UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`UMICORE AG & CO. KG,
`Petitioner,
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`v.
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`BASF CORPORATION
`Patent Owner.
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`
`Case No. IPR2015-01124
`U.S. Patent No. 8,404,203
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`PATENT OWNER COMBINED MOTION TO SEAL AND MOTION FOR
`PROTECTIVE ORDER
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`UMICORE AG & CO. KG,
`Petitioner,
`
`
`
`v.
`
`
`
`BASF CORPORATION
`Patent Owner.
`
`
`Case No. IPR2015-01124
`U.S. Patent No. 8,404,203
`
`
`
`
`
`PATENT OWNER COMBINED MOTION TO SEAL AND MOTION FOR
`PROTECTIVE ORDER
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`IPR2015-01124
`Patent No. 8,404,203
`Patent Owner Motion to Seal and Motion for Protective Order
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`
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`Patent Owner BASF Corporation (“Patent Owner”) hereby moves for entry
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`of the Protective Order appended below as Addendum A and further moves to seal
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`certain highly confidential and competitively sensitive exhibits submitted with its
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`Patent Owner Response, as described herein. Petitioner Umicore AG &Co. KG
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`(“Petitioner”) has not provided its position on the motion to file under seal or the
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`motion for entry of the Protective Order, however Petitioner indicated that it will
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`provide its position after reviewing the exhibits. Petitioner has agreed that until the
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`present combined motion is decided, the confidential exhibits will be treated as
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.
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`
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`Patent Owner submits its Response concurrently with the filing of this
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`combined motion. In support of its Response, Patent Owner submits certain
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`documents designated as HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY by Patent Owner. Patent Owner submits that these supporting exhibits are
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`confidential and competitively sensitive and must be properly sealed in order to
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`protect its highly confidential business information from disclosure to its direct
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`competitor’s employees and the general public.
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`I. MOTION TO SEAL
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`
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`Patent Owner moves to seal portions of the declaration of Dr. Ahmad Moini
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`(Exhibit 2019) and the declaration of Olivia Schmidt (Exhibit 2034) submitted
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`with this motion. Patent Owner has concurrently filed a redacted declaration of Dr.
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`2
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`IPR2015-01124
`Patent No. 8,404,203
`Patent Owner Motion to Seal and Motion for Protective Order
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`Ahmad Moini and a redacted declaration of Olivia Schmidt. Patent Owner has
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`served Petitioner with both confidential and redacted versions of the Response and
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`supporting exhibits.
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`
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`These declarations include competitively sensitive business information of
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`Patent Owner. This highly confidential business information includes non-public
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`technical information regarding the composition of Patent Owner’s commercial
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`products (in Exhibit 2019) and confidential market share information regarding the
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`relevant market for such products (in Exhibit 2034).
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`The record of an inter partes review proceeding, including documents and
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`things, is made available to the public, except as otherwise ordered. 37 C.F.R. §
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`2.14. But despite the default rule of public availability, the Board will seal
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`confidential information for “good cause,” because it is necessary to “strike a
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`balance between the public’s interest in maintaining a complete and
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`understandable file history and the parties’ interest in protecting truly sensitive
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`information.” 37 C.F.R. § 42.54(a); 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012).
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`As laid out in the Office Trial Practice Guide, the Board treats confidential
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`information “consistent with Federal Rule of Civil Procedure 26(c)(1)(G), which
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`provides for protective orders for trade secret or other confidential research,
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`development, or commercial information.” Id. at 48760. Patent Owner submits
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`that good cause to seal Exhibits 2019 and 2034 exists.
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`3
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`IPR2015-01124
`Patent No. 8,404,203
`Patent Owner Motion to Seal and Motion for Protective Order
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`
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`Petitioner in this proceeding is a direct competitor. In fact, Petitioner is one
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`of only three major companies in the relevant market, including Patent Owner. If
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`the highly confidential composition of its products and the related market share
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`information were disclosed publicly or to the Petitioner’s employees, this
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`disclosure would cause competitive business harm to Patent Owner.
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`In other inter partes review proceedings, the Board has found good cause to
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`seal sensitive and confidential trade secret information like that contained in
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`Exhibit 2019. See, e.g., First Quality Baby Products, LLC v. Kimberly-Clark
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`Worldwide, Inc., IPR2014-01024, Paper 56, at 32 (PTAB December 14,
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`2015). Exhibit 2019 discusses the composition of Patent Owner’s commercially
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`available product and its contents are competitively sensitive information that
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`would cause competitive harm to Patent Owner if its contents were disclosed to
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`employees of Petitioner, who is a direct competitor, or the general public. The
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`sealing of Exhibit 2019 will not inhibit the general public from understanding the
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`underlying arguments and evidence that Patent Owner is relying upon in the public
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`versions of its filings.
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`Further, as evidenced by other inter partes review proceedings, the Board
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`has held that confidential information such as the confidential market share
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`information can be sealed. See, e.g., Baby Trend, Inc. v. Wonderland
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`Nurserygoods Co., Ltd., IPR2015-00841, Paper 35, at 3 (PTAB November 17,
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`4
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`IPR2015-01124
`Patent No. 8,404,203
`Patent Owner Motion to Seal and Motion for Protective Order
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`2015). In Baby Trend, the Board held that market share information that was not
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`otherwise public was evidence that good cause existed for sealing this
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`information. Id. The sealing of this competitively sensitive and confidential
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`market share information will not inhibit the general public from understanding the
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`underlying arguments and evidence that Patent Owner is relying upon in the public
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`versions of its filings.
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`As stated above, Patent Owner’s undersigned counsel certifies that Patent
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`Owner has in good faith attempted to confer with Petitioner as to the entry of the
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`Proposed Protective Order, but Petitioner has elected to review the confidential
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`exhibits prior to providing its position.
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`II. MOTION FOR ENTRY OF A PROTECTIVE ORDER
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`The parties have met and conferred regarding the entry of a protective order,
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`which is appended as Addendum A. The proposed Protective Order is consistent
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`with the Default Protective Order of this Board with certain edits applicable to this
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`case. A redline of these edits is appended as Addendum B.
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`Patent Owner’s undersigned counsel certifies that Patent Owner has in good
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`faith attempted to confer with Petitioner regarding the entry of a Protective Order
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`however counsel for Petitioner has stated that it would state its position on the
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`Protective Order until after having reviewed the present motion.
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`5
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`IPR2015-01124
`Patent No. 8,404,203
`Patent Owner Motion to Seal and Motion for Protective Order
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`III. CERTIFICATION OF NON-PUBLICATION
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`On behalf of Patent Owner, the undersigned counsel certifies that the
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`information sought to be sealed by this Motion has not, to their knowledge, been
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`published or otherwise made public.
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`IV. CONCLUSION
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`For the foregoing reasons, Patent Owner respectfully requests that the Board
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`grant the combined motion to seal Exhibits 2019 and 2034 as HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY and for entry of the protective
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`Respectfully submitted,
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` /
`
` Anish R. Desai /
`Brian E. Ferguson (Reg. No. 36,801)
`Anish R. Desai (Reg. No. 73,760)
`Gary A. Coad (Pro Hac Vice)
`Weil, Gotshal & Manges LLP
`1300 Eye Street NW, Suite 900
`Washington, DC 20005
`T: 202-682-7000
`brian.ferguson@weil.com
`anish.desai@weil.com
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`6
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`order appended as Addendum A.
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`
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`Dated: February 12, 2016
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`IPR2015-01124
`Patent No. 8,404,203
`Patent Owner Motion to Seal and Motion for Protective Order
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`CERTIFICATE OF SERVICE
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`
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`The undersigned hereby certifies that on February 12, 2016, the foregoing
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`PATENT OWNER MOTION TO SEAL AND MOTION FOR
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`PROTECTIVE ORDER was served via electronic mail, upon the following:
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`Elizabeth Gardner
`Richard L. DeLucia
`K. Patrick Herman
`Orrick, Herrington & Sutcliffe LLP
`51 West 52nd Street
`New York, NY 10019-6142
`egardner@orrick.com
`rdelucia@orrick.com
`pherman@orrick.com
`
`
`/ Timothy J. Andersen / c
`Timothy J. Andersen
`Case Manager
`Weil, Gotshal & Manges LLP
`1300 Eye Street NW, Suite 900
`Washington, DC 20005
`T: 202-682-7075
`timothy.andersen@weil.com
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`7
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`ADDENDUM A
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`ADDENDUM A
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
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`
`
`UMICORE AG & CO. KG,
`Petitioner,
`v.
`BASF CORPORATION
`Patent Owner.
`
`
`
`IPR2015-01121
`IPR2015-01125
`U.S. Patent 7,601,662
`
`IPR2015-01123
`IPR2015-01124
`U.S. Patent 8,404,203
`
`PROTECTIVE ORDER
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
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`WHEREAS, Patent Owner BASF Corporation Inc. is a private entity that
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`desires to keep confidential, in good faith, information that is not reasonably
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`believed to be in the public domain;
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`WHEREAS, Petitioner Umicore AG & Co. KG is a direct competitor of
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`Patent Owner in the market for goods covered by the challenged patents, U.S.
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`Patent Nos. 7,601,662 and 8,404,203; and
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`WHEREAS, to promote fairness and efficiency in this proceeding without
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`the need to seek a separate protective order for each competitively sensitive
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`document and/or any competitively sensitive information requested or exchanged,
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`including, but not limited to, trade secrets or other confidential research,
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`development or other commercial information;
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`Patent Owner HEREBY RESPECTFULLY REQUESTS that the parties be
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`ordered to conduct their activities related to IPR2015-01121, IPR2015-01123,
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`IPR2015-01124, and IPR2015-01125 in accordance with the following:
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`1.
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`Confidential Information shall be clearly marked “CONFIDENTIAL -
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`PROTECTIVE ORDER MATERIAL” or “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY.”' Confidential Information is information disclosed
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`by one party to the other, which, if in written, graphic, machine-readable or other
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
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`tangible form is marked as “CONFIDENTIAL - PROTECTIVE ORDER
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`MATERIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
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`which, if disclosed orally or by demonstration, is identified at the time of initial
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`disclosure as confidential. Confidential Information shall not include any
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`information which (i) the parties agree, or the Board rules, is already public
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`knowledge, (ii) the parties agree, or the Board rules, has become public knowledge
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`other than as a result of disclosure by the receiving party, (iii) is in the receiving
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`party's legitimate possession independently of the producing party, or (iv) is
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`deemed by the Board not to meet standards necessary for filing under seal, or
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`otherwise is not entitled to protection.
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`2.
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`Unless otherwise provided herein, redacted copies of documents may
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`be produced where the redacted portions contain privileged matter. Any redacting
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`must be done such that the redacting is conspicuous.
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`3.
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`Information may be disclosed only to:
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`(A)
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`Outside counsel of record for a party in the proceeding.
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`All in-house counsel and other representatives of the parties (other than outside
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`counsel of record) shall not be allowed to view HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Information.
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`2
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
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`(B)
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`Experts. Retained experts of a party in the proceeding
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`who are not employed by any party, not a competitor to any party, and not a
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`consultant for, or employed by, such a competitor with respect to the subject matter
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`of the proceeding and certify in accordance with and sign the Standard
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`Acknowledgment for Access to Protective Order Material ("Acknowledgment"),
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`which is attached to this Protective Order as Exhibit A.
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`(C)
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`The Office. Employees and representatives of the U.S.
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`Patent and Trademark Office and Patent and Trademark Appeals Board who have
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`a need for access to the information shall have such access without the requirement
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`to sign the Acknowledgement. Such employees and representatives shall include
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`the Director, members of the Board and their clerical staff, other support personnel,
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`court reporters, and other persons acting on behalf of the Office.
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`(D)
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`Support Personnel. Administrative assistants, clerical
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`staff, court reporters, outside copying and exhibit preparation services and other
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`support personnel of the foregoing persons who are reasonably necessary to assist
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`those persons in the proceeding and who execute the Acknowledgement.
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`4.
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`CONFIDENTIAL - PROTECTIVE ORDER MATERIAL may be
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`disclosed only to the following individuals:
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`3
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
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`(A)
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`Above Personnel. Those persons or entities identified in
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`paragraph 3 of this Protective Order under the conditions set forth in that
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`paragraph.
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`(B)
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`Parties to the Present Proceeding. Persons who are
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`owners of a patent involved in the proceeding and other persons who are named
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`parties to the proceeding, who sign the Acknowledgment.
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`(C)
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`In-house counsel. In-house counsel of a party who signs
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`the Acknowledgement.
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`(D)
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`Other Employees of a Party. No more than two (2)
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`employees of each party who have been designated to assist with this matter who
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`sign the Acknowledgement.
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`5.
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`Persons receiving Confidential Information shall use reasonable
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`efforts to maintain the confidentiality of the information, including:
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`(A)
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`Maintaining such information in a secure location to
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`which persons not authorized to receive the information shall not have access;
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`(B)
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`Otherwise using reasonable efforts to maintain the
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`confidentiality of the information, which efforts shall be no less rigorous than those
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`the receiving party uses to maintain the confidentiality of information not received
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`from the disclosing party;
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`4
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
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`(C)
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`Ensuring that support personnel of the receiving party
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`who have access to the Confidential Information understand and abide by the
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`obligation to maintain the confidentiality of information received that is designated
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`as confidential; and
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`(D)
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`Limiting the copying of Confidential Information to a
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`reasonable number of copies needed for conduct of the proceeding and maintaining
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`a record of the locations of such copies.
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`6.
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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)
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`Documents and Information Filed with the Board by the
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`party that designated the Documents and Information as Confidential Information.
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`(i) A party may file its documents or information with the
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`Board under seal, together with a non-confidential description of the nature
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`of the Confidential Information that is under seal and the reasons why the
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`documents or information is being filed under seal. The documents or
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`information shall be treated as confidential and remain under seal until the
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`Board determines that the documents or information do not qualify for
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`confidential treatment.
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`5
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
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`(ii) Where confidentiality is alleged as to some but not all of
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`the 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 publicly available. The non-confidential version of the
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`submission shall clearly indicate the locations of information that has been
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`redacted. The confidential version of the submission shall be filed under
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`seal. The confidential version of the submission shall remain under seal until
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`the Board determines that some or all of the redacted information does not
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`qualify for confidential treatment.
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`(B)
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`Documents and Information Filed with the Board by a
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`party that received Documents and Information ("receiving party") from another
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`party that designated the Documents and Information as Confidential Information
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`("designating party").
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`(i) Where confidentiality is alleged as to all of the
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`information to be submitted to the board: The receiving party shall, to the
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`extent practicable, provide 7 days’ notice to the designating party of its
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`intent to file Confidential Information with the Board and specifically
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`6
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
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`identify such Confidential Information. The parties agree that this 7 day
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`notice requirement is intended to facilitate an orderly process for addressing
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`legitimate confidentiality concerns and apportion responsibility such that the
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`designating party is responsible for establishing that its Confidential
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`Information is entitled to protection from disclosure and for providing non-
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`confidential descriptions of its Confidential Information, and that the
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`receiving party is responsible for redacting Confidential Information from its
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`public filings and for filing under seal any documents that contain a
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`designating party’s Confidential Information . This notice requirement is not
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`intended as any limitation on what information may be included in any
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`submission to the Board by a receiving party. Nothing in this paragraph shall
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`be understood or interpreted to preclude a receiving party from identifying to
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`the designating party other information to be submitted to the board after the
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`7 day notice point, but the receiving party shall use best efforts so as to not
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`provide any notice less than 2 days. The designating party shall provide the
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`receiving party with a non-confidential description of the nature of the
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`Confidential Information 1 day before the date that the receiving party
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`intends to file the Confidential Information with the Board. The designating
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`party shall also prepare the reasons why it believes the information is
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`confidential and should not be made available to the public. The designating
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`7
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
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`party shall file such reasons with the Board on the day that the receiving
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`party files the Confidential with the Board on the day that Information with
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`the Board. The receiving party must file the designating party's non-
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`confidential description of the nature of the Confidential Information that is
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`under seal. Any Confidential Information or submissions containing
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`Confidential Information filed under seal shall be treated as confidential and
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`remain under seal until the Board determines that the documents or
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`information do not qualify for confidential treatment.
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`(ii) Where confidentiality is alleged as to some but not all of
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`the information submitted to the Board: The receiving party shall provide 7
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`days’ notice to the designating party of its intent to file Confidential
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`Information with the Board and specifically identify such Confidential
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`Information. The parties agree that this seven day notice requirement is
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`intended to facilitate an Orderly process for addressing legitimate
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`confidentiality concerns and apportion responsibility such that the
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`designating party is responsible for establishing that its Confidential
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`Information is entitled to protection from disclosure, and for redacting
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`Confidential Information from its documents to create non-confidential
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`versions of such documents, and that the receiving party is responsible for
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`redacting Confidential Information from its public filings and for filing
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`8
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
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`under seal any documents that contain a designating party's Confidential
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`Information. This notice requirement is not intended as any limitation of
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`what information may be included in any submission to the Board by a
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`receiving party. Nothing in this paragraph shall be understood or interpreted
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`to preclude a receiving party from identifying to the designating party other
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`information to be submitted to the board after the seven day notice point, but
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`the receiving party shall use best efforts so as to not provide notice of less
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`than 2 days. The designating party shall prepare non-confidential versions of
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`its documents containing Confidential Information that the receiving party
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`intends to file with the Board as well as a Motion to Seal the confidential
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`versions setting forth the reasons why the information redacted from the
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`non-confidential versions is confidential and should not be made publicly
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`available. The non-confidential version shall clearly indicate the locations of
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`information that has been redacted. The designating party shall send the non-
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`confidential versions of its documents to the receiving party 1 day before the
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`receiving party intends to submit the Confidential Information to the Board.
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`The receiving party shall file the confidential and non-confidential versions.
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`The designating party shall file the Motion to Seal on the day that the
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`Confidential Information is filed with the Board by the receiving party. The
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`redacted information shall remain under seal until the Board determines that
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`9
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
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`some or all of the redacted information does not qualify for confidential
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`treatment.
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`(C)
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`Documents and Information Exchanged Among the
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`Parties. Information designated as Confidential Information that is disclosed to
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`another party during discovery or other proceedings before the Board shall be
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`clearly marked as “CONFIDENTIAL - PROTECTIVE ORDER MATERIAL” or
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” respectively, and
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`shall be exchanged in a manner that maintains its confidentiality.
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`(D)
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`Adherence to Code of Federal Regulations and Office
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`Patent Trial Practice Guide. Nothing in this paragraph 6 is intended to alter the
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`standards applicable to a determination of whether any information is entitled to be
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`maintained in confidence, without a public right of access. In addition, nothing in
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`this paragraph 6 is intended to alter the procedural obligations of a party to move to
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`seal and otherwise make a showing that the information is entitled to remain under
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`seal, as those obligations are set forth in the Board's Rules. The parties specifically
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`acknowledge and do not intend to alter the standards and obligations imposed by
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`37 C.F.R. § 42.54 and the Office Trial Practice Guide, 77 Fed. Reg. 48756, 48760
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`(Aug. 14, 2012).
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`10
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
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`7.
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`All Confidential Information, whether marked as “CONFIDENTIAL -
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`PROTECTIVE ORDER MATERIAL” or “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY,” shall be used only for this proceeding and shall not
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`be used for any other purpose.
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`8.
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`Nothing in this Order shall be construed as an agreement by a
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`receiving party that any information designated by a producing party as
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`Confidential Information meets any standards for filing materials under seal. The
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`parties acknowledge that any party may challenge the designation of any
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`information as Confidential Information, and agreement to this order shall not be
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`used to oppose any challenge to the designation or opposition to any request to seal
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`papers containing information designated by a party as Confidential Information.
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`All parties shall adhere to the requirements of this Order until such a time as relief
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`from the Order is granted by the Board or a court of competent jurisdiction.
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`11
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
`
`EXHIBIT A
`UMICORE AG & CO. KG, v. BASF CORPORATION
`IPR2015-01121, IPR2015-01125
`U.S. Patent 7,601,662
`IPR2015-01123, IPR2015-01124
`U.S. Patent 8,404,203
`
`Standard Acknowledgment for Access to Protective Order Material
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`I ______________________________________, affirm that I have read the
`
`Protective Order; that I will abide by its terms; that I will use the confidential
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`information only in connection with this proceeding and for no other purpose; that
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`I will only allow access to support staff who are reasonably necessary to assist me
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`in this proceeding; that prior to any disclosure to such support staff I informed or
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`will inform them of the requirements of the Protective Order; that I am personally
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`responsible for the requirements of the terms of the Protective Order and I agree to
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`submit to the jurisdiction of the Office and the United States District Court for the
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`Eastern District of Virginia for purposes of enforcing the terms of the Protective
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`Order and providing remedies for its breach.
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`By:
`
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`Dated:
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`ADDENDUM B
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`ADDENDUM B
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`
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
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`
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`
`
`UMICORE AG & CO. KG,
`Petitioner,
`v.
`BASF CORPORATION
`Patent Owner.
`
`
`
`IPR2015-01121
`IPR2015-01125
`U.S. Patent 7,601,662
`
`IPR2015-01123
`IPR2015-01124
`U.S. Patent 8,404,203
`
`PROTECTIVE ORDER
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`
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`Protective Order
`(IPR2015-01121, IPR2015-01123, IPR2015-01124, IPR2015-01125)
`
`WHEREAS, Patent Owner BASF Corporation Inc. is a private entity that
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`desires to keep confidential, in good faith, information that is not reasonably
`
`believed to be in the public domain;
`
`WHEREAS, Petitioner Umicore AG & Co. KG is a direct competitor of
`
`Patent Owner in the market for goods covered by the challenged patents, U.S.
`
`Patent Nos. 7,601,662 and 8,404,203; and
`
`WHEREAS, to promote fairness and efficiency in this proceeding without
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`the need to seek a separate protective order for each competitively sensitive
`
`document and/or any competitively sensitive information requested or exchanged,
`
`including, but not limited to, trade secrets or other confidential research,
`
`development or other commercial information;
`
`Patent Owner HEREBY RESPECTFULLY REQUESTS that the parties be
`
`ordered to conduct their activities related to IPR2015-01121, IPR2015-01123,
`
`IPR2015-01124, and IPR2015-01125 in accordance with the following:
`
`
`
`1.
`
`Confidential Information shall be clearly marked “CONFIDENTIAL -
`
`PROTECTIVE ORDER MATERIAL” or “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY.”' Confidential Information is information disclosed
`
`by one party to the other, which, if in written, graphic, machine-readable or other
`
`
`
`
`
`tangible form is marked as “CONFIDENTIAL - PROTECTIVE ORDER
`
`MATERIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
`
`which, if disclosed orally or by demonstration, is identified at the time of initial
`
`disclosure as confidential. Confidential Information shall not include any
`
`information which (i) the parties agree, or the Board rules, is already public
`
`knowledge, (ii) the parties agree, or the Board rules, has become public knowledge
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`other than as a result of disclosure by the receiving party, (iii) is in the receiving
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`party's legitimate possession independently of the producing party, or (iv) is
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`deemed by the Board not to meet standards necessary for filing under seal, or
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`otherwise is not entitled to protection.
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`2.
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`Unless otherwise provided herein, redacted copies of documents may
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`be produced where the redacted portions contain privileged matter. Any redacting
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`must be done such that the redacting is conspicuous.
`
`3.
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`Information may be disclosed only to:
`
`(A)
`
`Outside counsel of record for a party in the proceeding.
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`All in-house counsel and other representatives of the parties (other than outside
`
`counsel of record) shall not be allowed to view HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY Information.
`
`2
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`
`
`
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`1. Confidential information shall be clearly marked “PROTECTIVE ORDER
`
`MATERIAL.”
`
`2. Access to confidential information is limited to the following individuals who
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`have executed the acknowledgment appended to this order:
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`(A) Parties. Persons who are owners of a patent involved in the proceeding and
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`other persons who are named parties to the proceeding.
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`(B) Party Representatives. Representatives of record for a party in the proceeding.
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`(B)
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`(C) Experts. Retained experts of a party in the proceeding
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`who further certify in the Acknowledgement that they areare not employed by any
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`party, not a competitor to any party, orand not a consultant for, or employed by,
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`such a competitor with respect to the subject matter of the proceeding and certify
`
`in accordance with and sign the Standard Acknowledgment for Access to
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`Protective Order Material ("Acknowledgment"), which is attached to this
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`Protective Order as Exhibit A.
`
`(D) In-house counsel. In-house counsel of a party.
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`(E) Other Employees of a Party. Employees, consultants or other persons
`
`performing work for a party, other than in-house counsel and in-house counsel’s
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`support staff, who sign the Acknowledgement shall be extended access to
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`confidential information only upon agreement of the parties or by order of the
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`3
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`
`
`
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`Board upon a motion brought by the party seeking to disclose confidential
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`information to that person. The party opposing disclosure to that person shall have
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`the burden of proving that such person should be restricted from access to
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`confidential information.
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`(C)
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`(F) The Office. Employees and representatives of the
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`OfficeU.S. Patent and Trademark Office and Patent and Trademark Appeals Board
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`who have a need for access to the confidential information shall have such access
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`without the requirement to sign anthe 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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`(D)
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`(G) Support Personnel. Administrative assistants, clerical
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`staff, court reporters, outside copying and exhibit preparation services and other
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`support personnel of the foregoing persons who are reasonably necessary to assist
`
`those persons in the proceeding shall not be required to sign anand who execute the
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`Acknowledgement, but shall be informed of the terms and requirements of the
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`Protective Order by the person they are supporting who receives confidential
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`information.
`
`4
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`
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`
`
`4.
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`CONFIDENTIAL - PROTECTIVE ORDER MATERIAL may be
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`disclosed only to the following individuals:
`
`(A)
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`Above Personnel. Those persons or entities identified in
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`paragraph 3 of this Protective Order under the conditions set forth in that
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`paragraph.
`
`(B)
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`Parties to the Present Proceeding. Persons who are
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`owners of a patent involved in the proceeding and other persons who are named
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`parties to the proceeding, who sign the Acknowledgment.
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`(C)
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`In-house counsel. In-house counsel of a party who signs
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`the Acknowledgement.
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`(D)
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`Other Employees of a Party. No more than two (2)
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`employees of each party who have been designated to assist with this matter who
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`sign the Acknowledgement.
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`5.
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`3. Persons receiving cConfidential iInformation shall use reasonable
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`efforts to maintain the confidentiality of the information, including:
`
`(A)
`
`Maintaining such information in a secure location to
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`which persons not authorized to receive the information shall not have access;
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`(B)
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`Otherwise using reasonable efforts to maintain the
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`confidentiality of the information, which efforts shall be no less rigorous than those
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`5
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`
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`the recipientreceiving party uses to maintain the confidentiality of information not
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`received from the disclosing party;
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`(C)
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`Ensuring that support personnel of the recipientreceiving
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`party who have access to the cConfidential iInformation understand and abide by
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`the obligation to maintain the confidentiality of information received that is
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`designated as confidential; and
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`(D)
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`Limiting the copying of cConfidential iInformation to a
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`reason
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