`Matthew L. Fedowitz, Esq.
`MERCHANT & GOULD P.C.
`191 Peachtree Street N.E., Suite 4300
`Atlanta, GA 30303
`jblake@merchantgould.com
`mfedowitz@merchantgould.com
`Main Telephone: (404) 954-5100
`Main Facsimile: (404) 954-5099
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`COALITION FOR AFFORDABLE DRUGS II LLC
`Petitioner
`
`v.
`
`NPS PHARMACEUTICALS, INC.
`Patent Owner
`__________________
`
`Case No. IPR2015-01093
`Patent 7,056,886
`__________________
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`PETITIONER’S MOTION TO SEAL
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`By:
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`Pursuant to 37 C.F.R. § 42.54, Petitioner Coalition for Affordable Drugs II
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`LLC (“CFAD”) respectfully requests the Board to authorize the filing under seal of
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`Exhibits 1042 and 1077 in Support of Petitioner’s Reply to Patent Owner’s
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`Response. Patent Owner NPS Pharmaceuticals, Inc. does not object to the instant
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`motion.
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`CFAD’s Exhibits 1042 and 1077 reference documents or information that is
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`deemed “Protective Order Material” by NPS Pharmaceuticals, Inc. A copy of the
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`Board’s Default Protective Order is attached hereto as Appendix A. The parties
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`met and conferred, and agreed that the Protective Order in Appendix A shall
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`govern materials submitted by the parties in connection with the instant motion, to
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`the extent such materials are found to contain confidential material.
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`Respectfully submitted,
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`Date: April 20, 2016
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`/Matthew L. Fedowitz/
`Matthew L. Fedowitz, Reg. No. 61,386
`MERCHANT & GOULD P.C.
`Attorney for Petitioner CFAD
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`1
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`Certification of Service
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`Pursuant to 37 C.F.R § 42.6, the undersigned hereby certifies that a copy of
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`this PETITIONER’S MOTION TO SEAL has been served on April 20, 2016,
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`by email on counsel of record for the patent owner at the following name and
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`address:
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`
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`Joseph R. Robinson
`Heather Morehouse Ettinger
`Troutman Sanders LLP
`The Chrysler Building
`405 Lexington Avenue
`New York, NY 10174-0700
`joseph.robinson@troutmansanders.com
`heather.ettinger@troutmansanders.com
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`Dustin B. Weeks
`Troutman Sanders LLP
`Bank of America Plaza
`600 Peachtree Street NE, Suite 5200
`Atlanta, GA 30308-2231
`dustin.weeks@troutmansanders.com
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`Respectfully submitted,
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`Date: April 20, 2016
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`/Matthew L. Fedowitz/
`Matthew L. Fedowitz, Reg. No. 61,386
`MERCHANT & GOULD P.C.
`Attorney for Petitioner CFAD
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`2
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`COALITION FOR AFFORDABLE DRUGS II LLC
`Petitioner
`
`v.
`
`NPS PHARMACEUTICALS, INC.
`Patent Owner
`____________
`
`Case IPR2015-01093
`Patent 7,056,886
`
`
`____________
`
`PROTECTIVE ORDER
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`
`
`NPS Ex. 2050
`CFAD v. NPS
`IPR2015-01093
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`27867776v1
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`Page 1
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`APPENDIX A
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`The following protective order will be entered into the instituted Inter Partes
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`Review, Coalition for Affordable Drugs II LLC v. NPS Pharmaceuticals,
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`Inc., Case No. IPR2015-00990, and governs the treatment and filing of
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`confidential information, including documents and testimony.
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`1.
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`Confidential information shall be clearly marked “PROTECTIVE
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`ORDER MATERIAL.”
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`2.
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`Access to confidential information marked “PROTECTIVE ORDER
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`MATERIAL” 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
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`proceeding.
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`(B) Party Representatives. Representatives of record for a party in the
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`proceeding.
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`(C) Experts. Retained experts of a party in the proceeding who further
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`certify in the Acknowledgement that they are not a competitor to any
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`party, or a consultant for, or employed by, such a competitor with
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`respect to the subject matter of the proceeding.
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`(D) In-house counsel. In-house counsel of a party.
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`27867776v1
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`Page 2
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`(E) Other Employees of a Party. Employees, consultants or other
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`persons performing work for a party, other than in-house counsel and
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`in-house counsel’s support staff, who sign the Acknowledgement
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`shall be extended access to confidential information only upon
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`agreement of the parties or by order of the Board upon a motion
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`brought by the party seeking to disclose confidential information to
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`that person. The party opposing disclosure to that person shall have the
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`burden of proving that such person should be restricted from access to
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`confidential information.
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`(F) The Office. Employees and representatives of the Office who have
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`a need for access to the confidential information shall have such
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`access without the requirement to sign an Acknowledgement. Such
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`employees and representatives shall include the Director, members of
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`the Board and their clerical staff, other support personnel, court
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`reporters, and other persons 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
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`are reasonably necessary to assist those persons in the proceeding
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`shall not be required to sign an Acknowledgement, but shall be
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`27867776v1
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`Page 3
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`informed of the terms and requirements of the Protective Order by the
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`person they are supporting who receives confidential information.
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`3.
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`The Parties shall have the right to further designate confidential
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`information or portions of confidential information as “PROTECTIVE
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`ORDER MATERIAL – ATTORNEY’S EYES ONLY.” The
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`“PROTECTIVE ORDER MATERIAL – ATTORNEY’S EYES ONLY”
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`shall be limited to such documents, materials, testimony, or information that
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`the designating party believes, in good faith, contains information, the
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`disclosure of which is likely to cause significant harm to the competitive
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`position of the designating party or would violate confidentiality agreements
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`with third parties. Access to confidential information marked
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`“PROTECTIVE ORDER MATERIAL – ATTORNEY’S EYES ONLY” is
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`limited to the following individuals who have executed the acknowledgment
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`appended to this order:
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`(A) Outside Counsel. (i) outside counsel who appear on the pleadings
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`as counsel for a Party, and (ii) partners, associates, employees, and
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`staff of such counsel to whom it is reasonably necessary to disclose
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`the information for this proceeding, including supporting personnel
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`employed by the attorneys, such as paralegals, legal translators, legal
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`27867776v1
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`Page 4
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`secretaries, and legal clerks, or (iii) independent attorneys contracted
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`to assist outside counsel in connection with this proceeding.
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`(B) Experts. Retained experts of a party in the proceeding who further
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`certify in the Acknowledgement that they are not a competitor to any
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`party, or a consultant for, or employed by, such a competitor with
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`respect to the subject matter of the proceeding.
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`(C) The Office. Employees and representatives of the Office who have
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`a need for access to the confidential information shall have such
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`access without the requirement to sign an Acknowledgement. Such
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`employees and representatives shall include the Director, members of
`
`the Board and their clerical staff, other support personnel, court
`
`reporters, and other persons acting on behalf of the Office.
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`(D) Support Personnel. Administrative assistants, clerical staff, court
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`reporters and other support personnel of the foregoing persons who
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`are reasonably necessary to assist those persons in the proceeding
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`shall not be required to sign an Acknowledgement, but shall be
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`informed of the terms and requirements of the Protective Order by the
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`person they are supporting who receives confidential information.
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`4.
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`Persons receiving confidential information shall use reasonable efforts
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`to maintain the confidentiality of the information, including:
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`27867776v1
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`- 5 -
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`Page 5
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`(A) Maintaining such information in a secure location to which
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`persons not authorized to receive the information shall not have
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`access;
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`(B) Otherwise using reasonable efforts to maintain the confidentiality
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`of the information, which efforts shall be no less rigorous than those
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`the recipient uses to maintain the confidentiality of information not
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`received from the disclosing party;
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`(C) Ensuring that support personnel of the recipient who have access
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`to the confidential information understand and abide by the obligation
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`to maintain the confidentiality of information received that is
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`designated as 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
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`maintaining a record of the locations of such copies.
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`5.
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`Persons receiving confidential information shall use the following
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`procedures to maintain the 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
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`under 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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`27867776v1
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`Page 6
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`information is confidential and should not be made available to the public.
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`The submission shall be treated as confidential and remain under seal,
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`unless, upon motion of a party and after a hearing on the issue, or sua
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`sponte, the Board determines that the documents or information do not
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`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 non-confidential versions of its submission, together with a
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`Motion to Seal the confidential version setting forth the reasons why the
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`information redacted from the non-confidential version is confidential and
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`should not be made available to the public. The non-confidential version of
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`the submission shall clearly indicate the locations of information that has
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`been redacted. The confidential version of the submission shall be filed
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`under seal. The redacted information shall remain under seal unless, upon
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`motion of a party and after a hearing on the issue, or sua sponte, the Board
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`determines 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
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`party during discovery or other proceedings before the Board shall be clearly
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`27867776v1
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`Page 7
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`marked as “PROTECTIVE ORDER MATERIAL” and shall be produced in
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`a manner that maintains its confidentiality.
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`Standard Acknowledgement of Protective Order. The following form
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`is to be used to acknowledge a protective order and gain access to
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`information covered by the protective order:
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`27867776v1
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`Page 8
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`COALITION FOR AFFORDABLE DRUGS II LLC
`Petitioner
`
`v.
`
`NPS PHARMACEUTICALS, INC.
`Patent Owner
`____________
`
`Case IPR2015-01093
`Patent 7,056,886
`
`
`____________
`
`PROTECTIVE ORDER
`
`
`
`
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`27867776v1
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`9
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`Page 9
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`I ___________________, affirm that I have read the Protective Order;
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`that I will abide by its terms; that I will use the confidential information only
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`in connection with this proceeding and for no other purpose; that I will only
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`allow access to support staff who are reasonably necessary to assist me in
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`this proceeding; that prior to any disclosure to such support staff I informed
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`or will inform them of the requirements of the Protective Order; that I am
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`personally responsible for the requirements of the terms of the Protective
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`Order and I agree to submit to the jurisdiction of the Office and the United
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`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
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`[Signature]
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`[Name]
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`[Date]
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`10
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`breach.
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`27867776v1
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`Page 10