Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`Paper 66
`Entered: October 21, 2016
`
`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.
`____________
`
`Cases IPR2015-01093
`Patent 7,056,886 B2
`_______________
`
`Before LORA M. GREEN, JACQUELINE WRIGHT BONILLA, and
`SHERIDAN K. SNEDDEN, Administrative Patent Judges.
`
`SNEDDEN, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Granting Patent Owner’s Motions to Seal and
`Granting Petitioner’s Motion to Seal
`37 C.F.R. §§ 42.14 and 42.54
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`
`
`Paper 66
`Entered: October 21, 2016
`
`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.
`____________
`
`Cases IPR2015-01093
`Patent 7,056,886 B2
`_______________
`
`Before LORA M. GREEN, JACQUELINE WRIGHT BONILLA, and
`SHERIDAN K. SNEDDEN, Administrative Patent Judges.
`
`SNEDDEN, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Granting Patent Owner’s Motions to Seal and
`Granting Petitioner’s Motion to Seal
`37 C.F.R. §§ 42.14 and 42.54
`
`
`
`
`
`
`
`IPR2015-01093
`Patent 7,056,886 B2
`
`
`I. INTRODUCTION
`
`In accordance with 37 C.F.R. §§ 42.14 and 42.54, NPS
`Pharmaceuticals, Inc. (“Patent Owner”) filed a First Motion to Seal. Paper
`32. In its First Motion to Seal, Patent Owner moves to seal portions of
`Exhibits 20511 and 20412 and the entirety of Exhibits 20563 and 2075.4
`Paper 32, 5–6. Patent Owner contends that the redacted portions in the
`corresponding non-confidential public versions of Exhibits 2051 and 2041
`“summarize sensitive competitive information relating to R&D and testing
`and marketing research.” Id. at 2. Patent Owner contends that Exhibits
`2056 and 2075 contain “R&D and testing and marketing research at a
`competitively significant level.” Id. at 3.
`In the same Motion, Patent Owner requests entry of a Proposed
`Stipulated Protective Order (Ex. 2050). Id. at 10.
`In a Second Motion to Seal, Patent Owner moves to seal portions of
`Exhibit 2170.5 Paper 50, 1. Patent Owner contends that the redacted
`portions in the corresponding non-confidential public version of Exhibit
`2170 references and discusses confidential subject matter contained in
`
`
`1 Declaration of John F. Carpenter, Ph.D. in Support of Patent Owner’s
`Response.
`2 Declaration of Gordon Rausser, Ph.D. Under 37 C.F.R. § 1.68 in Support
`of Patent Owner’s Response to the Petition.
`3 Process Validation and/or Evaluation for Gattex.
`4 Shire, “Gattex Physician ATU Final Report,” October 22, 2015.
`5 Transcript of Video Deposition of Ivan Hoffmann.
`
` 2
`
`
`
`
`
`
`
`IPR2015-01093
`Patent 7,056,886 B2
`
`
`Exhibit 2075.
`In Petitioner’s Motion to Seal, Petitioner moves to seal portions of
`Exhibits 10426 and 1077.7 Paper 42, 1. Petitioner contends that Exhibits
`1042 and 1077 reference documents or information that is deemed
`“Protective Order Material” by NPS Pharmaceuticals, Inc. Id.
`II. DISCUSSION
`Generally speaking, all papers and evidence in the record of an inter
`partes review shall be made available to the public, except as otherwise
`ordered. Documents filed with a motion to seal, however, shall be treated as
`sealed until the motion is decided. 35 U.S.C. § 316(a)(1); 37 C.F.R. § 42.14.
`The standard for granting a motion to seal is “good cause.” 37 C.F.R.
`§ 42.54. There is a strong public policy that favors making information filed
`in inter partes review proceedings open to the public. See Garmin Int’l v.
`Cuozzo Speed Techs., LLC, Case IPR2012-00001, slip op. at 1-2 (PTAB
`Mar. 14, 2013) (Paper 32) (discussing the standards applied to motions to
`seal). The moving party bears the burden of showing that the relief
`requested should be granted. 37 C.F.R. § 42.20(c). That includes showing
`that the information is truly confidential, and that such confidentiality
`outweighs the strong public interest in having an open record. See Garmin,
`slip op. at 3.
`Having reviewed Patent Owner’s First and Second Motions to Seal,
`
`
`6 Reply Declaration of Ivan Hofmann.
`7 Deposition Transcript of Gordon Rausser, Ph.D. dated March 23, 2016.
`
` 3
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`
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`
`
`
`
`IPR2015-01093
`Patent 7,056,886 B2
`
`
`Petitioner’s Motion to Seal, the documents sought to be sealed, and the
`proposed redactions, we find that the information that Patent Owner and
`Petitioner seek to file under seal appears, on its face, to contain confidential
`research, development, or commercial information. Accordingly, we
`determine good cause exists to seal Exhibits 1042, 1077, 2041, 2051, 2056,
`2075, and 2170 as requested in by the parties. We are persuaded that those
`exhibits present confidential information as contended by the parties.
`The parties have conferred and have reached agreement as to the
`terms and the scope of the Proposed Protective Order (Ex. 2050). Paper 42,
`1; Paper 50, 1. The parties have provided a detailed discussion explaining
`the differences between the proposed protective order and the default
`protective order. Paper 32, 10. In particular, the Proposed Protective Order
`differs from the Default Protective Order as follows:
`
`First, paragraph two has been amended to specify that
`confidential information is to be marked “PROTECTIVE
`ORDER MATERIAL.” . . .
`Second, paragraph three has been added to allow for
`certain highly sensitive confidential information to be marked
`“PROTECTIVE ORDER MATERIAL – ATTORNEYS’ EYES
`ONLY.” Information with this designation may only be
`disclosed to outside counsel, retained experts, the Office and
`Support Personnel.
`Id. We further note the Proposed Protective Order includes the necessary
`terms as outlined in the Office Practice Guide. Office Patent Trial Practice
`Guide, 77 Fed. Reg. 48756, 48770 (Aug. 14, 2012). Accordingly, the
`Proposed Stipulated Protective Order (Ex. 2050), as filed by Patent Owner
`along with its First Motion to Seal, is acceptable.
`
` 4
`
`
`
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`
`
`IPR2015-01093
`Patent 7,056,886 B2
`
`
`We remind the parties that confidential information that is subject to a
`protective order ordinarily becomes public 45 days after denial of a petition
`to institute or 45 after final judgment in a trial. A party seeking to maintain
`the confidentiality of the information may file a motion to expunge the
`information from the record prior to the information becoming public. See
`37 C.F.R. § 42.56.
`III. ORDER
`Accordingly, it is
`ORDERED that Patent Owner’s First Motion to Seal is granted as to
`Exhibits 2051, 2041, 2056, and 2075;
`FURTHER ORDERED that Patent Owner’s Second Motion to Seal is
`granted as to Exhibit 2170;
`FURTHER ORDERED that Petitioner’s Motion to Seal is granted as
`to Exhibits 1042 and 1077;
`FURTHER ORDERED that the Proposed Protective Order agreed to
`by the parties (Exhibit 2050) is hereby entered into this proceeding; and
`FURTHER ORDERED that this Protective Order shall govern the
`conduct of the proceeding unless otherwise modified.
`
`
` 5
`
`
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`
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`
`
`
`IPR2015-01093
`Patent 7,056,886 B2
`
`
`For PETITIONER:
`Jeffrey D. Blake
`Matthew L. Fedowitz
`MERCHANT & GOULD P.C.
`jblake@merchantgould.com
`mfedowitz@merchantgould.com
`
`For PATENT OWNER:
`
`Joseph R. Robinson
`Heather Morehouse Ettinger
`Dustin B. Weeks
`TROUTMAN SANDERS LLP
`joseph.robinson@troutmansanders.com
`heather.ettinger@troutmansanders.com
`dustin.weeks@troutmansanders.com
`
`
` 6
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`
`
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