Trials@uspto.gov
`571-272-7822
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` Paper 37
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` Entered: June 30, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BROADCOM CORPORATION
`Petitioner
`
`v.
`
`TELEFONAKTIEBOLAGET L. M. ERICSSON
`Patent Owner
`
`
`
`Case IPR2013-00636
`Patent 6,424,625
`
`
`
`Before KARL D. EASTHOM and MATTHEW R. CLEMENTS,
`Administrative Patent Judges.
`
`
`CLEMENTS, Administrative Patent Judge.
`
`
`
`DECISION
`Motions to Seal
`37 C.F.R. §§ 42.14 and 42.54
`
`
`
`
`571-272-7822
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` Paper 37
`
`
`
` Entered: June 30, 2014
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`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BROADCOM CORPORATION
`Petitioner
`
`v.
`
`TELEFONAKTIEBOLAGET L. M. ERICSSON
`Patent Owner
`
`
`
`Case IPR2013-00636
`Patent 6,424,625
`
`
`
`Before KARL D. EASTHOM and MATTHEW R. CLEMENTS,
`Administrative Patent Judges.
`
`
`CLEMENTS, Administrative Patent Judge.
`
`
`
`DECISION
`Motions to Seal
`37 C.F.R. §§ 42.14 and 42.54
`
`
`
`
`
`Case IPR2013-00636
`Patent 6,424,625
`
`INTRODUCTION
`
`Four motions to seal are pending in this proceeding:
`
`Paper 10: Telefonaktiebolaget L.M. Ericsson (“Patent Owner”)
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`moves to seal Exhibit 2009. Paper 10, unredacted; Paper 12, redacted.
`
`Exhibit 2009 is designated “Parties and Board Only.” Patent Owner
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`contends that Exhibit 2009 contains confidential business information
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`relating to its license negotiations with a number of parties and it remains
`
`confidential in a co-pending legal proceeding. Petitioner did not file an
`
`opposition to Patent Owner’s Motion to Seal.
`
`Paper 15: Broadcom Corporation (“Petitioner”) moves to seal (1) the
`
`portion of its Opposition to Patent Owner’s Motion for Additional Discovery
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`(“Opposition”) (Paper 17, unredacted)(Paper 16, redacted); (2) the
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`Declaration of David Djavaherian (Exhibit 1017); and (3) the portion of its
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`Opposition (Paper 17) that addresses Exhibit 1017. Paper 15, unredacted;
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`Paper 14, redacted. Paper 17 and Exhibit 1017 are designated as “Parties
`
`and Board Only.” Petitioner contends that its Opposition references Exhibit
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`2009, which Patent Owner has moved to seal. Petitioner also contends that
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`Exhibit 1017 contains confidential statements regarding Broadcom’s
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`relationship with the defendants in Ericsson Inc. v. D-Link Corp. et al., Civil
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`Action No. 10-cv-473 (E.D. Tex.) Patent Owner did not file an opposition
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`to Petitioner’s motion to seal.
`
`Paper 22: Petitioner moves to seal Patent Owner’s Emergency
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`Motion for Relief from the Protective Order, 6:10-cv-473 (E.D. Tex., March
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`8, 2013) (Exhibit 1018). Paper 22. Petitioner also contends that Exhibit
`
`1018 contains confidential statements regarding Broadcom’s relationship
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`with the defendants in Ericsson Inc. v. D-Link Corp. et al., Civil Action No.
`
`2
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`
`
`Case IPR2013-00636
`Patent 6,424,625
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`10-cv-473 (E.D. Tex.) Patent Owner did not file an opposition to
`
`Petitioner’s motion to seal.
`
`Paper 32: Patent Owner moves to seal the portion of its Patent Owner
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`Response (Paper 34, unredacted)(Paper 35, redacted) that addresses Exhibit
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`2009, which Patent Owner previously moved to seal. Paper 32, unredacted;
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`Paper 33, redacted. Patent Owner contends that its Patent Owner Response
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`references confidential Exhibit 2009. Petitioner did not file an opposition to
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`Patent Owner’s Motion to Seal.
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`The parties have agreed to the Board’s default protective order. Paper
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`15, 4; Paper 22, 2; Paper 32, 3. Accordingly, the parties must file a joint
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`Default Protective Order with a signed Standard Acknowledgement for
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`Access to Protective Order Materials. See Office Patent Trial Practice
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`Guide, 77 Fed. Reg. 48,756, 48,771 (Aug. 14, 2012) (“TPG”). As a
`
`consequence, the Default Protective Order will govern the treatment and
`
`filing of confidential information in this proceeding.
`
`DISCUSSION
`
`There is a strong public policy for making all information filed in a
`
`quasi-judicial administrative proceeding open to the public, especially in an
`
`inter partes review which determines the patentability of claims in an issued
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`patent and therefore affects the rights of the public. Under 35 U.S.C.
`
`§ 316(a)(1), the default rule is that all papers filed in an inter partes review
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`are open and available for access by the public; and a party may file a
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`concurrent motion to seal and the information at issue is sealed pending the
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`outcome of the motion.
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`Similarly, 37 C.F.R. § 42.14 states the following:
`
`The record of a proceeding, including documents and things,
`shall be made available to the public, except as otherwise
`
`3
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`
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`Case IPR2013-00636
`Patent 6,424,625
`
`ordered. A party intending a document or thing to be sealed
`shall file a motion to seal concurrent with the filing of the
`document or thing to be sealed. The document or thing shall be
`provisionally sealed on receipt of the motion and remain so
`pending the outcome of the decision on the motion.
`
`It is, however, only “confidential information” that is protected from
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`disclosure. 35 U.S.C. § 316(a)(7)(“The Director shall prescribe regulations -
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`- . . . providing for protective orders governing the exchange and submission
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`of confidential information”). In that regard, the TPG at 48,760 provides the
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`following guidance:
`
`The 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.
`
`. . . .
`
`Confidential Information: The 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. § 42.54.
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`The standard for granting a motion to seal is “for good cause.” 37
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`C.F.R. § 42.54. Patent Owner, as the moving party, has the burden of proof
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`in showing entitlement to the requested relief. 37 C.F.R. § 42.20(c). We
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`need to know why the information sought to be sealed constitutes
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`confidential information. A motion to seal is required to include a proposed
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`protective order and a certification that the moving party has in good faith
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`conferred or attempted to confer with the opposing party in an effort to come
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`to an agreement as to the scope of the proposed protective order for this inter
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`partes review. 37 C.F.R. § 42.54.
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`An expectation exists that confidential information will be made
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`public where the existence of the information is identified in a final written
`
`4
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`
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`Case IPR2013-00636
`Patent 6,424,625
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`decision following a trial. See Office Patent Trial Practice Guide at 77 Fed.
`
`Reg. 48,756, 48,761 (Aug. 14, 2012)). “After . . . a final judgment . . . , a
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`party may file a motion to expunge confidential information from the trial.”
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`37 C.F.R. § 42.56.
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`Upon review of the parties’ papers, we are persuaded that good cause
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`exists to have the requested materials remain under seal at least until a final
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`judgment. We agree with Patent Owner that the existence of Exhibit 2009
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`contains, at least in part, confidential information pertaining to Patent
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`Owner’s business, and that the document should continue to be treated as
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`confidential under the terms of the protective order. As to Exhibits 1017 and
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`1018, we agree with Petitioner that the documents contain, at least in part,
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`confidential information pertaining to Patent Owner’s business, and that the
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`documents should continue to be treated as confidential under the terms of
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`the protective order. Finally, the unredacted papers referencing Exhibits
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`2009 and 1018—i.e., Petitioner’s Opposition (Paper 17) and Patent Owner’s
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`Patent Owner Response (Paper 34)—reference the same confidential
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`information, and the redactions in corresponding Papers 16 and 35 are
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`narrowly tailored to redact only confidential information.
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`The motions to seal will be granted conditionally until a final
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`judgment on the conditions that if a final written decision substantively
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`relies on any information in a sealed document, if the information otherwise
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`becomes publically available, or for other reasons arising from new
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`circumstances, the information may be unsealed by an Order of the Board or
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`may become public if the parties do not to move timely to expunge it
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`pursuant to 37 C.F.R. § 42.56. See also TPG at 48,761 ¶ 6 (Expungement of
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`Confidential Information).
`
`5
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`
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`Case IPR2013-00636
`Patent 6,424,625
`
`It is
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`ORDER
`
`ORDERED that the default protective order is entered and governs the
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`treatment and filing of the confidential information of this proceeding;
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`FURTHER ORDERED that counsel for each of the parties file a
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`signed acknowledgment of the Default Standing Protective Order;
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`FURTHER ORDERED that the parties’ motions to seal (Papers 10,
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`15, 22, and 32) are granted conditionally; and
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`FURTHER ORDERED that Exhibits 1017, 1018, and 2009 and
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`(unredacted) Papers 10, 15, 17, 32, and 34 shall remain under seal in their
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`entirety as “Parties and Board Only,” and will be kept under seal pursuant to
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`the conditions outlined above.
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`
`
`6
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`
`
`Case IPR2013-00636
`Patent 6,424,625
`
`For PETITIONER:
`
`Dominic E. Massa
`Michael A. Diener
`WILMER CUTLER PICKERING HALE AND DORR LLP
`dominic.massa@wilmerhale.com
`michael.diener@wilmerhale.com
`
`For PATENT OWNER:
`
`Peter J. Ayers
`J. Christopher Lynch
`LEE & HAYES PLLC
`peter@leehayes.com
`chris@leehayes.com
`
`7
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