throbber
Trials@uspto.gov
`571-272-7822
`
`
`
` Paper 62
`
`
` Entered: June 21, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LUPIN LTD., LUPIN PHARMACEUTICALS INC., INNOPHARMA
`LICENSING, INC., INNOPHARMA LICENSING LLC, INNOPHARMA
`INC., INNOPHARMA LLC, MYLAN PHARMACEUTICALS INC., and
`MYLAN INC.,
`
`Petitioners,
`v.
`
`SENJU PHARMACEUTICAL CO., LTD.,
`
`Patent Owner.
`____________
`
`Case IPR2015-01097 (Patent 8,754,131 B2)1
`Case IPR2015-01100 (Patent 8,927,606 B1)2
` Case IPR2015-01105 (Patent 8,871,813 B2)3
`____________
`
`Before FRANCISCO C. PRATS, ERICA A. FRANKLIN, and
`GRACE KARAFFA OBERMANN, Administrative Patent Judge.
`
`FRANKLIN, Administrative Patent Judge.
`
`DECISION4
`Denying Patent Owner’s Motion to Seal Exhibit 2323
`37 C.F.R. § 42.14
`INTRODUCTION
`
`I.
`
`
`
` 1
`
` Case IPR2016-00089 has been joined with this proceeding.
`2 Case IPR2016-00091 has been joined with this proceeding.
`3 Case IPR2016-00090 has been joined with this proceeding.
`4 This Decision relates to and shall be filed in each referenced case.
`
`

`
`IPR2015-01097 (Patent 8,754,131 B2)
`IPR2015-01100 (Patent 8,927,606 B1)
`IPR2015-01105 (Patent 8,871,813 B2)
`
`
`In each of the captioned proceedings, Patent filed a Motion to Seal
`
`portions of the “Reply Expert Report of John C. Jarosz” (Exhibit 2323).
`
`Paper 425 (“Mot.”). Patent Owner asserts that Petitioners do not oppose the
`
`motion. Mot. 1.
`
`For the reasons described in the following discussion, we deny Patent
`
`Owner’s Motion to Seal Exhibit 2323.
`
`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.
`
`
`
` 5
`
` Patent Owner states the “word-for-word” identical paper was filed in each
`captioned proceeding. Paper and Exhibit numbers are the same in each of
`those proceeding.
`
`
`
`2
`
`

`
`IPR2015-01097 (Patent 8,754,131 B2)
`IPR2015-01100 (Patent 8,927,606 B1)
`IPR2015-01105 (Patent 8,871,813 B2)
`
`
`Patent Owner asserts that to the best of its knowledge, the information
`
`in Exhibit 2323 identified as confidential has not been published or
`
`otherwise been made public. Id. Specifically, Patent Owner asserts that
`
`portions of pages 26 and 29 of Exhibit 2323 contain confidential
`
`information. Id. at 3. According to Patent Owner, the exhibit “contains
`
`Patent Owner’s commercial embodiment of the Patents-at-Issue,” relied
`
`upon to show Patent Owner’s commercial success. Id. Therefore, Patent
`
`Owner requests that the indicated portions of Exhibit 2323 be sealed as
`
`“PROTECTIVE ORDER MATERIAL,” for the duration of this proceeding.
`
`Id. at 4.
`
`
`
`Patent Owner has sufficiently established that the cited portions of
`
`Exhibit 2323 contain confidential information. However, a protective order
`
`has not been entered in the captioned proceedings and an acceptable
`
`proposed protective order has not been filed. Thus, Patent Owner’s Motion
`
`to Seal Exhibit 2323 is denied without prejudice. Under the circumstances,
`
`we exercise our discretion to maintain Exhibit 2323 under a provisional seal,
`
`in the manner requested, through July 31, 2016, to allow time for Patent
`
`Owner to file a renewed motion to seal after a protective order is entered in
`
`this proceeding and/or to withdraw the provisionally sealed exhibit.
`
`In accordance with the foregoing, it is hereby:
`
`ORDER
`
`ORDERED that the Patent Owner’s Motion to Seal Exhibit 2323 is
`
`denied without prejudice;
`
`FURTHER ORDERED that Exhibit 2323 shall remain provisionally
`
`sealed until further notice by the Board;
`
`
`
`3
`
`

`
`IPR2015-01097 (Patent 8,754,131 B2)
`IPR2015-01100 (Patent 8,927,606 B1)
`IPR2015-01105 (Patent 8,871,813 B2)
`
`
`FURTHER ORDERED the parties may file a renewed motion to seal
`
`and/or withdraw provisionally sealed exhibits on or before July 31, 2016;
`
`and
`
`FURTHER ORDERED that any opposition to a renewed motion to
`
`seal shall be filed within 5 business days after the filing of the motion.
`
`
`
`4
`
`

`
`IPR2015-01097 (Patent 8,754,131 B2)
`IPR2015-01100 (Patent 8,927,606 B1)
`IPR2015-01105 (Patent 8,871,813 B2)
`
`PETITIONERS:
`
`Deborah Yellin
`DYellin@crowell.com
`
`Jonathan Lindsay
`JLindsay@crowell.com
`
`Teresa Rea
`trea@crowell.com
`
`Jitendra Malik
`jitty.malik@alston.com
`
`Bryan Skelton
`bryan.skelton@alston.com
`
`
`
`PATENT OWNER:
`
`Bryan Diner
`bryan.diner@finnegan.com
`
`Justin Hasford
`justin.hasford@finnegan.com
`
`Joshua Goldberg
`joshua.goldberg@finnegan.com
`
`5

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