By: Thomas Engellenner
`Pepper Hamilton LLP
`125 High Street
`19th Floor, High Street Tower
`Boston, MA 02110
`(617) 204-5100 (telephone)
`(617) 204-5150 (facsimile)
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`WAVEMARKET, INC. D/B/A LOCATION LABS
`Petitioner
`
`v.
`
`LOCATIONET SYSTEMS, LTD.
`Patent Owner
`___________________
`
`Case No. IPR2014-00920
`U.S. Patent 6,771,970
`___________________
`
`
`PATENT OWNER LOCATIONET SYSTEMS, LTD.’S
`OPPOSITION TO PETITIONER’S MOTION TO SEAL AND FOR ENTRY
`OF PROTECTIVE ORDER PURSUANT TO 37 C.F.R. §§ 42.14 AND 42.54
`
`
`Pepper Hamilton LLP
`125 High Street
`19th Floor, High Street Tower
`Boston, MA 02110
`(617) 204-5100 (telephone)
`(617) 204-5150 (facsimile)
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`WAVEMARKET, INC. D/B/A LOCATION LABS
`Petitioner
`
`v.
`
`LOCATIONET SYSTEMS, LTD.
`Patent Owner
`___________________
`
`Case No. IPR2014-00920
`U.S. Patent 6,771,970
`___________________
`
`
`PATENT OWNER LOCATIONET SYSTEMS, LTD.’S
`OPPOSITION TO PETITIONER’S MOTION TO SEAL AND FOR ENTRY
`OF PROTECTIVE ORDER PURSUANT TO 37 C.F.R. §§ 42.14 AND 42.54
`
`
`
`
`
`Ex. #
`
`2101
`
`2102
`
`2103
`
`2104
`
`2105
`
`2106
`
`2107
`
`2108
`
`2109
`
`PATENT OWNER’S EXHIBITS
`
`
`Description
`
`Corrected Petition For Inter Partes Review of U.S. Patent No.
`6,771,970, IPR2014-00199, Paper 6.
`
`Decision Institution of Inter Partes Review 37 C.F.R. § 42.108,
`IPR2014-00199, Paper 18.
`
`Petitioner’s Request For Rehearing Pursuant To 37 C.F.R. §§
`42.71(c)–(d) For Partial Reconsideration Of The Decision To
`Institute, IPR2014-00199, Paper 20.
`
`Decision On Request For Rehearing 37 C.F.R. § 42.71(d), IPR2014-
`00199, Paper 24.
`
`U.S. Patent No. 6,321,092 issued to Fitch, IPR2014-00199, Exhibit
`1004.
`
`April 17, 2013, Copy of email from Edward M. Abbati, Vice
`President of Finance for Location Labs, to Richard Sanders, Chief
`Executive Officer of Callwave Communications, LLC.
`
`Sprint’s Answer to CallWave’s Complaint in CallWave
`Communications, LLC v. Sprint Nextel Corp. and Google, Inc., Civil
`Action No. 1:12-cv-01702-RGA (D. Del.), Docket No. 71.
`
`AT&T’s Answer to CallWave’s Second Amended Complaint in
`CallWave Communications, LLC v. AT&T Mobility, LLC, and
`Google, Inc., Civil Action No. 1:12-cv-01701-RGA (D. Del.), Docket
`No. 76.
`
`T-Mobile’s Answer to CallWave’s Complaint in CallWave
`Communications, LLC v. T-Mobile USA Inc. and Google, Inc., Civil
`Action No. 1:12-cv-01703-RGA (D. Del.), Docket No. 68.
`
`
`-i-
`
`
`
`Ex. #
`
`2110
`
`2111
`
`2112
`
`2113
`
`2114
`
`2115
`
`2116
`
`2117
`
`2118
`
`2119
`
`Description
`
`Petitioner’s Opposition to Patent Owner’s Motion for Additional
`Discovery, IPR2014-00199, Paper 33.
`
`Petitioner’s Objections and Responses to CallWave’s Subpoena in
`CallWave Communications, LLC v. AT&T Mobility, LLC, and
`Google, Inc., Civil Action No. 1:12-cv-01701-RGA (D. Del.).
`
`Defendants’ Opening Brief In Support Of Motion To Stay
`Proceedings On The ’970 Patent Pending Inter Partes Review By The
`Patent Trial And Appeal Board, Civil Action No. 1:12-cv-01702-
`RGA (D. Del.), Docket No. 104.
`
`Case Docket as of September 9, 2014, CallWave Communications,
`LLC v. Sprint Nextel Corp. and Google, Inc., Civil Action No. 1:12-
`cv-01702-RGA (D. Del.).
`
`Stipulation and Proposed Order Regarding Service and Extension of
`Time to Respond to Complaint, CallWave Communications, LLC v.
`AT&T Mobility, LLC, and Google, Inc., Civil Action No. 1:12-cv-
`01701-RGA (D. Del.), Docket No. 8.
`
`Case Docket as of September 9, 2014, CallWave Communications,
`LLC v. T-Mobile USA Inc. and Google, Inc., Civil Action No. 1:12-
`cv-01703-RGA (D. Del.).
`
`September 16, 2014 Hearing Transcript Excerpt, CallWave
`Communications, LLC v. AT&T Mobility, LLC, and Google, Inc.,
`Civil Action No. 1:12-cv-01701-RGA (D. Del.).
`
`August 28, 2014 Hearing Transcript Excerpt, Callwave
`Communications, LLC v. Wavemarket, Inc., Civil Action No.
`14MC80112-JSW (LB) (N.D. Cal.).
`
`Patent Owner’s Proposed Discovery Requests to Petitioner.
`
`September 16, 2014 Hearing Full Transcript, CallWave
`Communications, LLC v. AT&T Mobility, LLC, and Google, Inc.,
`
`-ii-
`
`
`
`Ex. #
`
`2120
`
`2121
`
`2122
`
`2123
`
`2124
`
`2125
`
`2126
`
`2127
`
`2128
`
`Description
`
`Civil Action No. 1:12-cv-01701-RGA (D. Del.).
`
`Case Docket as of January 7, 2015, CallWave Communications, LLC
`v. AT&T Mobility, LLC, and Google, Inc., Civil Action No. 1:12-cv-
`01701-RGA (D. Del.).
`
`Agreed Protective Order, CallWave Communications, LLC v. Sprint
`Nextel Corp. and Google, Inc., Case No. 1:12-cv-01702-RGA, Docket
`No. 136.
`
`December 17, 2014 Claim Construction Memorandum Opinion,
`CallWave Communications, LLC v. AT&T Mobility, LLC, and
`Google, Inc., Civil Action No. 1:12-cv-01701-RGA (D. Del.), Docket
`No. 224.
`
`December 8, 2014 Videotaped Deposition Transcript of Craig
`Rosenberg, Ph.D.
`
`Declaration of Dr. Narayan Mandayam In Support of LocatioNet
`Systems, Ltd.’s Patent Owner Response
`
`February 19, 2015 Order, CallWave Communications, LLC v. AT&T
`Mobility, LLC, and Google, Inc., Civil Action No. 1:12-cv-01701-
`RGA (D. Del.), Docket No. 313.
`
`August 10, 2014 Declaration of Dr. Narayan Mandayam, Exhibit
`2016, IPR2014-00199.
`
`File History of U.S. Patent No. 6,771,970 (re-submitted because
`Petitioner’s Ex. 1111 is a corrupted file)
`
`February 6, 2015 Joint Discovery Dispute Letter to the Court and
`Attachments, Callwave Communications, LLC v. Wavemarket, Inc.,
`Civil Action No. 14MC80112-JSW (LB) (N.D. Cal.), Docket No. 63.
`
`
`-iii-
`
`
`
`Ex. #
`
`2129
`
`Description
`
`February 23, 2015 Order Regarding Callwave and Location Labs’
`Joint Discovery Dispute Letter Dated February 6, 2015, Callwave
`Communications, LLC v. Wavemarket, Inc., Civil Action No.
`14MC80112-JSW (LB) (N.D. Cal.), Docket No. 64.
`
`
`
`NEW EXHIBITS
`
`
`Ex. #
`
`2130
`
`2131
`
`2132
`
`2133
`
`2134
`
`
`
`Description
`
`“IAC Launches Ask Mobile GPS in the US,” dated May 14, 2007
`(available at www.locationlabs.com/iac-launches-ask-mobile-gps-in-
`the-us/).
`
`“uShip Uses Veriplace for Accurate Shipment Tracking,” dated June
`1, 2009 (available at www.locationlabs.com/uship-veriplace-for-
`accurate-shipment-tracking/).
`
`“Sprint® Customers Can Use GPS to Locate Loved Ones for Less
`with Sprint Family Locator on the Now Network,” dated October 30,
`2008 (available at www.locationlabs.com/sprint-customers-can-use-
`gps-to-locate-loved-ones-for-less-with-sprint-family-locator-on-the-
`now-networktm/).
`
`“AT&T Keeps Parents and Kids Connected with New AT&T
`FamilyMap Tool and Affordable New Devices,” dated April 15, 2009
`(available at www.locationlabs.com/att-keeps-parents-and-kids-
`connected-with-new-att-familymap-tool-and-affordable-new-
`devices/).
`
`“The Location Labs-AVG Marriage: The View from the CEO’s
`Desk,” dated September 25, 2014 (available at
`www.parksassociates.com/blog/article/the-location-labs-avg-
`marriage--the-view-from-the-ceo-s-desk).
`
`
`-iv-
`
`
`
`Patent Owner LocatioNet System, Ltd. hereby submits this opposition to
`
`Wavemarket, Inc. d/b/a/ Location Labs’ (“Petitioner”) Motion to Seal and For
`
`Entry of Protective Order Pursuant to 37 C.F.R. §§ 42.14 and 42.54 (Paper 26),
`
`filed on March 2, 2015. On March 3, 2015, the Board authorized Patent Owner to
`
`file this opposition to Petitioner’s Motion in accordance with the rules. Petitioner’s
`
`Motion seeks to seal portions of the deposition transcript of its declarant, Dr. Scott
`
`Hotes—Exhibit 1119. Mot. at 1. But, the information Petitioner has sought to seal
`
`in Exhibit 1119 is publicly available information and not confidential; therefore,
`
`Petitioner’s Motion should be denied.
`
`I.
`
`LEGAL STANDARDS GOVERNING A MOTION TO SEAL
`
`It is well settled that “[t]here is a strong public policy for making all
`
`information filed in an inter partes review in support of a substantive argument
`
`open to the public so that a complete and understandable file history is maintained.
`
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,760; Garmin Int’l v.
`
`Cuozzo Speed Techs., LLC, IPR2012-00001, Paper 36 at 3 (PTAB Apr. 5, 2013).
`
`“The rules aim to strike a balance between the public’s interest in maintaining a
`
`complete and understandable file history and the parties’ interest in protecting truly
`
`sensitive information.” 77 Fed. Reg. at 48,760. The Practice Guide states that
`
`confidentiality of information for which sealing is sought is evaluated in a manner
`
`consistent with the requirements of Federal Rule of Civil Procedure 26(c)(1)(G),
`
`-1-
`
`
`
`“which provides for protective orders for trade secret or other confidential
`
`research, development, or commercial information.” Id.
`
`The standard for granting a motion to seal is “good cause.” 37 C.F.R. §
`
`42.54. The moving party bears the burden of showing the relief requested should
`
`be granted. 37 C.F.R. § 42.20(c). “To grant the motion to seal, [the Board]
`
`need[s] to know why the information sought to be placed under seal constitutes
`
`confidential information.” Garmin, IPR2012-00001, Paper 34 at 3 (Mar. 14,
`
`2013). “This includes showing that the information is truly confidential, and that
`
`such confidentiality outweighs the strong public interest in having an open record.”
`
`ABB, Inc. v. Roy-G-Biv, IPR2013-00062, Paper 50 at 2 (Nov. 4, 2013).
`
`II. THE INFORMATION PETITIONER SEEKS TO SEAL IS
`PUBLICLY AVAILABLE AND NOT CONFIDENTIAL
`
`Petitioner has failed to carry its burden to show that there is good cause to
`
`seal the requested portions of Exhibit 1119 because there is no evidence that the
`
`redacted information is truly confidential. Petitioner generally identifies three
`
`different categories of allegedly “confidential” information contained in Exhibit
`
`1119: (1) “Confidential customer names”; (2) “Statements directed to Petitioner’s
`
`business strategies and objectives”; and (3) “Petitioner’s contractual dealings with,
`
`and obligations to, its customers.” Mot. at 2. But Petitioner makes no showing,
`
`and indeed provides no facts, to support any contention that the information sought
`
`to be sealed is confidential. Petitioner’s request to seal rests on a single conclusory
`
`-2-
`
`
`
`and speculative sentence: “On information and belief, the material sought to be
`
`redacted has not been published.” Id. Indeed, Petitioner’s attorney argument—
`
`devoid of any evidence—does not and cannot satisfy the good cause standard.
`
`In fact, Petitioner seeks to seal information that is publicly available,
`
`including information disclosed in articles and press releases obtainable via the
`
`Internet and from Petitioner’s own website at www.locationlabs.com. For
`
`example, the following articles and press releases disclose the following
`
`information that is highly relevant to Petitioner’s Motion:
`
`• The article, “IAC Launches Ask Mobile GPS in the US,” dated May
`
`14, 2007, states: “InterActiveCorp, the internet brand conglomerate,
`
`announced the launch of Ask® Mobile GPS, an application that
`
`blends GPS navigation and friends locator with the mobile version of
`
`its internet services Ask.com . . . Ask Mobile GPS has been developed
`
`by WaveMarket, a white label LBS application provider that already
`
`powers the family locator application on the Sprint network.” Ex.
`
`2130 at 2 (emphasis added) (available at www.locationlabs.com/iac-
`
`launches-ask-mobile-gps-in-the-us/).
`
`• The article, “uShip Uses Veriplace for Accurate Shipment Tracking,”
`
`dated June 1, 2009, states: “[W]e have built and operated most of the
`
`white-label Family Locator services in the market today, including
`
`-3-
`
`
`
`Sprint’s Family Locator, AT&T’s FamilyMap, etc).” Ex. 2131at 2
`
`(emphasis added) (available at www.locationlabs.com/uship-
`
`veriplace-for-accurate-shipment-tracking/).
`
`• The article, “Sprint® Customers Can Use GPS to Locate Loved Ones
`
`for Less with Sprint Family Locator on the Now Network,” dated
`
`October 30, 2008, states: “Launched in April 2006, Sprint Family
`
`Locator, developed by WaveMarket, is the industry’s first family
`
`location service that enables families on the go to locate loved ones
`
`using GPS technology.” Ex. 2132 at 4 (emphasis added) (available at
`
`www.locationlabs.com/sprint-customers-can-use-gps-to-locate-loved-
`
`ones-for-less-with-sprint-family-locator-on-the-now-networktm/).
`
`• The article, “AT&T Keeps Parents and Kids Connected with New
`
`AT&T FamilyMap Tool and Affordable New Devices,” dated April
`
`15, 2009, states: “AT&T FamilyMap was developed jointly by AT&T
`
`and WaveMarket, Inc., a leader in family safety and location platform
`
`solutions.” Ex. 2133 at 3 (emphasis added) (available at
`
`www.locationlabs.com/att-keeps-parents-and-kids-connected-with-
`
`new-att-familymap-tool-and-affordable-new-devices/).
`
`• The article, “The Location Labs-AVG Marriage: The View from the
`
`CEO’s Desk,” dated September 25, 2014, states: “Location Labs
`
`-4-
`
`
`
`began as WaveMarket in 2002. The company’s early business model
`
`was to license the location information collected by mobile operators
`
`(via their cell towers) and provide it to developers of location-based
`
`applications. … Family locator services using WaveMarket’s
`
`technology were first implemented by Sprint (Family Locator) in
`
`2006, and AT&T’s FamilyMap followed in 2009, and T-Mobile’s
`
`FamilyWhere launching in 2011. … WaveMarket was relaunched as
`
`Location Labs in 2010, and the company’s model shifted from
`
`supporting developers to focusing entirely on family safety and
`
`mobile control features.” Ex. 2134 at 1 (emphasis added) (available at
`
`www.parksassociates.com/blog/article/the-location-labs-avg-
`
`marriage--the-view-from-the-ceo-s-desk).
`
`Moreover, Petitioner’s obligation to indemnify its customers, Sprint, AT&T,
`
`and T-Mobile was publicly disclosed in the district court proceedings. For
`
`example, counsel for Sprint and T-Mobile represented to the District Court of
`
`Delaware that Petitioner is indemnifying its customers for Petitioner’s Family
`
`Locator service: “But in this case, like any case, we have a common interest
`
`among all the defendants, and my clients who are indemnified, have a common
`
`interest with [Petitioner], which is also, basically, it is their accused product that
`
`is being accused of infringing.” Ex. 2119 at 15-16 (emphasis added). Indeed,
`
`-5-
`
`
`
`Petitioner’s contractual obligation to indemnify Sprint, AT&T, and T-Mobile in
`
`the respective district court proceedings is well documented in the public evidence
`
`of record and detailed in Patent Owner’s Response. See Papers 27 (sealed version)
`
`and 28 (public version) at 44-60.
`
`III. CONCLUSION
`For the foregoing reasons, Exhibit 1119 should not be sealed, and
`
`Petitioner’s Motion should be denied in its entirety.
`
`
`
`Dated: March 9, 2015
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`By: /Thomas Engellenner/
`Thomas Engellenner, Reg. No. 28,711
`Pepper Hamilton LLP
`125 High Street
`19th Floor, High Street Tower
`Boston, MA 02110
`(617) 204-5100 (telephone)
`(617) 204-5150 (facsimile)
`Attorney for Patent Owner
`
`-6-
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 9th day of March, 2015, a true and correct copy
`
`of the foregoing PATENT OWNER LOCATIONET SYSTEMS, LTD.’S
`
`OPPOSITION TO PETITIONER’S MOTION TO SEAL AND FOR ENTRY OF
`
`PROTECTIVE ORDER PURSUANT TO 37 C.F.R. §§ 42.14 AND 42.54 was
`
`served on the following counsel for Petitioner Wavemarket, Inc. d/b/a Location
`
`Labs via email:
`
`
`
`
`
`Mark L. Hogge
`Scott W. Cummings
`Dentons US LLP
`1301 K Street, N.W., Suite 600
`Washington DC 20005
`Tel: (202)408-6400
`Fax: (202)408-6399
`
`Dated: March 9, 2015
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`mark.hogge@dentons.com
`scott.cummings@dentons.com
`
`Respectfully submitted,
`By: /Thomas Engellenner/
`Thomas Engellenner, Reg. No. 28,711
`Pepper Hamilton LLP
`125 High Street
`19th Floor, High Street Tower
`Boston, MA 02110
`(617) 204-5100 (telephone)
`(617) 204-5150 (facsimile)
`Attorney for Patent Owner
`
`
`-7-
`
`
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