Paper 57
`Trials@uspto.gov
`571-272-7822 Entered: February 14, 2019
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BUNGIE, INC.,
`Petitioner,
`
`v.
`
`WORLDS INC.,
`Patent Owner.
`____________
`
`Case IPR2015-01264 (Patent 7,945,856 B2)
`Case IPR2015-01319 (Patent 8,082,501 B2)
`Case IPR2015-01321 (Patent 8,145,998 B2)
`____________
`
`
`
`Before KARL D. EASTHOM, KEN B. BARRETT, and
`JASON J. CHUNG, Administrative Patent Judges.
`
`BARRETT, Administrative Patent Judge.
`
`
`
`
`ORDER
`Granting Patent Owner’s Unopposed Motion to Seal and
`Entry of Protective Order
`37 C.F.R. § 42.54
`
`
`Trials@uspto.gov
`571-272-7822 Entered: February 14, 2019
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BUNGIE, INC.,
`Petitioner,
`
`v.
`
`WORLDS INC.,
`Patent Owner.
`____________
`
`Case IPR2015-01264 (Patent 7,945,856 B2)
`Case IPR2015-01319 (Patent 8,082,501 B2)
`Case IPR2015-01321 (Patent 8,145,998 B2)
`____________
`
`
`
`Before KARL D. EASTHOM, KEN B. BARRETT, and
`JASON J. CHUNG, Administrative Patent Judges.
`
`BARRETT, Administrative Patent Judge.
`
`
`
`
`ORDER
`Granting Patent Owner’s Unopposed Motion to Seal and
`Entry of Protective Order
`37 C.F.R. § 42.54
`
`
`
`IPR2015-01264 (Patent 7,945,856 B2)
`IPR2015-01319 (Patent 8,082,501 B2)
`IPR2015-01321 (Patent 8,145,998 B2)
`
`Patent Owner filed, in each of the above-captioned cases, an
`
`unopposed motion to seal certain portions of “Petitioner Bungie’s Brief on
`Remand from CAFC” (e.g., IPR2015-01264, Paper 51; “Petitioner’s Brief
`on Remand”). IPR2015-01264, Paper 54; IPR2015-01319, Paper 54; and
`IPR2015-01321, Paper 55. We previously, in response to Patent Owner’s
`request, placed the subject brief under seal pending resolution of the present
`motion. See Paper 53.1 Patent Owner also filed in each case a proposed
`Protective Order and, as an exhibit, a copy of the subject brief showing
`Patent Owner’s proposed redactions on pages 18–19. E.g., IPR2015-01264,
`Exhibits 2100, 2101. Patent Owner represents that Petitioner does not
`oppose this motion. Paper 54, 1.
`
`There is a strong public policy in favor of making information filed in
`an inter partes review open to the public, especially because the proceeding
`determines the patentability of claims in an issued patent and, therefore,
`affects the rights of the public. See Garmin Int’l, Inc. v. Cuozzo Speed
`Techs. LLC, Case IPR2012-00001, slip op. at 1–2 (PTAB Mar. 14, 2013)
`(Paper 34). Under 35 U.S.C. § 316(a)(1) and 37 C.F.R. § 42.14, the default
`rule is that all papers filed in an inter partes review are open and available
`for access by the public; however, a party may file a motion to seal and the
`information at issue is sealed pending the outcome of the motion. It is only
`“confidential information” that is protected from disclosure. 35 U.S.C.
`§ 316(a)(7); see Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756,
`
`
`1 Unless otherwise indicated, we refer to the papers and exhibits filed in
`IPR2015-01264. Patent Owner filed substantively the same or similar
`papers and exhibits in the other cases listed in the caption.
`2
`
`
`
`IPR2015-01264 (Patent 7,945,856 B2)
`IPR2015-01319 (Patent 8,082,501 B2)
`IPR2015-01321 (Patent 8,145,998 B2)
`
`48,760 (Aug. 14, 2012). The standard for granting a motion to seal is “good
`cause.” 37 C.F.R. § 42.54(a). The party moving to seal bears the burden of
`proof in showing entitlement to the requested relief and must explain why
`the information sought to be sealed constitutes confidential information. See
`37 C.F.R. § 42.20(c). As set forth in the Trial Practice Guide (77 Fed. Reg.
`at 48,761), there is an expectation that information will be made public if
`identified in the Final Written Decision.
`
`Patent Owner explains that it seeks to seal certain portions of
`Petitioner’s Brief on Remand—namely, that which Petitioner contends is
`quoted material contained in what is characterized as Statements of Material
`Fact Nos. 7, 10, and 11—because those portions contain information that
`“[Petitioner] Bungie contends are quoted contents (including ‘terms’) of
`settlement communications between Bungie’s counsel and Worlds’
`counsel.” Paper 54, 2–3. Patent Owner asserts that such information falls
`within the category of business confidential information and that it should
`not be revealed to the public. Id. Specifically, Patent Owner notes that the
`Board frequently grants motions to treat executed settlement agreements as
`business confidential information, see id. at 3–4, and argues, “[j]ust as an
`executed settlement agreement deserves protection from unsealed filings and
`public disclosure, so do Bungie’s [statements characterized as settlement
`communications]. Id. at 4. Patent Owner further argues:
`As a policy matter, it would do little good to treat a settlement
`agreement as business confidential information, but permit
`unsealed filing of settlement discussions leading to that
`settlement agreement. Moreover, the risk of permitting unsealed
`filing of settlement communications is likely to chill such
`
`3
`
`
`
`IPR2015-01264 (Patent 7,945,856 B2)
`IPR2015-01319 (Patent 8,082,501 B2)
`IPR2015-01321 (Patent 8,145,998 B2)
`
`
`settlement communications from even occurring in the first
`place.
`Id. at 4–5.
`
`On the specific facts of this case, we determine that Patent Owner has
`demonstrated good cause for sealing portions of Petitioner’s Brief on
`Remand in the above-captioned cases.
`
`Additionally, we have reviewed the proposed Protective Order, which
`we understand to be the Board’s Default Protective Order (Ex. 2100), and
`find it acceptable.
`
`We remind the parties that confidential information that is subject to a
`protective order ordinarily would become public after final judgment in a
`trial. See 37 C.F.R. § 42.14; Office Patent Trial Practice Guide, 77 Fed.
`Reg. at 48,761. The parties may move to expunge confidential information
`from the record after final judgment (and appeals, if any). 37 C.F.R.
`§ 42.56.
`
`It is
`
`ORDERED that Patent Owner’s unopposed motion to seal is granted;
`and
`FURTHER ORDERED that the unredacted version of “Petitioner
`
`Bungie’s Brief on Remand from CAFC” (IPR2015-01264, Paper 51;
`IPR2015-01319, Paper 51; and IPR2015-01321, Paper 52) shall remain
`under seal;
`
`FURTHER ORDERED that the protective order submitted by Patent
`Owner (Ex. 2100 in each captioned case) is hereby entered; and
`
`4
`
`
`
`IPR2015-01264 (Patent 7,945,856 B2)
`IPR2015-01319 (Patent 8,082,501 B2)
`IPR2015-01321 (Patent 8,145,998 B2)
`
`FURTHER ORDERED that Patent Owner shall file, as a paper in
`
`each captioned case, the redacted version of “Petitioner Bungie’s Brief on
`Remand from CAFC.”
`
`
`
`
`
`
`
`5
`
`
`
`IPR2015-01264 (Patent 7,945,856 B2)
`IPR2015-01319 (Patent 8,082,501 B2)
`IPR2015-01321 (Patent 8,145,998 B2)
`
`For PETITIONER:
`Michael T. Rosato
`Matthew A. Argenti
`Andrew Brown
`WILSON SONSINI GOODRICH & ROSATI
`mrosato@wsgr.com
`margenti@wsgr.com
`asbrown@wsgr.com
`
`
`For PATENT OWNER:
`Wayne M. Helge
`Michael Casey
`Aldo Noto
`DAVIDSON BERQUIST JACKSON & GOWDEY, LLP
`whelge@dbjg.com
`mcasey@dbjg.com
`anoto@davidsonberquist.com
`
`
`
`
`
`6
`
`
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