Paper No. 23
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`_____________
`
`Case No. IPR2013-00533
`(U.S. Patent No. RE43,531)
`_____________
`
`Dated: May 5, 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\76003203.1
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`_____________
`
`Case No. IPR2013-00533
`(U.S. Patent No. RE43,531)
`_____________
`
`Dated: May 5, 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\76003203.1
`
`
`
`Pursuant
`
`to 37 C.F.R. § 42.14, Patent Owner Destination Maternity
`
`Corporation (“Patent Owner”) hereby moves to seal the following: (1) deposition
`
`transcript of Amy Brady (Ex. 2019); (2) exhibit 114 from the deposition of Amy
`
`Brady (Ex. 2020); (3) Declaration of Philip Green Regarding Commercial Success
`
`(Ex. 2022); and (4) Patent Owner’s Response and Motion to Amend, which
`
`contain information from the aforementioned Exhibits (collectively, the “Proposed
`
`Sealed Documents”).1
`
`The Proposed Sealed Documents were
`
`filed
`
`contemporaneously with this Motion.
`
`Pursuant to the Protective Order entered in this Inter Partes Review, Patent
`
`Owner is also filing partially redacted public versions of its Patent Owner
`
`Response and the Declaration of Philip Green Regarding Commercial Success.
`
`See Protective Order, ¶ 4 (Paper No. 24). Patent Owner is filing fully redacted
`
`versions of the deposition transcript of Amy Brady, and its exhibit 114, because
`
`the entirety of each were marked “Highly Confidential -- Attorneys' Eyes Only”
`
`by Petitioner Target Corporation (“Petitioner”).
`
`Because the Proposed Sealed Documents contain proprietary confidential
`
`business information, Patent Owner moves to seal them for good cause explained
`
`in more detail below.
`
`1 The Board granted Patent Owner permission to file this Motion in a May 2, 2014
`
`e-mail to the parties.
`
`EAST\76003203.1
`
`2
`
`
`
`I.
`
`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 v. Columbia University, IPR2013-00011,
`
`Paper 66, Aug. 12, 2013 Dec. (granting a motion to seal “technical and business
`
`information” and “product development information”).
`
`The Proposed Sealed Documents contain information that Patent Owner and
`
`Petitioner maintain is proprietary, sensitive, and confidential business, technical,
`
`financial, and/or strategy information further described below.
`
`The deposition transcript of Amy Brady (Ex. 2019) contains, according to
`
`Petitioner, Petitioner confidential information. Amy Brady was a Fed. R. Civ. P.
`
`30(b)(6) designee regarding various topics including product development and
`
`sales in the underlying U.S. District Court
`
`litigation.
`
`It
`
`is Patent Owner’s
`
`understanding that this document contains, inter alia, a non-public discussion of
`
`Petitioner’s confidential business activities and strategies concerning the portion
`
`EAST\76003203.1
`
`3
`
`
`
`of its business that is directed to developing and selling maternity products. This
`
`information was designated “Highly Confidential -- Attorneys' Eyes Only” by
`
`Petitioner under the Protective Order entered by the U.S. District Court in the
`
`underlying litigation.
`
`Likewise, Exhibit 114 from the deposition of Amy Brady (Ex. 2020)
`
`contains, according to Petitioner, Petitioner confidential information. It is Patent
`
`Owner’s understanding that
`
`this document contains,
`
`inter alia, a non-public
`
`discussion of Petitioner’s
`
`confidential business activities and strategies
`
`concerning the portion of its business that is directed to developing and selling
`
`maternity products. This information was also designated “Highly Confidential --
`
`Attorneys' Eyes Only” by Petitioner under the Protective Order entered by the
`
`U.S. District Court in the underlying litigation.
`
`The Declaration of Philip Green Regarding Commercial Success (Ex. 2022)
`
`contains Patent Owner confidential information. This document contains highly
`
`sensitive, confidential financial information related to Patent Owner’s sales of
`
`maternity products. This document has been designated “Highly Confidential --
`
`Attorneys' Eyes Only” by Patent Owner under the Protective Order entered in this
`
`Inter Partes Review. The document also relies on documents produced in the
`
`underlying litigation that were designated “Confidential”
`
`and “Highly
`
`Confidential -- Attorneys' Eyes Only” by Patent Owner under the Protective Order
`
`EAST\76003203.1
`
`4
`
`
`
`entered by the U.S. District Court.
`
`Patent Owner’s Response and Motion to Amend contain Patent Owner and
`
`Petitioner confidential
`
`information.
`
`These documents include portions of
`
`Exhibits 2019, 2020, 2022, which are demonstrated above as confidential. The
`
`portions used contain proprietary, sensitive, and confidential business, technical,
`
`financial, and/or strategy information from both Patent Owner and Petitioner
`
`regarding product development and sales information.
`
`II.
`
`Certification of Non-Publication
`
`On behalf of Patent Owner, undersigned counsel certifies the information
`
`sought to be sealed by this Motion to Seal has not, to their knowledge and based
`
`on Petitioner’s prior representations, been published or otherwise made public.
`
`Efforts to maintain the confidentiality of this information have been undertaken
`
`by Patent Owner and Petitioner in a related district court proceeding between
`
`the parties in the U.S. District Court for the Eastern District of Pennsylvania
`
`(CA. No. 2:12-cv05680 AB).
`
`III. Conclusion
`
`Accordingly, Patent Owner requests that Exhibits 2019, 2020, 2022, and
`
`Patent Owner’s Response and Motion to Amend be sealed.
`
`EAST\76003203.1
`
`5
`
`
`
`Date: May 5, 2014
`
`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
`
`EAST\76003203.1
`
`6
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on May 5, 2014, a complete and entire copy of
`
`the Patent Owner’s Motion For Entry To Seal Under 37 C.F.R. §42.54 was
`
`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
`
`EAST\76003203.1
`
`7
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