Paper No. __
`Filed: May 31, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`INNOPHARMA LICENSING, INC., INNOPHARMA LICENSING LLC,
`INNOPHARMA INC., INNOPHARMA LLC, MYLAN PHARMACEUTICALS
`INC., and MYLAN INC.,
`Petitioner,
`v.
`
` SENJU PHARMACEUTICAL CO., LTD., BAUSCH & LOMB, INC., and
`BAUSCH & LOMB PHARMA HOLDINGS CORP.,
`Patent Owner
`_________________
`Case IPR2015-00902
`U.S. Patent 8,669,290
`
`_________________
`
`
`
`SUBMISSION OF REDLINE PROPOSED STIPULATED
`PROTECTIVE ORDER
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`1
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`Filed: May 31, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`INNOPHARMA LICENSING, INC., INNOPHARMA LICENSING LLC,
`INNOPHARMA INC., INNOPHARMA LLC, MYLAN PHARMACEUTICALS
`INC., and MYLAN INC.,
`Petitioner,
`v.
`
` SENJU PHARMACEUTICAL CO., LTD., BAUSCH & LOMB, INC., and
`BAUSCH & LOMB PHARMA HOLDINGS CORP.,
`Patent Owner
`_________________
`Case IPR2015-00902
`U.S. Patent 8,669,290
`
`_________________
`
`
`
`SUBMISSION OF REDLINE PROPOSED STIPULATED
`PROTECTIVE ORDER
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`In accordance with the Board’s email of May 25, 2016 the attached
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`IPR2015-00902 (U.S. Patent 8,669,290)
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`Appendix B contains a red-lined version (relative to the Board’s default protective
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`order) of the Proposed Stipulated Protective Order, agreed to by the parties and
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`filed by Patent Owner on December 28, 2015.
`
`By: /Bryan C. Diner/
`
`Bryan C. Diner, Lead Counsel
`Reg. No. 32,409
`Justin J. Hasford, Back-up Counsel
`Reg. No. 62,180
`Joshua L. Goldberg, Back-up Counsel
`Reg. No. 59,369
`Finnegan, Henderson, Farabow,
`Garrett & Dunner, L.L.P.
`901 New York Ave. NW
`Washington, DC 20001-4413
`Telephone: (202) 408-4000
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`2
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`EXHIBIT B
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`EXHIBIT B
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`Paper No. __
`Filed: February 25, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`INNOPHARMA LICENSING, INC., INNOPHARMA LICENSING LLC,
`INNOPHARMA INC., INNOPHARMA LLC, MYLAN PHARMACEUTICALS
`INC., and MYLAN INC.,
`Petitioner,
`v.
`
` SENJU PHARMACEUTICAL CO., LTD., BAUSCH & LOMB, INC., and
`BAUSCH & LOMB PHARMA HOLDINGS CORP.,
`Patent Owner
`_________________
`Case IPR2015-00902 (Patent 8,669,290 B2)
`Case IPR2015-00903 (Patent 8,129,431 B2)1
`
`_________________
`
`
`
`PROPOSED STIPULATED PROTECTIVE ORDER
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`1 The word-for-word identical paper is filed in each proceeding identified in the
`heading.
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`1
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`
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
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`This standing joint protective order governs the treatment and filing of
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`
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`
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`confidential information, including documents and testimony.2
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`1. Marking of Confidential Information. Confidential information shall be
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`clearly marked as either “PROTECTIVE ORDER MATERIAL - BOARD’S EYES
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`ONLY” or “PROTECTIVE ORDER MATERIAL - FED R. EVID 615” or
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`“PROTECTIVE ORDER MATERIAL”.
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`2.
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`Persons Having Access to Confidential Information Marked
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`“PROTECTIVE ORDER MATERIAL - BOARD’S EYES ONLY”. For the
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`confidential information marked “PROTECTIVE ORDER MATERIAL -
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`BOARD’S EYES ONLY”, access to confidential information is limited to the
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`Employees and representatives of the Office who have a need for access to the
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`confidential information. Such employees and representatives shall have such
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`access without the requirement to sign an Acknowledgement. Such employees and
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`representatives shall include the Director, members of the Board and their clerical
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`staff, other support personnel, court reporters, and other persons acting on behalf of
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`the Office.
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`3.
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`Persons Having Access to Confidential Information Marked
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`“PROTECTIVE ORDER MATERIAL - FED R. EVID 615”. For the
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`2 Nothing in this Order prevents any Party from challenging a confidentiality
`designation to any Exhibit by raising the matter with the Board.
`2
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`confidential information marked, “PROTECTIVE ORDER MATERIAL - FED R.
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
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`EVID 615”, access to confidential information about one expert’s deposition
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`testimony is limited to the following individuals who have executed the
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`acknowledgment appended to this order and shall not be disclosed to any other
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`expert in any Related Proceeding3 (unless the information is already known to that
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`expert) until after such time as the Board has lifted the Rule on Witnesses under
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`Fed. R. Evid. 615, and then only upon the formal request of any Party to the Board,
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`or upon a joint request by the Parties to the Board’s administrative staff to do so
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`without raising the matter with the Board:4
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`(A) Parties. Persons who are owners of a patent involved in the
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`proceeding and other persons who are identified as a real party-in-interest in
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`any Related Proceeding.
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`(B) Outside Counsel. Outside counsel of record for a party in any Related
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`Proceeding.
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`3 Related Proceeding is defined as “any other IPR proceeding or district court
`proceeding involving the patent at issue, the patent owners, and any one of
`Petitioners InnoPharma Licensing, Inc., InnoPharma Licensing LLC, InnoPharma
`Inc., InnoPharma LLC, Mylan Pharmaceuticals Inc., Mylan Inc., Lupin, Ltd., or
`Lupin Pharmaceuticals, Inc.”).
`4 Upon termination of the “PROTECTIVE ORDER MATERIAL - FED R. EVID
`615” designation, any party may, in good faith, request that the Information be re-
`designated to “PROTECTIVE ORDER MATERIAL.”
`3
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
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`(C)
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`In-house counsel. In-house counsel of a party or in-house counsel of a
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`real party-in-interest.
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`(D) Other Employees of a Party. Employees, other than in-house counsel
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`and in-house counsel’s support staff, who sign the Acknowledgement shall
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`be extended access to confidential information only upon agreement of the
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`parties or by order of the Board upon a motion brought by the party seeking
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`to disclose confidential information to that person. The party opposing
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`disclosure to that person shall have the burden of proving that such person
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`should be restricted from access to confidential information.
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`(E) The Office. Employees and representatives of the Office who have a
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`need for access to the confidential information shall have such access
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`without the requirement to sign an Acknowledgement. Such employees and
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`representatives shall include the Director, members of the Board and their
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`clerical staff, other support personnel, court reporters, and other persons
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`acting on behalf of the Office.
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`(F) Support Personnel. Administrative assistants, clerical staff, court
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`reporters and other support personnel of the foregoing persons who are
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`reasonably necessary to assist those persons in the proceeding shall not be
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`required to sign an Acknowledgement, but shall be informed of the terms
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`4
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
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`and requirements of the Protective Order by the person they are supporting
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`who receives confidential information.
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`4.2. Persons Having Access to Confidential Information Marked
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`“PROTECTIVE ORDER MATERIAL”. For the confidential information
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`marked, “PROTECTIVE ORDER MATERIAL”, access to confidential
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`information is limited to the following individuals who have executed the
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`Acknowledgment appended to this order:
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`(A) Parties. Persons who are owners of a patent involved in the
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`proceeding and other persons who are named parties to the proceeding who
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`are identified as a real party-in-interest in any Related Proceeding.
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`(B) Outside Counsel. Outside counsel of record for a party in any Related
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`Proceeding. Party Representatives. Representatives of record for a party in
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`the proceeding.
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`(C) Experts. Retained experts of a party in any Related Proceeding in the
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`proceeding who sign the Acknowledgement. who further certify in the
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`Acknowledgement that they are not a competitor to any party, or a
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`consultant for, or employed by, such a competitor with respect to the subject
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`matter of the proceeding.
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`5
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
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`(D)
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`In-house counsel of a party or in-house counsel of a real party-in-
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`interest.
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` (E) Other Employees of a Party. Employees, consultants or other persons
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`performing work for a party, other than in-house counsel and in-house
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`counsel’s support staff, who sign the Acknowledgement shall be extended
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`access to confidential information only upon agreement of the parties or by
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`order of the Board upon a motion brought by the party seeking to disclose
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`confidential information to that person. The party opposing disclosure to that
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`person shall have the burden of proving that such person should be restricted
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`from access to confidential information.
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`(F) The Office. Employees and representatives of the Office who have a
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`need for access to the confidential information shall have such access
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`without the requirement to sign an Acknowledgement. Such employees and
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`representatives shall include the Director, members of the Board and their
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`clerical staff, other support personnel, court reporters, and other persons
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`acting on behalf of the Office.
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`(G) Support Personnel. Administrative assistants, clerical staff, court
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`reporters and other support personnel of the foregoing persons who are
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`reasonably necessary to assist those persons in the proceeding shall not be
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`6
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
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`required to sign an Acknowledgement, but shall be informed of the terms
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`and requirements of the Protective Order by the person they are supporting
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`who receives confidential information.
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`5.3. Maintaining Confidentiality. Persons receiving confidential information
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`shall use reasonable efforts to maintain the confidentiality of the information,
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`including:
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`(A) Maintaining such information in a secure location to which persons
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`not authorized to receive the information shall not have access;
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`(B) Otherwise using reasonable efforts to maintain the confidentiality of
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`the information, which efforts shall be no less rigorous than those the
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`recipient uses to maintain the confidentiality of information not received
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`from the disclosing party;
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`(C) Ensuring that support personnel of the recipient who have access to
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`the confidential information understand and abide by the obligation to
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`maintain the confidentiality of information received that is designated as
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`confidential; and
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`(D) Limiting the copying of confidential information to a reasonable
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`number of copies needed for conduct of the proceeding and maintaining a
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`record of the locations of such copies.
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`7
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`6.4. Filing and Exchange of Confidential Materials. Persons receiving
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
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`confidential information shall use the following procedures to maintain the
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`confidentiality of the information:
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`(A) Documents and Information Filed With the Board.
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`(i) A party may file documents or information with the Board under
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`seal, together with a non-confidential description of the nature of the
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`confidential information that is under seal and the reasons why the
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`information is confidential and should not be made available to the
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`public. The submission shall be treated as confidential and remain
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`under seal, unless, upon motion of a party and after a hearing on the
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`issue, or sua sponte, the Board determines that the documents or
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`information do not to qualify for confidential treatment.
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`(ii) Where confidentiality is alleged as to some but not all of the
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`information submitted to the Board, the submitting party shall file
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`confidential and nonconfidential versions of its submission, together
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`with a Motion to Seal the confidential version setting forth the reasons
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`why the information redacted from the non-confidential version is
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`confidential and should not be made available to the public. The
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`nonconfidential version of the submission shall clearly indicate the
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`8
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
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`locations of information that has been redacted. The confidential
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`version(s) of the submission shall be filed under seal. The redacted
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`information shall remain under seal unless, upon motion of a party
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`and after a hearing on the issue, or sua sponte, the Board determines
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`that some or all of the redacted information does not qualify for
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`confidential treatment.
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`(B) Documents and Information Exchanged Among the Parties.
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`Information designated as confidential that is disclosed to another party
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`during discovery or other proceedings before the Board shall be clearly
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`marked as “PROTECTIVE ORDER MATERIAL” or “PROTECTIVE
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`ORDER MATERIAL - BOARD’S EYES ONLY” or “PROTECTIVE
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`ORDER MATERIAL - FED R. EVID 615” and shall be produced in a
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`manner that maintains its confidentiality.
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`7.
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`Standard Acknowledgement of Protective Order. The following attached
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`form may shall be used to acknowledge a protective order and gain access to
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`information covered by the protective order, if appropriate.:
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`8.
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`Nothing herein shall amend or alter the Stipulated Discovery Confidentiality
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`Order, filed by Petitioners Lupin Ltd. and Lupin Pharmaceuticals, Inc. and Patent
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`Owner Senju in Senju Pharmaceutical Co., Ltd., Bausch & Lomb, Inc., and Bausch
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`
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`9
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`
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
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`
`
` &
`
` Lomb Pharma Holdings Corp. v. Lupin, Ltd. and Lupin Pharmaceuticals, Inc.,
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`C.A. No. 1:14-cv-00667-JBS-KMV (D.N.J. June 25, 2014) (Dkt. No. 34) and
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`adopted by InnoPharma in Senju Pharmaceutical Co., Ltd., Bausch & Lomb, Inc.,
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`and Bausch & Lomb Pharma Holdings Corp. v. InnoPharma Licensing, Inc.,
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`InnoPharma Licensing, LLC, InnoPharma, Inc., and InnoPharma, LLC, C.A. No.
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`1:14-cv-06893-JBS-KMW (D.N.J.).
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`10
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`INNOPHARMA LICENSING, INC., INNOPHARMA LICENSING LLC,
`INNOPHARMA INC., INNOPHARMA LLC, MYLAN PHARMACEUTICALS
`INC., and MYLAN INC.,
`Petitioner,
`v.
`
` SENJU PHARMACEUTICAL CO., LTD., BAUSCH & LOMB, INC., and
`BAUSCH & LOMB PHARMA HOLDINGS CORP.,
`Patent Owner
`_________________
`Case IPR2015-00902 (Patent 8,669,290 B2)
`Case IPR2015-00903 (Patent 8,129,431 B2)
`
`_________________
`
`STANDARD ACKNOWLEDGMENT FOR ACCESS TO
`PROTECTIVE ORDER MATERIAL
`
`I __________________________________________, affirm that I have
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`read the Stipulated Protective Order; that I will abide by its terms; that I will use
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`the confidential information only in connection with this proceeding and for no
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`other purpose; that I will only allow access to support staff who are reasonably
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`necessary to assist me in this proceeding; that prior to any disclosure to such
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`support staff I informed or will inform them of the requirements of the Protective
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`
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`11
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`Order; that I am personally responsible for the requirements of the terms of the
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
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`Protective Order and I agree to submit to the jurisdiction of the Office and the
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`United States District Court for the Eastern District of Virginia for purposes of
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`enforcing the terms of the Protective Order and providing remedies for its breach.
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`[Signature block]
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`Dated:
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`12
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
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`Respectfully submitted,
`
`
`
`By: /Jitendra Malik/
`
`Jitendra Malik, Lead Counsel
`Reg. No. 55823
`Bryan L. Skelton, Ph.D.
`Reg. No. 50893
`ALSTON & BIRD LLP
`4721 Emperor Boulevard, Suite 400
`Durham, North Carolina 27703
`Telephone: 919-862-2200
`Fax: 919-862-2260
`
`Lance Soderstrom
`Reg. No. 65405
`ALSTON & BIRD LLP
`90 Park Avenue
`15th Floor
`New York, New York 10016-1387
`Telephone: 212.210.9400
`Fax: 212.210.9444
`
`Counsel for Petitioners
`
`
`
`By: /Bryan C. Diner/
`
`Bryan C. Diner, Lead Counsel
`Reg. No. 32,409
`Justin J. Hasford, Back-up Counsel
`Reg. No. 62,180
`Joshua L. Goldberg, Back-up Counsel
`Reg. No. 59,369
`Finnegan, Henderson, Farabow,
`Garrett & Dunner, L.L.P.
`901 New York Ave. NW
`Washington, DC 20001-4413
`Telephone: (202) 408-4000
`
`
`13
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`Date: February 8, 2016
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`IPR2015-00902 (Patent 8,669,290 B2)
`IPR2015-00903 (Patent 8,129,431 B2)
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`Counsel for Patent Owner
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`14
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing Submission of
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`Redline Proposed Stipulated Protective Order was filed and served on May 31,
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`2016, via email directed to counsel of record for the Petitioner at the following:
`
`Jitendra Malik
`jitty.malik@alston.com
`
`Bryan Skelton
`bryan.skelton@alston.com
`
`Lance Soderstrom
`lance.soderstrom@alston.com
`
`Hidetada James Abe
`James.abe@alston.com
`
`Joseph Janusz
`joe.janusz@alston.com
`
`
`Date: May 31, 2016
`
`
`
`/Bradley J. Moore/
`Bradley J. Moore
`Litigation Legal Assistant
`
`Finnegan, Henderson, Farabow, Garrett &
`Dunner, LLP
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