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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`CISCO SYSTEMS, INC. and
`QUANTUM CORPORATION,
`Petitioners,
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`v.
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`CROSSROADS SYSTEMS, INC.
`Patent Owner
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`____________
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`Case IPR2014-01544
`Patent 7,051,147
`____________
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`PATENT OWNER’S MOTION TO SEAL
`EXHIBITS 2040, 2042, 2044, 2045
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`Patent Owner Crossroads Systems, Inc. requests that its confidential
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`commercial information be sealed pursuant to 37 C.F.R. §§ 42.14 and 42.54(A).
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`Patent Owner requests the Board enter the default protective order set forth in
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`Appendix B of the Office Trial Practice Guide, which is filed concurrently with
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`this motion. Patent Owner has conferred in good faith with Petitioners, and
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`Petitioners do not oppose entry of the default protective order. Petitioners oppose
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`the instant motion. The proposed protective order is attached as Exhibit A hereto.
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`Pursuant to Appendix B of the Trial Practice Guide, the terms of the order take
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`effect upon the filing of this motion. 77 Fed. Reg. 48756, 48770 (August 14,
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`2012).
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`Confidential information is protected from disclosure. 35 U.S.C. § 316(a)(7)
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`The Trial Practice Guide provides:
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`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. . . . The rules
`identify confidential information in a manner consistent with Federal
`Rule of Civil Procedure 26(c)(1)(G), which provides for protective
`orders for trade secret or other confidential research, development, or
`commercial information.
`77 Fed. Reg. 48756, 48760 (Aug. 14, 2012). The standard for granting a motion to
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`seal is good cause. 37 C.F.R. §42.54(a).
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`1
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`I.
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`to License Agreements Containing
`Information Relating
`Confidentiality Provisions.
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`The first category of information Patent Owner requests to be sealed consists
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`of (1)
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`license agreements whose
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`terms contain confidential commercial
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`information and contain express confidentiality provisions (Ex. 2042); and (2) a
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`table (Ex. 2040) containing the identity of Crossroads’ licensees and the overall
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`licensing revenue earned from the licenses. (Ex. 2042). Exhibits 2040 and 2042
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`contain confidential terms relating to agreements to license the patent at issue in
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`this proceeding (and/or patents from the same family), including confidential
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`licensee identification information, royalty rates, and payment terms. This
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`information constitutes confidential information that should be protected from
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`disclosure. In addition, although the terms of the licenses vary, generally they
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`provide by their own terms that the terms of the licenses are confidential, and are
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`only to be disclosed pursuant to a protective order and only as required by law.
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`That such information is confidential and an appropriate subject of a motion to seal
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`is generally non-controversial. See, e.g., Ex. 2042 at CRDS204600-601. HBPSI –
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`Hong Kong, Ltd. v. SRAM, LLC, IPR2013-00174, Paper 19 at 1 (PTAB June 11,
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`2013) (granting leave to file confidential “Settlement and License Agreement”
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`under seal). Patent Owner’s commercial information, including its license
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`agreements and information contained therein, is properly considered confidential
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`2
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`and Patent Owner has exhibited good cause for filing Exhibits 2040 and 2042
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`under seal.
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`Moreover, confidential customer names are considered confidential. See,
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`e.g., Schott Gemtron Corp. v. SSW Holding Co., Inc., IPR2013-00358, Paper 76 at
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`4 (PTAB May 16, 2014). The identity of a licensee contained in a confidential
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`license agreement is tantamount to the identity of a confidential customer and
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`should similarly be treated as confidential.
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`Restricting access to the very specific information in Exhibits 2040 and 2042
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`will cause little to no harm to the public. Patent Owner’s publically available
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`response contains sufficient detailed information to allow the public to access “a
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`complete and understandable file history of this inter partes review.” Garmin Int’l
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`v. Cuozzo Speed Techs., LLC, IPR2012-00001, Paper 37 at 4 (PTAB Apr. 5, 2013).
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`For example, in Patent Owner’s Response it states “a large number of licensees
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`have taken licenses directed specifically to Crossroads’ ’972 patent family. Ex.
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`2040. The total license payments through FY2014 are over $60 million.”
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`Response at 54. The public has, therefore, been apprised of the overall amount of
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`license payments and specific information regarding the precise license payments
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`from each licensee is unnecessary to provide an understanding of the Patent
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`Owner’s argument. Patent Owner further explains in its public filing that it has
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`licensed to certain interested parties without the need for a lawsuit. Id. This
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`3
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`detailed, but non-precise, information appropriately balances the rights of the
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`public with the Patent Owner’s right to keep its sensitive commercial information
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`confidential.
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`2. Confidential Sales Information
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`Patent Owner also requests that certain sales information listing the quantity
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`shipped and revenue received for certain products sold over a multi-year period
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`(Exs. 2044, 2045) be sealed. This information is commercially sensitive and could
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`be used by Patent Owner’s competitors to Patent Owner’s detriment. Patent
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`Owner’s confidential business information, including sales information, is properly
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`considered confidential. See, e.g., Smith & Nephew, Inc. v. Convatec Technologies,
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`Inc., IPR2013-00097, Paper 89 at 2-3 (PTAB May 19, 2014). Crossroads’ sales
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`figures could also be used by competitors to unfairly compete against Crossroads
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`for potential customers by undercutting Crossroads’ pricing, or by contrasting
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`Crossroads’ sales figures with their own in an attempt to persuade customers to
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`buy their products instead of Crossroads.
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`Again, Patent Owner’s Response provides sufficient general information
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`about this highly sensitive business information such that lacking knowledge of the
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`precise information contained in Exhibits 2044 and 2045 would not inhibit the
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`public’s understanding of the Patent Owner’s arguments and positions. Gnosis
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`S.p.A., Gnosis Bioresearch S.A., & Gnosis U.S.A., Inc. v. S. Ala. Med. Sci. Found.,
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`4
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`IPR2013-00118, Paper 33 at 2 (PTAB Oct. 31, 2013). For example, Patent
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`Owner’s Response provides “Ex. 2044 shows that Crossroads’ sales of its first
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`bridge products (without access controls, e.g., 4100, 4200 models) were initially
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`quite high, but after the introduction of access controls, the superiority of the
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`routers was quickly perceived by the market.” Response at 52. Further, Patent
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`Owner stated “[t]he decline in Crossroads’ sales from 2000 through 2010, evident
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`in Ex. 2044, is the result, at least in part, of patent infringement.” Response at 53.
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`Once again, the information provided to the public is sufficient to provide an
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`understanding of the substance of Patent Owner’s arguments.
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`Patent Owner seeks only suppression of specific information and has
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`attempted to narrowly tailor its requests. Patent Owner requests sealing of Exhibits
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`2040, 2042, 2044, and 2045 as requested in this Motion. If the Board ultimately
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`disagrees regarding the scope of Patent Owner’s requests, Patent Owner
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`respectfully requests an opportunity to further redact, modify, or withdraw the
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`exhibit or exhibits in questions before any information in the exhibits is made
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`public.
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`Dated: May 26, 2015
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`Respectfully submitted,
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`/John L. Adair/
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`John L. Adair
`Registration No. 48,828
`Counsel for Patent Owner
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`5
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`CERTIFICATE OF SERVICE
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`The undersigned certifies service of Patent Owner’s Motion to Seal Exhibits
`2040, 2042, 2044, 2045 and accompanying proposed protective order on May 26,
`2015 on counsel for Petitioner by Federal Express at its designated service address:
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`David L. McCombs
`Andrew S. Ehmke
`Scott T. Jarratt
`Haynes and Boone, LLP
`2323 Victory Ave. Suite 700
`Dallas, TX 75219
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`By:
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` /John L. Adair /
`John L. Adair
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`6