UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`CISCO SYSTEMS, INC. AND QUANTUM CORPORATION
`Petitioners,
`
`v.
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`CROSSROADS SYSTEMS, INC.
`Patent Owner
`
`____________
`
`
`Case IPR2014-01544
`Patent 7,051,147
`____________
`
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`PATENT OWNER’S REPLY TO PETITIONERS’
`OPPOSITION TO PATENT OWNER’S MOTION TO SEAL
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`
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`101249703v.2
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC. AND QUANTUM CORPORATION
`Petitioners,
`
`v.
`
`CROSSROADS SYSTEMS, INC.
`Patent Owner
`
`____________
`
`
`Case IPR2014-01544
`Patent 7,051,147
`____________
`
`
`PATENT OWNER’S REPLY TO PETITIONERS’
`OPPOSITION TO PATENT OWNER’S MOTION TO SEAL
`
`
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`101249703v.2
`
`
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`I.
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`Evidence of Non-Obviousness Is Properly Sealed.
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`Petitioners argue that because information contained in Exhibits 2040, 2042,
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`2044 and 2045 (the “Exhibits”) is relevant to patentability, it follows that these
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`exhibits must be made available to the public. Paper 23 at 2-5. If true, little if any
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`evidence in an inter partes review could be kept confidential, as almost all such
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`evidence relates to patentability. But Petitioners’ argument is invalid; the public
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`interest is satisfied when a complete and understandable file history is maintained.
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`Paper 18 at 1. Patent Owner’s Response indicates what the exhibits are and what they
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`indicate, referencing the aggregated data contained in the confidential exhibits to
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`support its argument that the patented invention has enjoyed commercial success.
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`Paper 20 at 53-55; Ex. 2043 at 2-4; Ex. 2039 at 2-3. Thus, the file history remains
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`complete and understandable to the public, even without access to the sealed exhibits.
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`The Board has authorized sealing similar information, offered to show objective
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`evidence of non-obviousness just like the exhibits at issue here, on multiple prior
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`occasions. See, e.g., Laird Techs., Inc. v. Graftech Int’l Holdings, Inc., IPR2014-
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`00023, Papers 26 (PTAB June 25, 2014) and 30 (PTAB Aug. 8, 2014) (Paper 26, at
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`page A-1, presenting confidential license terms, customer information, and gross sales
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`data as objective indicia of nonobviousness, and Paper 30 at 4, granting motion to
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`seal, stating “[w]e agree that the information is sensitive financial information that a
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`business would not make public”); Torrent Pharms. Ltd. v. Novartis AG, IPR2014-
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`1
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`00784, Paper 29 at 2-5 (PTAB Apr. 3, 2015) and Paper 41 at 7 (PTAB May 7, 2015)
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`(referencing multiple exhibits, including sensitive sales data, as evidence of objective
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`indicia of non-obviousness, and granting motion to seal). Petitioners’ argument that
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`information used to show nonobviousness cannot be sealed is simply wrong.
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`Petitioners also misrepresent the Board’s precedents. Petitioners take statements
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`from Garmin Int’l. v. Cuozzo Speed Techs., LLC, IPR2012-00001, Paper 37 (PTAB
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`April 5, 2013) out of context to manufacture an unsupported “standard” for the filing
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`of documents under seal. Contrary to Petitioners’ suggestion, the Board in Garmin did
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`not deny the motion because the “exhibits were submitted on [patent owner’s] own
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`initiative.” Paper 23 at 3. In Garmin the patent owner sought to seal documents, not
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`because they were confidential, but because they were subject to the attorney-client
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`privilege. The Board unsurprisingly noted that patent owner’s voluntary submission of
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`privileged documents resulted in the waiver of privilege. Garmin, Paper 37 at 9-10.
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`Acknowledging the waiver, patent owner argued that if the documents were publically
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`available, third parties might allege a broad waiver and seek additional attorney-client
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`communications. Id. The Board refused to seal the documents because patent owner’s
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`worries about general waiver were speculative. Garmin, Paper 37 at 10. Unlike
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`Garmin, Patent Owner’s request here to seal is unrelated to any attorney-client
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`privilege issue. Garmin is thus inapplicable.
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`Petitioners’ other cited authority similarly fails to support their argument. In St.
`2
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`Jude Med. v. Volcano Corp., IPR2013-00258, Paper 28 (PTAB Aug. 12, 2013), it was
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`the petitioner St. Jude that filed the motion to seal, while “rel[ying] on these exhibits
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`as evidence of nonobviousness to establish unpatentability . . . St. Jude is relying on
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`such evidence offensively to cancel claims in an issued patent. . . . It is fundamentally
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`unsupportable that a Petitioner should be allowed to attack the claims of an issued
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`patent based on evidence it refuses to reveal to the public.” Id. at 5-6 (emphasis
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`added). Here, Patent Owner is forced to use confidential information defensively, and
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`should not have to make a Hobson’s choice between making its (and its licensees’)
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`confidential information public, or not being able to fully argue its validity claim.
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`Also, in St. Jude the Board noted that “[i]t is fundamentally odd . . . that St. Jude seeks
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`to prove what was commonly known by relying on information that was not in the
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`public domain but held in secret by the Petitioner . . . . That constitutes all the more
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`reason why the public has a strong interest in knowing what information was relied on
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`to prove what was commonly known.” Id. at 6. Here, by contrast, Patent Owner is not
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`seeking to rely on sealed exhibits to establish what was commonly known.
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`Next, Petitioners argue that revealing the Exhibits to the public would not harm
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`Patent Owner. In making this argument, Petitioners only discuss Exhibits 2044 and
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`2045. Paper 23 at 4-8. Petitioners fail to consider Exhibits 2040 and 2042, effectively
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`conceding that allowing the public to access those exhibits would harm Patent Owner.
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`Petitioners’ arguments as to why disclosure of Exhibits 2044 and 2045 would
`3
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`be harmless fail. Petitioners argue that because Exhibits 2044 and 2045 do not reveal
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`current pricing and unit sales, the information cannot be sealed. Paper 23 at 5. But
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`Exhibits 2044 and 2045 do show the number of units of individual products
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`shipped/sold. Ex. 2044 at 4-5; Ex. 2045 at 4-5. Further, the exhibits contain
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`commercial information like that which the Board has allowed to be sealed elsewhere.
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`Smith v. Nephew, Inc. v. Convatec Techs., Inc., IPR2013-00097, Papers 89 at 2-3
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`(PTAB May 19, 2014) and Paper 85 at 7 (PTAB May 7, 2014) (granting motion to
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`seal product-specific sales and profit information); Autel U.S. Inc. v. Bosch Auto. Serv.
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`Soln’s, LLC, IPR2014-00183, Paper 59 at 54-55 (PTAB May 5, 2015); Paper 28 at 2
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`(PTAB July 14, 2014) (sealing the dollar amount of patent owner’s sales of patented
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`products). Here, the Exhibits show shipments and overall sales data - precisely the
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`type of commercial information the Board has held may be sealed to avoid
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`competitive harm.
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`II. The Public Is Not Harmed By Sealing These Confidential Documents.
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`Petitioners argue that the information Patent Owner has publically presented is
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`irrelevant, claiming Patent Owner is “suppressing” “unfavorable” information. Paper
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`23 at 6. Petitioners’ argument relates to the relevance of the information presented,
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`missing the real issue of whether the Exhibits contain confidential information that
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`may justifiably be sealed. Instead, such an argument goes to the weight of the
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`evidence. Petitioners also fail to identify specifically what “unfavorable” information
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`has been suppressed, stating only that Patent Owner’s Response “does not include any
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`information regarding which, if any, licenses pertain to the patent at issue in this case”
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`but are unable to identify what parts of the licenses they believe have been improperly
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`withheld from the public Id. Patent Owner has provided the relevant information
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`relating to its patent licenses in summary form to the public and Petitioner failed to
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`provide any evidence to the contrary.
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`Finally, Petitioners’ discussion of Gnosis S.p.A. v. S. Ala. Med. Sci. Foundation,
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`IPR2013-00118, Paper 33 (PTAB Oct. 31, 2013) is wrong. The patent owner in
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`Gnosis sought to seal a wide range of documents, including parts of declarations,
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`licenses, annual reports, deposition transcripts, price lists and other types. Gnosis,
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`Paper 23 at 3-17 (PTAB Sept. 24, 2013).The Board found that “overall the motion
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`was not grantable as filed” because the redactions were unjustified and the Board
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`“questioned the relevance of some of the evidence…submitted.” Gnosis, Paper 26 at 2
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`(PTAB Oct. 9, 2013). The Board did not deny the motion to seal because the exhibits
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`included license agreements and product sales, as Petitioners suggest. In fact, the
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`Board granted a renewed motion to seal, allowing license agreements, settlement
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`agreements, and revenue information to be filed under seal. Gnosis, Papers 33 at 3-4
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`(PTAB Oct. 31, 2013) and 27 at 3-12, 15-18 (PTAB Oct. 16, 2013). Gnosis not only
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`fails to support Petitioners’ position, it actually demonstrates the propriety of Patent
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`5
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`Owner’s motion to seal.
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`Dated: July 27, 2015
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`Respectfully submitted,
`/John L. Adair/
`
`John L. Adair
`Registration No. 48,828
`Counsel for Patent Owner
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`6
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`CERTIFICATE OF SERVICE
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`The undersigned certifies service of Patent Owner’s Reply To Petitioners’
`Opposition To Patent Owner’s Motion To Seal on July 27, 2015 on counsel for
`Petitioners by e-mail (pursuant to agreement) at the below e-mail addresses:
`
`
`David L. McCombs – david.mccombs.ipr@haynesboone.com
`Andrew S. Ehmke – andy.ehmke.ipr@haynesboone.com
`Scott T. Jarratt – scott.jarratt.ipr@haynesboone.com
`Phillip B. Philbin – Phillip.Philbin.IPR@haynesboone.com
`Gregory P. Huh – Gregory.Huh.IPR@haynesboone.com
`Haynes and Boone, LLP
`2323 Victory Ave. Suite 700
`Dallas, TX 75219
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`By: / John L. Adair/
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`7
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