Paper No. 21
`Filed: July 25, 2014
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`
`__________________
`
`Case IPR2013-00532
`Patent No. RE43,531 E
`__________________
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY, Administrative Patent Judges.
`
`
`PETITIONER’S MOTION TO SEAL DOCUMENTS PURSUANT TO
`STIPULATED PROTECTIVE ORDER AND 37 C.F.R. § 42.14
`
`
`
`Filed: July 25, 2014
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`
`__________________
`
`Case IPR2013-00532
`Patent No. RE43,531 E
`__________________
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY, Administrative Patent Judges.
`
`
`PETITIONER’S MOTION TO SEAL DOCUMENTS PURSUANT TO
`STIPULATED PROTECTIVE ORDER AND 37 C.F.R. § 42.14
`
`
`
`
`Case No. IPR2013-00532
`Patent No. RE43,531 E
`
`I.
`
`Introduction
`
`Pursuant to the Stipulated Protective Order entered in this proceeding, see
`
`Paper 25 (the “Protective Order”), and 37 C.F.R. § 42.14, Petitioner Target
`
`Corporation (“Petitioner”) hereby moves to seal the following, all of which are
`
`filed contemporaneously with this Motion and are collectively referred to as the
`
`“Proposed Sealed Documents”:1
`
`• Petitioner’s exhibits numbered 1068, 1070, 1071, 1072, 1080, 1081,
`
`1082, 1083, 1089, 1092, 1095, 1096, 1097, 1098, 1099, 1100, 1101,
`
`1102, 1103, 1104, 1105, 1106, 1107, 1108, 1109, and 1117 (collectively,
`
`“Patent Owner’s Proprietary Documents”);
`
`• Petitioner’s exhibits numbered 1078, 1079, and 1093 (collectively,
`
`“Patent Owner’s Witnesses’ Deposition Testimony”);
`
`• Petitioner’s exhibits numbered 1110, 1113, 1114, 1115 (collectively,
`
`“Petitioner’s Expert Materials”); and
`
`• Petitioner’s Reply to Patent Owner’s Response.
`
`
`1 Petitioner understands that Paragraph 4(A) of the Protective Order both
`
`authorizes and requires the present Motion.
`
`
`US.54584921.01
`
`-1-
`
`
`
`Case No. IPR2013-00532
`Patent No. RE43,531 E
`
`Further, Petitioner has filed a partially redacted, public version of each of the
`
`following documents for which “confidentiality is alleged as to some but not all of
`
`the information” therein, see Protective Order, ¶ 4(A)(ii):
`
`• Exhibit 1110, the Declaration of Vincent A. Thomas Regarding
`
`Commercial Success (partially redacted, public version filed as Exhibit
`
`1116);
`
`• Exhibit 1117, Patent Owner’s Motion to Amend filed in IPR2013-00531
`
`(partially redacted, public version filed as Exhibit 1118); and
`
`• Petitioner’s Reply to Patent Owner’s Response.
`
`Because the Proposed Sealed Documents contain information that Patent
`
`Owner has designated as “Confidential” or “Highly Confidential - Attorneys’ Eyes
`
`Only” information pursuant to the Protective Order entered in this proceeding
`
`and/or the protective order entered by the U.S. District Court for the Eastern
`
`District of Pennsylvania in the related district court litigation between the parties,
`
`Destination Maternity Corporation v. Target Corporation, Cherokee Inc. and
`
`Elizabeth Lange LLC, Case No. 2:12-cv-05680-AB (the “Related Litigation”),
`
`Petitioner moves to seal them for good cause explained in more detail below.
`
`
`
`
`US.54584921.01
`
`-2-
`
`
`
`Case No. IPR2013-00532
`Patent No. RE43,531 E
`
`II. Good Cause Exists for Sealing Confidential Information
`
`The Office Patent Trial Practice Guide provides that “[t]he 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.” 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012). Further, those “rules
`
`identify confidential 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.” Id. (citing
`
`37 C.F.R. § 42.54); see also Illumina, Inc. v. Columbia Univ., IPR2013-00011,
`
`Paper 66 (P.T.A.B. Aug. 12, 2013) (granting a motion to seal “technical and
`
`business information” and “product development information”).
`
`Based on Patent Owner’s designation of the Proposed Sealed Documents, or
`
`of the documents from which certain information discussed, summarized, and/or
`
`otherwise revealed therein is derived, as “Confidential” or “Highly Confidential -
`
`Attorneys’ Eyes Only” pursuant to the Protective Order entered in this proceeding
`
`and/or the protective order entered in the Related Litigation, Petitioner understands
`
`that Patent Owner maintains that the Proposed Sealed Documents contain
`
`
`US.54584921.01
`
`-3-
`
`
`
`Case No. IPR2013-00532
`Patent No. RE43,531 E
`
`information that is proprietary, sensitive, and confidential business, technical,
`
`financial, and/or strategy information of Patent Owner.2
`
`In general, Petitioner understands that the exhibits designated above as
`
`Patent Owner’s Proprietary Documents or Patent Owner’s Witnesses’ Deposition
`
`Testimony fall into the following categories of information that Patent Owner
`
`maintains is its proprietary and confidential information, all of which Patent Owner
`
`has designated as “Confidential” or “Highly Confidential - Attorneys’ Eyes Only”
`
`pursuant to the Protective Order entered in this proceeding and/or the protective
`
`order entered in the Related Litigation:
`
`• Business strategy information and/or competitive analysis: Exhibits
`
`1068, 1071, 1072, 1080, 1081, 1082, 1083, 1089, 1092, 1095, 1096,
`
`1097, 1101, 1104, 1106, 1107, 1108, and 1109
`
`• Sales, marketing, and/or financial information: Exhibits 1079, 1093,
`
`1098, 1099, 1100, 1102, 1103, and 1105
`
`
`2 Petitioner does necessarily not agree that all of the Proposed Sealed Documents
`
`are, or should be maintained as, “Confidential” or “Highly Confidential -
`
`Attorneys’ Eyes Only” in these proceedings; for example, Exhibits 1070, 1071,
`
`1072, and 1078.
`
`
`US.54584921.01
`
`-4-
`
`
`
`Case No. IPR2013-00532
`Patent No. RE43,531 E
`
`• Technical information: Exhibits 1070, 1078, and 1117
`
`In general, the exhibits designated above as Petitioner’s Expert Materials
`
`discuss, summarize, and/or otherwise reveal information derived from documents,
`
`which Patent Owner maintains contain its proprietary and confidential sales,
`
`marketing, and/or financial information, all of which Patent Owner has designated
`
`as “Confidential” or “Highly Confidential - Attorneys’ Eyes Only” pursuant to the
`
`Protective Order entered in this proceeding and/or the protective order entered in
`
`the Related Litigation.
`
`In general, Petitioner’s Reply to Patent Owner’s Response discusses,
`
`summarizes, and/or otherwise reveals information derived from documents, which
`
`Patent Owner maintains contain its proprietary and confidential (1) business
`
`strategy information and/or competitive analysis; (2) sales, marketing, and/or
`
`financial information; and/or (3) technical information, all of which Patent Owner
`
`has designated as “Confidential” or “Highly Confidential - Attorneys’ Eyes Only”
`
`pursuant to the Protective Order entered in this proceeding and/or the protective
`
`order entered in the Related Litigation.
`
`III. Certification of Non-Publication
`
`On behalf of Petitioner, undersigned counsel certifies that the information
`
`sought to be sealed by this Motion has not, to his knowledge and based on Patent
`
`
`US.54584921.01
`
`-5-
`
`
`
`Case No. IPR2013-00532
`Patent No. RE43,531 E
`
`Owner’s prior representations, been published or otherwise made public.
`
`Moreover, efforts to maintain the confidentiality of this information have been
`
`undertaken by Patent Owner and Petitioner in the Related Litigation.
`
`IV. Conclusion
`
`
`
`For all of the foregoing reasons, Petitioner respectfully requests that the
`
`Board grant the present Motion and seal the Proposed Sealed Documents listed on
`
`page 1 hereof.
`
`Dated: July 25, 2014
`
`By:
`
`
`
`/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
`
`
`US.54584921.01
`
`-6-
`
`
`
`Case No. IPR2013-00532
`Patent No. RE43,531 E
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), I hereby certify that I caused a true and
`
`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
`
`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
`
`
`Dated: July 25, 2014
`
`By:
`
`
`
`/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
`
`
`US.54584921.01
`
`-7-
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
