`
`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: 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\82293726.1
`
`
`
`Pursuant
`
`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
`
`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 Motion for
`
`Observation Regarding Cross-Examination of Reply Witness, Motion to Exclude
`
`Evidence, and the deposition transcript of Vincent A. Thomas. See Protective
`
`Order, ¶ 4 (Paper No. 26). Patent Owner is filing fully redacted versions of the
`
`deposition transcript of Vincent A. Thomas because the testimony contains
`
`proprietary confidential information.
`
`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 Patent Owner requested permission to file this Motion on September 2, 2014, and
`
`informed the Board that Petitioner does not oppose the Motion.
`
`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
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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
`
`information" and "product development information").
`
`The Proposed Sealed Documents contain information that Patent Owner
`
`maintains is proprietary, sensitive, and confidential business, technical, financial,
`
`and/or strategy information further described below.
`
`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
`
`information related to Patent Owner’s sales of maternity products. The document
`
`also relies on documents produced in the underlying litigation that were
`
`designated “Confidential” and “Highly Confidential -- Attorneys' Eyes Only” by
`
`3
`
`
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`Patent Owner under the Protective Order entered by the U.S. District Court.
`
`The Proposed Sealed Documents all include information related to the
`
`sealed Declaration of Vincent A. Thomas via a deposition transcript of Vincent A.
`
`Thomas (Ex. 2099) related to Mr. Thomas's declaration, Patent Owner's Motion
`
`for Observation Regarding Cross-Examination of Reply Witness Vincent A.
`
`Thomas, and Patent Owner's Motion to Exclude Evidence related to Vincent A.
`
`Thomas.
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`These documents include highly sensitive, confidential
`
`financial
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`information related to Patent Owner’s sales of maternity products.
`
`II.
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`Certification of Non-Publication
`
`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
`
`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
`
`requests that
`
`its Motion for Observation
`
`Regarding Cross-Examination of Reply Witness, Motion to Exclude Evidence and
`
`deposition transcript of Vincent A. Thomas be sealed.
`
`4
`
`
`
`Date: September 2, 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
`
`5
`
`
`
`CERTIFICATE OF SERVICE
`
`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
`
`6
`
`