Paper 43
`Entered: March 21, 2016
`
`
`
`Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE INC.,
`Petitioner,
`
`v.
`
`SUMMIT 6 LLC,
`Patent Owner.
`_______________
`
`Case IPR2015-00806
`Patent 7,765,482 B2
`____________
`
`
`
`Before HOWARD B. BLANKENSHIP, GEORGIANNA W. BRADEN, and
`KERRY BEGLEY, Administrative Patent Judges.
`
`BRADEN, Administrative Patent Judge.
`
`
`DECISION
`Petitioner’s Motion to Seal
`37 C.F.R §§ 42.14 and 42.54
`
`
`Entered: March 21, 2016
`
`
`
`Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE INC.,
`Petitioner,
`
`v.
`
`SUMMIT 6 LLC,
`Patent Owner.
`_______________
`
`Case IPR2015-00806
`Patent 7,765,482 B2
`____________
`
`
`
`Before HOWARD B. BLANKENSHIP, GEORGIANNA W. BRADEN, and
`KERRY BEGLEY, Administrative Patent Judges.
`
`BRADEN, Administrative Patent Judge.
`
`
`DECISION
`Petitioner’s Motion to Seal
`37 C.F.R §§ 42.14 and 42.54
`
`
`
`IPR2015-00807
`Patent 7,765,482 B2
`
`
`
`
`INTRODUCTION
`
`Petitioner filed a Corrected Motion to Seal (Paper 40, “Mot.”) that
`seeks to seal (1) Petitioner’s Reply to Patent Owner’s Response (“Reply”)
`and (2) Exhibits 1016, 1018, and 1019 submitted with the Reply. Patent
`Owner does not oppose Petitioner’s Motion. Mot. 1. Petitioner requests that
`these documents be sealed under the Board’s default protective order, as
`filed by Patent Owner on June 15, 2015. See Paper 14. For reasons
`discussed below, Petitioner’s Corrected Motion to Seal is denied without
`prejudice.
`
`DISCUSSION
`There is a strong public policy in favor of making information filed in
`an inter partes review open to the public, especially because the proceeding
`determines the patentability of claims in an issued patent and, therefore,
`affects the rights of the public. Under 35 U.S.C. § 316(a)(1) and 37 C.F.R.
`§ 42.14, the default rule is that all papers filed in an inter partes review are
`open and available for access by the public; a party, however, may file a
`concurrent motion to seal and the information at issue is sealed pending the
`outcome of the motion. It is, however, only “confidential information” that
`is protected from disclosure. 35 U.S.C. § 316(a)(7). In that regard, the
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,760
`(Aug. 14, 2012) provides:
`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.
`. . .
`Confidential Information: The rules
`identify confidential
`information in a manner consistent with Federal Rule of Civil
`
`
`
`2
`
`
`
`IPR2015-00807
`Patent 7,765,482 B2
`
`
`
`
`Procedure 26(c)(1)(G), which provides for protective orders for
`trade secret or other confidential research, development, or
`commercial information. § 42.54.
`
`The standard for granting a motion to seal is “for good cause.”
`37 C.F.R. § 42.54(a). In Petitioner’s Corrected Motion to Seal (Paper 40),
`Petitioner bears the burden of proof in showing entitlement to the requested
`relief. 37 C.F.R. § 42.20(c). The Board needs to know why the information
`sought to be sealed constitutes confidential information.
`In Petitioner’s Corrected Motion to Seal (Paper 40), Petitioner moves
`to seal the cited documents, because “Patent Owner has requested Petitioner
`designate as PROTECTIVE ORDER MATERIAL (Exhibits 1016 and 1019)
`as well as an expert declaration that relies upon documents that Patent
`Owner has designated as PROTECTIVE ORDER MATERIAL (Exhibit
`1018).” Mot. 1. Petitioner has submitted a redacted version of its Reply,
`which is available publically, whereas the exhibits that are the subject of
`Petitioner’s Corrected Motion to Seal (Paper 40) have been filed as “Parties
`and Board Only.” Id. Neither Petitioner nor Patent Owner give any other
`reason for requesting to seal the documents.
`As discussed previously, there is a strong public policy for making all
`information filed in an inter partes review open to the public. Petitioner, as
`the moving party, has failed to inform the Board why the information sought
`to be sealed constitutes confidential information, and thus, it fails to carry its
`burden to demonstrate “good cause” for sealing the documents.
`We recognize a denial of Petitioner’s motion would immediately
`unseal the material Petitioner (and Patent Owner) desires to be placed under
`seal and the effect would be irreversible. Therefore, rather than denying the
`motion at this time, we will provide Petitioner two weeks to (1) supplement
`3
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`IPR2015-00807
`Patent 7,765,482 B2
`
`the Motion to Seal, (2) withdraw the Motion to Seal and request to expunge
`Exhibits 1016, 1018, and 1019, or (3) supplement the Motion to Seal, and
`request to expunge Exhibits 1016, 1018, and 1019 and replace them with
`redacted versions that leave out the confidential information.
`
`
`CONCLUSION
`For the foregoing reasons, Petitioner’s Corrected Motion to Seal
`(Paper 34) is denied without prejudice. It is
`ORDERED that Petitioner’s Reply to Patent Owner’s Response and
`Exhibits 1016, 1018, and 1019 will be made available to the public after
`5PM Eastern on Friday, April 1, 2016, unless on or prior to that time,
`Petitioner (1) supplements the Motion to Seal, (2) withdraws the Motion to
`Seal and requests to expunge Exhibits 1016, 1018, and 1019, or
`(3) supplements the Motion to Seal, and requests to expunge Exhibits 1016,
`1018, and 1019 and replace them with redacted versions that leave out the
`confidential information;
`FURTHER ORDERED that any supplement or revision that Petitioner
`chooses to file should include a detailed discussion that:
`Specifies precisely, for each of Exhibits 1016, 1018, and
`1019, which portions of the information in that exhibit
`constitute confidential information under the Office Trial
`Practice Guide quoted above, and why; and
`
`to place such
`
`Explains why good cause exists
`confidential information under seal; or
`
`Explains that only the portions of the exhibit that
`constitutes confidential information under the Office Trial
`Practice Guide quoted above has been redacted; and
`
`
`
`
`4
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`IPR2015-00807
`Patent 7,765,482 B2
`
`
`
`
`
`FURTHER ORDERED that the explanation of good cause shall:
`
`
`the alleged
`that none of
`Include a certification
`confidential information in Exhibits 1016, 1018, and 1019 has
`been made available publically.
`
`
`
`5
`
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`IPR2015-00807
`Patent 7,765,482 B2
`
`PETITIONER:
`
`John Alemanni
`Michael Morlock
`KILPATRICK TOWNSEND & STOCKTON LLP
`jalemanni@kilpatricktownsend.com
`MMorlock@kilpatricktownsend.com
`
`
`
`PATENT OWNER:
`
`Peter J. Ayers
`John Shumaker
`Brian Mangum
`Robert Carlson
`LEE & HAYES, PLLC
`peter@leehayes.com
`jshumaker@leehayes.com
`brianm@leehayes.com
`bob@leehayes.com
`
`
`
`
`
`6
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