IPR2014-01121
`
`Filed on behalf of Nidec Motor Corporation
`By:
`Scott R. Brown
`Matthew B. Walters
`HOVEY WILLIAMS LLP
`10801 Mastin Blvd., Suite 1000
`Overland Park, Kansas 66210
`Tel: (913) 647-9050
`Fax: (913) 647-9057
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ZHONGSHAN BROAD OCEAN MOTOR CO., LTD.; BROAD
`OCEAN MOTOR, LLC; AND BROAD OCEAN
`TECHNOLOGIES, LLC
`Petitioners
`
`v.
`
`NIDEC MOTOR CORPORATION
`Patent Owner
`
`
`Case No. IPR2014-01121
`U.S. Patent No. 7,626,349
`
`
`
`
`
`
`Before BENJAMIN D.M. WOOD, Administrative Patent Judge
` JAMES A. TARTAL, Administrative Patent Judge
`PATRICK M. BOUCHER, Administrative Patent Judge
`
`
`
`
`
`JOINT MOTION FOR ALTERNATIVE RELIEF UNDER 37 C.F.R. § 42.56
`
`
`
`
`Filed on behalf of Nidec Motor Corporation
`By:
`Scott R. Brown
`Matthew B. Walters
`HOVEY WILLIAMS LLP
`10801 Mastin Blvd., Suite 1000
`Overland Park, Kansas 66210
`Tel: (913) 647-9050
`Fax: (913) 647-9057
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ZHONGSHAN BROAD OCEAN MOTOR CO., LTD.; BROAD
`OCEAN MOTOR, LLC; AND BROAD OCEAN
`TECHNOLOGIES, LLC
`Petitioners
`
`v.
`
`NIDEC MOTOR CORPORATION
`Patent Owner
`
`
`Case No. IPR2014-01121
`U.S. Patent No. 7,626,349
`
`
`
`
`
`
`Before BENJAMIN D.M. WOOD, Administrative Patent Judge
` JAMES A. TARTAL, Administrative Patent Judge
`PATRICK M. BOUCHER, Administrative Patent Judge
`
`
`
`
`
`JOINT MOTION FOR ALTERNATIVE RELIEF UNDER 37 C.F.R. § 42.56
`
`
`
`
`Pursuant to 37 C.F.R. § 42.56, Petitioners Zhongshan Broad Ocean Motor
`
`Co., Ltd, Broad Ocean Motor, LLC, and Broad Ocean Technologies, LLC
`
`(“Petitioners”) and Patent Owner, Nidec Motor Corporation (“Nidec”),
`
`(collectively the “Parties”) respectfully request alternative relief under 37 C.F.R.
`
`§ 42.56. Specifically, the Parties jointly request that the Board preserve the entire
`
`record of IPR2014-01121, including all confidential pleadings and exhibits as
`
`sealed documents, until any and all appeal rights have been exhausted.
`
`I. Procedural Background
`
`During the pendency of the instant proceeding, the Parties have both filed
`
`materials under seal, including both pleadings and exhibits, containing sensitive
`
`and confidential financial and business relationships of the Parties. The pleadings
`
`and exhibits the aforementioned confidential subject matter includes the following:
`
` Paper Nos. 29, 37, 45-48, 57, and 63; and
`
` Exhibits 1013-1016, 1020, 1022, 1023, 1026, 1034-1036, 1038, 2004-
`
`2005, 2007, 2010-2011, 2027, 2030-2032, and 2034-2035.
`
`The Board issued a Final Written Decision in this case on May 9, 2016.
`
`(Paper 86.) The foregoing, “[c]onfidential information that is subject to a
`
`protective order would become public . . . 45 days after a final judgment in a trial.”
`
`77 Fed. Reg. 48761 (Aug. 14, 2012). To protect confidential information, Rule
`
`42.56 permits a party to file a motion to expunge confidential
`
`
`
`1
`
`
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`information after a final judgment in a trial. 37 C.F.R. §42.56. This motion is
`
`timely filed and seeks alternative relief under Rule 42.56, that the entire record be
`
`preserved until Nidec’s appeal rights have been exhausted.
`
`II. Argument
`
`Nidec is presently considering filing an appeal with the U.S. Court of
`
`Appeals for the Federal Circuit. That appeal deadline is 63 days after the final
`
`written decision. 35 U.S.C. §141; 37 C.F.R. § 90.3. It is possible that the
`
`confidential information and exhibits submitted under seal in this case could be
`
`relevant to appealed issues. As such, the Parties request that the entire docket and
`
`record in IPR2014-01121 be preserved pending a possible appeal to the Federal
`
`Circuit, including preservation of all the above-identified documents in non-public
`
`form. Other Board panels have granted similar requests. See L-3 Communications
`
`Holdings, Inc et al. v. Power Survey LLC, IPR2014-00834, Paper 70 at 3 (January
`
`12, 2016); Illumina, Inc. v. Columbia Univ., IPR2012-00006, Paper 133 at 3-4
`
`(April 25, 2014); Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd.,
`
`IPR2013-00128, Paper 93 at 2-3 (Sep. 10, 2014); LKQ Corp. v. Clearlamp, LLC,
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`IPR2013-00020, Paper 77 at 2 (Dec. 19, 2014).
`
`Moreover, the Federal Rules of Appellate Procedure and the Federal Circuit
`
`Rules require that the record be retained by the Board pending appeal. Specifically,
`
`Federal Circuit Rule 17(a) states that “[t]he agency must retain the record.” And
`
`
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`2
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`
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`Federal Circuit Rule 17(d), also requires that the parties and their counsel have
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`access to both the sealed and unsealed portions of the record “[w]hen a petition for
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`review or notice of appeal is filed.” Here, no notice of appeal has yet been filed
`
`and the deadline for filing a notice of appeal—July 8, 2016—has not yet passed.
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`If the record is not preserved in its entirety including any sealed portions and
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`an appeal is taken, the Federal Circuit may not be able to fully consider the issues
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`discussed in the Parties’ pleadings in this matter, which would prejudice both
`
`Parties. Thus, the Parties respectfully request that the record in this case be
`
`preserved in its entirety until the time for filing a notice of appeal expires, or if an
`
`appeal is taken, until a final disposition of such appeal, whichever is later.
`
`III. Should the Board Deny this Motion, the Parties Request Additional
`Time to File the Motion to Expunge
`
`The deadline for the Parties to file a motion to expunge—45 days following
`
`the Board’s May 9, 2016 Final Written Decision—is June 23, 2016. 77 Fed. Reg.
`
`48761; 37 C.F.R. § 42.56. Should the Board deny the alternative relief requested,
`
`the Parties respectfully request an additional thirty (30) days to file a motion to
`
`expunge.
`
`IV. Conclusion
`
` Petitioners Zhongshan Broad Ocean Motor Co., Ltd, Broad Ocean Motor,
`
`LLC, and Broad Ocean Technologies, LLC and Patent Owner, Nidec Motor
`
`Corporation respectfully request alternative relief under 37 C.F.R. § 42.56,
`
`
`
`3
`
`
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`specifically, the record in IPR2014-01121 be preserved in its entirety (i.e. without
`
`removing any documents or disclosing any of the above-identified sealed materials
`
`to the public) until the time for filing a notice of appeal expires, or if an appeal is
`
`taken, until a final disposition of such appeal. In the alternative, should the Board
`
`deny the alternative relief sought, that the Parties be granted an additional thirty
`
`(30) days to file a motion to expunge.
`
`In the event any fees are required for this Request, please charge Deposit
`
`
`
` Respectfully Submitted,
`
`
`
`
`
`
`
` s/ Scott R. Brown
`Scott R. Brown, Reg. No. 40,535
`Matthew B. Walters, Reg. No. 65,343
`HOVEY WILLIAMS LLP
`10801 Mastin Blvd., Suite 1000
`Overland Park, Kansas 66210
`Tel: (913) 647-9050
`Fax: (913) 647-9057
`sbrown@hoveywilliams.com
`mwalters@hoveywilliams.com
`
`ATTORNEYS FOR PATENT OWNER
`
`
`Account No. 19-0522.
`
`
`Dated: June 22, 2016
`
`
`
`Respectfully Submitted,
`
`
`
`
`
`
` s/ Steven F. Meyer
`Steven F. Meyer, Reg. No.
`Charles Baker, Reg. No.
`LOCKE LORD LLP
`Three World Financial Center
`New York, New York 10281-2101
`Tel: (212) 415-8535
`smeyer@lockelord.com
`cbaker@locklord.com
`
`
`ATTORNEYS FOR PETITIONERS
`
`
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`4
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on the 22nd day of Jume, 2016, a true
`
`and accurate copy of the foregoing Joint Motion for Alternative Relief Under 37
`
`C.F.R. § 42.56 was filed through the Patent Review Processing System and served
`
`on the following counsel for Petitioner via email:
`
`smeyer@lockelord.com
`cbaker@locklord.com
`
`
`
`
` s/ Scott R. Brown
`
`
`
`
`
`
`
`STEVEN F. MEYER
`CHARLES BAKER
`LOCKE LORD LLP
`Three World Financial Center
`New York, New York 10281-2101
`Tel: (212) 415-8535
`
`
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`5
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