UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`
`
`SONY CORPORATION,
`Petitioner
`
`v.
`
`RAYTHEON COMPANY,
`Patent Owner
`_______________
`
`Case IPR2015-01201
`
`Patent 5,591,678
`_______________
`
`PROTECTIVE ORDER
`[Filed as Ordered in Paper No. 19]
`
`
`
`
`
`
`
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`
`
`SONY CORPORATION,
`Petitioner
`
`v.
`
`RAYTHEON COMPANY,
`Patent Owner
`_______________
`
`Case IPR2015-01201
`
`Patent 5,591,678
`_______________
`
`PROTECTIVE ORDER
`[Filed as Ordered in Paper No. 19]
`
`
`
`
`
`
`
`
`
`
`
`Protective Order
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`This protective order governs the treatment and filing of confidential information,
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`including documents and testimony.
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`1.
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`Confidential information shall be clearly marked ‘‘PROTECTIVE ORDER
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`MATERIAL.’’
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`2.
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`The parties further contemplate designating “PROTECTIVE ORDER
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`MATERIAL” as material and information subject to The International Traffic in Arms
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`Regulations (“ITAR”) found in Title 22 of the Code of Federal Regulations, parts 120 to
`
`130 (“ITAR Restricted Documents”). ITAR Restricted Documents shall be clearly
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`marked “THIS DOCUMENT CONTAINS TECHNICAL DATA CONTROLLED
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`UNDER THE INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR) AND
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`MAY NOT BE EXPORTED, REEXPORTED, TEMPORARILY IMPORTED,
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`TRANSFERRED, OR RETRANSFERRED TO ANY NON-U.S. PERSON, COUNTRY
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`OR ENTITY, BY ANY MEANS, WITHOUT THE APPROPRIATE APPROVAL OF
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`THE U.S. DEPARTMENT OF STATE, DIRECTORATE OF DEFENSE TRADE
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`CONTROLS (DDTC)” (“ITAR-RESTRICTED”). A Party shall designate documents,
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`information or material as “ITAR-RESTRICTED” only upon a good faith belief that the
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`documents, information or material are subject to restrictions under the ITAR regulations.
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`Confidential Information and ITAR Restricted Documents shall be collectively referred
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`to as “Designated Material”).
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`3.
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`Access to Confidential Information is limited to the following individuals
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`who have executed the acknowledgment appended to this order:
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`
`
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`
`
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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) Counsel of Record. Counsel of record for the parties in the proceeding,
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`including counsel (whether licensed to practice before the USPTO or not)
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`employed at the same law firm as any Counsel of Record.
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`(C) Experts. Retained experts of a party in the proceeding who further certify in
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`the Acknowledgement that they are not a competitor to any party, or a
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`consultant for, or employed by, such a competitor with respect to the subject
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`matter of the proceeding.
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`(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
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`performing work for a party, other than in-house counsel and in-house
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`counsel’s support staff, who sign the Acknowledgement shall be extended
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`access to confidential information only upon agreement of the parties or by
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`order of the Board upon a motion brought by the party seeking to disclose
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`confidential information to that person. The party opposing disclosure to that
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`person shall have the burden of proving that such person should be restricted
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`from access to confidential information.
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`(F) The Office. Employees and representatives of the Office who have a need for
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`access to the confidential information shall have such access without the
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`requirement to sign an Acknowledgement. Such employees and
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`representatives shall include the Director, members of the Board and their
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`
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`clerical staff, other support personnel, court reporters, and other persons acting
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`on behalf of the Office.
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`(G) Support Personnel. Administrative assistants, clerical staff, court reporters and
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`other support personnel of the foregoing persons who are reasonably necessary
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`to assist those persons in the proceeding shall not be required to sign an
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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.
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`4.
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`Subject to all ITAR export and temporary import controls, ITAR Restricted
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`Documents are further limited to the individuals in paragraph 3 above who are U.S.
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`Persons (as defined by ITAR §120.15). Notwithstanding anything in this Order, access to
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`or disclosure or release of ITAR Restricted Documents by any unauthorized person is
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`controlled by the ITAR, and nothing in this order shall be construed to contravene the
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`ITAR, without the prior written approval of the U.S. Department of State, Directorate of
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`Defense Trade Controls, or a violation of the ITAR could result.
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`5.
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`“ITAR-RESTRICTED” documents, information and material may not be
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`exported, reexported, temporarily imported, transferred, or retransferred to any foreign
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`person (as defined by ITAR § 120.16), country, or entity, by any means, without the
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`appropriate approval of the U.S. Department of State, Directorate of Defense Trade
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`Controls. These restrictions also apply to United States citizens and permanent residents
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`employed by a company or organization that falls within the definition of “foreign
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`person.” See ITAR § 120.16. United States persons employed by such a foreign
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`
`
`
`
`
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`organization or company are not eligible to receive ITAR-controlled information absent
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`an authorization from the DDTC.
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`6.
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`In any instance where information designated as “ITAR-RESTRICTED” is
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`accessed, the person with such access shall not transfer, carry, or send such information
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`to a location outside the United States, including via any electronic device or means, nor
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`otherwise share such information with any person not explicitly authorized to receive
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`such information as set forth above. “ITAR-RESTRICTED” documents related to this
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`case containing technical data under the ITAR must be protected from export or transfer
`
`to unauthorized foreign persons, whether located inside or outside of the United States,
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`including any foreign persons (as defined under these export control regimes) that may be
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`employed by law firms, consultants, or any other third party involved in this dispute.
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`Additionally, the furnishing of technical assistance (including the disclosure or release of
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`ITAR-controlled technical data) may constitute a “defense service,” which also requires
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`approval. Any disclosure of export-controlled technical data, or furnishing of technical
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`assistance where an authorization is needed but not secured, constitutes an export
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`violation. Counsel will take all necessary steps to ensure that any “ITAR-RESTRICTED”
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`documents will only be provided to, or accessible by, U.S. persons employed by Counsel
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`that have entered an appearance in this case. Counsel also must ensure that only U.S.
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`persons serving as expert or fact witnesses, or acting on behalf of Counsel as contractors,
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`vendors, or other service providers, have access to export control restricted Documents.
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`Additionally, Counsel will take all necessary steps to ensure access to these documents
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`will be restricted to U.S. Persons (as defined by ITAR §120.15), that these documents
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`
`
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`
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`will not be exported to foreign persons or foreign countries, and that no technical
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`assistance directly related to controlled defense articles or other commodities will be
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`provided to foreign persons or foreign countries. No provision herein shall be construed
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`as preventing Counsel from submitting ITAR-Restricted information to the Board
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`consistent with the Board’s procedures for filing sealed documents.
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`7.
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`The ITAR contains additional provisions relating to the disclosure of any
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`actual or suspected infractions regarding “ITAR-RESTRICTED” documents and things.
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`See ITAR § 127.12.
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`8.
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`Persons receiving Designated Material shall use reasonable efforts to
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`maintain the confidentiality of the information, including:
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`(A) Maintaining such information in a secure location to which persons not
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`authorized to receive the information shall not have access;
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`(B) Otherwise using reasonable efforts to maintain the confidentiality of the
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`information, which efforts shall be no less rigorous than those the recipient
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`uses to maintain the confidentiality of information not received from the
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`disclosing party;
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`(C) Ensuring that support personnel of the recipient who have access to the
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`Designated Material understand and abide by the obligation to maintain the
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`confidentiality of information received that is designated; and
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`(D) Limiting the copying of Designated Material to a reasonable number of copies
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`needed for conduct of the proceeding and maintaining a record of the locations
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`of such copies.
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`
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`
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`9.
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`Persons receiving Designated Material shall use the following procedures
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`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 under seal,
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`together with a non-confidential description of the nature of the Designated
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`Material that is under seal and the reasons why the information is
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`confidential and should not be made available to the public. Subject to
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`ITAR, the submission shall be treated as confidential and remain under
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`seal, 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 to
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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 nonconfidential 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. Subject to ITAR, the redacted information shall remain under
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`seal unless, upon motion of a party and after a hearing on the issue, or sua
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`
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`
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`sponte the Board determines that some or all of the redacted information
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`does not qualify for confidential treatment.
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`(B) Documents and Information Exchanged Among the Parties. Designated
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`Material that is disclosed to another party during discovery or other proceedings
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`before the Board shall be clearly marked as ‘‘PROTECTIVE ORDER
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`MATERIAL’’ and shall be produced in a manner that maintains its confidentiality.
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`SONY CORPORATION,
`Petitioner,
`
`v.
`
`RAYTHEON COMPANY,
`Patent Owner.
`_______________
`
`Case IPR2015-01201
`
`Patent 5,591,678
`_______________
`
`Acknowledgement for Access to Protective Order Material
`
`
`
`I __________________________________________, affirm that I have read the
`Protective Order; that I will abide by its terms; that I will use the Designated
`Material only in connection with this proceeding and for no other purpose; that I
`will only allow access to support staff who are reasonably necessary to assist me in
`this proceeding; that prior to any disclosure to such support staff I informed or will
`inform them of the requirements of the Protective Order; that I am personally
`responsible for the requirements of the terms of the Protective Order and I agree to
`submit to the jurisdiction of the Office and the United States District Court for the
`Eastern District of Virginia for purposes of enforcing the terms of the Protective
`Order and providing remedies for its breach.
`
`Name (print): _______________________________
`
`Signature: __________________________________
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