`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`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 FIFTH 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, the Revised Protective Order
`
`entered by the Board (see Ex. 3001), and the Board’s authorization e-mail of
`
`March 11, 2019, Petitioner RPX Corporation (“Petitioner” or “RPX”), by and
`
`through its counsel of record, moves to seal: (1) portions of Patent Owner’s
`
`Opposition Brief (Paper 100)2 filed on March 22, 2019 in these remand
`
`proceedings for IPR2015-01750, IPR2015-01751 and IPR2015-01752
`
`(collectively, “Remand Proceedings”); (2) portions of Petitioner’s Reply Brief filed
`
`herewith in these Remand Proceedings; and (3) portions of Exhibit 1096 that
`
`accompany Petitioner’s Reply Brief.
`
`Petitioner’s Reply Brief, Exhibit 1096, and redacted non-confidential
`
`versions of the Petitioner’s Reply Brief, Exhibit 1096, and Patent Owner’s
`
`Opposition Brief are being filed concurrently with this Motion.
`
`Patent Owner’s Opposition Brief, Petitioner’s Reply Brief, and Exhibit 1096
`
`contain highly confidential and extremely sensitive information, including, inter
`
`alia, highly confidential IPR litigation strategy that RPX employs to pursue its
`
`business, and highly confidential agreements, financial information,
`
`communication records, and references thereto. RPX guards its confidential
`
`information to protect its own business as well as third parties, and is contractually
`
`obligated to keep certain of this information confidential. RPX, therefore,
`
`
`2 This Motion uses the Exhibit numbers and Paper numbers from IPR2015-01750.
`1
`
`
`
`
`
`
`
`respectfully requests that the redacted portions of Patent Owner’s Opposition Brief,
`
`the redacted portions of Petitioner’s Reply Brief, and the redacted portions of
`
`Exhibit 1096 be kept under seal. Sealing this information falls squarely within the
`
`Board’s authority to “[require] that a trade secret or other confidential …
`
`commercial 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
`
`
`In deciding whether to seal documents, the Board must find “good cause,”
`
`and must “strike a balance between the public’s interest in maintaining a complete
`
`and understandable file history and the parties’ interest in protecting truly sensitive
`
`information.” Garmin v. Cuozzo, IPR2012-00001, Paper 36 (April 5, 2013). Here,
`
`the balance weighs heavily in favor of protecting RPX’s highly confidential
`
`information.
`
`As discussed in detail below, Patent Owner’s Opposition Brief, Petitioner’s
`
`Reply Brief, and Exhibit 1096, for which redacted non-confidential versions are
`
`being filed concurrently herewith, reference sensitive confidential information,
`
`including information from the “Unredactable Exhibits” subject to Petitioner’s
`
`pending Fourth Motion to Seal filed on March 1, 2019 (Paper 97) and from other
`
`sensitive documents that the Board has already sealed in these proceedings in
`
`response to one or more previous motions to seal filed by Petitioner. To ensure
`2
`
`
`
`
`
`
`
`that the public has access to a complete and understandable file history without
`
`disclosing RPX’s confidential information, Petitioner has tailored its redactions as
`
`narrowly as possible.
`
`As discussed below, even if the Board finds the existence of some of the
`
`confidential information to be relevant, the specific details revealed in the
`
`documents is not necessary for the public to understand these proceedings, and the
`
`harm to RPX of disclosure of such details far outweighs any public need to access
`
`this detailed information.
`
`The information Petitioner hereby moves to seal falls into five categories
`
`addressed separately below. There is good cause for sealing the information in
`
`each of these categories, and there are different reasons for the sensitivity of the
`
`information in each. If the Board were to decide that the information in any
`
`particular category should not be kept under seal, Petitioner requests the
`
`opportunity to provide revised redacted copies of the documents to preserve the
`
`confidentiality of the other categories of sensitive information.
`
`A. Confidential Agreements
`The Board previously granted (in Paper No. 53) Petitioner’s motion (in
`
`Paper No. 27) to seal Exhibits 1020-1022, which are confidential agreements that
`
`detail sensitive confidential aspects of business relationships involving third
`
`parties, including highly confidential and sensitive financial terms. These
`
`
`
`3
`
`
`
`
`
`agreements, by their explicit terms, require RPX to keep them confidential (Ex.
`
`1020 at §§ 4 and 9.9), and the Board recognized that their sensitive details should
`
`be kept under seal to protect not only RPX but also third parties with whom RPX
`
`has confidential business relations. See Paper No. 53.
`
`On March 1, 2019, as part of these Remand Proceedings, Petitioner also
`
`moved to seal additional confidential agreements, which include highly
`
`confidential terms and aspects of business relationships, and by their explicit terms
`
`require that RPX treat them as confidential. See Paper No. 97 at 5-6.
`
`References in Patent Owner’s Opposition Brief, Petitioner’s Reply Brief,
`
`and Exhibit 1096 to the detailed information in the above confidential agreements,
`
`which RPX is obligated to treat as confidential, correspond to the following
`
`redactions:
`
` Patent Owner’s Opposition Brief at 1, 2, 8, 10, 14, 15, 16, 18, 19, 25, 26,
`
`27, 29, 35, 36, 40.
`
` Petitioner’s Reply Brief at 2, 7, 9, 11, 28, 29.
`
` Ex. 1096 at 1, 2, 3.
`
`As explained in Petitioner’s Fourth Motion to Seal (Paper No. 97 at 6-7), as
`
`a result of the appellate proceedings, some of RPX’s previously confidential
`
`information, including that Salesforce was an RPX client when these IPRs were
`
`filed, is no longer confidential. See Applications in Internet Time, LLC v. RPX
`
`
`
`4
`
`
`
`
`
`Corp., 897 F.3d 1336, 1338-39 (Fed. Cir. 2018). RPX is not seeking to seal such
`
`information. To facilitate the public’s interest in understanding the issues in this
`
`proceeding while safeguarding information of RPX and Salesforce that remains
`
`confidential, in the portions of Patent Owner’s Opposition Brief, Petitioner’s Reply
`
`Brief, and Exhibit 1096 that discuss the nature of RPX’s relationship with
`
`Salesforce when the IPRs were filed, RPX has not redacted descriptions of the
`
`services that RPX provides where those descriptions are no more detailed than
`
`what is provided in RPX’s public documents describing the services RPX provides
`
`to its members. However, the written agreement(s) between RPX and Salesforce
`
`remain confidential, so details included therein have been redacted and RPX
`
`requests herein references to all details included therein be sealed.
`
`B. Confidential Financial Information
`The Board previously granted (in Paper No. 53) Petitioner’s motion (in
`
`Paper No. 45) to seal Exhibits 2018 and 2026, which are (or are derived from)
`
`confidential RPX business records that reveal detailed financial terms of the
`
`confidential agreements in sealed Exhibits 1020-1021.
`
`On March 1, 2019, as part of these Remand Proceedings, Petitioner also
`
`moved to seal Exhibit 1081 which is (or is derived from) additional confidential
`
`RPX business records that reveal detailed financial terms of the confidential
`
`
`
`5
`
`
`
`
`
`agreements in sealed Exhibits 1020-1021, as well as Exhibit 1077 that is a subject
`
`of Petitioner’s Fourth Motion to Seal. See Paper No. 97 at 7-8.
`
`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 confidentiality concerns among other
`
`parties that have entered into, or may enter into, confidential agreements with
`
`RPX. The details in these exhibits exposing the specific financial terms of RPX’s
`
`confidential business agreements are entirely unrelated to these IPRs, unnecessary
`
`for the public to access, and extremely sensitive.
`
`References in Patent Owner’s Opposition Brief, Petitioner’s Reply Brief,
`
`and Exhibit 1096 to detailed confidential financial information, including the
`
`financial information disclosed in the foregoing financial reports, correspond to the
`
`following redactions:
`
` Patent Owner’s Opposition Brief at 13, 19, 24, 36.
`
` Petitioner’s Reply Brief at 10, 28.
`
`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
`
`communications between RPX and Salesforce that refer to terms of confidential
`
`
`
`6
`
`
`
`
`
`agreements and sensitive, improper disclosures of confidential information by
`
`Patent Owner.
`
`On March 1, 2019, as part of these Remand Proceedings, Petitioner also
`
`moved to seal additional post-filing confidential communications between RPX
`
`and Salesforce that refer to terms of confidential agreements and disclosure of
`
`sensitive, confidential information in these Remand Proceedings. See Paper No.
`
`97 at 8-9.
`
`References in in Patent Owner’s Opposition Brief, Petitioner’s Reply Brief,
`
`and Exhibit 1096 to certain aspects of these and other post-filing confidential
`
`communications, including the names of individual participants in these
`
`communications and other non-public, confidential information, correspond to the
`
`following redactions:
`
` Petitioner’s Reply Brief at 17.
`
` Ex. 1096 at 2, 3.
`
`D. Confidential Business Information and Communications
`The Board previously granted (in Paper No. 53) Petitioner’s motions (in
`
`Paper Nos. 27 and 45) to seal Exhibit 2022, which is a confidential RPX record of
`
`business communications, and discussions thereof in Exhibit 1019.
`
`References in Patent Owner’s Opposition Brief, Petitioner’s Reply Brief,
`
`and Exhibit 1096 to certain aspects of these confidential business communications
`
`
`
`7
`
`
`
`
`
`and other information, including the names of individual participants in these
`
`communications and other non-public, confidential information, correspond to the
`
`following redactions:
`
` Patent Owner’s Opposition Brief at 21, 23, 24.
`
`The redacted portions of Exhibit 1096 at 5 and 6 likewise contain non-
`
`public, confidential information related to business communications, including the
`
`names of individual participants in these communications.
`
`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
`
`proceedings, it is only at a high level of generality. The public has no need to
`
`access the sensitive details pervading these records.
`
`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
`
`strategy, including how RPX identifies patents to challenge via IPR, and
`
`discussions thereof in Exhibit 1019.
`
`
`
`8
`
`
`
`
`
`References in Patent Owner’s Opposition Brief, Petitioner’s Reply Brief,
`
`and Exhibit 1096 to certain confidential, non-public information disclosed in these
`
`confidential RPX business records correspond to the following redactions:
`
` Patent Owner’s Opposition Brief at 10 n.2, 12, 33.
`
` Petitioner’s Reply Brief at 8, 16.
`
`Disclosure of this information would provide an unfair advantage to current
`
`and future litigants and other adversarial parties with whom RPX deals and would
`
`hamper RPX’s ability to carry out its business. To understand the merits of this
`
`proceeding, it is sufficient for the public to know why RPX filed these IPRs to
`
`further its own interests, and RPX has not redacted that information. However, the
`
`highly sensitive details of RPX’s IPR litigation strategy generally, revealing how
`
`and why RPX identifies other patents to file validity challenges against, are
`
`unnecessary for the public to access, particularly given the highly sensitive nature
`
`of this litigation strategy information and the significant harm to RPX that would
`
`result from revealing it publicly.
`
`*
`
`*
`
`*
`
`As demonstrated above, good cause exists for keeping the above-listed
`
`redacted portions of Patent Owner’s Opposition Brief, Petitioner’s Reply Brief,
`
`and Exhibit 1096 under seal.
`
`
`
`9
`
`
`
`
`
`F.
`Sealing This Information Is Consistent with Board Practice
`The confidential information in the five categories above is highly sensitive,
`
`and the harm to RPX of disclosure of the detailed information involved far
`
`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
`
`the identities of Petitioner’s members), 6-7 (membership terms and business
`
`strategies are highly sensitive confidential information), 7 (financial information
`
`can be sealed where reasonable redactions were proposed and the financial
`
`information was not relevant to underlying arguments about real party in interest);
`
`see also Farmwald and RPX v. Parkervision, IPR2014-00948, Paper 58 (July 30,
`
`2015) at 3-4 (finding good cause and granting Petitioners’ motion to seal
`
`confidential information including RPX’s business objectives, litigation strategy
`
`and information about RPX’s clients/members) and Paper 74 (granting Petitioners’
`
`subsequent Motion to Expunge the same information). The same rationale applies
`
`to the instant motion, and Petitioner respectfully requests that the redacted portions
`
`of Patent Owner’s Opposition Brief, Petitioner’s Reply Brief, and Exhibit 1096 be
`
`kept under seal.
`
`
`
`10
`
`
`
`
`
`II. CERTIFICATION OF NON-PUBLICATION STATUS
`Petitioner’s undersigned counsel certifies that the information sought to be
`
`sealed by this motion has not been published or otherwise made public to the best
`
`of her knowledge.
`
`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
`
`confidential information. Patent Owner consented to the filing of this Motion but
`
`indicated that it may contest the propriety of some of the confidential designations
`
`in the production.
`
`
`Dated: April 5, 2019
`
`
`
`
`
`
`
`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
`
`
`
`11
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6 (E)(4)
`I hereby certify that on this 5st day of April, 2019, I will cause a copy of the
`
`foregoing document, together with all accompanying documents, to be served via
`
`electronic mail, as previously consented to by Patent Owner, upon the following
`
`counsel of record:
`
`Steven C. Sereboff
`Jonathan Pearce
`
`
`
`
`
`
`
`
`
`Date: April 5, 2019
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ssereboff@socalip.com
`jpearce@socalip.com
`uspto@socalip.com
`
`
`
`
`
`/MacAulay Rush/
`MacAulay Rush
`Patent Paralegal
`WOLF GREENFIELD & SACKS, P.C.
`
`
`
`12
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
