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 SECOND 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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`Paper No. __
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`
`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 SECOND 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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`Paper No. __
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`Pursuant to 37 C.F.R. §§ 42.14. and 42.54 and the Protective Order filed in
`
`these proceedings as Ex. 1017, Petitioner RPX Corporation (“RPX”), by and
`
`through its counsel of record, moves to seal Exhibits 1029, 1031-1035, 1037-1043
`
`and 1046 that accompany Petitioner’s Motion for Sanctions (hereafter “Sanctions
`
`Motion”) filed in IPR2015-01750 and IPR2015-01751, and the identical
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`corresponding Exhibits 1129, 1131-1135, 1137-1143 and 1146 that accompany the
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`identical Sanctions Motion filed in IPR2015-01752 (collectively hereafter “the
`
`Sensitive Exhibits”)2. RPX also requests that the Sanctions Motion be sealed in all
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`three proceedings. The Sensitive Exhibits, the Sanctions Motion and a redacted
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`non-confidential version of the Sanctions Motion are being filed concurrently with
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`this Motion to Seal. An executed copy of the Protective Order, as stipulated to by
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`the parties, was filed by Petitioner RPX as Exhibit 1017 in IPRs 2015-01750 and -
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`01751, and as Exhibit 1117 in IRP2015-01752.
`
`In the Sanctions Motion, RPX requests as a sanction entry of a more
`
`restrictive Protective Order, filed as Ex. 1047, for all confidential material
`
`provided to AIT and filed in these proceedings. A redline version with respect to
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`the original default Protective Order is also being filed as Ex. 1048. RPX
`
`
`2 The citations below are to the Exhibit numbers used in IPR2015-01750 and
`
`IPR2015-01751.
`
`
`
`1
`
`
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`conferred with AIT in connection with entry of that more restrictive Protective
`
`Order (Ex. 1047) but AIT declined to consent to its entry.
`
`The Sensitive Exhibits and the Sanctions Motion contain highly confidential
`
`and extremely sensitive information, including, inter alia, references to highly
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`confidential IPR litigation strategy that RPX employs to pursue its business,
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`references to highly confidential agreements and communication records, and
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`sensitive details about how AIT failed to protect RPX’s confidential information.
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`RPX guards its confidential information to protect its own business as well as third
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`parties and is contractually obligated to keep certain information confidential.
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`RPX, therefore, respectfully requests that the Sensitive Exhibits in their entirety
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`and portions of the Sanctions Motion be sealed. Sealing this information falls
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`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 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
`
`and understandable file history and the parties’ interest in protecting truly
`
`sensitive information.” Garmin v. Cuozzo, IPR2012-00001, Paper 36 (April 5,
`
`
`
`2
`
`
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`2013). Here, the balance tips heavily in favor of protecting RPX’s highly
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`confidential information.
`
`Exhibits 1029, 1031-1033, 1035, 1038-1039 and 1042-1043 are email
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`exchanges between counsel for RPX and counsel for AIT that discuss RPX’s
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`confidential business information and include sensitive details about how AIT
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`failed to protect RPX’s confidential information. While AIT has not expressly
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`designated any information in these email exchanges as being confidential, RPX
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`requests that these exhibits be sealed in their entirety to ensure that no
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`information is made public that either party intended to remain confidential. For
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`the same reasons, all information from these email exchanges is redacted in the
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`non-confidential version of the Sanctions Motion.
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`Exhibits 1040-1041 are Declarations of Nicholas S. Boeble and Frank
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`Knuettel, II that were designated as Protective Order Material by AIT.
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`Exhibits 1034, 1037 and 1046, while public information, would reveal
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`highly sensitive details about how AIT failed to protect RPX’s confidential
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`information in the context of the Sanctions Motion and should be sealed in these
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`proceedings to safeguard RPX’s confidential information.
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`As should be appreciated from the foregoing, the Sensitive Exhibits in their
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`entirety, along with portions of the Sanctions Motion that reference them, contain or
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`reference extremely sensitive information, including details of RPX’s business
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`
`
`3
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`
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`agreements with third parties. Such information should be kept under seal to protect
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`not only RPX but also those third parties. Disclosure of this information would
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`severely impact RPX’s ability to conduct business by providing confidential
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`information to others regarding RPX’s business and by creating confidentiality
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`concerns among third parties that interact with RPX. Accordingly, good cause
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`exists for keeping the Sensitive Exhibits in their entirety and portions of the Sanctions
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`Motion 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 Sanctions Motion as narrowly as possible. The information is
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`submitted solely to address whether to sanction AIT. The public interest in this
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`information is limited and the public does not require 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
`
`
`
`4
`
`
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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 the Sensitive Exhibits in their entirety,
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`and portions of the Sanctions Motion be kept under seal.
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`II. CERTIFICATION OF NON-PUBLICATION STATUS
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`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, other than Exhibits 1034, 1037 and 1046 which RPX requests be
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`sealed for the reasons explained above.
`
`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) but objects to
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`entry of the revised protective order. Based on previous communications, RPX
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`assumed that AIT would consent to RPX filing this motion to seal based on the
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`original default protective order but would contest some of RPX’s designations.
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`RPX emailed AIT today indicating that RPX would assume that AIT would take
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`the same position in connection with this motion to seal if RPX did not hear back,
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`and RPX received no response to that email. Thus, RPX believes that Patent
`5
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`
`
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`Owner consented to the filing of this Motion but contests the propriety of some of
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`the confidential designations in the production.
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`6
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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 21st 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 21, 2015
`
`
`
`7
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