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`___________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`___________________
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`PETROLEUM GEO-SERVICES INC.
`and
`ION GEOPHYSICAL CORPORATION
`AND ION INTERNATIONAL S.A.R.L.
`Petitioners
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`v.
`
`WESTERNGECO LLC
`Patent Owner
`___________________
`
`Case No. IPR2014-006891
`U.S. Patent No. 7,293,520
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`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
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`1 Case IPR2015-00565 has been joined with this proceeding.
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`Petitioner Petroleum Geo-Services Inc. (“PGS”) respectfully requests that
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`Exhibits 2021-23, 2027, and 2069 in IPR2014-00689 be preserved in non-public
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`form pending any appeal. In the alternative, PGS requests that those exhibits be
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`expunged from the record pursuant to 37 C.F.R. § 42.56.
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`As a general rule, confidential information referred to in a final written
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`decision becomes public 45 days after final judgment, unless a motion to expunge
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`is filed. 77 Fed. Reg. 48761; 37 C.F.R. § 42.56. As will be discussed below,
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`Exhibits 2021-23, 2027, and 2069 contain confidential information that ultimately
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`should be expunged rather than being made public. The Board, however, has
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`found it “reasonable to maintain the record undisturbed pending resolution of the
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`Appeal, or any subsequent appeal concerning this proceeding.” U.S. Bancorp v.
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`Solutran, Inc., CBM2014-00076, Paper 47 at 2-3 (PTAB Jan. 4, 2016). And the
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`Federal Circuit’s rules affirm this approach. Specifically, Federal Circuit Rule
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`17(a) provides that “[t]he agency must retain the record,” and Federal Circuit Rule
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`17(d) confirms that parties and counsel must have access to the original record.
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`Beyond these governing principles, expungement presents a real risk of prejudice
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`where “on judicial review, the correctness of the decision appealed from can be
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`defended by the appellee on any aground that is supported by the record.” See,
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`e.g., Rexnord Indus., LLC v. Kappos, 705 F.3d 1347, 1356 (Fed. Cir. 2013). In
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`1
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`other words, there is a risk that expungement will deny PGS record support for its
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`own appeal in the event that Patent Owner appeals the Board’s final decision.
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`Accordingly, PGS requests that Exhibits 2021-23, 2027, and 2069 be
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`preserved pending a possible appeal but remain in non-public form. The good-
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`cause grounds for sealing Exhibits 2021-23 and 2027 have been detailed in a joint
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`motion to seal (Paper 29 at 6-7), which was granted by the Board as to those
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`exhibits (Paper 31). The good-cause grounds for sealing Exhibit 2069 have been
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`detailed in Patent Owner’s motion to seal (Paper 44 at 2-3), which has not been
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`ruled on by the Board. The good cause to seal these exhibits is included in Table 1
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`below:
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`Table 1. Exhibits that Should Remain Under Seal
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`Exhibit
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`Description
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`Good Cause
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`2021
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`Invoices for transactions
`between ION and PGS
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`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.
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`2022
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`WesternGeco LLC v.
`Petroleum Geo-Services Inc.,
`et al., No. 4-13-cv-02725,
`PGSI-T2725-WG-46456-58.
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`2023
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`WesternGeco LLC v.
`Petroleum Geo-Services Inc.,
`et al., No. 4-13-cv-02725,
`PGSI-T2725-WG-47225.
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`2027
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`WesternGeco LLC v.
`Petroleum Geo-Services Inc.,
`et al., No. 4-13-cv-02725,
`PGSI-T2725-WG-47303.
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`Agreement Between PGS
`Geophysical A.S. and another
`party, WesternGeco LLC v.
`Petroleum Geo-Services Inc.,
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`2069
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`
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`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.
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`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.
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`For these reasons, PGS moves the Board to maintain Exhibits 2021-23, 2027
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`and 2069 in their non-public form pending any appeal. If granted, PGS will
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`contact the Board at the conclusion of any appeal proceeding, or if no appeal is
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`taken, to address this matter further.
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`If the Board declines to preserve Exhibits 2021-23, 2027, and 2069 in their
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`non-public form, PGS respectfully requests expungement of those exhibits under
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`37 C.F.R. § 42.56, for the good cause explained in Table 1 above.
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`Respectfully submitted,
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`Dated: January 29, 2016
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`
` /David Berl/
`David Berl
`Reg. No. 72,751
`Williams & Connolly LLP
`725 Twelfth Street, N.W.
`Washington, DC 20005
`
`Phone: 202-434-5491
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that the above-captioned “Motion for
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`Preservation in Non-Public Form of the Record Pending Appeal and, in the
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`Alternative, Motion to Expunge Confidential Information Under 37 C.F.R.
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`§ 42.56” was served on January 29, 2016, by delivering a copy via electronic mail
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`upon the following attorneys of record.
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`For Petitioner ION Geophysical Corporation and ION International S.A.R.L.:
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`W. Karl Renner
`Roberto Devoto
`IPR37136-0004IP1@fr.com
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`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`202-783-5070
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`For Patent Owner:
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`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
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`Oblon
`1940 Duke Street
`Alexandria, Virginia 22314
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`Respectfully submitted,
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`
`
` /David Berl/
`David Berl
`Reg. No. 72,751
`Williams & Connolly LLP
`725 Twelfth Street, N.W.
`Washington, DC 20005
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`Phone: 202-434-5491
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`703-413-3000
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`Dated: January 29, 2016