UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MYLAN PHARMACEUTICALS INC.
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`Petitioner
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`v.
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`YEDA RESEARCH AND DEVELOPMENT CO. LTD.
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`Patent Owner
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`Case No. IPR2015-00644
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`Patent No. 8,399,413
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`PATENT OWNER’S MOTION TO SEAL
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MYLAN PHARMACEUTICALS INC.
`
`Petitioner
`
`v.
`
`YEDA RESEARCH AND DEVELOPMENT CO. LTD.
`
`Patent Owner
`
`Case No. IPR2015-00644
`
`Patent No. 8,399,413
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`PATENT OWNER’S MOTION TO SEAL
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`Pursuant to 37 C.F.R. §§ 42.14, 42.54, Patent Owner Yeda Research and
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`Development Co. Ltd. (“Yeda” or “Patent Owner”) respectfully moves to seal
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`portions of Exhibits 2108-2114, 2120-2122 and the Declaration of Henry
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`Grabowski, Ph.D., Exhibit 2133 (“Grabowski Declaration”), filed herewith, which
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`contain trade secrets and confidential business information of a third party, IMS
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`Health Inc. (“IMS Health”). In support of this Motion, Yeda is also submitting an
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`unopposed motion for entry of the Board’s default protective order (“Proposed
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`Protective Order”). See 37 C.F.R. § 42.54(a).
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`I.
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`GOOD CAUSE EXISTS FOR SEALING CERTAIN CONFIDENTIAL
`INFORMATION
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`In determining whether to grant a Motion to Seal, the Board must find “good
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`cause” and “strike a balance between the public's interest in maintaining a
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`complete and understandable file history and the parties’ interest in protecting truly
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`sensitive information.” 37 C.F.R. § 42.54(a); 77 Fed. Reg. 48756, 48760 (Aug. 14,
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`2012). As described in the Office Trial Practice Guide, the Board identifies
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`confidential information in a manner “consistent with Federal Rule of Civil
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`Procedure 26(c)(1)(G), which provides for protective orders for trade secret or
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`other confidential research, development, or commercial information.” 77 Fed.
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`Reg. 48756, 48760 (Aug. 14, 2012).
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`1
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`Exhibits 2108-2114, 2120-2122 and the Grabowski Declaration disclose
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`proprietary data provided by third party IMS Health concerning sales,
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`prescriptions, and promotional spending concerning Copaxone® 40 mg/mL and its
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`competitors (“IMS data”). Exhibits 2108-2114 and 2120-2122 contain summaries
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`and graphs of IMS data and Dr. Grabowski’s calculations based on IMS data. The
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`Grabowski Declaration discloses the IMS data and related calculations contained
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`in Exhibits 2108-2114 and 2120-2122. Patent Owner obtained access to IMS data
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`pursuant to a license agreement that obligates Patent Owner to maintain the data as
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`confidential. (IMS Health represents that IMS data retains its value to IMS only
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`when access to the data is restricted. IMS also represents that it owes contractual
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`duties of confidentiality to its sources.)
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`The public’s interest in accessing this information for the purposes of the
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`patentability of the challenged claims in this proceeding is outweighed by the
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`prejudicial effect that such disclosure would have on IMS. The IMS data is being
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`provided in support of the Grabowski Declaration. In conjunction with this
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`motion, Yeda is submitting non-confidential, redacted versions of the Grabowski
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`Declaration and Exhibits 2108-2114 and 2120-2122. The substance of Dr.
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`Grabowski’s opinions can be fully ascertained from the redacted declaration and
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`exhibits; the only information not reflected in the redacted declaration and exhibits
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`is IMS data and Dr. Grabowski’s specific calculations based on that data.
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`2
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`Moreover, interested members of the public can obtain the data in question directly
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`from IMS Health (with any appropriate fee). In contrast, the public disclosure of
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`IMS data would deprive IMS Health of the value of its proprietary information.
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`The Board has previously allowed the sealing of similar information. See, e.g., St.
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`Jude Med., Cardiology Div., Inc. v. Bd. of Reg. of Univ. of Michigan, IPR2013-
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`00041, Paper 32 (P.T.A.B. Nov. 16, 2013) (granting motion to seal tables
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`containing IMS data). Accordingly, good cause exists to seal the IMS data
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`contained in Exhibits 2108-2114, 2120-2122 and the Grabowski Declaration.
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`For the foregoing reasons, the Board should seal the unredacted versions of
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`Exhibits 2108-2114, 2120-2122 and the Grabowski Declaration.
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`II.
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`CERTIFICATION OF NON-PUBLICATION
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`To the undersigned counsel’s knowledge, the information sought to be
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`sealed by this motion has not been published or otherwise made public.
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`III. CERTIFICATION OF CONFERENCE WITH OPPOSING PARTY
`PURSUANT TO 37 C.F.R. § 42.54.
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`Patent Owner has conferred with Petitioner, and Petitioner does not oppose
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`the entry of the default protective order in this proceeding and the motion seal.
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`THEREFORE, Patent Owner respectfully requests that the Board grant
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`Patent Owner’s Motion to Seal.
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`3
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`Respectfully submitted,
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`/Elizabeth J. Holland/
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`Elizabeth J. Holland
`Registration No. 47,657
`GOODWIN PROCTER LLP
`The New York Times Building
`620 Eighth Avenue
`New York, NY 10019-1405
`Tel: 212-813-8800
`Fax: 212-355-3333
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`Dated: November 20, 2015
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`4
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`CERTIFICATION OF SERVICE
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`The undersigned hereby certifies that the foregoing PATENT OWNER’S
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`MOTION TO SEAL was served electronically via e-mail on November 20, 2015
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`on the following:
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`Jeffrey W. Guise
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`jguise@wsgr.com
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`Brandon M. White
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`BMWhite@perkinscoie.com
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`Shannon Bloodworth
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`sbloodworth@perkinscoie.com
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`David Anstaett
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`DAnstaett@perkinscoie.com
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`Richard Torczon
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`rtorczon@wsgr.com
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`/Elizabeth Holland/
`Counsel for Patent Owner
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`Dated:
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`November 20, 2015
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