105, 1106, 1107, 1108, 1109, and 1117 (collectively,
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`“Patent Owner’s Proprietary Documents”);
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`• Petitioner’s exhibits numbered 1078, 1079, and 1093 (collectively,
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`“Patent Owner’s Witnesses’ Deposition Testimony”);
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`• Petitioner’s exhibits numbered 1110, 1113, 1114, 1115 (collectively,
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`“Petitioner’s Expert Materials”); and
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`• Petitioner’s Reply to Patent Owner’s Response.
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`1 Petitioner understands that Paragraph 4(A) of the Protective Order both
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`authorizes and requires the present Motion.
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`Further, Petitioner has filed a partially redacted, public version of each of the
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`following documents for which “confidentiality is alleged as to some but not all of
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`the information” therein, see Protective Order, ¶ 4(A)(ii):
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`• Exhibit 1110, the Declaration of Vincent A. Thomas Regarding
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`Commercial Success (partially redacted, public version filed as Exhibit
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`1116);
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`• Exhibit 1117, Patent Owner’s Motion to Amend filed in IPR2013-00531
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`(partially redacted, public version filed as Exhibit 1118); and
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`• Petitioner’s Reply to Patent Owner’s Response.
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`Because the Proposed Sealed Documents contain information that Patent
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`Owner has designated as “Confidential” or “Highly Confidential - Attorneys’ Eyes
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`Only” information pursuant to the Protective Order entered in this proceeding
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`and/or the protective order entered by the U.S. District Court for the Eastern
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`District of Pennsylvania in the related district court litigation between the parties,
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`Destination Maternity Corporation v. Target Corporation, Cherokee Inc. and
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`Elizabeth Lange LLC, Case No. 2:12-cv-05680-AB (the “Related Litigation”),
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`Petitioner moves to seal them for good cause explained in more detail below.
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`II. Good Cause Exists for Sealing Confidential Information
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`The Office Patent Trial Practice Guide provides that “[t]he rules aim to
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`strike 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 Civil
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`Procedure 26(c)(1)(G), which provides for protective orders for trade secret or
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`other confidential research, development, or commercial information.” Id. (citing
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`37 C.F.R. § 42.54); see also Illumina, Inc. v. Columbia Univ., IPR2013-00011,
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`Paper 66 (P.T.A.B. Aug. 12, 2013) (granting a motion to seal “technical and
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`business information” and “product development information”).
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`Based on Patent Owner’s designation of the Proposed Sealed Documents, or
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`of the documents from which certain information discussed, summarized, and/or
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`otherwise revealed therein is derived, as “Confidential” or “Highly Confidential -
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`Attorneys’ Eyes Only” pursuant to the Protective Order entered in this proceeding
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`and/or the protective order entered in the Related Litigation, Petitioner understands
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`that Patent Owner maintains that the Proposed Sealed Documents contain
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`information that is proprietary, sensitive, and confidential business, technical,
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`financial, and/or strategy information of Patent Owner.2
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`In general, Petitioner understands that the exhibits designated above as
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`Patent Owner’s Proprietary Documents or Patent Owner’s Witnesses’ Deposition
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`Testimony fall into the following categories of information that Patent Owner
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`maintains is its proprietary and confidential information, all of which Patent Owner
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`has designated as “Confidential” or “Highly Confidential - Attorneys’ Eyes Only”
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`pursuant to the Protective Order entered in this proceeding and/or the protective
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`order entered in the Related Litigation:
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`• Business strategy information and/or competitive analysis: Exhibits
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`1068, 1071, 1072, 1080, 1081, 1082, 1083, 1089, 1092, 1095, 1096,
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`1097, 1101, 1104, 1106, 1107, 1108, and 1109
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`• Sales, marketing, and/or financial information: Exhibits 1079, 1093,
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`1098, 1099, 1100, 1102, 1103, and 1105
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`2 Petitioner does necessarily not agree that all of the Proposed Sealed Documents
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`are, or should be maintained as, “Confidential” or “Highly Confidential -
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`Attorneys’ Eyes Only” in these proceedings; for example, Exhibits 1070, 1071,
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`1072, and 1078.
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`• Technical information: Exhibits 1070, 1078, and 1117
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`In general, the exhibits designated above as Petitioner’s Expert Materials
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`discuss, summarize, and/or otherwise reveal information derived from documents,
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`which Patent Owner maintains contain its proprietary and confidential sales,
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`marketing, and/or financial information, all of which Patent Owner has designated
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`as “Confidential” or “Highly Confidential - Attorneys’ Eyes Only” pursuant to the
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`Protective Order entered in this proceeding and/or the protective order entered in
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`the Related Litigation.
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`In general, Petitioner’s Reply to Patent Owner’s Response discusses,
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`summarizes, and/or otherwise reveals information derived from documents, which
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`Patent Owner maintains contain its proprietary and confidential (1) business
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`strategy information and/or competitive analysis; (2) sales, marketing, and/or
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`financial information; and/or (3) technical information, all of which Patent Owner
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`has designated as “Confidential” or “Highly Confidential - Attorneys’ Eyes Only”
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`pursuant to the Protective Order entered in this proceeding and/or the protective
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`order entered in the Related Litigation.
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`III. Certification of Non-Publication
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`On behalf of Petitioner, undersigned counsel certifies that the information
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`sought to be sealed by this Motion has not, to his knowledge and based on Patent
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`Owner’s prior representations, been published or otherwise made public.
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`Moreover, efforts to maintain the confidentiality of this information have been
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`undertaken by Patent Owner and Petitioner in the Related Litigation.
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`IV. Conclusion
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`For all of the foregoing reasons, Petitioner respectfully requests that the
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`Board grant the present Motion and seal the Proposed Sealed Documents listed on
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`page 1 hereof.
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`Dated: July 25, 2014
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`By:
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`
`
`/s/ Norman J. Hedges
`Norman J. Hedges (Reg. No. 44,151)
`FAEGRE BAKER DANIELS LLP
`300 N. Meridian St., Ste. 2700
`Indianapolis, IN 46204-1750
`Telephone: 317-237-0300
`Facsimile: 317-237-1000
`Norman.Hedges@FaegreBD.com
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), I hereby certify that I caused a true and
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`correct copy of the foregoing Petitioner’s Motion to Seal Documents Pursuant to
`Stipulated Protective Order and 37 C.F.R. § 42.14 to be served via e-mail, as a
`PDF file attachment, on July 25, 2014, on the following:
`
`Paul A. Taufer
`Michael L. Burns
`DLA PIPER LLP (US)
`One Liberty Place
`1650 Market St., Ste. 4900
`Philadelphia, PA 19103-7300
`Telephone: (215) 656-3385
`Facsimile:
`(215) 606-3385
`Paul.Taufer@dlapiper.com
`Michael.Burns@dlapiper.com
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`Stuart E. Pollack
`DLA PIPER LLP (US)
`1251 Avenue of the Americas
`27th Floor
`New York, NY 10020-1104
`Telephone: (212) 335-4964
`Facsimile:
`(212) 884-8464
`Stuart.Pollack@dlapiper.com
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`Dated: July 25, 2014
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`By:
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`
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`/s/ Norman J. Hedges
`Norman J. Hedges (Reg. No. 44,151)
`FAEGRE BAKER DANIELS LLP
`300 N. Meridian St., Ste. 2700
`Indianapolis, IN 46204-1750
`Telephone: 317-237-0300
`Facsimile: 317-237-1000
`Norman.Hedges@FaegreBD.com
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