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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
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`
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`AKER BIOMARINE AS
`Petitioner
`
`v.
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`NEPTUNE TECHNOLOGIES AND BIORESSOURCES INC.
`Patent Owner
`
`______________________
`
`CASE IPR2014-00003
`U.S. Patent No. 8,278,351
`______________________
`
`PROTECTIVE ORDER
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`EXHIBIT 2033
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`This standing Protective Order governs the treatment and filing of confidential
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`information in this proceeding, including documents and testimony.
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`1.
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`Confidential information shall be clearly marked “PROTECTIVE ORDER
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`MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION.”
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`2.
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`Access to confidential information is limited to the following individuals :
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` (A) Party Representatives. Outside counsel of record for a party in this
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`proceeding, including attorneys admitted pro hac vice for this proceeding.
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`(B) Experts. Retained experts of a party in the proceeding who have
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`executed the Acknowledgment appended to this Protective Order as Exhibit A.
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`(C) The Office. Employees and representatives of the Office who have a
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`need for access to the confidential information. Such employees and representatives shall
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`include the Director, members of the Board and their clerical staff, other support personnel,
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`court reporters, and other persons acting on behalf of the Office.
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`(D) Support Personnel. Administrative assistants, clerical staff, paralegals,
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`court reporters, videographers, translators, and other support personnel of the foregoing
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`persons who are reasonably necessary to assist counsel of record in this proceeding and
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`who shall be informed of the terms and requirements of the Protective Order by the person
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`they are supporting who receives confidential information.
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`3.
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`Persons receiving confidential information (“receiving party”) shall use
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`reasonable efforts to maintain the confidentiality of the information, including:
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`EXHIBIT 2033
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`(A) Maintaining such information in a secure location to which persons not
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`authorized to receive the information shall not have access;
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`(B) Otherwise using reasonable efforts to maintain the confidentiality of the
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`information, which efforts shall be no less rigorous than those the receiving party uses to
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`maintain the confidentiality of its own confidential information; and
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`(C) Using reasonable efforts to ensure that support personnel of the receiving
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`party who have access to the confidential information understand and abide by the
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`obligation to maintain the confidentiality of information received that is designated as
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`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.
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`4.
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`Persons receiving confidential information shall use the following procedures
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`to maintain the confidentiality of the information:
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`(A) Documents and Information Filed With the Board.
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`(i) A party may file documents or information with the Board under
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`seal, together with a non-confidential description of the nature of the confidential information
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`that is under seal and the reasons why the information is confidential and should not be
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`made available to the public. The submission shall be treated as confidential and remain
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`under seal, unless, upon motion of a party and after a hearing on the issue, or sua sponte,
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`EXHIBIT 2033
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`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-
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`confidential versions of its submission, together with a Motion to Seal the confidential
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`version setting forth the reasons why the information redacted from the non-confidential
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`version is confidential and should not be made available to the public. The non-confidential
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`version of the submission shall clearly indicate the locations of information that has been
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`redacted. The confidential version of the submission shall be filed under seal. The
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`redacted information shall remain under seal unless, upon motion of a party and after a
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`hearing on the issue, or sua sponte, the Board determines that some or all of the redacted
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`information does not qualify for confidential treatment.
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`(B) Documents and Information Exchanged Among the Parties. Information
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`designated as confidential that is disclosed to another party during discovery or other
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`proceedings before the Board shall be clearly marked as “PROTECTIVE ORDER
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`MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION” and shall be produced in a
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`manner that maintains its confidentiality.
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`5.
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`If the receiving party disagrees with the producing party’s designation of
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`information produced in this proceeding as confidential, the parties shall confer and attempt
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`to reach an agreement regarding the confidentiality or use of such information. If no
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`EXHIBIT 2033
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`agreement is reached within 7 business days after the receiving party notifies the producing
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`party of its disagreement with the designation, either party may raise the issue of the
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`designation to the Board which may rule on the matter.
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`6.
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`Persons qualified
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`to receive confidential
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`information pursuant
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`to
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`this
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`Protective Order may also access certain materials produced by a party to this proceeding
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`and designated as “CONFIDENTIAL BUSINESS INFORMATION” in United States
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`International Trade Commission Investigation No. 337-TA-877, Certain Omega-3 Extracts
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`from Marine or Aquatic Biomass and Products Containing
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`the Same (“the 877
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`Investigation”), provided that such access shall be limited to specific documents that the
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`parties agree in writing, or the Board authorizes, may be provided to persons qualified under
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`this Protective Order.
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`7.
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`When information designated as “PROTECTIVE ORDER MATERIAL” or
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`“CONFIDENTIAL BUSINESS INFORMATION” is discussed, quoted, or referred to in any
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`deposition, oral argument, or hearing, only persons qualified to access such information
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`pursuant to this Protective Order may be present, and any transcript of the proceeding or
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`portion thereof may be marked as “PROTECTIVE ORDER MATERIAL” or “CONFIDENTIAL
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`BUSINESS INFORMATION.” A party designating a transcript as “PROTECTIVE ORDER
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`MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION” under this Protective Order
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`shall do so, and shall identify the specific pages and line numbers that contain such
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`EXHIBIT 2033
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`“PROTECTIVE ORDER MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION”, no
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`later than 10 business days after receiving the final transcript.
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`8.
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`Persons obtaining access to confidential information pursuant to this
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`Protective Order shall use the information only for purposes of this proceeding and shall not
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`use such information for any other purpose, including without limitation business,
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`governmental, or commercial purposes, and administrative, regulatory, legislative, or judicial
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`proceedings, except as the parties may otherwise agree or as the Board may otherwise
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`order.
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`9.
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`The restrictions set forth in this Protective Order shall not apply to information
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`to which the party asserting the confidential status thereof agrees in writing, or the Board
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`subsequently rules, was (1) not confidential at the time it was submitted in this proceeding
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`or disclosed to the other party, or (2) has since become publicly known or available through
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`no fault of the any other party to this proceeding.
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`10.
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`If a third-party, court, or administrative agency subpoenas, orders, or requests
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`a receiving party to produce information designated as “PROTECTIVE ORDER MATERIAL”
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`or “CONFIDENTIAL BUSINESS INFORMATION,” such receiving party shall promptly and in
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`any case within five (5) business days of receipt of such subpoena, order, or request (but in
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`no event later than the time for production of such material) give written notice to counsel of
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`record for the party who designated the information as “PROTECTIVE ORDER MATERIAL”
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`or “CONFIDENTIAL BUSINESS INFORMATION” (the “producing party”), identifying the
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`confidential information sought and enclosing a copy of the subpoena, order, or request.
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`The receiving party shall not produce the information designated as “PROTECTIVE ORDER
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`MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION” by the producing party for at
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`least five (5) business days after providing the required notice to the producing party. If,
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`within five (5) business days of receiving such notice, the producing party provides written
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`notice to the receiving party that it opposes production of its Protected Material, the
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`receiving party shall not thereafter produce such Protected Material, except pursuant to a
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`court order or other order that subjects the receiving party to penalties for noncompliance.
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`The producing party shall be solely responsible for asserting any objection to the requested
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`or required production. Nothing herein shall be construed as requiring the receiving party or
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`anyone else covered by this Protective Order to object to, challenge, or appeal any such
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`subpoena, order, or request seeking or requiring production, subject itself to penalties for
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`noncompliance, or seek any relief from any court or administrative agency.
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`11.
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`The inadvertent failure of a party to designate information as “PROTECTIVE
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`ORDER MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION” at the time of its
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`production or submission shall not preclude that party from later designating said
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`information as “PROTECTIVE ORDER MATERIAL” or “CONFIDENTIAL BUSINESS
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`INFORMATION” by promptly notifying all counsel of record of such designation. Upon
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`learning of its inadvertent failure to designate, a party shall designate such information as
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`“PROTECTIVE ORDER MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION”
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`EXHIBIT 2033
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`promptly. The obligation to treat such information pursuant to this Protective Order shall run
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`prospectively from the date of the designation, provided that a receiving party shall make a
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`good faith effort to retrieve any copies of the information that may have been previously
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`disclosed to individuals who would not otherwise be entitled to receive the information.
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`12.
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`The
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`inadvertent or unintentional disclosure by a producing party of
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`information subject to the attorney-client privilege or work-product doctrine or any other
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`applicable privilege or immunity shall not be deemed a waiver in whole or in part of the
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`producing party’s claim of privilege or immunity, either as to the specific information
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`disclosed or as to any other information relating thereto or on the same or related subject
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`matter. If a party has inadvertently produced information subject to a claim of immunity or
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`privilege, the receiving party, upon request, shall promptly return or destroy the
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`inadvertently produced materials, and all copies of those materials that may have been
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`made and any notes regarding those materials shall be destroyed. The receiving party shall
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`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
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`production from the producing party.
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`13.
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`No later than 30 days after termination of this proceeding and any subsequent
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`appeals thereof, all persons and/or parties subject to this Protective Order shall destroy all
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`material produced in this proceeding that was marked as “PROTECTIVE ORDER
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`MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION,” including all physical or
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`EXHIBIT 2033
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`electronic copies of such matter which may have been made, except that attorney
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`representatives of record for a party to this Proceeding may keep one copy for record
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`keeping purposes, so long as access to such copies remains restricted to only those
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`attorneys qualified to view the information under this Protective Order, and their Support
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`Personnel. This paragraph shall not apply to the Office.
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`EXHIBIT 2033
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`EXHIBIT A
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`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
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`I ____________________________, affirm that I have read the Protective Order;
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`that I will abide by its terms; that I will use the confidential information only in connection
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`with this proceeding and for no other purpose; that I will only allow access to support staff
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`who are reasonably necessary to assist me in this proceeding; that prior to any disclosure to
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`such support staff I informed or will inform them of the requirements of the Protective Order;
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`that I am personally responsible for the requirements of the terms of the Protective Order
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`and I agree to submit to the jurisdiction of the Office and the United States District Court for
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`the Eastern District of Virginia for purposes of enforcing the terms of the Protective Order
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`and providing remedies for its breach. I further certify that I am not a competitor to any
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`party, or a consultant for, or employed by, such a competitor with respect to the subject
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`EXHIBIT 2033
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`matter of this proceeding.
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`______________________
`[Signature]
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`107666878 v1
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`11