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`Paper No. __
`
`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 FOURTH MOTION TO SEAL
`UNDER 37 C.F.R. §§ 42.14 AND 42.54
`
`
`1 The word-for-word identical paper is filed in each proceeding identified in the
`heading.
`
`
`
`
`
`
`
`Pursuant to 37 C.F.R. §§ 42.14. and 42.54 and the Revised Protective Order
`
`entered by the Board (see Ex. 3001), Petitioner RPX Corporation (“Petitioner” or
`
`“RPX”), by and through its counsel of record, moves to seal: (1) portions of
`
`Petitioner’s Opening Brief (hereinafter “the Opening Brief”) filed herewith in these
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`remand proceedings for IPR2015-01750, IPR2015-01751 and IPR2015-01752; (2)
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`the entirety of the below-listed “Unredactable Exhibits” that accompany the
`
`Opening Brief; and (3) portions of the below-listed “Redacted Exhibits” that
`
`accompany the Opening Brief.2
`
`Description
`
`RPX Form Membership Agreement
`RPX Form Membership Agreement
`Confidential Agreement
`Third Amendment to Membership and License Agreement
`Confidential Agreement
`Confidential Agreement
`Salesforce.com, Inc. Order Form
`Payment records by Salesforce to RPX
`RPX notice of production of confidential information to Salesforce
`E-mail thread responsive to RPX notice of production of
`confidential information to Salesforce
`Description
`
`Second Declaration of William W. Chuang
`Declaration of Steve W. Chiang
`Transcript of deposition of Steve W. Chiang, taken January 29,
`2019
`Transcript of deposition of William W. Chuang, taken January 30,
`2019
`
`2 This Motion uses the Exhibit numbers and Paper numbers from IPR2015-01750.
`1
`
`Unredactable
`Exhibits
`1074
`1075
`1076
`1077
`1078
`1079
`1080
`1081
`1091
`1092
`
`Redacted
`Exhibits
`1073
`1090
`1094
`
`1095
`
`
`
`
`
`
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`
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`The Opening Brief, the Unredactable Exhibits, the Redacted Exhibits, and
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`redacted non-confidential versions of the Opening Brief and the Redacted Exhibits
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`are being filed concurrently with this Motion.
`
`The Opening Brief, the Unredactable Exhibits, and the Redacted Exhibits
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`contain highly confidential and extremely sensitive information, including, inter
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`alia, highly confidential IPR litigation strategy that RPX employs to pursue its
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`business, and highly confidential agreements, financial information,
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`communication records, and references thereto. RPX guards its confidential
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`information to protect its own business as well as third parties, and is contractually
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`obligated to keep certain of this information confidential. RPX, therefore,
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`respectfully requests that the Unredactable Exhibits in their entirety, the redacted
`
`portions of the Redacted Exhibits, and the redacted portions of the Opening Brief
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`be kept under seal. Sealing this information falls squarely within the Board’s
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`authority to “[require] that a trade secret or other confidential … commercial
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`information not be revealed or be revealed only in a specified way….” 37 C.F.R.
`
`§ 42.54(a)(7).
`
`I.
`
`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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`
`
`2
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`
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`
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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 weighs heavily in favor of protecting RPX’s highly confidential
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`information.
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`The Unredactable Exhibits, as detailed below, are composed 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
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`Unredactable Exhibits in their entirety.
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`As discussed in detail below, the other documents Petitioner hereby moves
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`to seal, for which redacted non-confidential versions are being filed concurrently
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`herewith (namely, the Opening Brief and the Redacted Exhibits), reference
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`sensitive confidential information, including information from the Unredactable
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`Exhibits and from other sensitive documents that the Board has already sealed in
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`these proceedings in response to one or more previous motions to seal filed by
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`Petitioner. To ensure that the public has access to a complete and understandable
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`file history without disclosing RPX’s confidential information, Petitioner has
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`tailored its redactions as narrowly as possible.
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`As discussed below, even if the Board finds the existence of some of the
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`confidential information to be relevant, the specific details revealed in the
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`
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`3
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`
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`documents is not necessary for the public to understand these proceedings, and the
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`harm to RPX of disclosure of such details far outweighs any public need to access
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`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.
`
`A. Confidential Agreements
`The Board previously granted (in Paper No. 53) Petitioner’s motion (in
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`Paper No. 27) to seal Exhibits 1020-1022, which are confidential agreements that
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`detail sensitive confidential aspects of business relationships involving third
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`parties, including highly confidential and sensitive financial terms. These
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`agreements, by their explicit terms, require RPX to keep them confidential (Ex.
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`1020 at §§ 4 and 9.9), and the Board recognized that their sensitive details should
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`be kept under seal to protect not only RPX but also third parties with whom RPX
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`has confidential business relations. See Paper No. 53.
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`
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`4
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`
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`Exhibits 1074-1075 are confidential form membership agreements, and
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`include highly confidential and sensitive financial terms. Exhibits 1074-1075
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`detail confidential aspects of prospective business relationships and, like Exhibits
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`1020-1022, by their explicit terms require that RPX treat them as confidential.
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`Exhibits 1076-1077 are confidential agreements that relate to sealed Exhibits
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`1020-1022. These Exhibits likewise detail confidential aspects of business
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`relationships and by their explicit terms require that RPX treat them as
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`confidential.
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`Exhibits 1078-1079 are confidential agreements. These Exhibits likewise
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`detail confidential aspects of business relationships and by their explicit terms
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`require that RPX treat them as confidential.
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`Further, Exhibit 1080 is a confidential order form reflecting RPX’s purchase
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`of Salesforce software that includes confidential information (e.g., sensitive pricing
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`information, purchase terms, purchased products and/or services, as well as
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`personal information). The details in Exhibit 1080 exposing this specific
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`information of Salesforce and/or RPX are irrelevant, unnecessary for the public to
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`access, and sensitive.
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`References in the Opening Brief and in Exhibits 1073, 1094, and 1095 to the
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`detailed information in these confidential agreements, which RPX is obligated to
`
`treat as confidential, correspond to the following redactions:
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`
`
`5
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`
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`
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` Opening Brief at 23-26.
`
` Ex. 1073 at ¶¶ 4, 5, 6, 7, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21.
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` Ex. 1094 at 4; 33:21, 23-24; 102:6-7, 12-18; 107:18-108:1; 108:3, 5, 13-
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`21, 23.
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` Ex. 1095 at 52:9-10, 18-19; 53:2; 55:3, 4, 18, 21-22; 56:19, 22-23; 57:4-
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`6, 8, 10-11, 13, 17, 25; 58:1-3, 6, 8, 11-12, 19, 22-25; 59:1-2, 8, 16-17,
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`19; 60:7-12; 61:1-4, 10; 62:7, 12, 15; 71:21-72:2; 72:7-11, 22-23; 73:15-
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`16; 86:9, 12, 15, 17-18; 105:12-13, 16-20; 106:21-24; 111:19-20; 112:2,
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`22-23, 25; 113:5; 114:11; 118:10-13.
`
`As a result of the appellate proceedings, some of RPX’s previously
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`confidential information, including that Salesforce was an RPX client when these
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`IPRs were filed, is no longer confidential. See Applications in Internet Time, LLC
`
`v. RPX Corp., 897 F.3d 1336, 1338-39 (Fed. Cir. 2018). RPX is not seeking to
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`seal such information. To facilitate the public’s interest in understanding the issues
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`in this proceeding while safeguarding information of RPX and Salesforce that
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`remains confidential, in the portions of the Opening Brief and Redacted Exhibits
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`that discuss the nature of RPX’s relationship with Salesforce when the IPRs were
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`filed, RPX has not redacted descriptions of the services that RPX provides where
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`those descriptions are no more detailed than what is provided in RPX’s public
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`documents describing the services RPX provides to its members. However, the
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`6
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`written agreement(s) between RPX and Salesforce remain confidential, so details
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`included therein have been redacted and RPX requests herein that those
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`agreement(s) and all details included therein be sealed.
`
`B. Confidential Financial Information
`The Board previously granted (in Paper No. 53) Petitioner’s motion (in
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`Paper No. 45) to seal Exhibits 2018 and 2026, which are (or are derived from)
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`confidential RPX business records that reveal detailed financial terms of the
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`confidential agreements in sealed Exhibits 1020-1021.
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`Like Exhibits 2018 and 2026, Exhibit 1081 is (or is derived from)
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`confidential RPX business records that reveal detailed financial terms of the
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`confidential agreements in sealed Exhibits 1020-1021, as well as Exhibit 1077 that
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`is a subject of the instant motion. Disclosure of this detailed information to the
`
`public would severely impact RPX’s ability to conduct business with third parties
`
`and could negatively impact RPX’s business relationships by creating
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`confidentiality concerns among other parties that have entered into, or may enter
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`into, confidential agreements with RPX.
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`The details in Exhibit 1081 exposing the specific financial terms of RPX’s
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`confidential business agreements are entirely unrelated to these IPRs, unnecessary
`
`for the public to access, and extremely sensitive.
`
`
`
`7
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`
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`References in Exhibits 1073, 1094, and 1095 to detailed confidential
`
`financial information, including the financial information disclosed in the
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`foregoing financial reports, correspond to the following redactions:
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` Ex. 1073 at ¶¶ 17, 18, 19.
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` Ex. 1094 at 40:23.
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` Ex. 1095 at 54:3, 6-7, 12, 14, 18-20; 54:24-55:2; 55:17, 25; 56:3-5;
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`61:13, 15-18, 21-22, 24; 62:4, 18, 23; 63:1-9; 63:23; 64:1-6, 10-18, 20-
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`23.
`
`C.
`Post-Filing Confidential Communications
`The Board previously granted (in Paper No. 53) Petitioner’s motion (in
`
`Paper No. 27) to seal Exhibits 1023 and 1025, which are post-filing confidential
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`communications between RPX and Salesforce that refer to terms of confidential
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`agreements and sensitive, improper disclosures of confidential information by
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`Patent Owner.
`
`Exhibits 1091 and 1092 are likewise post-filing confidential
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`communications between RPX and Salesforce that refer to terms of confidential
`
`agreements and disclosure of sensitive, confidential information in these Remand
`
`Proceedings.
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`References in Exhibit 1090 to certain aspects of these and other post-filing
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`confidential communications, including the names of individual participants in
`
`
`
`8
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`
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`these communications and other non-public, confidential information, correspond
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`to the following redactions:
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` Ex. 1090 at ¶¶ 6, 7, 8, 9, 11.
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`D. Confidential Business Information and Communications
`The Board previously granted (in Paper No. 53) Petitioner’s motions (in
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`Paper Nos. 27 and 45) to seal Exhibit 2022, which is a confidential RPX record of
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`business communications, and discussions thereof in Exhibit 1019.
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`References in the Opening Brief and in Exhibits 1073, 1090, and 1094 to
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`certain aspects of these confidential business communications and other
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`information, including the names of individual participants in these
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`communications and other non-public, confidential information, correspond to the
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`following redactions:
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` Opening Brief at 29, 30 (first paragraph).
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` Ex. 1073 at ¶ 37.
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` Ex. 1090 at ¶¶ 32, 34.
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` Ex. 1095 at 25:13; 35:22; 36:9; 36:17-19; 36:24-25; 37:1; 37:8; 37:16-17;
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`37:19; 42:16-21; 47:17; 114:22; 115:1, 4, 8-9, 12-13, 22-23; 121:11-12.
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`All of the foregoing redacted information is non-public and has the potential,
`
`if disclosed, to negatively impact RPX’s relations and negotiations with third
`
`parties. To the extent this information has any relevance to the merits of these
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`
`
`9
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`proceedings, it is only at a high level of generality. The public has no need to
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`access the sensitive details pervading these records.
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`E.
`IPR Litigation Strategy
`The Board previously granted (in Paper No. 53) Petitioner’s motions (in
`
`Paper Nos. 27 and 45) to seal Exhibits 1024, 2018, and 2025, which are
`
`confidential RPX business records that reveal RPX’s highly sensitive IPR litigation
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`strategy, including how RPX identifies patents to challenge via IPR, and
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`discussions thereof in Exhibit 1019.
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`References in the Opening Brief and in Exhibits 1090, 1094, and 1095 to
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`certain confidential, non-public information disclosed in these confidential RPX
`
`business records correspond to the following redactions:
`
` Opening Brief at 30 (second paragraph), 40.
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` Ex. 1090 at ¶¶ 16, 23, 25, 26, 28, 33, 35, 36.
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` Ex. 1094 at 57:2, 5, 11-14, 17, 20-22; 58:9, 13, 17; 59:1, 9, 25; 62:1;
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`65:25; 135:8, 12-15, 20-22, 24; 136:1-6, 8, 10-12, 14-23, 25; 137:2, 6;
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`138:10-14, 18, 24; 139:5, 10, 12-16, 18-21, 22-23; 140:3, 5-8, 12, 14, 17-
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`18, 21-23; 141:2-3; 143:10, 12-13, 17-18, 21-22; 143:25-144:1-2; 144:5-
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`6, 18-19; 145:17-18, 20-21, 23; 146:4, 11-12, 14-15, 18, 24-25; 147:3-8,
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`11-14, 16, 24; 148:1-2, 4, 7, 9-10, 15, 17; 149:15, 20, 22-23; 150:18.
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`
`
`10
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`
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` Ex. 1095 at 69:7-16; 79:4; 82:4-7; 83:11-12, 17, 19-25; 84:2-4, 8-10, 19;
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`84:22-85:1; 85:4-9, 15, 21; 88:13, 16-19, 21-22; 89:14, 20-24; 90:2, 20,
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`22-91:2; 91:4, 6-8, 12-17, 20; 91:22-92:1; 92:4, 13, 17-21; 92:23-93:1;
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`93:3, 5-8, 10, 15-16, 20-21; 94:1-4, 6, 8-9, 11-12, 14-16, 19, 21, 23, 25;
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`95:1, 6-9, 11, 14; 96:2; 98:17, 25; 99:4, 15-16, 20-21, 24-25; 100:6;
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`104:9-10; 106:7-9, 21-22, 23-24; 107:12.
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`Disclosure of this information would provide an unfair advantage to current
`
`and future litigants and other adversarial parties with whom RPX deals and would
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`hamper RPX’s ability to carry out its business. To understand the merits of this
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`proceeding, it is sufficient for the public to know why RPX filed these IPRs to
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`further its own interests, and RPX has not redacted that information. However, the
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`highly sensitive details of RPX’s IPR litigation strategy generally, revealing how
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`and why RPX identifies other patents to file validity challenges against, are
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`unnecessary for the public to access, particularly given the highly sensitive nature
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`of this litigation strategy information and the significant harm to RPX that would
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`result from revealing it publicly.
`
`*
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`*
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`*
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`As demonstrated above, good cause exists for sealing the Unredactable
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`Exhibits in their entirety, and keeping the above-listed redacted portions of the
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`Opening Brief and Exhibits 1073, 1090, 1094, and 1095 under seal.
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`
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`11
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`Additionally, the redacted text in the Opening Brief at 34 corresponds to
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`personal information that need not be injected into the public record here.
`
`F.
`Sealing This Information Is Consistent with Board Practice
`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 information involved far
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`outweighs any possible relevance to the merits of these proceedings and any need
`
`for the public to access the information. The Board has previously found good
`
`cause to keep similar information confidential in this case (See Paper No. 53) and
`
`others. See, e.g., Unified Patents Inc. v. Dragon Intellectual Property, LLC,
`
`IPR2014-01252, Paper 40 (Feb. 27, 2015) at 6 (holding good cause existed to seal
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`the identities of Petitioner’s members), 6-7 (membership terms and business
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`strategies are highly sensitive confidential information), 7 (financial information
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`can be sealed where reasonable redactions were proposed and the financial
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`information was not relevant to underlying arguments about real party in interest);
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`see also Farmwald and RPX v. Parkervision, IPR2014-00948, Paper 58 (July 30,
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`2015) at 3-4 (finding good cause and granting Petitioners’ motion to seal
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`confidential information including RPX’s business objectives, litigation strategy
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`and information about RPX’s clients/members) and Paper 74 (granting Petitioners’
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`subsequent Motion to Expunge the same information). The same rationale applies
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`to the instant motion, and Petitioner respectfully requests that the Unredactable
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`12
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`Exhibits in their entirety, and the redacted portions of the Opening Brief and the
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`Redacted Exhibits, 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 her knowledge.
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`III. CERTIFICATION OF CONFERENCE WITH OPPOSING PARTY
`PURSUANT TO 37 C.F.R. § 42.54
`RPX has in good faith conferred with Patent Owner about sealing RPX’s
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`confidential information. Patent Owner consented to the filing of this Motion but
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`indicated that it may contest the propriety of some of the confidential designations
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`in the production.
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`Dated: March 1, 2019
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`Respectfully submitted,
`RPX Corporation
`
`
`/Elisabeth Hunt/
`
`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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`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6 (E)(4)
`I hereby certify that on this 1st day of March, 2019, I will cause a copy of the
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`foregoing document, together with all accompanying documents, to be 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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`Steven C. Sereboff
`Jonathan Pearce
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`Date: March 1, 2019
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`ssereboff@socalip.com
`jpearce@socalip.com
`uspto@socalip.com
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`
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`/MacAulay Rush/
`MacAulay Rush
`Patent Paralegal
`WOLF GREENFIELD & SACKS, P.C.
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`14
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