UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`COALITION FOR AFFORDABLE DRUGS VII LLC
`Petitioner
`
`v.
`
`POZEN INC.
`Patent Owner
`______________
`
`Case No. IPR2015-01241
`Patent No. 6,926,907
`______________
`
`
`
`PATENT OWNER’S MOTION TO EXPUNGE CONFIDENTIAL
`INFORMATION FROM THE RECORD
`
`37 C.F.R. § 42.56
`
`
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`COALITION FOR AFFORDABLE DRUGS VII LLC
`Petitioner
`
`v.
`
`POZEN INC.
`Patent Owner
`______________
`
`Case No. IPR2015-01241
`Patent No. 6,926,907
`______________
`
`
`
`PATENT OWNER’S MOTION TO EXPUNGE CONFIDENTIAL
`INFORMATION FROM THE RECORD
`
`37 C.F.R. § 42.56
`
`
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`
`
`Case No. IPR2015-01241
`Patent No. 6,926,907
`
`
`Pursuant to 37 C.F.R. § 42.56 and the Board’s Decision Denying Institution
`
`of Inter Partes Review (Paper No. 22), Horizon Pharmaceuticals, Inc. and Pozen
`
`Inc. (hereinafter, “Patent Owner”) respectfully submit this motion to expunge
`
`certain confidential documents from the record.
`
`I.
`
`
`
`THE BOARD AUTHORIZED PATENT OWNER’S MOTION TO
`EXPUNGE
`
`On September 18, 2015, Patent Owner filed its confidential Preliminary
`
`Response (Paper No. 15), a redacted version of its Preliminary Response (Paper
`
`No. 13), and supporting exhibits, including confidential Exhibit 2011. Patent
`
`Owner also filed a motion to seal both the confidential Preliminary Response and
`
`Exhibit 2011. (Paper No. 16.)
`
`
`
`On December 8, 2015, the Board entered its Decision Denying Institution of
`
`Inter Partes Review (“the Decision”). In the Decision, the Board declined to rule
`
`on Patent Owner’s motion to seal, but authorized Patent Owner to file a motion to
`
`expunge any confidential material within thirty days of the Decision or within
`
`thirty days of a decision on rehearing, if a rehearing is requested. (Paper No. 22 at
`
`26.)
`
`
`
`Patent Owner’s motion to expunge its confidential material from the public
`
`record is being filed within the time authorized by the Board. Counsel for Patent
`1
`
`
`
`
`
`
`
`Case No. IPR2015-01241
`Patent No. 6,926,907
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`Owner has conferred with counsel for Petitioner, and counsel for Petitioner does
`
`not object to this motion.
`
`II.
`
`PATENT OWNER’S CONFIDENTIAL DOCUMENTS SHOULD BE
`EXPUNGED FROM THE RECORD
`
`Petitioner moves to expunge the confidential, unredacted version of its
`
`Preliminary Response and Exhibit 2011 from the public record.
`
`Exhibit 2011 is a confidential communication from the FDA to Patent
`
`Owner regarding the development of Patent Owner’s proprietary Vimovo®
`
`product. This document has not been published or otherwise made public.
`
`Additionally, Patent Owner has undertaken efforts to maintain the confidentiality
`
`of this document in related district court proceedings. Exhibit 2011 has been
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`produced in co-pending patent infringement litigation in the United States District
`
`Court for the District of New Jersey1 directed to, inter alia, U.S. Patent No.
`
`
`1 Horizon Pharma, Inc. and Pozen Inc. v. Dr. Reddy’s Laboratories, Inc. & Dr.
`
`Reddy’s Laboratories, Ltd., 3:11-cv-02317-MLC-DEA (D.N.J.); Horizon Pharma,
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`Inc. and Pozen Inc. v. Dr. Reddy’s Laboratories, Inc. & Dr. Reddy’s Laboratories,
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`Ltd., 3:13-cv-00091-MLC-DEA (D.N.J.); Horizon Pharma, Inc. and Pozen Inc. v.
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`Lupin Ltd. & Lupin Pharmaceuticals, Inc., 3:11-cv-04275-MLC-DEA (D.N.J);
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`
`
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`2
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`Case No. IPR2015-01241
`Patent No. 6,926,907
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`6,926,907 under the parties’ agreed upon protective order, and designated
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`confidential in those cases.
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`Section 42.56 states that “[a]fter denial of a petition to institute a trial or
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`after final judgment in a trial, a party may file a motion to expunge confidential
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`information from the record.” 37 C.F.R. § 42.56. The Rules of Practice for Trials
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`Before the Patent Trial and Appeal Board (“Rules of Practice”) state:
`
`Confidential information that is subject to a protective order ordinarily
`will become public 45 days after denial of a petition to institute a trial
`or 45 days after final judgment in a trial. Section 42.56 allows a party
`to file a motion to expunge from the record confidential information
`prior to the information becoming public.
`
`77 Fed. Reg. 48,612, 48,623 (Aug. 14, 2012).
`
`
`
`While the Rules of Practice state that “there is an expectation that
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`information be made public where the existence of the information is referred to in
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`a decision to grant or deny a request to institute a review . . . ” (77 Fed. Reg.
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`48,612, 48,623 (Aug. 14, 2012)), this is not an issue here. In the instant Decision,
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`Horizon Pharma, Inc. and Pozen Inc. v. Mylan Pharmaceuticals, Inc., 3:13-cv-
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`04022 (D.N.J.); and Horizon Pharma, Inc., AstraZeneca AB, AstraZeneca LP and
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`Pozen Inc. v. Actavis Labs., FL, et. al., 3:13-cv-03038-MLC-DEA (D.N.J.).
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`
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`3
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`Case No. IPR2015-01241
`Patent No. 6,926,907
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`the Board stated that it did not rely on Patent Owner’s confidential material in
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`reaching its decision not to institute the inter partes review. (Paper No. 22 at 26.)
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`
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`Neither Exhibit 2011 nor the unredacted Preliminary Response is necessary
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`to understand the Board’s resolution of this proceeding and should be expunged to
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`protect the confidential information of Patent Owner. Further, the non-confidential
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`version of the Preliminary Response, which redacts the brief discussion of Exhibit
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`2011, is already on file as Paper No. 13 and should remain so.
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`III. CONCLUSION
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`For the reasons stated above, Patent Owner respectfully requests that the
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`Board expunge the un-redacted Preliminary Response (Paper No. 15) and Exhibit
`
`2011 from the record in this inter partes review. The redacted version of the
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`Preliminary Response, Paper No. 13, should remain publicly available.
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`
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`Date: December 16, 2015
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`Respectfully submitted,
`
`
`
`
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`
`
`
`
`
`
`/s/ Ricardo Rodriguez
`
`Ricardo Rodriguez
`Reg. No. 40,789
`Counsel for Patent Owner
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`4
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`Case No. IPR2015-01241
`Patent No. 6,926,907
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`CERTIFICATION OF SERVICE
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`
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`I, Ricardo Rodriguez, hereby certify that on this 16 day of December
`
`2015, the foregoing Patent Owner’s Motion to Expunge was served electronically
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`via email on the following:
`
`Amy E. LaValle
`amy.lavalle@wickphillips.com
`
`Jerry C. Harris, Jr.
`jerry.harris@wickphillips.com
`
`CFAD.IPRs@wickphillips.com
`
`Wick Phillips Gould & Martin, LLP
`3131 McKinney Avenue, Suite 100
`Dallas, TX 75204
`
`
`Date: December 16, 2015
`
`BY:
`
`/s/ Ricardo Rodriguez
`
`
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`
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`Ricardo Rodriguez
`Reg. No. 40,789
`Counsel for Patent Owner
`
`5
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