UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`
`
`MAKO SURGICAL CORP.,
`Petitioner
`
`v.
`
`BLUE BELT TECHNOLOGIES, INC.,
`Patent Owner
`
`______________________
`
`Case IPR2015-00630
`Patent No. 6,205,411 B1
`_______________________
`
`
`PETITIONER MAKO SURGICAL CORP.’S MOTION TO SEAL AND
`UNOPPOSED MOTION FOR ENTRY OF PROTECTIVE ORDER
`
`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`dc-819372
`
`
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`
`
`MAKO SURGICAL CORP.,
`Petitioner
`
`v.
`
`BLUE BELT TECHNOLOGIES, INC.,
`Patent Owner
`
`______________________
`
`Case IPR2015-00630
`Patent No. 6,205,411 B1
`_______________________
`
`
`PETITIONER MAKO SURGICAL CORP.’S MOTION TO SEAL AND
`UNOPPOSED MOTION FOR ENTRY OF PROTECTIVE ORDER
`
`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`dc-819372
`
`
`
`Petitioner’s Motion to Seal and Unopposed Motion for
`Entry of Protective Order
`
`
`IPR2015-00630
`
`
`
`
`RELIEF REQUESTED
`
`I.
`
`
`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, and for the reasons set forth
`
`below, Petitioner Mako Surgical Corp. respectfully requests that the Board seal the
`
`unredacted versions of the deposition of Patent Owner’s expert, Dr. Jaramaz,
`
`Petitioner’s Opposition to Patent Owner’s Contingent Motion to Amend, and
`
`Petitioner’s Reply to Patent Owner’s Response, all of which are concurrently filed
`
`with this Motion.
`
`Also included with this paper is an unopposed motion for the entry of the
`
`Board’s Default Protective Order. The Default Protective Order is attached hereto
`
`as Exhibit A.
`
`II. GOOD CAUSE EXISTS FOR SEALING THE IDENTIFIED
`CONFIDENTIAL INFORMATION
`
`
`Documents filed with the Board are generally available to the public. See 37
`
`C.F.R. § 42.14. For good cause, however, the Board may protect confidential
`
`information from public disclosure. 37 C.F.R. § 41.14, see also Garmin Int’l v.
`
`Cuozzo Speed Tech., LLC, IPR2012-00001, Paper 37, 3-4 (Apr. 5, 2013). In
`
`particular, the Board will “need to know why the information sought to be sealed
`
`constitutes confidential information.” Id.at 4. Protecting only confidential
`
`information from disclosure balances “the public’s interest in maintaining a
`
`dc-819372
`
`2
`
`
`
`Petitioner’s Motion to Seal and Unopposed Motion for
`Entry of Protective Order
`
`
`IPR2015-00630
`
`complete and understandable file history and the parties’ interest in protecting truly
`
`sensitive information.” Id. at 3-4. Where possible, parties should redact sensitive
`
`information from their filings, rather than seeking to seal entire documents. Office
`
`Trial Practice Guide, 77 Fed. Reg. 48756, 78761 (2012).
`
`A. Exhibit 1011 -- Unredacted Deposition Transcript of Patent
`Owner’s Expert Dr. Jaramaz
`
`Exhibit 1011 is a confidential version of the deposition of Patent Owner’s
`
`expert Dr. Jaramaz. The public redacted version is filled as Exhibit 1012. During
`
`Dr. Jaramaz’s deposition, Patent Owner’s counsel, Mr. Buroker, designated the
`
`whole transcript as confidential, pending his determination what portions of the
`
`transcript could be deemed non-confidential. Later, Mr. Buroker clarified that the
`
`only portions of the transcript that he deemed to be Blue Belt’s confidential
`
`business information are the portions we have redacted. The information relates to
`
`the amount of money that was paid to acquire Blue Belt, and the amount of money
`
`that Dr. Jaramaz was paid as a result of that acquisition. Based on Mr. Buroker’s
`
`claim that this information is Blue Belt’s confidential business information, good
`
`cause exists to seal this exhibit.
`
`dc-819372
`
`3
`
`
`
`Petitioner’s Motion to Seal and Unopposed Motion for
`Entry of Protective Order
`
`
`IPR2015-00630
`
`B. Unredacted Versions of Petitioner’s Opposition to Patent Owner’s
`Contingent Motion to Amend and Petitioner’s Reply to Patent Owner’s
`Response
`
`Regarding the redacted versions of both Petitioner’s Opposition to Patent
`
`Owner’s Contingent Motion to Amend and Petitioner’s Reply to Patent Owner’s
`
`Response, the redactions are directed solely to testimony from the deposition of
`
`Patent Owner’s expert Dr. Jaramaz, which is itself subject to the present motion to
`
`seal. The redactions cover only that portion of the deposition transcript that Patent
`
`Owner’s counsel, Mr. Buroker, has claimed to be Blue Belt’s confidential business
`
`information. Accordingly, good cause exists to seal the unredacted versions of
`
`Petitioner’s Opposition to Patent Owner’s Contingent Motion to Amend and
`
`Petitioner’s Reply to Patent Owner’s Response, and to place the redacted versions
`
`in the file wrapper instead. See, e.g., Id. IPR2012-00001, Paper 37 at 8-9.
`
`III. THE PROPOSED PROTECTIVE ORDER
`
`
`Pursuant to 37 C.F.R. § 42.55, Petitioner respectfully requests entry of the
`
`Board’s Default Protective Order as set forth in Appendix B to the Office Patent
`
`Trial Practice Guide (attached as Exhibit A) as to the confidential information that
`
`is the subject of the present motion to seal. Office Trial Practice Guide, 77 Fed.
`
`Reg. 48771 (Aug. 14, 2012).
`
`dc-819372
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`4
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`
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`Petitioner’s Motion to Seal and Unopposed Motion for
`Entry of Protective Order
`
`
`IPR2015-00630
`
`
`IV. CERTIFICATION OF CONFERENCE PURSUANT TO 37 C.F.R. §
`42.54
`
`
`Pursuant to 37 C.F.R. § 42.54, Petitioner has conferred with Patent Owner
`
`with regard to the present motion for entry of the Board’s Default Protective Order
`
`in this proceeding, and Patent Owner has confirmed that it has no opposition.
`
`Further, Patent Owner provided Petitioner with the portions of the Dr. Jaramaz
`
`Deposition that it considered to be Blue Belt’s confidential business information.
`
`V. CONCLUSION
`
`
`For the reasons described above, Petitioner respectfully requests the Board
`
`grant Petitioner’s Motion to Seal, and enter the proposed protective order.
`
`Respectfully submitted,
`
`
`
`By: /s/ Matthew I. Kreeger
`Matthew I. Kreeger
`Registration No. 56,398
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, California 94105-2482
`Tel: (415) 268-6468
`Fax: (415) 268-7522
`
`Attorney for Petitioner Mako Surgical
`Corp.
`
`5
`
`
`Dated: February 19, 2016
`
`
`
`
`
`dc-819372
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`
`
`Petitioner’s Motion to Seal and Unopposed Motion for
`Entry of Protective Order
`
`
`IPR2015-00630
`
`
`
`
`
`
`Certificate of Service (37 C.F.R. § 42.6(e)(4))
`
`I hereby certify that the above captioned Motion to Seal and Unopposed
`
`Motion for Entry of Protective Order was served as of the below date via electronic
`
`mail by agreement on the Patent Owner at the following correspondence address:
`
`
`
`Brian M. Buroker
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`Washington, DC 20036-5306
`bburoker@gibsondunn.com
`srosenberg@gibsondunn.com
`gstark@slwip.com
`patrick.mcelhinny@klgates.com
`mark.knedeisen@klgates.com
`
`
`
`
`Dated: February 19, 2016
`
`
`
`/s/ Matthew I. Kreeger
`Matthew I. Kreeger
`Registration No. 56,398
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, California 94105-2482
`(415) 268-7000
`
`Attorney for Petitioner Mako Surgical
`Corp.
`
`dc-819372
`
`6
`
`
`
`IPR2015-00630
`
`
`Petitioner’s Motion to Seal and Unopposed Motion for
`Entry of Protective Order
`
`
`
`
`EXHIBIT A
`
`
`dc-819372
`
`
`
`IPR2015-00630
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`
`
`MAKO SURGICAL CORP.,
`Petitioner
`
`v.
`
`BLUE BELT TECHNOLOGIES, INC.,
`Patent Owner
`
`______________________
`
`Case IPR2015-00630
`Patent No. 6,205,411 B1
`_______________________
`
`
`[PROPOSED] PROTECTIVE ORDER
`
`
`
`dc-819372
`
`
`
`IPR2015-00630
`
`
`This standing protective order governs the treatment and filing of
`
`confidential information, including documents and testimony.
`
`1.
`
`Confidential information shall be clearly marked ‘‘PROTECTIVE
`
`ORDER MATERIAL.’’
`
`2.
`
`Access to confidential information is limited to the following
`
`individuals who have executed the acknowledgment appended to this order:
`
`(A) Parties. Persons who are owners of a patent involved in the
`
`proceeding and other persons who are named parties to the proceeding.
`
`(B) Party Representatives. Representatives of record for a party in the
`
`proceeding.
`
`(C) Experts. Retained experts of a party in the proceeding who further
`
`certify in the Acknowledgement that they are not a competitor to any party, or a
`
`consultant for, or employed by, such a competitor with respect to the subject matter
`
`of the proceeding.
`
`(D)
`
`In-house counsel. In-house counsel of a party.
`
`(E) Other Employees of a Party. Employees, consultants or other persons
`
`performing work for a party, other than in-house counsel and in-house counsel’s
`
`support staff, who sign the Acknowledgement shall be extended access to
`
`confidential information only upon agreement of the parties or by order of the
`
`Board upon a motion brought by the party seeking to disclose confidential
`
`dc-819372
`
`1
`
`
`
`IPR2015-00630
`
`information to that person. The party opposing disclosure to that person shall have
`
`the burden of proving that such person should be restricted from access to
`
`confidential information.
`
`(F) The Office. Employees and representatives of the Office who have a
`
`need for access to the confidential information shall have such access without the
`
`requirement to sign an Acknowledgement. Such employees and representatives
`
`shall include the Director, members of the Board and their clerical staff, other
`
`support personnel, court reporters, and other persons acting on behalf of the Office.
`
`(G) Support Personnel. Administrative assistants, clerical staff, court
`
`reporters and other support personnel of the foregoing persons who are reasonably
`
`necessary to assist those persons in the proceeding shall not be required to sign an
`
`Acknowledgement, but shall be informed of the terms and requirements of the
`
`Protective Order by the person they are supporting who receives confidential
`
`information.
`
`3.
`
`Persons receiving confidential information shall use reasonable efforts
`
`to maintain the confidentiality of the information, including:
`
`(A) Maintaining such information in a secure location to which persons
`
`not authorized to receive the information shall not have access;
`
`(B) Otherwise using reasonable efforts to maintain the confidentiality of
`
`the information, which efforts shall be no less rigorous than those the recipient
`
`dc-819372
`
`2
`
`
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`IPR2015-00630
`
`uses to maintain the confidentiality of information not received from the disclosing
`
`party;
`
`(C) Ensuring that support personnel of the recipient who have access to
`
`the confidential information understand and abide by the obligation to maintain the
`
`confidentiality of information received that is designated as confidential; and
`
`(D) Limiting the copying of confidential information to a reasonable
`
`number of copies needed for conduct of the proceeding and maintaining a record of
`
`the locations of such copies.
`
`4.
`
`Persons receiving confidential information shall use the following
`
`procedures to maintain the confidentiality of the information:
`
`(A) Documents and Information Filed With the Board.
`
`(i) A party may file documents or information with the Board under seal,
`
`together with a non-confidential description of the nature of the confidential
`
`information that is under seal and the reasons why the information is confidential
`
`and should not be made available to the public. The submission shall be treated as
`
`confidential and remain under seal, unless, upon motion of a party and after a
`
`hearing on the issue, or sua sponte, the Board determines that the documents or
`
`information do not to qualify for confidential treatment.
`
`(ii) Where confidentiality is alleged as to some but not all of the
`
`information submitted to the Board, the submitting party shall file confidential and
`
`dc-819372
`
`3
`
`
`
`IPR2015-00630
`
`
`non-confidential versions of its submission, together with a Motion to Seal the
`
`confidential version setting forth the reasons why the information redacted from
`
`the non-confidential version is confidential and should not be made available to the
`
`public. The non-confidential version of the submission shall clearly indicate the
`
`locations of information that has been redacted. The confidential version of the
`
`submission shall be filed under seal. The redacted information shall remain under
`
`seal unless, upon motion of a party and after a hearing on the issue, or sua sponte,
`
`the Board determines that some or all of the redacted information does not qualify
`
`for confidential treatment.
`
`(B) Documents and Information Exchanged Among the Parties.
`
`Information designated as confidential that is disclosed to another party during
`
`discovery or other proceedings before the Board shall be clearly marked as
`
`‘‘PROTECTIVE ORDER MATERIAL’’ and shall be produced in a manner that
`
`maintains its confidentiality.
`
`
`
`dc-819372
`
`4
`
`
`
`
`
`IPR2015-00630
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`
`
`MAKO SURGICAL CORP.,
`Petitioner
`
`v.
`
`BLUE BELT TECHNOLOGIES, INC.,
`Patent Owner
`
`______________________
`
`Case IPR2015-00630
`Patent No. 6,205,411 B1
`_______________________
`
`
`ACKNOWLEDGEMENT FOR ACCESS TO PROTECTIVE ORDER
`MATERIAL
`
`I, _________________________, affirm that I have read the
`
`
`
`Protective Order; that I will abide by its terms; that I will use the confidential
`
`information only in connection with this proceeding and for no other purpose; that
`
`I will only allow access to support staff who are reasonably necessary to assist me
`
`in this proceeding; that prior to any disclosure to such support staff I informed or
`
`dc-819372
`
`1
`
`
`
`IPR2015-00630
`
`
`will inform them of the requirements of the Protective Order; that I am personally
`
`responsible for the requirements of the terms of the Protective Order and I agree to
`
`submit to the jurisdiction of the Office and the United States District Court for the
`
`Eastern District of Virginia for purposes of enforcing the terms of the Protective
`
`Order and providing remedies for its breach.
`
`
`
`________________________
`Signature and Date
`
`dc-819372
`
`2
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