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`Filed on behalf of Petitioner
`By: Richard F. Giunta
`Elisabeth H. Hunt
`Randy J. Pritzker
`WOLF, GREENFIELD & SACKS, P.C.
`600 Atlantic Avenue
`Boston, MA 02210
`Tel: (617) 646-8000
`Fax: (617) 646-8646
`RGiunta-PTAB@wolfgreenfield.com
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`RPX Corporation
`Petitioner
`v.
`Applications in Internet Time, LLC
`Patent Owner
`_____________
`
`Case IPR2015-01750
`Patent 8,484,111 B2
`
`Case IPR2015-01751
`Case IPR2015-01752
`Patent 7,356,482 B21
`
`_____________
`PETITIONER’S THIRD MOTION TO SEAL
`UNDER 37 C.F.R. §§ 42.14 AND 42.54
`
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`1 The word-for-word identical paper is filed in each proceeding identified in the
`heading.
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`Pursuant to the Board’s Order on Conduct of the Proceedings (Paper No.
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`42), 37 C.F.R. §§ 42.14. and 42.54 and the Protective Order filed in these
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`proceedings, Petitioner RPX Corporation (“RPX”), by and through its counsel of
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`record, moves to seal the following documents filed by Patent Owner in IPR2015-
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`01750, IPR2015-01751 and IPR2015-01752:
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`• Patent Owner’s Preliminary Response to the Petition (Paper No. 21,
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`hereafter “the Preliminary Response”);
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`• Patent Owner’s Sur-Reply on real party-in-interest (Paper No. 38,
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`hereafter “the Sur-Reply”);
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`• Patent Owner’s Opposition to Motion for Sanctions (Paper No. 40,
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`hereafter “the Sanctions Opposition”);
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`• the description of Exhibit 2026 in the two most recently filed Patent
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`Owner’s Exhibit Lists (Papers No. 39 and 41);
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`• Exhibits 2018, 2019, 2022, 2025, and 2026 (collectively hereafter “the
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`Sensitive Exhibits”); and
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`• Exhibits 2027 and 2030 (collectively hereafter “the Redacted
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`Exhibits”).
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`Redacted non-confidential versions of the Preliminary Response and the
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`Sur-Reply were previously filed by Patent Owner as Papers No. 26 and No. 37,
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`1
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`respectively, and redacted non-confidential versions of the Sanctions Opposition,
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`the Exhibit Lists, and the Redacted Exhibits are being filed by Petitioner
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`concurrently with this Motion to Seal.2 An executed copy of the Protective Order,
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`as stipulated to by the parties, was filed by Petitioner as Exhibit 1017 in IPRs
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`2015-01750 and -01751, and as Exhibit 1117 in IPR2015-01752.3
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`The documents listed above contain highly confidential and extremely
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`sensitive information, including, inter alia, references to highly confidential IPR
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`litigation strategy that RPX employs to pursue its business, references to highly
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`confidential agreements and communication records, and sensitive details about
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`how AIT failed to protect RPX’s confidential information. RPX guards its
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`confidential information to protect its own business as well as third parties and is
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`2 AIT failed to mark their exhibits with exhibit labels as required by 37 C.F.R. §
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`42.63(d)(1). RPX has added the appropriate exhibit labels to the Redacted
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`Exhibits filed herewith.
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`3 All of the exhibits filed by Petitioner are identical between all three proceedings.
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`Pursuant to the instructions posted on the PRPS webpage for exhibit numbering in
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`IPRs challenging the same patent (FAQ D9), Petitioner’s exhibit numbers in IPR
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`2015-01752 are determined by adding 100 to the exhibit numbers in IPR2015-
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`01750 and IPR2015-01751. For convenience, citations to Petitioner’s exhibits in
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`this paper below use the exhibit numbers in IPR2015-01750 and IPR2015-01751.
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`2
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`contractually obligated to keep certain of this information confidential. RPX,
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`therefore, respectfully requests that the Sensitive Exhibits in their entirety and the
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`redacted portions of the other above-listed documents be kept under seal. Sealing
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`this information falls squarely within the Board’s authority to “[require] that a
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`trade secret or other confidential … commercial information not be revealed or be
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`revealed only in a specified way …” 37 C.F.R. § 42.54(a)(7).
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`I.
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`GOOD CAUSE EXISTS FOR SEALING RPX’S SENSITIVE
`CONFIDENTIAL INFORMATION
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`In deciding whether to seal documents, the Board must find “good cause,”
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`and must “strike a balance between the public’s interest in maintaining a complete
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`and understandable file history and the parties’ interest in protecting truly sensitive
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`information.” Garmin v. Cuozzo, IPR2012-00001, Paper 36 (April 5, 2013). Here,
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`the balance tips heavily in favor of protecting RPX’s highly confidential
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`information.
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`The Sensitive Exhibits, as detailed below, are composed almost entirely of
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`sensitive confidential information and cannot be effectively redacted in a manner
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`that would provide any meaningful content to the public without exposing
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`confidential information. Accordingly, good cause exists for sealing the Sensitive
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`Exhibits in their entirety.
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`The other documents Petitioner hereby moves to seal, for which redacted
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`non-confidential versions have been or are being filed, reference sensitive
`3
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`confidential information from the Sensitive Exhibits or from other sensitive
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`documents that Petitioner has previously moved to seal in these proceedings, as
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`discussed in detail below. To ensure that the public has access to a complete and
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`understandable file history without disclosing RPX’s confidential information,
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`Petitioner has tailored its redactions to the Sanctions Opposition, the Exhibits Lists,
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`and Exhibits 2027 and 2030 as narrowly as possible. Petitioner also believes
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`Patent Owner’s previously filed redactions to the Preliminary Response and the
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`Sur-Reply to be narrowly tailored. Most of the confidential information is not
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`relevant to the substantive issues in these proceedings. As discussed below, even if
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`the Board finds the existence of some of the confidential information to be
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`relevant, the specific details revealed in the documents is not necessary for the
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`public to understand these proceedings, and the harm to RPX of disclosure of such
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`details far outweighs any public need to access this detailed information.
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`The information Petitioner hereby moves to seal falls into five categories
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`addressed separately below. There is good cause for sealing the information in
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`each of these categories, and there are different reasons for the sensitivity of the
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`information in each. If the Board were to decide that the information in any
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`particular category should not be kept under seal, Petitioner requests the
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`opportunity to provide revised redacted copies of the documents to preserve the
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`confidentiality of the other categories of sensitive information.
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`4
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`
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`A. Confidential Agreement Financial Terms
`Petitioner has previously filed and moved (in Paper No. 27) to seal Exhibits
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`1020-1021, which are confidential agreements that detail sensitive confidential
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`aspects of business relationships involving third parties. These agreements by their
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`explicit terms require RPX to keep their terms confidential (Ex. 1020 at §§ 4 and
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`9.9), and their sensitive details should be kept under seal to protect not only RPX
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`but also third parties with whom RPX has confidential business relations.
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`Exhibits 2019 and 2026 are (or are derived from) confidential RPX business
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`records that reveal detailed financial terms of the confidential agreements in
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`Exhibits 1020-1021. Disclosure of this detailed information to the public would
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`severely impact RPX’s ability to conduct business with third parties and could
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`negatively impact RPX’s business relationships by creating confidentiality
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`concerns among other parties that have entered or may enter into confidential
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`agreements with RPX.
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`If AIT believed that Exhibits 2019 and 2026 were not properly designated
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`under the Protective Order, the Protective Order (§ 4.A.i ) makes clear that AIT
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`should have moved for the Board to rule that the information was not confidential.
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`AIT did not do so. Only after being faced with potential sanctions for the
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`unauthorized disclosure of RPX’s confidential information did AIT belatedly assert
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`that the information is not confidential after all. In doing so, AIT misrepresents to
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`5
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`the Board that the data in Exhibits 2019 and 2026 “could conceivably” be
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`calculated based on publicly available information and therefore is not
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`confidential. Paper No. 40 at 11. This (speculative) statement is false. The
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`confidential agreement filed as Exhibit 1021, of which AIT is well aware, makes
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`clear that the data in these exhibits cannot be calculated from publicly available
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`information .
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`To understand the merits of this proceeding, all the public needs to know
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`relating to financing is that no party other than RPX funded these IPRs and RPX
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`filed them to pursue its own interests. The details in Exhibits 2019 and 2026
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`exposing the specific financial terms of RPX’s confidential business agreements
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`are irrelevant, unnecessary for the public to access, and extremely sensitive. The
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`same is true of the references in AIT’s papers to the detailed information in these
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`financial reports, which correspond to the following redactions:
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`• Preliminary Response at pages 1 (line 11); 2 (line 13); 11 (lines 7-16);
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`12 (lines 1-4, 8-12); 13 (lines 12-13)
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`• Sur-Reply at pages 1 (line 10); 3 (line 14)
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`• Sanctions Opposition at pages 10 (line 2), 11 (lines 3-11)
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`• Exhibit Lists’ description of confidential Exhibit 2026
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`• Exhibit 2030 at page 2
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`The Board will note that among the documents to which RPX requests
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`redaction in the public record are AIT’s recent Exhibit Lists. The reason is that
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`AIT gave Exhibit 2026 a name in the Exhibit Lists that reveals sensitive
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`information. RPX sought to resolve this issue by asking AIT to voluntarily choose
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`a less descriptive name for this exhibit in the Exhibit List, to remove the necessity
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`of redacting the Exhibit List each time it is updated. AIT was “unwilling” to do so
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`and indicated that it would “conform future exhibit lists” only if the Board renders
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`an opinion that the description of Exhibit 2026 in the Exhibit List reveals
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`confidential information.
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`As demonstrated above, good cause exists for keeping the above redacted
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`document portions, as well as Exhibits 2019 and 2026 in their entirety, under seal.
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`IPR Litigation Strategy
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`B.
`Exhibits 2018 and 2025 are confidential RPX business records that reveal
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`RPX’s highly sensitive IPR litigation strategy, including how RPX identifies
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`patents to challenge via IPR. Disclosure of this information would provide an
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`unfair advantage to litigants and other adversarial parties with whom RPX deals
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`and would hamper RPX’s ability to carry out its business.
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`To understand the merits of this proceeding, all the public needs to know is
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`that RPX filed these IPRs to further its own interests, and not at the direction or
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`under the control of any other party. The highly sensitive details of RPX’s IPR
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`7
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`litigation strategy, revealing how and why RPX’s interests are served by filing
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`these and other IPRs, are not relevant to this proceeding and are unnecessary for
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`the public to access, particularly given the highly sensitive nature of this litigation
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`strategy information and the significant harm to RPX that would result from
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`revealing it publicly. Accordingly, good cause exists to seal Exhibits 2018 and
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`2025 in their entirety, and to redact the following portions of the papers that
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`reference their content:
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`• Preliminary Response at page 9, line 13 – page 10, line 9
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`• Sur-Reply at pages 2 (lines 4-6); 3-5 (throughout)
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`C. Confidential Business Communications
`Exhibit 2022 is a confidential RPX record of business communications. All
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`of the information in this record is non-public and has the potential, if disclosed, to
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`negatively impact RPX’s relations and negotiations with third parties. To the
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`extent this information has any relevance to the merits of these proceedings, it is
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`only at a high level of generality. The public has no need to access the sensitive
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`details pervading these records.
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`Confidential information derived from Exhibit 2022 is also exposed in the
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`following portions of AIT’s papers:
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`• Preliminary Response at page 10, line 19 – page 11, line 3; page 13
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`(line 6); pages 14-19 (throughout)
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`• Sur-Reply at page 1, line 20 – page 2, line 1; page 2, line 12 – page 3,
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`line 4; page 4 (lines 12-17)
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`• Sanctions Opposition at page 10 (lines 1-2, 9-17)
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`Accordingly, good cause exists to keep these redacted portions under seal,
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`together with Exhibit 2022 in its entirety.
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`D. AIT’s Failures To Protect RPX’s Confidential Information
`AIT’s Sanctions Opposition contains statements that expose sensitive details
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`about how AIT failed to protect RPX’s confidential information, at the following
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`redacted portions:
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`• Sanctions Opposition at pages 5 (lines 9, 13-15, 18-19); 9 (lines 3-12,
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`19-20); 10 (lines 1-2, 9-12)
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`Disclosure of these statements would risk further improper dissemination of
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`RPX’s sensitive confidential information, and therefore good cause exists to keep
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`these redacted portions under seal. RPX raised this issue with the Board in an
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`earlier conference call, and the Board agreed to keep the details of AIT’s failings
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`out of the Board’s order authorizing RPX to file its Motion for Sanctions. RPX
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`requests that the above-listed redacted portions be kept under seal for the same
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`reasons.
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`9
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`Information RPX Is Obligated To Keep Confidential
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`E.
`Pursuant to the terms of the confidential agreement filed as Exhibit 1020,
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`RPX is obligated to treat the information referenced in the following portions of
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`AIT’s filings as confidential:
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`• Preliminary Response at pages i (heading II.E); 1 (lines 10, 12); 2
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`(lines 9-15); 7 (line 1); 9 (lines 7, 10-11, 15); 11 (lines 4-16); 13 (lines
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`12-13); 19 (lines 12-15, 18); 20 (lines 2-3)
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`• Sur-Reply at pages 1 (line 8); 2 (line 4); 3 (line 13); 4 (line 9)
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`• Sanctions Opposition at page 9, line 20 – page 10, line 17
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`• Exhibit 2027 at page 1
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`Sealing This Information Is Consistent with Board Practice
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`F.
`The confidential information in the five categories above is highly sensitive,
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`and the harm to RPX of disclosure of the detailed records involved far outweighs
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`any alleged relevance to the merits of these proceedings and any need for the
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`public to access the information. The Board has previously found good cause to
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`keep similar information confidential. See Unified Patents Inc. v. Dragon
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`Intellectual Property, LLC, IPR2014-01252, Paper 40 (Feb. 27, 2015) at 6 (holding
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`good cause existed to seal the identities of Petitioner’s members); at 6-7
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`(membership terms and business strategies are highly sensitive confidential
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`information); and at 7 (financial information can be sealed where reasonable
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`redactions were proposed and the financial information was not relevant to
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`underlying arguments about real party in interest); see also Farmwald and RPX v.
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`Parkervision, IPR2014-00948, Paper 58 (July 30, 2015) at 3-4 (finding good cause
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`and granting Petitioners’ motion to seal confidential information including RPX’s
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`business objectives, litigation strategy and information about RPX’s
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`clients/members) and Paper 74 (granting Petitioners’ subsequent Motion to
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`Expunge the same information). The same rationale applies to this case, and
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`Petitioner respectfully requests that the Sensitive Exhibits in their entirety and the
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`redacted portions of the other above-listed documents be kept under seal.
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`II. CERTIFICATION OF NON-PUBLICATION STATUS
`Petitioner’s undersigned counsel certifies that the information sought to be
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`sealed by this motion has not been published or otherwise made public to the best
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`of his knowledge. The Board’s Order granting discovery makes reference to
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`Salesforce being an RPX client. That information was not provided to the Board
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`by RPX but rather from AIT. Petitioner does not know the basis for that
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`representation from AIT but does not believe that there has ever been any publicly
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`available disclosure that Salesforce is an RPX client. Counsel for AIT has in fact
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`stated that the only basis for AIT representing to the Board as fact that Salesforce
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`is an RPX client was speculation. Ex. 1035. To the extent the Board determines
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`that the status of whether Salesforce is an RPX client is considered to be public,
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`the information that RPX requests be sealed is far more detailed and has not been
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`published or otherwise made public to the best of the undersigned’s knowledge.
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`III. CERTIFICATION OF CONFERENCE WITH OPPOSING PARTY
`PURSUANT TO 37 C.F.R. § 42.54
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`RPX has in good faith conferred with Patent Owner about sealing RPX’s
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`confidential information. Patent Owner previously agreed to be bound by the
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`Board’s default protective order (subsequently filed as Exhibit 1017) but objects to
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`entry of the revised protective order filed as Exhibit 1047. This Motion is being
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`filed pursuant to the Board’s Order (Paper No. 42), and AIT has represented to the
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`Board that it will oppose this Motion. AIT has made clear in its Sanctions
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`Opposition that it contests the propriety of some of the confidential designations in
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`Respectfully submitted,
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`/Richard F. Giunta/
`Richard F. Giunta, Reg. No. 36,149
`Elisabeth H. Hunt, Reg. No. 67,336
`Randy J. Pritzker, Reg. No. 35,986
`WOLF, GREENFIELD & SACKS, P.C.
`600 Atlantic Avenue
`Boston, MA 02210
`617.646.8000
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`12
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`the documents discussed herein.
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`Dated: February 8, 2016
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`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6 (E)(4)
`It is hereby certified that on this 8th day of February, 2016, a copy of the
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`foregoing document, together with all accompanying documents, was served via
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`electronic mail, as previously consented to by Patent Owner, upon the following
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`counsel of record:
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`Jonathan Pearce (Reg. No. 60,972)
`M. Kala Sarvaiya (Reg. No. 58,912)
`SoCal IP Law Group LLP
`310 N. Westlake Boulevard, Suite 120
`Westlake Village, CA 91362
`uspto@socalip.com
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`/Richard F. Giunta/
`Richard F. Giunta
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`13