UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`GREENE’S ENERGY GROUP, LLC
`Petitioner
`v.
`
`OIL STATES ENERGY SERVICE, L.L.C.
`Patent Owner
`
`
`
`Patent No. 6,179,053
`Issue Date: August 12, 1999
`Title: LOCKDOWN MECHANISM FOR WELL TOOLS REQUIRING
`FIXED-POINT PACKOFF
`_______________
`
`Inter Partes Review No. IPR2014-00216
`____________________________________________________________
`
`
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S COMBINED
`MOTION TO SEAL AND MOTION FOR PROTECTIVE ORDER
`
`
`
`
`
`
`
`
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`GREENE’S ENERGY GROUP, LLC
`Petitioner
`v.
`
`OIL STATES ENERGY SERVICE, L.L.C.
`Patent Owner
`
`
`
`Patent No. 6,179,053
`Issue Date: August 12, 1999
`Title: LOCKDOWN MECHANISM FOR WELL TOOLS REQUIRING
`FIXED-POINT PACKOFF
`_______________
`
`Inter Partes Review No. IPR2014-00216
`____________________________________________________________
`
`
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S COMBINED
`MOTION TO SEAL AND MOTION FOR PROTECTIVE ORDER
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`
`
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`
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`
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`
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`I.
`
`Introduction
`
`Pursuant to the Panel’s Order (Paper 19), Petitioner Greene’s Energy Group,
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`LLC files this opposition to Patent Owner Oil States Energy Services, LLC’s
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`“Combined Motion to Seal and Motion for Protective Order” (Paper 22).
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`II. Argument
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`As explained in more detail below, none of Patent Owner’s arguments support
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`departure from the Board’s Default Protective Order. As such, Petitioner submits
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`that the Default Protective Order should be entered, and Petitioner’s in-house
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`counsel should have access under that Order to all “confidential” documents relied
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`upon by Patent Owner or its Experts in support of its Motion to Amend – including
`
`the “Attorneys’ Eyes Only” designated documents.
`
`A. The Circumstances of the Amneal Proceeding are Analogous
`
`Patent Owner attempts to distinguish the present circumstances from those in
`
`the Amneal proceeding by arguing 1) the data involved here is financial and not
`
`clinical and 2) in Amneal the data deemed highly confidential had already been
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`submitted to the FDA.
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`As to the first point, the fact that the underlying data is financial does not make
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`detailed review of that data any less important in formulating a response to Patent
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`Owner’s Motion to Amend. This is demonstrated by Patent Owner’s own Britven
`
`Declaration, which explains Mr. Britven relied on each of the “Attorneys’ Eyes
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`
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`1
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`
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`Only” Exhibits 2024-2027 as the first four items under “Documents Relied Upon.”
`
`See Britven Decl., Exhibit 2018, Attachment 2.0. In order to fully understand and
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`respond to Patent Owner’s proffered expert opinion, Petitioner by way of its in-
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`house and outside counsel require access to all of the data relied upon in arriving at
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`that opinion.
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`As to the second point, the fact that the data was already submitted to the FDA
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`does not appear to have been an issue in the decision to deny departure from the
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`Default Protective Order in the Amneal proceeding.
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`Moreover, as explained in Amneal, the Default Protective Order prevents
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`employees of Petitioner other than in-house counsel from accessing the
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`Confidential Information without approval of the Board. See Default Protective
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`Order § 2(E), Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,770
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`(Aug. 14, 2012). Patent Owner provides no rationale why such protection is not
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`adequate for all of its financial information. In fact, Patent Owner acknowledges
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`that Petitioner’s in-house counsel needs access to Confidential Information to
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`manage Petitioner’s case. However, Patent Owner unilaterally and arbitrarily
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`divides the financial information into two groups and argues that Petitioner’s in-
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`house counsel needs access to only one of the groups. Both groups of financial
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`information should be available to Petitioner’s in-house counsel and both groups
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`will be protected by the Default Protective Order.
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`
`
`2
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`
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`B. Disclosure of the “Attorneys’ Eyes Only” Designated Documents
`Will Not “significantly harm Patent Owner’s competitive position”
`
`Patent Owner argues there will be “significant harm to Patent Owner’s
`
`competitive position” if the “Attorneys’ Eyes Only” documents are disclosed to
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`Petitioner’s in-house counsel. Patent Owner fails to explain any circumstance
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`under which such significant harm will occur given the limitations of the Default
`
`Protective Order.
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`In Amneal, the Patent Owner argued that Petitioner’s in-house counsel could be
`
`in a competitive decision making position regarding technical data and therefore
`
`should not have access to confidential technical data. That argument, which was
`
`rejected by the Board in Amneal, is not available to Patent Owner. As explained
`
`during the telephone conference with the Board on August 25, Petitioner’s in-
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`house counsel is not involved in any competitive decision making regarding
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`financial data and is not involved in any portion of Petitioner’s business that could
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`possibly create any “significant harm to Patent Owner’s competitive position” by
`
`having access to Patent Owner’s financial information.
`
`C.
`Petitioner will Need to Understand and Rely on the Details
`Underlying the Summary Information in Formulating its Response
`
`Patent Owner asserts that Petitioner will only need to rely on the summary
`
`information – prepared by Patent Owner – in formulating its response. This is
`
`simply not true, as demonstrated by fact that Patent Owner’s own expert Mr.
`
`
`
`3
`
`
`
`Britven relied on all the underlying financial data. Therefore, Petitioner’s in-house
`
`and outside counsel require access to all of the data relied upon in arriving at Mr.
`
`Britven’s opinion in formulating its response to the Motion to Amend. Further, as
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`a matter of logistics generally, it is unclear how in-house counsel of Petitioner can
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`properly vet any arguments made in response to the Motion to Amend without
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`access to the actual documents from which all of the information submitted is
`
`contained.
`
`D. The Circumstances of the Athena Automation Proceeding are Not
`Analogous
`
`Patent Owner attempts to analogize the present proceeding to the circumstances
`
`of the Athena Automation proceeding, and even goes so far as to essentially copy
`
`the proposed protective order in that proceeding in creating its proposal. However,
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`the circumstances of the Athena Automation proceeding were fundamentally
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`different than the issues faced here.
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`In particular, a review of briefing in that proceeding demonstrates there was a
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`concern with regard to an employee (Mr. Schad) of a party that was not an
`
`attorney, and was instead a prior principal of a company that had sold the patent
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`rights at issue. See Athena Automation, IPR2013-00167, Paper 27, p. 3. In fact,
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`Mr. Schad is actually the founder and President of Athena Automation, Ltd., which
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`is presumably a competitor to the Patent Owner in that inter partes review. See
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`Athena Automation, IPR2013-00167, Paper 29, p. 2 at fn. 2. Petitioner in Athena
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`
`
`4
`
`
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`Automation was not seeking to permit in-house counsel access to confidential
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`information, as in the present case.
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`E.
`The Fact That “Attorneys’ Eyes Only” Designated Documents are
`Not Typically Provided to Petitioner’s In-House Counsel is Simply Not
`Relevant to This Proceeding
`
`Patent Owner also advances an argument that in the normal course of litigation
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`the information contained in the “Attorneys’ Eyes Only” designated documents
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`would not typically be provided to Petitioner’s in-house counsel. That fact is
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`simply not relevant to this inter partes review proceeding, and is illustrative of
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`Patent Owner’s continued attempts to meld the existing litigation with this
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`proceeding.
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`First, Patent Owner has elected to make its own financial information an issue
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`in this proceeding. Second, as noted by Patent Owner themselves, there is a
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`“public[] interest in maintaining a complete and understandable file history.” 77
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`Fed. Reg. 48756, 48760 (Aug. 14, 2012). If the tensions between these two issues
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`are not compatible to disclosure under the existing Default Protective Order, Patent
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`Owner should not have placed its own sales data and financials into issue in this
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`proceeding.
`
`F.
`The Fact that the “Attorneys’ Eyes Only” Designated Documents
`Might Someday Become Part of the Public Record is of No Moment
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`Patent Owner further argues that at some point in the future, it is possible that
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`the “Attorneys’ Eyes Only” designated documents might become part of the public
`
`
`
`5
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`
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`record – and that somehow, this supports the argument that those documents
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`should not be provided to Petitioner’s in-house counsel. This argument is logically
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`flawed and contrary to Patent Owner’s position that Petitioner’s in-house counsel
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`should be denied access to those documents. The only way the “Attorney’s Eyes
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`Only” documents would become public is if they are relied upon by the Board in a
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`decision it issues. At that point, in-house counsel of Petitioner would have never
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`seen them, and could not provide any review of such information in support of
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`Petitioner’s correct argument that the Motion to Amend should not be granted. By
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`acknowledging that such a possibility exists, Patent Owner is acknowledging that
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`Petitioner’s in-house counsel needs access to those documents to prevent prejudice
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`to Petitioner.
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`III. Conclusion
`
`For the foregoing reasons, Petitioner submits that Patent Owner’s requested
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`deviation from the Default Protective Order is unnecessary, and Petitioner’s in-
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`house counsel should have access under that Order to all “confidential” documents
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`relied upon by Patent Owner or its Experts in support of its Motion to Amend.
`
`
`
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`
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`Dated: September 2, 2014
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`Respectfully submitted,
`
`/John J. Feldhaus/
`By:
`John J. Feldhaus
`Reg. No. 28,822
`Counsel for Petitioner
`
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`6
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`
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`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a true and correct copy of PETITIONER’S
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`OPPOSITION TO PATENT OWNER’S COMBINED MOTION TO SEAL
`
`AND MOTION FOR PROTECTIVE ORDER together will all exhibits have
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`been electronically served on Patent Owner’s attorneys via email, as previously
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`agreed by all counsel of record, on the 2nd day of September, 2014 at the
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`following address:
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`Erik Hawes: ehawes@morganlewis.com
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`Archis (Neil) Ozarkar: nozarkar@morganlewis.com
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`Respectfully submitted,
`
`/John J. Feldhaus/
`By:
`John J. Feldhaus
`Reg. No. 28,822
`Counsel for Petitioner
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`7
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