`
`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 16, 2014
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY Administrative Patent Judges.
`
`JOINT MOTION FOR ENTRY TO SEAL
`UNDER 37 C.F.R. §42.54
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`EAST\82783768.1
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`
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`Pursuant
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`to 37 C.F.R. § 42.14, Patent Owner Destination Maternity
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`Corporation ("Patent Owner") and Petitioner Target Corporation ("Petitioner")
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`jointly move to seal (1) Patent Owner's Opposition to Petitioner's Motion to
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`Exclude Evidence Pursuant to 37 C.F.R. § 42.64(c) ("Patent Owner's Exclusion
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`Opposition");
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`(2) Petitioner’s Opposition to Patent Owner’s Motion for
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`Observation Regarding Cross-Examination of Reply Witness
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`("Petitioner's
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`Observation Opposition"); (3) the deposition transcript of Lisa Hendrickson, Ex.
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`1119 ("Hendrickson Transcript")1; and (4) Petitioner’s Opposition to Patent
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`Owner’s Motion to Exclude Evidence ("Petitioner’s Exclusion Opposition")
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`(collectively,
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`the "Proposed Sealed Documents").
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`The Proposed Sealed
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`Documents were filed contemporaneously with this Motion.
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`Pursuant to the Protective Order entered in this Inter Partes Review, the
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`parties are also filing partially redacted public versions of the Proposed Sealed
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`Documents. See Protective Order, ¶ 4 (Paper No. 24). Because the Proposed
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`Sealed Documents contain nonpublic technical, financial, and other commercially
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`sensitive information,
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`the Parties jointly move to seal
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`them for good cause
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`explained in more detail below.
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`I.
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`Good Cause Exists for Sealing Confidential Information
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`1 Patent Owner does not agree that Petitioner's filing of the Hendrickson Transcript
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`is proper.
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`EAST\82783768.1
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`2
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`
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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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`There is good cause to seal the Proposed Sealed Documents because they
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`contain nonpublic technical,
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`financial, and other commercially sensitive
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`information.
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`First, Patent Owner's Exclusion Opposition contains nonpublic
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`technical, financial, and other commercially sensitive information related to sales
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`of Patent Owner's products.
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`Patent Owner's Exclusion Opposition contains
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`confidential
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`information from the Declaration of Philip Green Regarding
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`Commercial Success (Exs. 2022 and 2029), the Supplemental Declaration of
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`Philip Green Regarding Commercial Success (Exs. 2054 and 2055), Exhibit 2056,
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`Exhibit 2072 (collectively, the "Green Material"), and information in Vincent
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`Thomas's Declaration and Vincent Thomas's exhibits that relied upon information
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`3
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`
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`from the Green Material. The Green Material has been previously sealed in this
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`proceeding and contains highly sensitive, confidential financial
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`information
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`related to Patent Owner's sales of products. The Green Material has been
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`designated "Highly Confidential -- Attorneys' Eyes Only" by Patent Owner under
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`the Protective Order entered in this Inter Partes Review. The Green Material also
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`relies on documents produced in the underlying litigation that were designated
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`"Confidential" and "Highly Confidential -- Attorneys' Eyes Only" by Patent
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`Owner under
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`the Protective Order entered by the U.S. District Court.
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`Accordingly, good cause exists to seal Patent Owner's Exclusion Opposition.
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`Second, Petitioner's Observation Opposition contains nonpublic technical,
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`financial, and other commercially sensitive information related to sales of Patent
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`Owner's products as reported by Petitioner's financial expert, Vincent A. Thomas.
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`Mr. Thomas's deposition and declaration relate to the Green Material and,
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`ultimately, Patent Owner's highly confidential sales information for products and
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`analysis related thereto. Mr. Thomas's deposition and declaration also rely on
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`documents produced in the underlying litigation that were designated
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`"Confidential" and "Highly Confidential -- Attorneys' Eyes Only" by Patent
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`Owner under the Protective Order entered by the U.S. District Court. Patent
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`Owner's Motion for Observation Regarding Cross-Examination of Reply Witness
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`has been previously sealed in these proceedings, and Petitioner's Observation
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`4
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`
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`Opposition should likewise be sealed.
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`See Sept. 12, 2014 Order at 2.
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`Accordingly, good cause exists to seal Petitioner's Observation Opposition.
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`Third, the Hendrickson Transcript contains nonpublic technical, financial,
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`and other commercially sensitive information related to,
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`inter alia,
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`the
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`development of Patent Owner's products by Lisa Hendrickson, an inventor.
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`Petitioner cites the Hendrickson Transcript in Petitioner’s Exclusion Opposition.
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`The Hendrickson Transcript was generated in a related district court proceeding
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`between the parties in the U.S. District Court for the Eastern District of
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`Pennsylvania (CA. No. 2:12-cv05680 AB). The Hendrickson Transcript was
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`marked "Highly Confidential -- Attorneys' Eyes Only" by Patent Owner under the
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`Protective Order entered by the U.S. District Court. Accordingly, good cause
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`exists to seal the Hendrickson Transcript.
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`Finally, Petitioner’s Exclusion Opposition contains nonpublic technical,
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`financial, and other commercially sensitive information related to sales and
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`development of Patent Owner's products as reported by Messrs. Green and
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`Thomas, and information from the Hendrickson Transcript. The confidentiality of
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`the information related to the analyses of Messrs. Green and Thomas and the
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`Hendrickson Transcript are indicated above. Accordingly, good cause exists to
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`seal Petitioner’s Exclusion Opposition.
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`5
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`
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`II.
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`Certification of Non-Publication
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`The undersigned counsel certify that the information sought to be sealed by
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`this Motion to Seal has not, to their knowledge, been published or otherwise
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`made public. The Parties have made efforts to maintain the confidentiality of
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`this information in this proceeding and in a related district court proceeding
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`between the parties in the U.S. District Court for the Eastern District of
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`Pennsylvania (CA. No. 2:12-cv05680 AB).
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`III. Conclusion
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`Accordingly, the Parties request that the Proposed Sealed Documents be
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`sealed pursuant to 37 C.F.R. § 42.14.
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`Date: September 16, 2014
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`FAEGRE BAKER DANIELS LLP
`s/ Norman J. Hedges
`
`DLA PIPER LLP (US)
`s/ Paul A. Taufer
`
`Norman J. Hedges (Reg. No. 44,151)
`R. Trevor Carter (Reg. No. 40,549)
`Daniel M. Lechleiter (Reg. No. 58,254)
`Faegre Baker Daniels LLP
`300 N. Meridian Street, Suite 2700
`Indianapolis, Indiana 46204-1750
`norman.hedges@FaegreBD.com
`trevor.carter@FaegreBD.com
`daniel.lechleiter@FaegreBD.com
`Telephone: 317-237-0300
`Facsimile: 317-237-1000
`
`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
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`Attorneys for Petitioner, Target
`Corporation
`
`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\82783768.1
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on September 16, 2014, a complete and entire
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`copy of the Joint Motion For Entry To Seal Under 37 C.F.R. §42.54 was provided
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`via email to the Petitioner by serving the email correspondence address of record
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`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\82783768.1
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