IPR2014-00003
`Motion for Entry of Protective Order
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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
`______________________
`
`
`
`MOTION FOR ENTRY OF PROTECTIVE ORDER
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`1
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`Motion for Entry of Protective Order
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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
`______________________
`
`
`
`MOTION FOR ENTRY OF PROTECTIVE ORDER
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`1
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`IPR2014-00003
`Motion for Entry of Protective Order
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`Pursuant to the May 5, 2014 Order – Conduct of the Proceedings – 37 C.F.R. § 42.5
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`(Paper 38, see, e.g., pages 4-5), Patent Owner NEPTUNE TECHNOLOGIES AND
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`BIORESSOURCES INC. (“Neptune”), moves for entry of an amended version of the Default
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`Protective Order (Office Trial Practice Guide, 77 Fed. Reg. 48756, 48771 (Aug. 14, 2012)),
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`in this case. This amended version of the Default Protective Order has been agreed upon
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`by Neptune and Petitioner AKER BIOMARINE AS (“Aker”) and would be used in the event
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`the parties exchange and/or file confidential information during the course of the present
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`proceedings.
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`Neptune and Aker anticipate that sensitive confidential information will be disclosed
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`in these proceedings and request entry of a Protective Order that has been amended in a
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`manner that is agreeable to the parties and yet is not significantly divergent from the Default
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`Protective Order.
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`The proposed amendments to the Default Protective Order are shown in redline in
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`the attached Appendix. A clean copy of the amended version of the Default Protective
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`Order for which entry is sought is also being filed as EXHIBIT 2033.
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`Aker does not oppose this motion.
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`2
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`IPR2014-00003
`Motion for Entry of Protective Order
`
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`Respectfully submitted,
`COOLEY LLP
`
`/ Stephen L. Altieri /
`Stephen L. Altieri, Ph.D.
`Reg. No. 63,133
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`By:
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`3
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`Dated: June 3, 2014
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`COOLEY LLP
`ATTN: Patent Group
`1299 Pennsylvania Avenue, N.W
`Suite 700
`Washington, DC 20004-2400
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`Tel: (617) 937-2371
`Fax: (202) 842-7899
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`CERTIFICATION OF SERVICE UNDER 37 C.F.R. §§ 42.6(e), 42.205(b)
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`IPR2014-00003
`Motion for Entry of Protective Order
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`I, Stephen L. Altieri, Ph.D., hereby certify that a complete copy of:
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` MOTION FOR ENTRY OF PROTECTIVE ORDER
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` EXHIBIT 2033
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`are being served electronically (as consented to by Petitioner), on the 3rd day of June, 2014,
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`the same day as the filing of the above-identified documents in the United States Patent and
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`Trademark Office (USPTO), upon:
`
`J. Mitchell Jones
`jmjones@casimirjones.com and docketing@casimirjones.com
`Hand delivery address:
`CASIMIR JONES SC
`2275 Deming Way, St. 310
`Middleton, WI 53562
`Telephone: (608) 662-1277
`Facsimile: (608) 662-1276
`Reg. No. 44,174
`
`Amanda Hollis
`amanda.hollis@kirkland.com
`Hand delivery address:
`KIRKLAND & ELLIS
`300 North LaSalle
`Chicago, IL 60654
`Telephone: 312-862-2011
`Facsimile: 312-862-2200
`Reg. No. 55,629
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`4
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`IPR2014-00003
`Motion for Entry of Protective Order
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`Respectfully submitted,
`COOLEY LLP
`
`/ Stephen L. Altieri /
`Stephen L. Altieri, Ph.D.
`Reg. No. 63,133
`
`
`
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`By:
`
`
`
`DATE: JUNE 3, 2014
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`COOLEY LLP
`ATTN: Patent Group
`1299 Pennsylvania Avenue NW, Suite 700
`Washington, DC 20004
`
`Tel: (617) 937-2371
`Fax: (202) 842-7899
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`5
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`Exhibit I: DEFAULT PROTECTIVE ORDER SHOWING REVISIONS
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`IPR2014-00003
`Motion for Entry of Protective Order
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`This standing Standing Protective Order
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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 who
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`have executed the acknowledgment appended to this order: :
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` (A) Parties. Persons who are owners of a patent involved in the proceeding and
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`other persons who are named parties to the proceeding.
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`(B) Party Representatives. Representatives Outside counsel of record for a
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`party in thethis proceeding, including attorneys admitted pro hac vice for this proceeding.
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`(CB) Experts. Retained experts of a party in the proceeding who further
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`certify in the Acknowledgement that they are not a competitor to any party, or a consultant
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`for, or employed by, such a competitor with respect to the subject matter of the proceeding.
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`have executed the Acknowledgment appended to this Protective Order as Exhibit A.
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`(D) In-house counsel. In-house counsel of a party.
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`(E) Other Employees of a Party. Employees, consultants or other persons
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`performing work for a party, other than in-house counsel and in-house counsel’s support
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`staff, who sign the Acknowledgement shall be extended access to confidential information
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`6
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`IPR2014-00003
`Motion for Entry of Protective Order
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`only upon agreement of the parties or by order of the Board upon a motion brought by the
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`party seeking to disclose confidential information to that person. The party opposing
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`disclosure to that person shall have the burden of proving that such person should be
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`restricted from access to confidential information.
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`(F) (C) The Office. Employees and representatives of the Office who have a
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`need for access to the confidential information shall have such access without the
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`requirement to sign an Acknowledgement.. 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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`(GD) 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 those personscounsel of record in thethis
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`proceeding shall not be required to sign an Acknowledgement, butand who shall be
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`informed of the terms and requirements of the Protective Order by the person they are
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`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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`(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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`7
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`IPR2014-00003
`Motion for Entry of Protective Order
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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 recipientreceiving party
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`uses to maintain the confidentiality of its own confidential information not received from the
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`disclosing party; ; and
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`(C) EnsuringUsing reasonable efforts to ensure that support personnel of the
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`recipientreceiving party who have access to the confidential information understand and
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`abide by the obligation to maintain the confidentiality of information received that is
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`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 and maintaining a record of the locations of
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`such copies. .
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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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`8
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`IPR2014-00003
`Motion for Entry of Protective Order
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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
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`is confidential and should not be made available
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`to
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`the public.
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` The
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`nonconfidentialnon-confidential version of the submission shall clearly indicate the locations
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`of information that has been redacted. The confidential version of the submission shall be
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`filed under seal. The redacted information shall remain under seal unless, upon motion of a
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`party and after a hearing on the issue, or sua sponte, the Board determines that some or all
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`of the redacted 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’’MATERIAL” or “CONFIDENTIAL BUSINESS INFORMATION” and shall be
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`produced in a manner that maintains its confidentiality.
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`(j) Standard Acknowledgement of Protective Order. The following form may be used
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`to acknowledge a protective order and gain access to information covered by the protective
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`order:
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`9
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`[CAPTION]
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`IPR2014-00003
`Motion for Entry of Protective Order
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`Standard 5. If the receiving party disagrees with the producing party’s designation
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`of information produced in this proceeding as confidential, the parties shall confer and
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`attempt to reach an agreement regarding the confidentiality or use of such information. If no
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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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`10
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`IPR2014-00003
`Motion for Entry of Protective Order
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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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`“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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`11
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`IPR2014-00003
`Motion for Entry of Protective Order
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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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`12
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`IPR2014-00003
`Motion for Entry of Protective Order
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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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`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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`IPR2014-00003
`Motion for Entry of Protective Order
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`No later than 30 days after termination of this proceeding and any subsequent
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`13.
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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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`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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`14
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`IPR2014-00003
`Motion for Entry of Protective Order
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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
`
`
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`Acknowledgment for Expert Access to Protective Order Material
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`I ____,I ____________________________, affirm that I have read the Protective
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`Order; that I will abide by its terms; that I will use the confidential information only in
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`connection with this proceeding and for no other purpose; that I will only allow access to
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`support staff who are reasonably necessary to assist me in this proceeding; that prior to any
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`15
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`IPR2014-00003
`Motion for Entry of Protective Order
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`disclosure to such support staff I informed or will inform them of the requirements of the
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`Protective Order; that I am personally responsible for the requirements of the terms of the
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`Protective Order and I agree to submit to the jurisdiction of the Office and the United States
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`District Court for the Eastern District of Virginia for purposes of enforcing the terms of the
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`Protective Order and providing remedies for its breach. I further certify that I am not a
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`competitor to any party, or a consultant for, or employed by, such a competitor with respect
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`to the subject matter of this proceeding.
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`______________________
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`[Signature]
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`107666914 v1
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`16
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