`571-272-7822
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`
`
`
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` Paper 86
` Entered: June 21, 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
`Patent 8,669,290 B2
`
`____________
`Before FRANCISCO C. PRATS, ERICA A. FRANKLIN, and
`GRACE KARAFFA OBERMANN, Administrative Patent Judge.
`
`FRANKLIN, Administrative Patent Judge.
`
`DECISION
`Denying Petitioner’s Motion to Seal Exhibits 1049, 1067, 1079, 1081–1083,
`1104, 1117, 1134, 1140, 1150, 1152, and Petitioner’s Reply
`37 C.F.R. § 42.14
`
`
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`IPR2015-00902
`Patent 8,669,290 B2
`
`
`INTRODUCTION
`I.
`Petitioner filed a Motion to Seal portions of a number of depositions
`transcripts (Exs. 1049, 1079, and 1081), a portion of the Petitioner’s Reply
`to the Patent Owner’s Response, and the entirety of Exhibits 1067, 1117,
`1134, 1140, and 1152. Paper 55 (“Mot.”).
`For the reasons described in the following discussion, we deny
`without prejudice Petitioner’s Motion to Seal Exhibits 1049, 1067, 1079,
`1081–1083, 1104, 1117, 1134, 1140, 1150, 1152, and Petitioner’s Reply.
`II. DISCUSSION
`“There is a strong public policy for making all information filed in a
`quasi-judicial administrative proceeding open to the public, especially in an
`inter partes review which determines the patentability of claims in an issued
`patent and therefore affects the rights of the public.” Garmin Int’l v. Cuozzo
`Speed Techs., LLC, IPR2012-00001, slip op. at 1–2 (PTAB Mar. 14, 2013)
`(Paper 34). A motion to seal may be granted for good cause. 37 C.F.R. §
`42.54. The moving party bears the burden of showing that there is good
`cause for the relief requested, including why the information is appropriate
`to be filed under seal. 37 C.F.R. §§ 42.20, 42.54. The Office Patent Trial
`Practice Guide notes that 37 C.F.R. § 42.54 identifies confidential
`information in a manner consistent with Federal Rule of Civil Procedure
`26(c)(1)(G), which provides for protective orders for trade secret or other
`confidential research, development, or commercial information. 77 Fed.
`Reg. at 48,760. Until a motion to seal is decided, documents filed with the
`motion shall be sealed provisionally. 37 C.F.R. § 42.14.
`Petitioner’s Motion to Seal is deficient in a number of ways. None of
`the Exhibits are properly described. Indeed, the five exhibits that Petitioner
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`IPR2015-00902
`Patent 8,669,290 B2
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`seeks to seal in their entirety are not characterized even by title. See Mot. 3.
`Moreover, Petitioner failed to provide what portions of Exhibits 1104 and
`1150, and what portion of the Petitioner’s Reply to Patent Owner’s
`Response (or the relevant paper number(s)) it seeks to seal. Id. Further,
`Petitioner states that they “make no assertion whether or not [the materials
`that they seek to seal] contain confidential information.” Id. at 4. Instead,
`Petitioner asserts that Patent Owner has requested Petitioner to file the
`documents under seal and to “file an appropriate motion to seal ….” Id.
`Petitioner has not done so. As the moving party, Petitioners have failed their
`burden of showing that there is good cause for the relief requested. See 37
`C.F.R. §§ 42.20, 42.54.
`Moreover, a protective order has not been entered in the captioned
`proceedings and an acceptable proposed protective order has not been filed.
`For the foregoing reasons, Petitioner’s Motion to Seal Exhibits 1049,
`1067, 1079, 1081–1083, 1104, 1117, 1134, 1140, 1150, 1152, and
`Petitioner’s Reply is denied without prejudice. We exercise our discretion to
`maintain those materials under a provisional seal, in the manner filed,
`through July 31, 2016, to allow time for a party to file a motion to seal that
`shows good cause for the relief requested, after a protective order has been
`entered in this proceeding, and/or to withdraw the provisionally sealed
`materials.
`
`ORDER
`In accordance with the foregoing, it is hereby:
`ORDERED that the Petitioner’s Motion to Seal Exhibits 1049, 1067,
`1079, 1081–1083, 1104, 1117, 1134, 1140, 1150, 1152, and Petitioner’s
`Reply is denied without prejudice;
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`IPR2015-00902
`Patent 8,669,290 B2
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`FURTHER ORDERED that Exhibits 1049, 1067, 1079, 1081–1083,
`1104, 1117, 1134, 1140, 1150, 1152, and Petitioner’s Reply shall remain
`provisionally sealed until further notice by the Board;
`FURTHER ORDERED a party may file a revised or new motion to
`seal and/or withdraw the provisionally sealed materials on or before July 31,
`2016; and
`FURTHER ORDERED that any opposition to a revised or new
`motion to seal shall be filed within 5 business days after the filing of the
`motion.
`
`PETITIONERS:
`Jitendra Malik
`jitty.malik@alston.com
`Lance Soderstrom
`lance.soderstrom@alston.com
`Joseph Janusz
`joe.janusz@alston.com
`James Abe
`james.abe@alston.com
`
`Deborah Yellin
`dyellin@crowell.com
`Jonathan Lindsay
`jLindsay@Crowell.com
`Shannon Lentz
`SLentz@Crowell.com
`
`PATENT OWNER:
`Bryan Diner
`bryan.diner@finnegan.com
`Justin Hasford
`justin.hasford@finnegan.com
`Joshua Goldberg
`Joshua.goldberg@finnegan.com
`
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