Paper No. 57
`
`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 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
`
`EAST\82783977.1
`
`
`
`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: 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
`
`EAST\82783977.1
`
`
`
`Pursuant
`
`to 37 C.F.R. § 42.14, Patent Owner Destination Maternity
`
`Corporation ("Patent Owner") and Petitioner Target Corporation ("Petitioner")
`
`jointly move to seal (1) Patent Owner's Opposition to Petitioner's Motion to
`
`Exclude Evidence Pursuant to 37 C.F.R. § 42.64(c) ("Patent Owner's Exclusion
`
`Opposition");
`
`(2) Petitioner’s Opposition to Patent Owner’s Motion for
`
`Observation Regarding Cross-Examination of Reply Witness
`
`("Petitioner's
`
`Observation Opposition"); (3) the deposition transcript of Lisa Hendrickson, Ex.
`
`1119 ("Hendrickson Transcript")1; and (4) Petitioner’s Opposition to Patent
`
`Owner’s Motion to Exclude Evidence ("Petitioner’s Exclusion Opposition")
`
`(collectively,
`
`the "Proposed Sealed Documents").
`
`The Proposed Sealed
`
`Documents were filed contemporaneously with this Motion.
`
`Pursuant to the Protective Order entered in this Inter Partes Review, the
`
`parties are also filing partially redacted public versions of the Proposed Sealed
`
`Documents. See Protective Order, ¶ 4 (Paper No. 24). Because the Proposed
`
`Sealed Documents contain nonpublic technical, financial, and other commercially
`
`sensitive information,
`
`the Parties jointly move to seal
`
`them for good cause
`
`explained in more detail below.
`
`I.
`
`Good Cause Exists for Sealing Confidential Information
`
`1 Patent Owner does not agree that Petitioner's filing of the Hendrickson Transcript
`
`is proper.
`
`EAST\82783977.1
`
`2
`
`
`
`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").
`
`There is good cause to seal the Proposed Sealed Documents because they
`
`contain nonpublic technical,
`
`financial, and other commercially sensitive
`
`information.
`
`First, Patent Owner's Exclusion Opposition contains nonpublic
`
`technical, financial, and other commercially sensitive information related to sales
`
`of Patent Owner's products.
`
`Patent Owner's Exclusion Opposition contains
`
`confidential
`
`information from the Declaration of Philip Green Regarding
`
`Commercial Success (Exs. 2022 and 2029), the Supplemental Declaration of
`
`Philip Green Regarding Commercial Success (Exs. 2054 and 2055), Exhibit 2056,
`
`Exhibit 2072 (collectively, the "Green Material"), and information in Vincent
`
`Thomas's Declaration and Vincent Thomas's exhibits that relied upon information
`
`EAST\82783977.1
`
`3
`
`
`
`from the Green Material. The Green Material has been previously sealed in this
`
`proceeding and contains highly sensitive, confidential financial
`
`information
`
`related to Patent Owner's sales of products. The Green Material has been
`
`designated "Highly Confidential -- Attorneys' Eyes Only" by Patent Owner under
`
`the Protective Order entered in this Inter Partes Review. The Green Material 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 entered by the U.S. District Court.
`
`Accordingly, good cause exists to seal Patent Owner's Exclusion Opposition.
`
`Second, Petitioner's Observation Opposition contains nonpublic technical,
`
`financial, and other commercially sensitive information related to sales of Patent
`
`Owner's products as reported by Petitioner's financial expert, Vincent A. Thomas.
`
`Mr. Thomas's deposition and declaration relate to the Green Material and,
`
`ultimately, Patent Owner's highly confidential sales information for products and
`
`analysis related thereto. Mr. Thomas's deposition and declaration also rely on
`
`documents produced in the underlying litigation that were designated
`
`"Confidential" and "Highly Confidential -- Attorneys' Eyes Only" by Patent
`
`Owner under the Protective Order entered by the U.S. District Court. Patent
`
`Owner's Motion for Observation Regarding Cross-Examination of Reply Witness
`
`has been previously sealed in these proceedings, and Petitioner's Observation
`
`EAST\82783977.1
`
`4
`
`
`
`Opposition should likewise be sealed.
`
`See Sept. 12, 2014 Order at 2.
`
`Accordingly, good cause exists to seal Petitioner's Observation Opposition.
`
`Third, the Hendrickson Transcript contains nonpublic technical, financial,
`
`and other commercially sensitive information related to,
`
`inter alia,
`
`the
`
`development of Patent Owner's products by Lisa Hendrickson, an inventor.
`
`Petitioner cites the Hendrickson Transcript in Petitioner’s Exclusion Opposition.
`
`The Hendrickson Transcript was generated 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). The Hendrickson Transcript was
`
`marked "Highly Confidential -- Attorneys' Eyes Only" by Patent Owner under the
`
`Protective Order entered by the U.S. District Court. Accordingly, good cause
`
`exists to seal the Hendrickson Transcript.
`
`Finally, Petitioner’s Exclusion Opposition contains nonpublic technical,
`
`financial, and other commercially sensitive information related to sales and
`
`development of Patent Owner's products as reported by Messrs. Green and
`
`Thomas, and information from the Hendrickson Transcript. The confidentiality of
`
`the information related to the analyses of Messrs. Green and Thomas and the
`
`Hendrickson Transcript are indicated above. Accordingly, good cause exists to
`
`seal Petitioner’s Exclusion Opposition.
`
`EAST\82783977.1
`
`5
`
`
`
`II.
`
`Certification of Non-Publication
`
`The undersigned counsel certify that the information sought to be sealed by
`
`this Motion to Seal has not, to their knowledge, been published or otherwise
`
`made public. The Parties have made efforts to maintain the confidentiality of
`
`this information in this proceeding and 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, the Parties request that the Proposed Sealed Documents be
`
`sealed pursuant to 37 C.F.R. § 42.14.
`
`Date: September 16, 2014
`
`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
`
`EAST\82783977.1
`
`6
`
`
`
`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
`
`EAST\82783977.1
`
`7
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on September 16, 2014, a complete and entire
`
`copy of the Joint 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\82783977.1
`
`8
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
