Filed on behalf of Petitioner
`By:
`/Richard F. Giunta/
`
`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 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.
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`
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`Paper No. __
`
`
`By:
`/Richard F. Giunta/
`
`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 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.
`
`
`
`
`
`
`
`
`
`
`
`Paper No. __
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`
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`Pursuant to 37 C.F.R. §§ 42.14. and 42.54 and the Protective Order filed in
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`these proceedings, Petitioner RPX Corporation (“RPX”), by and through its
`
`counsel of record, moves to seal Exhibits 1019-1025 that accompany Petitioner’s
`
`Reply to Patent Owner’s Preliminary Response on Real-Party-In-Interest (RPI)
`
`(hereafter “Reply”) filed in IPR2015-01750 and IPR2015-01751, and the identical
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`corresponding Exhibits 1119-1125 that accompany the identical Reply filed in
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`IPR2015-01752 (collectively hereafter “the Exhibits”)2. RPX also requests that the
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`Reply be sealed in all three proceedings. The Exhibits, the Reply, a redacted non-
`
`confidential version of Ex. 1019, and a redacted non-confidential version of the
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`Reply are being filed concurrently with this Motion. An executed copy of the
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`Protective Order, as stipulated to by the parties, was filed by Petitioner RPX as
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`Exhibit 1017 in IPRs 2015-01750 and -01751, and as Exhibit 1117 in IRP2015-
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`01752.
`
`The Exhibits and the Reply contain highly confidential and extremely
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`sensitive information, including, inter alia, highly confidential IPR litigation
`
`strategy that RPX employs to pursue its business, and highly confidential
`
`agreements and communication records. RPX guards this information to protect
`
`its own business as well as third parties and is contractually obligated to keep
`
`
`2 The citations below are to the Exhibit numbers used in IPR2015-01750 and
`IPR2015-01751.
`
`
`
`1
`
`
`
`certain agreements confidential. RPX, therefore, respectfully requests that portions
`
`of Ex. 1019, the other Exhibits in their entirety, and portions of the Reply be
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`sealed. Sealing this information falls squarely within the Board’s authority to
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`“[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 CERTAIN 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
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`and understandable file history and the parties’ interest in protecting truly
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`sensitive information.” Garmin v. Cuozzo, IPR2012-00001, Paper 36 (April 5,
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`2013). Here, the balance tips heavily in favor of protecting RPX’s highly
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`confidential information.
`
`Exhibit 1019 is a declaration from William Chuang, VP of Client
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`Relations at RPX. Mr. Chuang describes RPX’s IPR litigation strategy,
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`including the reasons RPX files IPRs in general and the reasons it filed these
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`IPRs against the AIT patents. Mr. Chuang also summarizes confidential
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`communications and agreements.
`
`Exhibits 1020-1022 are confidential agreements. These Exhibits detail
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`confidential aspects of business relationships and by their explicit terms require
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`that RPX treat them as confidential.
`
`
`
`2
`
`
`
`Exhibits 1023 and 1025 are post-filing confidential communications
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`between RPX and a third party that refer to terms of confidential agreements and
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`sensitive, improper disclosures of confidential information by Patent Owner.
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`Exhibits 1024 and 2018 are confidential RPX business records that reveal
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`RPX’s IPR litigation strategy.
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`As should be appreciated from the foregoing, portions of Ex. 1019 and the
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`other Exhibits in their entirety, along with portions of the Reply that reference them,
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`contain extremely sensitive information, including information regarding RPX’s IPR
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`litigation strategy, and details of RPX’s business agreements with third parties. Such
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`information should be kept under seal to protect not only RPX but also those third
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`parties. Disclosure of this information would severely impact RPX’s ability to
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`conduct business by providing confidential information to others regarding its IPR
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`litigation strategy and business objectives, and by creating confidentiality concerns
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`among third parties that interact with RPX. Accordingly, good cause exists for
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`keeping portions of Ex. 1019, the other Exhibits in their entirety, and portions of the
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`Reply under seal.
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`To ensure that the public has access to a complete and understandable file
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`history without disclosing RPX’s confidential information, Petitioners have tailored
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`the redactions in the Reply and Ex. 1019 as narrowly as possible. None of the
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`redacted information is relevant to any issue related to the Board’s determination of
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`
`
`3
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`
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`patentability, and much of the detailed information is not relevant to RPI. As such,
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`the public interest in this information is limited and the public does not require
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`access to this information.
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`The Board recently held that good cause existed to keep similar information
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`confidential. See Unified Patents Inc. v. Dragon Intellectual Property, LLC,
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`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); at 6-7 (membership terms and business
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`strategies are highly sensitive confidential information); and at 7 (financial
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`information can be sealed where reasonable redactions were proposed and the
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`financial information was not relevant to underlying arguments about real party in
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`interest); see also Farmwald and RPX v. Parkervision, IPR2014-00948, Paper 58
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`(July 30, 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. The same rationale applies to this
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`case, and Petitioner respectfully requests that portions of Ex. 1019, the other Exhibits
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`in their entirety, and portions of the Reply 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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`
`
`4
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`
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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. To the extent the Board
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`determines that the status of whether Salesforce is a client is considered to be
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`public, the information that RPX requests be sealed is far more detailed and has not
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`been published or otherwise made public to the best of the undersigned’s 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
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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) and to file a
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`motion to seal its Preliminary Patent Owner Response that references some of the
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`very same RPX confidential information that RPX seeks to seal with this motion.
`
`Patent Owner consented to the filing of this Motion but contests the propriety of
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`some of confidential designations in the production.
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`
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`
`5
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`
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`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6 (E)(4)
`It is hereby certified that on this 14th day of December 2015, a copy of the
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`foregoing document was served via electronic mail, as previously consented to by
`
`Patent Owner upon the following counsel of record:
`
`Steven C. Sereboff (Reg. No. 37,035)
`M. Kala Sarvaiya (Reg. No. 58,912)
`Jonathan Pearce (Reg. No. 60,972)
`SoCal IP Law Group LLP
`310 N. Westlake Boulevard, Suite 120
`Westlake Village, CA 91362
`uspto@socalip.com
`
`/Richard F. Giunta/
`Richard F. Giunta
`
`
`
`Date: December 14, 2015
`
`
`
`6
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