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EXHIBIT 2033
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`
`
`AKER BIOMARINE AS
`Petitioner
`
`v.
`
`NEPTUNE TECHNOLOGIES AND BIORESSOURCES INC.
`Patent Owner
`
`______________________
`
`CASE IPR2014-00003
`U.S. Patent No. 8,278,351
`______________________
`
`PROTECTIVE ORDER
`
`
`
`
`
`1
`
`

`
`EXHIBIT 2033
`
`This standing Protective Order governs the treatment and filing of confidential
`
`information in this proceeding, including documents and testimony.
`
`1.
`
`Confidential information shall be clearly marked “PROTECTIVE ORDER
`
`MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION.”
`
`2.
`
`Access to confidential information is limited to the following individuals :
`
` (A) Party Representatives. Outside counsel of record for a party in this
`
`proceeding, including attorneys admitted pro hac vice for this proceeding.
`
`(B) Experts. Retained experts of a party in the proceeding who have
`
`executed the Acknowledgment appended to this Protective Order as Exhibit A.
`
`(C) The Office. Employees and representatives of the Office who have a
`
`need for access to the confidential information. Such employees and representatives shall
`
`include the Director, members of the Board and their clerical staff, other support personnel,
`
`court reporters, and other persons acting on behalf of the Office.
`
`(D) Support Personnel. Administrative assistants, clerical staff, paralegals,
`
`court reporters, videographers, translators, and other support personnel of the foregoing
`
`persons who are reasonably necessary to assist counsel of record in this proceeding and
`
`who shall be informed of the terms and requirements of the Protective Order by the person
`
`they are supporting who receives confidential information.
`
`3.
`
`Persons receiving confidential information (“receiving party”) shall use
`
`reasonable efforts to maintain the confidentiality of the information, including:
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`2
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`

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`EXHIBIT 2033
`
`(A) Maintaining such information in a secure location to which persons not
`
`authorized to receive the information shall not have access;
`
`(B) Otherwise using reasonable efforts to maintain the confidentiality of the
`
`information, which efforts shall be no less rigorous than those the receiving party uses to
`
`maintain the confidentiality of its own confidential information; and
`
`(C) Using reasonable efforts to ensure that support personnel of the receiving
`
`party who have access to the confidential information understand and abide by the
`
`obligation to maintain the confidentiality of information received that is designated as
`
`confidential; and
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`(D) Limiting the copying of confidential information to a reasonable number of
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`copies needed for conduct of the proceeding.
`
`4.
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`Persons receiving confidential information shall use the following procedures
`
`to maintain the confidentiality of the information:
`
`(A) Documents and Information Filed With the Board.
`
`(i) A party may file documents or information with the Board under
`
`seal, together with a non-confidential description of the nature of the confidential information
`
`that is under seal and the reasons why the information is confidential and should not be
`
`made available to the public. The submission shall be treated as confidential and remain
`
`under seal, unless, upon motion of a party and after a hearing on the issue, or sua sponte,
`
`3
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`

`
`EXHIBIT 2033
`
`the Board determines that the documents or information do not to qualify for confidential
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`treatment.
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`(ii) Where confidentiality is alleged as to some but not all of the
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`information submitted to the Board, the submitting party shall file confidential and non-
`
`confidential versions of its submission, together with a Motion to Seal the confidential
`
`version setting forth the reasons why the information redacted from the non-confidential
`
`version is confidential and should not be made available to the public. The non-confidential
`
`version of the submission shall clearly indicate the locations of information that has been
`
`redacted. The confidential version of the submission shall be filed under seal. The
`
`redacted information shall remain under seal unless, upon motion of a party and after a
`
`hearing on the issue, or sua sponte, the Board determines that some or all of the redacted
`
`information does not qualify for confidential treatment.
`
`(B) Documents and Information Exchanged Among the Parties. Information
`
`designated as confidential that is disclosed to another party during discovery or other
`
`proceedings before the Board shall be clearly marked as “PROTECTIVE ORDER
`
`MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION” and shall be produced in a
`
`manner that maintains its confidentiality.
`
`5.
`
`If the receiving party disagrees with the producing party’s designation of
`
`information produced in this proceeding as confidential, the parties shall confer and attempt
`
`to reach an agreement regarding the confidentiality or use of such information. If no
`
`4
`
`

`
`EXHIBIT 2033
`
`agreement is reached within 7 business days after the receiving party notifies the producing
`
`party of its disagreement with the designation, either party may raise the issue of the
`
`designation to the Board which may rule on the matter.
`
`6.
`
`Persons qualified
`
`to receive confidential
`
`information pursuant
`
`to
`
`this
`
`Protective Order may also access certain materials produced by a party to this proceeding
`
`and designated as “CONFIDENTIAL BUSINESS INFORMATION” in United States
`
`International Trade Commission Investigation No. 337-TA-877, Certain Omega-3 Extracts
`
`from Marine or Aquatic Biomass and Products Containing
`
`the Same (“the 877
`
`Investigation”), provided that such access shall be limited to specific documents that the
`
`parties agree in writing, or the Board authorizes, may be provided to persons qualified under
`
`this Protective Order.
`
`7.
`
`When information designated as “PROTECTIVE ORDER MATERIAL” or
`
`“CONFIDENTIAL BUSINESS INFORMATION” is discussed, quoted, or referred to in any
`
`deposition, oral argument, or hearing, only persons qualified to access such information
`
`pursuant to this Protective Order may be present, and any transcript of the proceeding or
`
`portion thereof may be marked as “PROTECTIVE ORDER MATERIAL” or “CONFIDENTIAL
`
`BUSINESS INFORMATION.” A party designating a transcript as “PROTECTIVE ORDER
`
`MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION” under this Protective Order
`
`shall do so, and shall identify the specific pages and line numbers that contain such
`
`5
`
`

`
`EXHIBIT 2033
`
`“PROTECTIVE ORDER MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION”, no
`
`later than 10 business days after receiving the final transcript.
`
`8.
`
`Persons obtaining access to confidential information pursuant to this
`
`Protective Order shall use the information only for purposes of this proceeding and shall not
`
`use such information for any other purpose, including without limitation business,
`
`governmental, or commercial purposes, and administrative, regulatory, legislative, or judicial
`
`proceedings, except as the parties may otherwise agree or as the Board may otherwise
`
`order.
`
`9.
`
`The restrictions set forth in this Protective Order shall not apply to information
`
`to which the party asserting the confidential status thereof agrees in writing, or the Board
`
`subsequently rules, was (1) not confidential at the time it was submitted in this proceeding
`
`or disclosed to the other party, or (2) has since become publicly known or available through
`
`no fault of the any other party to this proceeding.
`
`10.
`
`If a third-party, court, or administrative agency subpoenas, orders, or requests
`
`a receiving party to produce information designated as “PROTECTIVE ORDER MATERIAL”
`
`or “CONFIDENTIAL BUSINESS INFORMATION,” such receiving party shall promptly and in
`
`any case within five (5) business days of receipt of such subpoena, order, or request (but in
`
`no event later than the time for production of such material) give written notice to counsel of
`
`record for the party who designated the information as “PROTECTIVE ORDER MATERIAL”
`
`or “CONFIDENTIAL BUSINESS INFORMATION” (the “producing party”), identifying the
`
`6
`
`

`
`EXHIBIT 2033
`
`confidential information sought and enclosing a copy of the subpoena, order, or request.
`
`The receiving party shall not produce the information designated as “PROTECTIVE ORDER
`
`MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION” by the producing party for at
`
`least five (5) business days after providing the required notice to the producing party. If,
`
`within five (5) business days of receiving such notice, the producing party provides written
`
`notice to the receiving party that it opposes production of its Protected Material, the
`
`receiving party shall not thereafter produce such Protected Material, except pursuant to a
`
`court order or other order that subjects the receiving party to penalties for noncompliance.
`
`The producing party shall be solely responsible for asserting any objection to the requested
`
`or required production. Nothing herein shall be construed as requiring the receiving party or
`
`anyone else covered by this Protective Order to object to, challenge, or appeal any such
`
`subpoena, order, or request seeking or requiring production, subject itself to penalties for
`
`noncompliance, or seek any relief from any court or administrative agency.
`
`11.
`
`The inadvertent failure of a party to designate information as “PROTECTIVE
`
`ORDER MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION” at the time of its
`
`production or submission shall not preclude that party from later designating said
`
`information as “PROTECTIVE ORDER MATERIAL” or “CONFIDENTIAL BUSINESS
`
`INFORMATION” by promptly notifying all counsel of record of such designation. Upon
`
`learning of its inadvertent failure to designate, a party shall designate such information as
`
`“PROTECTIVE ORDER MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION”
`
`7
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`

`
`EXHIBIT 2033
`
`promptly. The obligation to treat such information pursuant to this Protective Order shall run
`
`prospectively from the date of the designation, provided that a receiving party shall make a
`
`good faith effort to retrieve any copies of the information that may have been previously
`
`disclosed to individuals who would not otherwise be entitled to receive the information.
`
`12.
`
`The
`
`inadvertent or unintentional disclosure by a producing party of
`
`information subject to the attorney-client privilege or work-product doctrine or any other
`
`applicable privilege or immunity shall not be deemed a waiver in whole or in part of the
`
`producing party’s claim of privilege or immunity, either as to the specific information
`
`disclosed or as to any other information relating thereto or on the same or related subject
`
`matter. If a party has inadvertently produced information subject to a claim of immunity or
`
`privilege, the receiving party, upon request, shall promptly return or destroy the
`
`inadvertently produced materials, and all copies of those materials that may have been
`
`made and any notes regarding those materials shall be destroyed. The receiving party shall
`
`thereafter provide a written certification confirming return or destruction of the inadvertently
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`produced materials within five (5) business days of receiving notice of the inadvertent
`
`production from the producing party.
`
`13.
`
`No later than 30 days after termination of this proceeding and any subsequent
`
`appeals thereof, all persons and/or parties subject to this Protective Order shall destroy all
`
`material produced in this proceeding that was marked as “PROTECTIVE ORDER
`
`MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION,” including all physical or
`
`8
`
`

`
`EXHIBIT 2033
`
`electronic copies of such matter which may have been made, except that attorney
`
`representatives of record for a party to this Proceeding may keep one copy for record
`
`keeping purposes, so long as access to such copies remains restricted to only those
`
`attorneys qualified to view the information under this Protective Order, and their Support
`
`Personnel. This paragraph shall not apply to the Office.
`
`
`
`
`
`9
`
`

`
`EXHIBIT 2033
`
`EXHIBIT A
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`
`
`AKER BIOMARINE AS
`Petitioner
`
`v.
`
`NEPTUNE TECHNOLOGIES AND BIORESSOURCES INC.
`Patent Owner
`
`______________________
`
`CASE IPR2014-00003
`U.S. Patent No. 8,278,351 B2
`______________________
`
`Acknowledgment for Expert Access to Protective Order Material
`
`I ____________________________, affirm that I have read the Protective Order;
`
`that I will abide by its terms; that I will use the confidential information only in connection
`
`with this proceeding and for no other purpose; that I will only allow access to support staff
`
`who are reasonably necessary to assist me in this proceeding; that prior to any disclosure to
`
`such support staff I informed or will inform them of the requirements of the Protective Order;
`
`that I am personally responsible for the requirements of the terms of the Protective Order
`
`and I agree to submit to the jurisdiction of the Office and the United States District Court for
`
`the Eastern District of Virginia for purposes of enforcing the terms of the Protective Order
`
`10
`
`

`
`and providing remedies for its breach. I further certify that I am not a competitor to any
`
`party, or a consultant for, or employed by, such a competitor with respect to the subject
`
`EXHIBIT 2033
`
`matter of this proceeding.
`
`
`
`______________________
`[Signature]
`
`
`
`107666878 v1
`
`11

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