UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ARRIS GROUP, INC.
`Petitioner
`
`
`
`v.
`
`C-CATION TECHNOLOGIES, LLC
`Patent Owner
`
`
`
`Case : IPR2014-00746
`U.S. Patent 5,563,883
`
`Before the Honorable KRISTEN L. DROESCH, KALYAN K. DESHPANDE, and
`MIRIAM L. QUINN Administrative Patent Judges.
`
`PETITIONER’S MOTION TO EXPUNGE
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ARRIS GROUP, INC.
`Petitioner
`
`
`
`v.
`
`C-CATION TECHNOLOGIES, LLC
`Patent Owner
`
`
`
`Case : IPR2014-00746
`U.S. Patent 5,563,883
`
`Before the Honorable KRISTEN L. DROESCH, KALYAN K. DESHPANDE, and
`MIRIAM L. QUINN Administrative Patent Judges.
`
`PETITIONER’S MOTION TO EXPUNGE
`
`
`
`
`
`IPR2014-00746
`U.S. Patent No. 5,563,883
`STATEMENT OF PRECISE RELIEF REQUESTED
`
`I.
`
`Pursuant to 37 C.F.R. § 42.56, and the authorization provided in the
`
`February 18, 2015 Judgment, see Paper No. 28, Petitioner ARRIS Group, Inc.
`
`hereby requests that the confidential information in the record be expunged.
`
`Specifically, Petitioner requests that the unredacted copy of Patent Owner C-
`
`Cation Technologies’ Patent Owner Preliminary Response, see Paper No. 19, and
`
`Exhibits 2012, 2014, 2015, and 2016, be expunged from the record of this
`
`proceeding.1
`
`II.
`
` STATEMENT OF REASONS FOR RELIEF REQUESTED
`Procedural Background
`A.
`Petitioner filed the petition in this proceeding on May 13, 2014. See Paper
`
`No. 1. During the preliminary proceedings, Patent Owner filed an opposed motion
`
`for additional discovery, see Paper Nos. 10, 11, and 14, and Patent Owner’s motion
`
`
`1 Petitioner asked Patent Owner whether it opposes this motion. Patent Owner
`
`indicated it would not oppose if ARRIS would allow Patent Owner to use
`
`Petitioner’s confidential materials in another IPR proceeding. Since such use is
`
`inconsistent with the undertaking executed by Patent Owner’s counsel (as
`
`embodied in the default protective order as entered by the Board), among other
`
`reasons, Petitioner has declined Patent Owner’s request. Patent Owner has not
`
`indicated whether it opposes this motion without its suggested conditions.
`
`1
`
`
`
`IPR2014-00746
`U.S. Patent No. 5,563,883
`was granted, see Paper No. 15. Petitioner was ordered to produce “Agreements
`
`between [ARRIS] and Comcast under which Comcast requested indemnification
`
`for the claims brought against Comcast in the Texas Litigation that reference (or
`
`are contingent on) [ARRIS’s] ability to control the litigation.” Paper No. 15.
`
`ARRIS produced the requested documents and moved for entry of the default
`
`protective order. See Paper No. 16. The Board granted ARRIS’s motion. See
`
`Paper No. 18. Patent Owner relied on confidential materials produced by ARRIS
`
`in its Patent Owner Preliminary Response to argue that ARRIS was in privity with
`
`Comcast in connection with an earlier-filed litigation in the Eastern District of
`
`Texas. See Paper No. 19. Patent Owner also placed a number of confidential
`
`agreements between Comcast and ARRIS into the record. See Exs. 2012, 2014,
`
`2015, and 2016. Concurrently with the filing of its Patent Owner Preliminary
`
`Response, Patent Owner filed a motion to seal its Preliminary Response. See Paper
`
`No. 20. Although it does not appear that Patent Owner sought to file Exhibits
`
`2012, 2014, 2015, and 2016 under seal, those exhibits were properly filed as
`
`“Parties and Board Only.”
`
`On November 24, 2014, the Board instituted trial as to one of the four
`
`challenged claims. See Paper No. 22. The Board also rejected Patent Owner’s
`
`challenge to the petition under 35 U.S.C. § 315(b) based on the record. On
`
`February 9, 2015, Patent Owner filed a statutory disclaimer cancelling the only
`
`2
`
`
`
`IPR2014-00746
`U.S. Patent No. 5,563,883
`claim involved in the trial. See Paper No. 27. The Board entered a final judgment
`
`in this proceeding on February 18, 2015. See Paper No. 28.
`
`B. Applicable Legal Standards
`The default rule in trial proceedings before the Board is that confidential
`
`information will become public ordinarily 45 days after a final judgment in a trial.
`
`See 77 Fed. Reg. 48,756, 48,761 (Aug. 14, 2012). “A party seeking to maintain the
`
`confidentiality of the information, however, may file a motion to expunge the
`
`information from the record prior to the information becoming public.” Under 37
`
`C.F.R. § 42.56, “[a]fter denial of a petition to institute a trial or after final
`
`judgment in a trial, a party may file a motion to expunge confidential information
`
`in the record.”
`
`C. The Confidential Version of the Patent Owner Preliminary
`Response and Exhibits 2012, 2014, 2015, and 2016 Should Be
`Expunged From the Record
`
`ARRIS’s agreements with its customers, including Comcast, “include
`
`provisions that are negotiated between the parties and are not publicly available.”
`
`See Ex. 1027 (Van Aacken Decl.), ¶ 3. “ARRIS treats its agreements with its
`
`customers as sensitive and confidential business information,” and ARRIS’s
`
`customers “expect these agreements to be confidential.” Id. at ¶ 4. As such,
`
`ARRIS “restricts access to the agreements and does not make them available to the
`
`public,” or ARRIS’s competitors. Id. Were the terms of the agreements to be
`
`3
`
`
`
`IPR2014-00746
`U.S. Patent No. 5,563,883
`made publicly available, “both ARRIS[‘s] and Comcast’s competitive positions
`
`would be compromised.” Id. at ¶ 5.
`
`Exhibits 2012, 2014, 2015, and 2016 are confidential agreements as
`
`discussed in Mr. Van Aacken’s declaration, Exhibit 1027. The redacted portions
`
`of Patent Owner’s Preliminary Response discusses certain confidential provisions
`
`of those agreements as negotiated between ARRIS and Comcast. See Ex. 1027, ¶
`
`3. The Board’s decision to institute trial, Paper No. 22, does not explicitly discuss
`
`any of the terms of these agreements. Therefore, Petitioner submits that there is
`
`good cause to expunge the un-redacted version of Patent Owner’s Preliminary
`
`Response and Exhibits 2012, 2014, 2015, and 2016 from the record in these
`
`proceedings.
`
`This motion is timely because a final judgment was entered on February 18,
`
`2015, and the 45-day window has not lapsed. See 37 C.F.R. § 42.56.
`
`III. CONCLUSION
`Petitioner respectfully requests that the Board expunge Exhibits 2012, 2014,
`
`2015, and 2016 and the un-redacted version of Patent Owner’s Preliminary
`
`Response pursuant to 37 C.F.R. § 42.56.
`
`
`
`
`
`
`
`4
`
`
`
`IPR2014-00746
`U.S. Patent No. 5,563,883
`Respectfully submitted:
`
`/s/ Andrew R. Sommer
`
`Andrew R. Sommer (Reg. No. 53,932)
`WINSTON & STRAWN LLP
`1700 K Street NW
`Washington, DC 20006
`T: (202) 282-5000
`
`Jonathan E. Retsky (Reg. No. 34,415)
`WINSTON & STRAWN LLP
`35 W. Wacker Drive
`Chicago, IL 60601-9703
`T: (312) 558-5600
`
`Attorneys for Petitioner ARRIS Group,
`Inc.
`
`
`Dated: March 10, 2015
`
`
`
`
`
`
`
`5
`
`
`
`IPR2014-00746
`U.S. Patent No. 5,563,883
`
`§ 42.6(e)—CERTIFICATION OF SERVICE
`
`In accordance with § 42.6(e)(1), the undersigned certifies that on the 10th
`
`day of March, 2015, the above PETITIONER’S MOTION TO EXPUNGE
`
`was served, via electronic mail upon the following counsel for Patent Owner,
`
`Lewis V. Popoviski
`lpopovski@kenyon.com
`
`Jeffrey S. Ginsberg
`jginsberg@kenyon.com
`
`David J. Kaplan
`djkaplan@kenyon.com
`
`David J. Cooperberg
`dcooperberg@kenyon.com
`
`Dated: March 10, 2015
`
`
`
`
`
`
`
`
`WINSTON & STRAWN LLP
`1700 K Street NW
`Washington, DC 20006
`
`
`6
`
`
`Respectfully submitted,
`
`/Andrew R. Sommer/
`Andrew R. Sommer
`(Reg. No. 53,932)
`Counsel for Petitioner ARRIS Group,
`Inc.
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
