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`Paper No. __
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`RPX CORPORATION,
`Petitioner,
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`v.
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`APPLICATIONS IN INTERNET TIME, LLC,
`Patent Owner.
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`_____________
`
`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
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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 37 C.F.R. §§ 42.14. and 42.54, the Revised Protective Order
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`entered by the Board (see Ex. 3001), and the Board’s authorization e-mail of
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`March 11, 2019, Petitioner RPX Corporation (“Petitioner” or “RPX”), by and
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`through its counsel of record, moves to seal: (1) portions of Patent Owner’s
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`Opposition Brief (Paper 100)2 filed on March 22, 2019 in these remand
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`proceedings for IPR2015-01750, IPR2015-01751 and IPR2015-01752
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`(collectively, “Remand Proceedings”); (2) portions of Petitioner’s Reply Brief filed
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`herewith in these Remand Proceedings; and (3) portions of Exhibit 1096 that
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`accompany Petitioner’s Reply Brief.
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`Petitioner’s Reply Brief, Exhibit 1096, and redacted non-confidential
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`versions of the Petitioner’s Reply Brief, Exhibit 1096, and Patent Owner’s
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`Opposition Brief are being filed concurrently with this Motion.
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`Patent Owner’s Opposition Brief, Petitioner’s Reply Brief, and Exhibit 1096
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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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`2 This Motion uses the Exhibit numbers and Paper numbers from IPR2015-01750.
`1
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`respectfully requests that the redacted portions of Patent Owner’s Opposition Brief,
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`the redacted portions of Petitioner’s Reply Brief, and the redacted portions of
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`Exhibit 1096 be kept under seal. Sealing this information falls squarely within the
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`Board’s authority to “[require] that a trade secret or other confidential …
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`commercial information not be revealed or be revealed only in a specified way….”
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`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 weighs heavily in favor of protecting RPX’s highly confidential
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`information.
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`As discussed in detail below, Patent Owner’s Opposition Brief, Petitioner’s
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`Reply Brief, and Exhibit 1096, for which redacted non-confidential versions are
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`being filed concurrently herewith, reference sensitive confidential information,
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`including information from the “Unredactable Exhibits” subject to Petitioner’s
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`pending Fourth Motion to Seal filed on March 1, 2019 (Paper 97) and from other
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`sensitive documents that the Board has already sealed in these proceedings in
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`response to one or more previous motions to seal filed by Petitioner. To ensure
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`that the public has access to a complete and understandable file history without
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`disclosing RPX’s confidential information, Petitioner has tailored its redactions as
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`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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`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.
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`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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`On March 1, 2019, as part of these Remand Proceedings, Petitioner also
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`moved to seal additional confidential agreements, which include highly
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`confidential terms and aspects of business relationships, and by their explicit terms
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`require that RPX treat them as confidential. See Paper No. 97 at 5-6.
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`References in Patent Owner’s Opposition Brief, Petitioner’s Reply Brief,
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`and Exhibit 1096 to the detailed information in the above confidential agreements,
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`which RPX is obligated to treat as confidential, correspond to the following
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`redactions:
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` Patent Owner’s Opposition Brief at 1, 2, 8, 10, 14, 15, 16, 18, 19, 25, 26,
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`27, 29, 35, 36, 40.
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` Petitioner’s Reply Brief at 2, 7, 9, 11, 28, 29.
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` Ex. 1096 at 1, 2, 3.
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`As explained in Petitioner’s Fourth Motion to Seal (Paper No. 97 at 6-7), as
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`a result of the appellate proceedings, some of RPX’s previously confidential
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`information, including that Salesforce was an RPX client when these IPRs were
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`filed, is no longer confidential. See Applications in Internet Time, LLC v. RPX
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`4
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`Corp., 897 F.3d 1336, 1338-39 (Fed. Cir. 2018). RPX is not seeking to seal such
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`information. To facilitate the public’s interest in understanding the issues in this
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`proceeding while safeguarding information of RPX and Salesforce that remains
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`confidential, in the portions of Patent Owner’s Opposition Brief, Petitioner’s Reply
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`Brief, and Exhibit 1096 that discuss the nature of RPX’s relationship with
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`Salesforce when the IPRs were filed, RPX has not redacted descriptions of the
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`services that RPX provides where those descriptions are no more detailed than
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`what is provided in RPX’s public documents describing the services RPX provides
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`to its members. However, the written agreement(s) between RPX and Salesforce
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`remain confidential, so details included therein have been redacted and RPX
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`requests herein references to all details included therein be sealed.
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`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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`On March 1, 2019, as part of these Remand Proceedings, Petitioner also
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`moved to seal Exhibit 1081 which is (or is derived from) additional confidential
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`RPX business records that reveal detailed financial terms of the confidential
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`5
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`agreements in sealed Exhibits 1020-1021, as well as Exhibit 1077 that is a subject
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`of Petitioner’s Fourth Motion to Seal. See Paper No. 97 at 7-8.
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`Disclosure of this detailed information to the public would severely impact
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`RPX’s ability to conduct business with third parties and could negatively impact
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`RPX’s business relationships by creating confidentiality concerns among other
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`parties that have entered into, or may enter into, confidential agreements with
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`RPX. The details in these exhibits exposing the specific financial terms of RPX’s
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`confidential business agreements are entirely unrelated to these IPRs, unnecessary
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`for the public to access, and extremely sensitive.
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`References in Patent Owner’s Opposition Brief, Petitioner’s Reply Brief,
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`and Exhibit 1096 to detailed confidential financial information, including the
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`financial information disclosed in the foregoing financial reports, correspond to the
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`following redactions:
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` Patent Owner’s Opposition Brief at 13, 19, 24, 36.
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` Petitioner’s Reply Brief at 10, 28.
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`C.
`Post-Filing Confidential Communications
`The Board previously granted (in Paper No. 53) Petitioner’s motion (in
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`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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`6
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`agreements and sensitive, improper disclosures of confidential information by
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`Patent Owner.
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`On March 1, 2019, as part of these Remand Proceedings, Petitioner also
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`moved to seal additional post-filing confidential communications between RPX
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`and Salesforce that refer to terms of confidential agreements and disclosure of
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`sensitive, confidential information in these Remand Proceedings. See Paper No.
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`97 at 8-9.
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`References in in Patent Owner’s Opposition Brief, Petitioner’s Reply Brief,
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`and Exhibit 1096 to certain aspects of these and other post-filing confidential
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`communications, 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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` Petitioner’s Reply Brief at 17.
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` Ex. 1096 at 2, 3.
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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 Patent Owner’s Opposition Brief, Petitioner’s Reply Brief,
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`and Exhibit 1096 to certain aspects of these confidential business communications
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`7
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`and other 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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` Patent Owner’s Opposition Brief at 21, 23, 24.
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`The redacted portions of Exhibit 1096 at 5 and 6 likewise contain non-
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`public, confidential information related to business communications, including the
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`names of individual participants in these communications.
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`All of the foregoing redacted information is non-public and has the potential,
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`if disclosed, to negatively impact RPX’s relations and negotiations with third
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`parties. To the extent this information has any relevance to the merits of these
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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
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`Paper Nos. 27 and 45) to seal Exhibits 1024, 2018, and 2025, which are
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`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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`8
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`References in Patent Owner’s Opposition Brief, Petitioner’s Reply Brief,
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`and Exhibit 1096 to certain confidential, non-public information disclosed in these
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`confidential RPX business records correspond to the following redactions:
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` Patent Owner’s Opposition Brief at 10 n.2, 12, 33.
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` Petitioner’s Reply Brief at 8, 16.
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`Disclosure of this information would provide an unfair advantage to current
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`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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`*
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`As demonstrated above, good cause exists for keeping the above-listed
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`redacted portions of Patent Owner’s Opposition Brief, Petitioner’s Reply Brief,
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`and Exhibit 1096 under seal.
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`9
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`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
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`for the public to access the information. The Board has previously found good
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`cause to keep similar information confidential in this case (See Paper No. 53) and
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`others. See, e.g., 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), 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 redacted portions
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`of Patent Owner’s Opposition Brief, Petitioner’s Reply Brief, and Exhibit 1096 be
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`kept under seal.
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`10
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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: April 5, 2019
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`Respectfully submitted,
`RPX Corporation
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`
`/Elisabeth Hunt/
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`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 5st day of April, 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: April 5, 2019
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`ssereboff@socalip.com
`jpearce@socalip.com
`uspto@socalip.com
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`/MacAulay Rush/
`MacAulay Rush
`Patent Paralegal
`WOLF GREENFIELD & SACKS, P.C.
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