`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 IPR2013-00533
`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. IPR2013-00533
`Patent No. RE43,531 E
`
`I.
`
`Introduction
`
`Pursuant to the Stipulated Protective Order entered in this proceeding, see
`
`Paper 26 (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.54584930.01
`
`-1-
`
`
`
`Case No. IPR2013-00533
`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.54584930.01
`
`-2-
`
`
`
`Case No. IPR2013-00533
`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.54584930.01
`
`-3-
`
`
`
`Case No. IPR2013-00533
`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.54584930.01
`
`-4-
`
`
`
`Case No. IPR2013-00533
`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.54584930.01
`
`-5-
`
`
`
`Case No. IPR2013-00533
`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.54584930.01
`
`-6-
`
`
`
`Case No. IPR2013-00533
`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.54584930.01
`
`-7-
`
`