Paper No. ___
`
`Filed on behalf of: Telefonaktiebolaget L. M. Ericsson
`
`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
`U.S. Patent Nos. 6,424,625
`____________________
`
`MOTION TO SEAL
`
`
`
`
`
`
`
`
`
`Filed on behalf of: Telefonaktiebolaget L. M. Ericsson
`
`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
`U.S. Patent Nos. 6,424,625
`____________________
`
`MOTION TO SEAL
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Paper No. ___
`
`Patent Owner Telefonaktiebolaget L.M. Ericsson (“Ericsson”) requests
`
`permission to seal the documents contained in Exhibit 2009 under 37 C.F.R. §
`
`42.14. Each Exhibit contains confidential information regarding Petitioner
`
`Broadcom Inc.’s (“Broadcom”) confidential Complaint filed in the European
`
`Commission. Because each Exhibit contains confidential information, Ericsson
`
`respectfully requests permission to seal Exhibits 2009.
`
`I.
`
`Exhibit 2009
`
`
`
`On July 16, 2012, Broadcom submitted a Complaint with the European
`
`Commission. Exhibit 2009 contains Broadcom’s Complaint to DG Competition
`
`Against Telefonaktiebolaget LM Ericsson For Abusive Assertion of RAND-
`
`Committed 802.11n Patents in Breach of Article 102 TFEU (“E.C. Complaint”).
`
`As noted on the face of the pleading, the E.C. Complaint is designated as
`
`“HIGHLY CONFIDENTIAL.” The E.C. Complaint remains confidential pending
`
`a ruling by the European Commission on whether to institute an investigation.
`
`Because of their confidential nature and the ongoing actions in the European
`
`Commission, these exhibits should be sealed pending the outcome of the Board’s
`
`decision in this matter.
`
`II. Exhibit 2009 Constitutes Confidential Information and Should be
`
`Sealed.
`
`
`
`Under 35 U.S.C. § 316(a)(1), the default rule is that all papers filed in an
`
`inter partes review are open and available for access by the public, but a party may
`
`file a concurrent motion to seal documents. In addition, 37 C.F.R. § 42.14
`
`provides:
`
`
`
`
`
`Paper No. ___
`
`The record of a proceeding, including documents and things,
`shall be made available to the public, except as otherwise 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.
`
`
`
`
`
`Only “confidential information” is protected from public disclosure. 35
`
`U.S.C. § 316(a)(7); Office Trial Practice Guide, 77 Fed. Reg. 48756, 48760 (Aug.
`
`14, 2012). The Board will only grant a motion to seal for “good cause.” 37 C.F.R.
`
`§ 42.54; Garmin Int’l, Inc. v. Cuozzo Speed Technologies, LLC, IPR2012-00001,
`
`Paper No. 34 at 3 (2013).
`
`Here, Ericsson has good cause for seeking permission to place Exhibit 2009
`
`under seal pending the outcome of the decision. The E.C. Complaint includes
`
`confidential business information relating to the Ericsson’s license negotiations
`
`with a number of parties. The Complaint was forwarded to Ericsson with the
`
`expectation that it would remain confidential pending its investigation. No formal
`
`action has yet been taken by the European Commission subsequent to Petitioner’s
`
`E.C. Complaint, and all information therein remains confidential. Therefore,
`
`Ericsson respectfully requests permission to seal the documents contained in
`
`Exhibit 2009.
`
`
`III. Proposed Protective Order
`
`
`
`Ericsson proposes that the default protective order found in Appendix B of
`
`the Trial Practice Guide be entered.
`
`
`
`
`
`
`
`Paper No. ___
`
`IV. Certification of Conference with Opposing Party Pursuant to 37
`C.F.R. § 42.54.
`
`A motion to seal requires a certification that the moving party has in good
`
`faith conferred or attempted to confer with the opposing party in an effort to agree
`
`as to the scope of the proposed protective order. 37 C.F.R. § 42.54; Garmin,
`
`supra, at 3. Given the expedited nature of this Motion, counsel for Ericsson
`
`attempted to confer with Petitioner and proposed the use of the default protective
`
`order on December 11, 2013. Broadcom’s only response was to object to the use
`
`of the Complaint. Regardless of this failure to comment on the scope of the
`
`Proposed Protective Order, Ericsson fulfilled its requirement to attempt to confer
`
`with opposing party.
`
`V. Conclusion
`
`Ericsson respectfully requests that the Board grant this Motion to Seal
`
`because it has good cause to seal the confidential exhibits.
`
`
`Dated: December 11, 2013.
`
`Respectfully submitted,
`
`
`
`
`
` /Peter J. Ayers/
`PETER AYERS
`Lee & Hayes, PLLC
`13809 Research Blvd., Suite 405
`Austin, TX 78750
`Telephone: 512.505.8162
`Fax: 509.944.4693
`Attorney for Patent Owner Telefinakteibolaget
`LM Ericsson
`
`
`
`
`
`
`
`
`
`
`
`Paper No. ___
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on December 11, 2013 the foregoing
`
`MOTION TO SEAL was served on Lead and Back-up Counsel for Broadcom
`
`Corporation by sending the same via Federal Express to the service address
`
`provided in Broadcom’s Mandatory Notices:
`
`Dominic E. Massa, Lead Counsel
`Michael A. Diener, Back-up Counsel
`Wilmer Cutler Pickering Hale and Dorr, LLP
`60 State Street
`Boston, MA 02109
`
`
`
`LEE & HAYES PLLC
`
`
`
` /Peter J. Ayers/
`Peter J. Ayers, Reg. No. 38,374
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