`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`_____________
`
`Case No. IPR2013-00532
`(U.S. Patent No. RE43,531)
`_____________
`
`Dated: September 2, 2014
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY Administrative Patent Judges.
`
`PATENT OWNER'S MOTION FOR ENTRY TO SEAL
`UNDER 37 C.F.R. §42.54
`
`EAST\82293394.1
`
`
`
`Pursuant
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`to 37 C.F.R. § 42.14, Patent Owner Destination Maternity
`
`Corporation ("Patent Owner") hereby moves to seal the following: (1) Patent
`
`Owner's Motion for Observation Regarding Cross-Examination of Reply Witness;
`
`(2) Patent Owner's Motion to Exclude Evidence; and (3) the deposition transcript
`
`of Vincent A. Thomas
`
`(Ex. 2099)
`
`(collectively,
`
`the "Proposed Sealed
`
`Documents").1 The Proposed Sealed Documents were filed contemporaneously
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`with this Motion.
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`Pursuant to the Protective Order entered in this Inter Partes Review, Patent
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`Owner
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`is also filing partially redacted public versions of
`
`its Motion for
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`Observation Regarding Cross-Examination of Reply Witness, Motion to Exclude
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`Evidence, and the deposition transcript of Vincent A. Thomas. See Protective
`
`Order, ¶ 4 (Paper No. 25). Patent Owner is filing fully redacted versions of the
`
`deposition transcript of Vincent A. Thomas because the testimony contains
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`proprietary confidential information.
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`Because the Proposed Sealed Documents contain proprietary confidential
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`business information, Patent Owner moves to seal them for good cause explained
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`in more detail below.
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`1 Patent Owner requested permission to file this Motion on September 2, 2014, and
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`informed the Board that Petitioner does not oppose the Motion.
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`EAST\82293394.1
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`2
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`
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`I.
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`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 v. Columbia University, IPR2013-00011,
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`Paper 66, Aug. 12, 2013 Dec. (granting a motion to seal "technical and business
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`information" and "product development information").
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`The Proposed Sealed Documents contain information that Patent Owner
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`maintains is proprietary, sensitive, and confidential business, technical, financial,
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`and/or strategy information further described below.
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`The Proposed Sealed Documents all relate to the sealed Declaration of
`
`Vincent A. Thomas (Ex. 1110), which contains Patent Owner confidential
`
`information. This document contains highly sensitive, confidential financial
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`information related to Patent Owner’s sales of maternity products. The document
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`also relies on documents produced in the underlying litigation that were
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`designated “Confidential” and “Highly Confidential -- Attorneys' Eyes Only” by
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`EAST\82293394.1
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`3
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`
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`Patent Owner under the Protective Order entered by the U.S. District Court.
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`The Proposed Sealed Documents all include information related to the
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`sealed Declaration of Vincent A. Thomas via a deposition transcript of Vincent A.
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`Thomas (Ex. 2099) related to Mr. Thomas's declaration, Patent Owner's Motion
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`for Observation Regarding Cross-Examination of Reply Witness Vincent A.
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`Thomas, and Patent Owner's Motion to Exclude Evidence related to Vincent A.
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`Thomas.
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`These documents include highly sensitive, confidential
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`financial
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`information related to Patent Owner’s sales of maternity products.
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`II.
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`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, been
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`published or otherwise made public. Efforts to maintain the confidentiality of
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`this information have been undertaken by Patent Owner and Petitioner in a
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`related district court proceeding between the parties in the U.S. District Court
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`for the Eastern District of Pennsylvania (CA. No. 2:12-cv05680 AB).
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`III. Conclusion
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`Accordingly, Patent Owner
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`requests that
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`its Motion for Observation
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`Regarding Cross-Examination of Reply Witness, Motion to Exclude Evidence and
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`deposition transcript of Vincent A. Thomas be sealed.
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`EAST\82293394.1
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`4
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`
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`Date: September 2, 2014
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`DLA PIPER LLP (US)
`s/ Paul A. Taufer
`
`Paul A. Taufer (Reg. No. 35,703)
`Michael L. Burns (Reg. No. 57,593)
`DLA Piper LLP (US)
`One Liberty Place
`1650 Market Street, Suite 4900
`Philadelphia, PA 19103
`Phone: (215) 656-3385
`Facsimile: (215) 606-3385
`paul.taufer@dlapiper.com
`michael.burns@dlapiper.com
`
`Stuart Pollack (Reg. No. 43,862)
`DLA Piper LLP (US)
`1251 Avenue of the Americas
`27th Floor
`New York, NY 10020-1104
`Phone: (212) 335-4964
`Facsimile: (212) 884-
`stuart.pollack@dlapiper.com
`
`Attorneys for Patent Owner, Destination
`Maternity Corporation
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`EAST\82293394.1
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`5
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`
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on September 2, 2014, a complete and entire
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`copy of the Patent Owner's Motion For Entry To Seal Under 37 C.F.R. §42.54 was
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`provided via email to the Petitioner by serving the email correspondence address
`
`of record as follows:
`
`Norman J. Hedges
`R. Trevor Carter
`Daniel M. Lechleiter
`Faegre Baker Daniels LLP
`300 N. Meridian Street, Suite 2700
`Indianapolis, Indiana 46204-1750
`Phone: (317) 237-0300
`Fax: (317) 237-1000
`Norman.Hedges@FaegreBD.com
`trevor.carter@FaegreBD.com
`daniel.lechleiter@FaegreBD.com
`
`/s/ Paul Taufer
`Paul A. Taufer
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`EAST\82293394.1
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