Paper 44
`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
`Patent Owner’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
`Patent Owner’s Motion to Seal
`37 C.F.R §§ 42.14 and 42.54
`
`
`
`IPR2015-00806
`Patent 7,765,482 B2
`
`
`
`
`INTRODUCTION
`
`Patent Owner filed a Motion to Seal1 (Paper 29) that seeks to seal a
`contractual agreement between Patent Owner and a third party (Exhibit
`2047) and the Declaration of Scott Lewis (Exhibit 2050). Petitioner did not
`file an Opposition to Patent Owner’s Motion to Seal. For reasons discussed
`below, Patent Owner’s Motion to Seal (Paper 29) is conditionally granted as
`to Exhibit 2047, but denied without prejudice as to Exhibit 2050.
`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
`
`1 Patent Owner filed a duplicate Motion to Seal as Paper 30. All citations in
`this Order are to Paper 29.
`
`
`
`2
`
`
`
`IPR2015-00806
`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 Patent Owner’s Motion to Seal (Paper 29), Patent
`Owner 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 Patent Owner’s Motion to Seal, Patent Owner moves to seal
`Exhibit 2047 because the exhibit “contains confidential business
`information” that “is not publicly known and should remain confidential.”
`Paper 29, 1. Patent Owner also moves to seal Exhibit 2050, which is the
`Declaration of Scott Lewis. Id. According to Patent Owner, Mr. Lewis
`references confidential and propriety information about Patent Owner’s
`business and financial information. Id. Patent Owner has not submitted a
`redacted version of the exhibits that are the subject of Patent Owner’s
`Motion to Seal (Paper 29).
`As discussed previously, there is a strong public policy for making all
`information filed in an inter partes review open to the public. Upon review
`of Exhibit 2047 and stated confidentiality of the document by Patent Owner,
`rather than denying the Motion to Seal with regards to this exhibit, which
`would make the exhibit immediately publicly accessible, the Board
`conditionally grants Patent Owner’s Motion to Seal Exhibit 2047 (Paper 29)
`for the duration of this proceeding. If the Board’s final written decision
`substantively relies on any information in the sealed exhibit, that exhibit will
`be unsealed by an Order of the Board, and if the sealed exhibit contains no
`information substantively relied on by the Board in the final written
`3
`
`
`
`
`
`
`
`IPR2015-00806
`Patent 7,765,482 B2
`
`decision, then the exhibit may be expunged from the record by an Order of
`the Board.
`Finally, we are not persuaded that Patent Owner has carried its burden
`to demonstrate that Exhibit 2050, in its entirety, is confidential information
`that should be sealed. We recognize a denial of Patent Owner’s motion
`would immediately unseal the material Patent Owner desires to be placed
`under seal and the effect would be irreversible. Therefore, rather than
`denying the motion with regards to Exhibit 2050 at this time, we will
`provide Patent Owner two weeks to (1) supplement the Motion to Seal,
`(2) withdraw the Motion to Seal and request to expunge Exhibit 2050, or
`(3) supplement the Motion to Seal, request to expunge Exhibit 2050, and
`replace it with a redacted version that leaves out the confidential
`information.
`
`
`CONCLUSION
`For the foregoing reasons, Patent Owner’s Motion to Seal (Paper 29)
`is conditionally granted-in part and denied-in-part. It is
`ORDERED that with respect to Exhibit 2047, Patent Owner’s Motion
`to Seal (Paper 29) is conditionally granted and the exhibit will be kept under
`seal unless and until the Board refers to material in the exhibit in a final
`written decision;
`FURTHER ORDERED that the Exhibit 2050 will be made available
`to the public after 5PM Eastern on Friday, April 1, 2016, unless on or prior
`to that time, Patent Owner (1) supplements the Motion to Seal, (2)
`withdraws the Motion to Seal and requests to expunge Exhibit 2050, or (3)
`supplements the Motion to Seal, and requests to expunge Exhibit 2050 and
`
`
`
`4
`
`
`
`
`
`IPR2015-00806
`Patent 7,765,482 B2
`
`replace it with a redacted version that leaves out the confidential
`information;
`FURTHER ORDERED that any supplement or revision that Patent
`Owner chooses to file should include a detailed discussion that:
`Specifies precisely, for Exhibit 2050, which portions of
`information
`in
`that exhibit constitute confidential
`the
`information under the Office Trial Practice Guide quoted
`above, and why; and
`
`Explains why good cause exists to place the entirety of
`Exhibit 2050 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
`
`FURTHER ORDERED that the explanation of good cause shall:
`
`
`the alleged
`that none of
`Include a certification
`confidential information in Exhibit 2050 has been made
`available publically.
`
`
`
`
`5
`
`
`
`
`
`IPR2015-00806
`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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