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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ARRIS GROUP, INC.
`Petitioner
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`v.
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`C-CATION TECHNOLOGIES, LLC
`Patent Owner
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`Case : IPR2014-00746
`U.S. Patent 5,563,883
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`Before the Honorable KRISTEN L. DROESCH, KALYAN K. DESHPANDE, and
`MIRIAM L. QUINN Administrative Patent Judges.
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`PETITIONER’S MOTION TO EXPUNGE
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`IPR2014-00746
`U.S. Patent No. 5,563,883
`STATEMENT OF PRECISE RELIEF REQUESTED
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`I.
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`Pursuant to 37 C.F.R. § 42.56, and the authorization provided in the
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`February 18, 2015 Judgment, see Paper No. 28, Petitioner ARRIS Group, Inc.
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`hereby requests that the confidential information in the record be expunged.
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`Specifically, Petitioner requests that the unredacted copy of Patent Owner C-
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`Cation Technologies’ Patent Owner Preliminary Response, see Paper No. 19, and
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`Exhibits 2012, 2014, 2015, and 2016, be expunged from the record of this
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`proceeding.1
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`II.
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` STATEMENT OF REASONS FOR RELIEF REQUESTED
`Procedural Background
`A.
`Petitioner filed the petition in this proceeding on May 13, 2014. See Paper
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`No. 1. During the preliminary proceedings, Patent Owner filed an opposed motion
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`for additional discovery, see Paper Nos. 10, 11, and 14, and Patent Owner’s motion
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`1 Petitioner asked Patent Owner whether it opposes this motion. Patent Owner
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`indicated it would not oppose if ARRIS would allow Patent Owner to use
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`Petitioner’s confidential materials in another IPR proceeding. Since such use is
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`inconsistent with the undertaking executed by Patent Owner’s counsel (as
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`embodied in the default protective order as entered by the Board), among other
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`reasons, Petitioner has declined Patent Owner’s request. Patent Owner has not
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`indicated whether it opposes this motion without its suggested conditions.
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`1
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`IPR2014-00746
`U.S. Patent No. 5,563,883
`was granted, see Paper No. 15. Petitioner was ordered to produce “Agreements
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`between [ARRIS] and Comcast under which Comcast requested indemnification
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`for the claims brought against Comcast in the Texas Litigation that reference (or
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`are contingent on) [ARRIS’s] ability to control the litigation.” Paper No. 15.
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`ARRIS produced the requested documents and moved for entry of the default
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`protective order. See Paper No. 16. The Board granted ARRIS’s motion. See
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`Paper No. 18. Patent Owner relied on confidential materials produced by ARRIS
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`in its Patent Owner Preliminary Response to argue that ARRIS was in privity with
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`Comcast in connection with an earlier-filed litigation in the Eastern District of
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`Texas. See Paper No. 19. Patent Owner also placed a number of confidential
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`agreements between Comcast and ARRIS into the record. See Exs. 2012, 2014,
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`2015, and 2016. Concurrently with the filing of its Patent Owner Preliminary
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`Response, Patent Owner filed a motion to seal its Preliminary Response. See Paper
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`No. 20. Although it does not appear that Patent Owner sought to file Exhibits
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`2012, 2014, 2015, and 2016 under seal, those exhibits were properly filed as
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`“Parties and Board Only.”
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`On November 24, 2014, the Board instituted trial as to one of the four
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`challenged claims. See Paper No. 22. The Board also rejected Patent Owner’s
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`challenge to the petition under 35 U.S.C. § 315(b) based on the record. On
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`February 9, 2015, Patent Owner filed a statutory disclaimer cancelling the only
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`2
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`IPR2014-00746
`U.S. Patent No. 5,563,883
`claim involved in the trial. See Paper No. 27. The Board entered a final judgment
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`in this proceeding on February 18, 2015. See Paper No. 28.
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`B. Applicable Legal Standards
`The default rule in trial proceedings before the Board is that confidential
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`information will become public ordinarily 45 days after a final judgment in a trial.
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`See 77 Fed. Reg. 48,756, 48,761 (Aug. 14, 2012). “A party seeking to maintain the
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`confidentiality of the information, however, may file a motion to expunge the
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`information from the record prior to the information becoming public.” Under 37
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`C.F.R. § 42.56, “[a]fter denial of a petition to institute a trial or after final
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`judgment in a trial, a party may file a motion to expunge confidential information
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`in the record.”
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`C. The Confidential Version of the Patent Owner Preliminary
`Response and Exhibits 2012, 2014, 2015, and 2016 Should Be
`Expunged From the Record
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`ARRIS’s agreements with its customers, including Comcast, “include
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`provisions that are negotiated between the parties and are not publicly available.”
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`See Ex. 1027 (Van Aacken Decl.), ¶ 3. “ARRIS treats its agreements with its
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`customers as sensitive and confidential business information,” and ARRIS’s
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`customers “expect these agreements to be confidential.” Id. at ¶ 4. As such,
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`ARRIS “restricts access to the agreements and does not make them available to the
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`public,” or ARRIS’s competitors. Id. Were the terms of the agreements to be
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`3
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`IPR2014-00746
`U.S. Patent No. 5,563,883
`made publicly available, “both ARRIS[‘s] and Comcast’s competitive positions
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`would be compromised.” Id. at ¶ 5.
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`Exhibits 2012, 2014, 2015, and 2016 are confidential agreements as
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`discussed in Mr. Van Aacken’s declaration, Exhibit 1027. The redacted portions
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`of Patent Owner’s Preliminary Response discusses certain confidential provisions
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`of those agreements as negotiated between ARRIS and Comcast. See Ex. 1027, ¶
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`3. The Board’s decision to institute trial, Paper No. 22, does not explicitly discuss
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`any of the terms of these agreements. Therefore, Petitioner submits that there is
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`good cause to expunge the un-redacted version of Patent Owner’s Preliminary
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`Response and Exhibits 2012, 2014, 2015, and 2016 from the record in these
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`proceedings.
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`This motion is timely because a final judgment was entered on February 18,
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`2015, and the 45-day window has not lapsed. See 37 C.F.R. § 42.56.
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`III. CONCLUSION
`Petitioner respectfully requests that the Board expunge Exhibits 2012, 2014,
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`2015, and 2016 and the un-redacted version of Patent Owner’s Preliminary
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`Response pursuant to 37 C.F.R. § 42.56.
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`4
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`IPR2014-00746
`U.S. Patent No. 5,563,883
`Respectfully submitted:
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`/s/ Andrew R. Sommer
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`Andrew R. Sommer (Reg. No. 53,932)
`WINSTON & STRAWN LLP
`1700 K Street NW
`Washington, DC 20006
`T: (202) 282-5000
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`Jonathan E. Retsky (Reg. No. 34,415)
`WINSTON & STRAWN LLP
`35 W. Wacker Drive
`Chicago, IL 60601-9703
`T: (312) 558-5600
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`Attorneys for Petitioner ARRIS Group,
`Inc.
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`Dated: March 10, 2015
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`5
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`IPR2014-00746
`U.S. Patent No. 5,563,883
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`§ 42.6(e)—CERTIFICATION OF SERVICE
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`In accordance with § 42.6(e)(1), the undersigned certifies that on the 10th
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`day of March, 2015, the above PETITIONER’S MOTION TO EXPUNGE
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`was served, via electronic mail upon the following counsel for Patent Owner,
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`Lewis V. Popoviski
`lpopovski@kenyon.com
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`Jeffrey S. Ginsberg
`jginsberg@kenyon.com
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`David J. Kaplan
`djkaplan@kenyon.com
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`David J. Cooperberg
`dcooperberg@kenyon.com
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`Dated: March 10, 2015
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`WINSTON & STRAWN LLP
`1700 K Street NW
`Washington, DC 20006
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`6
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`Respectfully submitted,
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`/Andrew R. Sommer/
`Andrew R. Sommer
`(Reg. No. 53,932)
`Counsel for Petitioner ARRIS Group,
`Inc.
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