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IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`___________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`
`PETROLEUM GEO-SERVICES INC.
`and
`ION GEOPHYSICAL CORPORATION
`AND ION INTERNATIONAL S.A.R.L.
`Petitioners
`
`v.
`
`WESTERNGECO LLC
`Patent Owner
`___________________
`
`Case No. IPR2014-006881
`U.S. Patent No. 7,080,607
`
`
`
`
`
`MOTION FOR PRESERVATION IN NON-PUBLIC FORM OF THE
`RECORD PENDING APPEAL AND,
`IN THE ALTERNATIVE, MOTION TO EXPUNGE
`CONFIDENTIAL INFORMATION UNDER 37 C.F.R. § 42.56
`
`
`
`
`
`
`
`
`1 Case IPR2015-00567 has been joined with this proceeding.
`
`
`
`

`
`
`
`
`
`Petitioner Petroleum Geo-Services Inc. (“PGS”) respectfully requests that
`
`Exhibits 2021-23, 2027, and 2069 in IPR2014-00688 be preserved in non-public
`
`form pending any appeal. In the alternative, PGS requests that those exhibits be
`
`expunged from the record pursuant to 37 C.F.R. § 42.56.
`
`As a general rule, confidential information referred to in a final written
`
`decision becomes public 45 days after final judgment, unless a motion to expunge
`
`is filed. 77 Fed. Reg. 48761; 37 C.F.R. § 42.56. As will be discussed below,
`
`Exhibits 2021-23, 2027, and 2069 contain confidential information that ultimately
`
`should be expunged rather than being made public. The Board, however, has
`
`found it “reasonable to maintain the record undisturbed pending resolution of the
`
`Appeal, or any subsequent appeal concerning this proceeding.” U.S. Bancorp v.
`
`Solutran, Inc., CBM2014-00076, Paper 47 at 2-3 (PTAB Jan. 4, 2016). And the
`
`Federal Circuit’s rules affirm this approach. Specifically, Federal Circuit Rule
`
`17(a) provides that “[t]he agency must retain the record,” and Federal Circuit Rule
`
`17(d) confirms that parties and counsel must have access to the original record.
`
`Beyond these governing principles, expungement presents a real risk of prejudice
`
`where “on judicial review, the correctness of the decision appealed from can be
`
`defended by the appellee on any aground that is supported by the record.” See,
`
`e.g., Rexnord Indus., LLC v. Kappos, 705 F.3d 1347, 1356 (Fed. Cir. 2013). In
`
`1
`
`

`
`
`
`other words, there is a risk that expungement will deny PGS record support for its
`
`own appeal in the event that Patent Owner appeals the Board’s final decision.
`
`Accordingly, PGS requests that Exhibits 2021-23, 2027, and 2069 be
`
`preserved pending a possible appeal but remain in non-public form. The good-
`
`cause grounds for sealing Exhibits 2021-23 and 2027 have been detailed in a joint
`
`motion to seal (Paper 29 at 6-7), which was granted by the Board as to those
`
`exhibits (Paper 32). The good-cause grounds for sealing Exhibit 2069 have been
`
`detailed in Patent Owner’s motion to seal (Paper 45 at 2-3), which has not been
`
`ruled on by the Board. The good cause to seal these exhibits is included in Table 1
`
`below:
`
`Table 1. Exhibits that Should Remain Under Seal
`
`Exhibit
`
`Description
`
`Good Cause
`
`2021
`
`Invoices for transactions
`between ION and PGS
`
`PGS states that this exhibit includes
`confidential business information of
`PGS concerning its commercial
`transactions with a third party. This
`business information is not public, is
`maintained in confidence, and is
`unnecessary for the public to
`understand the patentability dispute at
`issue. This exhibit is further subject
`to protective orders in WesternGeco
`LLC v. Petroleum Geo-Services Inc.,
`No. 13-cv-2725 and WesternGeco
`LLC v. ION Geophysical Corp. et al.,
`No. 09-cv-01827.
`
`
`
`

`
`
`
`2022
`
`WesternGeco LLC v.
`Petroleum Geo-Services Inc.,
`et al., No. 4-13-cv-02725,
`PGSI-T2725-WG-46456-58.
`
`2023
`
`WesternGeco LLC v.
`Petroleum Geo-Services Inc.,
`et al., No. 4-13-cv-02725,
`PGSI-T2725-WG-47225.
`
`2027
`
`WesternGeco LLC v.
`Petroleum Geo-Services Inc.,
`et al., No. 4-13-cv-02725,
`PGSI-T2725-WG-47303.
`
`Agreement Between PGS
`Geophysical A.S. and another
`party, WesternGeco LLC v.
`Petroleum Geo-Services Inc.,
`
`2069
`
`
`
`PGS states that this exhibit includes
`confidential business information of
`PGS concerning the negotiation of a
`commercial agreement. This
`business information is not public, is
`maintained in confidence, and is
`unnecessary for the public to
`understand the patentability dispute at
`issue. This exhibit is further subject
`to a protective order in WesternGeco
`LLC v. Petroleum Geo-Services Inc.,
`No. 13-cv-2725.
`PGS states that this exhibit includes
`confidential business information of
`PGS concerning the negotiation of a
`commercial agreement. This
`business information is not public, is
`maintained in confidence, and is
`unnecessary for the public to
`understand the patentability dispute at
`issue. This exhibit is further subject
`to a protective order in WesternGeco
`LLC v. Petroleum Geo-Services Inc.,
`No. 13-cv-2725.
`PGS states that this exhibit includes
`confidential business information of
`PGS concerning the provisions of a
`commercial agreement. This
`business information is not public, is
`maintained in confidence, and is
`unnecessary for the public to
`understand the patentability dispute at
`issue. This exhibit is further subject
`to a protective order in WesternGeco
`LLC v. Petroleum Geo-Services Inc.,
`No. 13-cv-2725.
`PGS states that this exhibit includes
`confidential business information in
`the form of a commercial agreement.
`This business information is not
`
`

`
`
`
`
`
`et al., No. 4-13-cv-02725,
`PGS-JURID_00000158-183.
`
`public, is maintained in confidence,
`and is unnecessary for the public to
`understand the patentability dispute at
`issue. This exhibit is further subject
`to a protective order in WesternGeco
`LLC v. Petroleum Geo-Services Inc.,
`No. 13-cv-2725.
`
`For these reasons, PGS moves the Board to maintain Exhibits 2021-23, 2027
`
`and 2069 in their non-public form pending any appeal. If granted, PGS will
`
`contact the Board at the conclusion of any appeal proceeding, or if no appeal is
`
`taken, to address this matter further.
`
`If the Board declines to preserve Exhibits 2021-23, 2027, and 2069 in their
`
`non-public form, PGS respectfully requests expungement of those exhibits under
`
`37 C.F.R. § 42.56, for the good cause explained in Table 1 above.
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: January 29, 2016
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` /David Berl/
`David Berl
`Reg. No. 72,751
`Williams & Connolly LLP
`725 Twelfth Street, N.W.
`Washington, DC 20005
`
`Phone: 202-434-5491
`
`

`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the above-captioned “Motion for
`
`Preservation in Non-Public Form of the Record Pending Appeal and, in the
`
`Alternative, Motion to Expunge Confidential Information Under 37 C.F.R.
`
`§ 42.56” was served on January 29, 2016, by delivering a copy via electronic mail
`
`upon the following attorneys of record.
`
`For Petitioner ION Geophysical Corporation and ION International S.A.R.L.:
`
`W. Karl Renner
`Roberto Devoto
`IPR37136-0002IP1@fr.com
`
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`202-783-5070
`
`
`
`
`
`
`
`
`
`
`
`
`
`For Patent Owner:
`
`
`Michael L. Kiklis
`CPDocketKiklis@oblon.com
`Scott McKeown
`CPDocketMcKeown@oblon.com
`Kevin Laurence
`CPDocketLaurence@oblon.com
`Katherine Cappaert
`CPDocketCappaert@oblon.com
`Christopher Ricciuti
`CPDocketRicciuti@oblon.com
`
`Oblon
`1940 Duke Street
`Alexandria, Virginia 22314
`
`

`
`
`
`Respectfully submitted,
`
`
`
` /David Berl/
`David Berl
`Reg. No. 72,751
`Williams & Connolly LLP
`725 Twelfth Street, N.W.
`Washington, DC 20005
`
`Phone: 202-434-5491
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`703-413-3000
`
`
`Dated: January 29, 2016

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