Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`IPR2015-01750, Paper 122
`IPR2015-01751, Paper 122
`IPR2015-01752, Paper 120
`Date: August 24, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`RPX CORPORATION,
`Petitioner,
`
`v.
`
`APPLICATIONS IN INTERNET TIME, LLC,
`Patent Owner.
`_________
`
`IPR2015-01750
`Patent 8,484,111 B2
`
`IPR2015-01751
`IPR2015-01752
`Patent 7,356,482 B21
`____________
`
`
`Before LYNNE E. PETTIGREW, MITCHELL G. WEATHERLY, and
`JENNIFER MEYER CHAGNON, Administrative Patent Judges.
`
`CHAGNON, Administrative Patent Judge.
`
`ORDER
`Granting Petitioner’s Motions to Seal
`37 C.F.R. §§ 42.5, 42.14, 42.54
`
`
`
`
`1 This Order addresses issues common to all identified cases; therefore, we
`issue a single order to be entered in each case.
`
`
`Tel: 571-272-7822
`
`
`
`IPR2015-01750, Paper 122
`IPR2015-01751, Paper 122
`IPR2015-01752, Paper 120
`Date: August 24, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`RPX CORPORATION,
`Petitioner,
`
`v.
`
`APPLICATIONS IN INTERNET TIME, LLC,
`Patent Owner.
`_________
`
`IPR2015-01750
`Patent 8,484,111 B2
`
`IPR2015-01751
`IPR2015-01752
`Patent 7,356,482 B21
`____________
`
`
`Before LYNNE E. PETTIGREW, MITCHELL G. WEATHERLY, and
`JENNIFER MEYER CHAGNON, Administrative Patent Judges.
`
`CHAGNON, Administrative Patent Judge.
`
`ORDER
`Granting Petitioner’s Motions to Seal
`37 C.F.R. §§ 42.5, 42.14, 42.54
`
`
`
`
`1 This Order addresses issues common to all identified cases; therefore, we
`issue a single order to be entered in each case.
`
`
`
`IPR2015‐01750 (Patent 8,484,111 B2)
`
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`
`I.
`
`INTRODUCTION
`
`RPX Corporation (”Petitioner”) filed a Fourth Motion to Seal
`(Paper 97,2 “Fourth Mot.”), a Fifth Motion to Seal (Paper 105, “Fifth Mot.”),
`and a Sixth Motion to Seal (Paper 114, “Sixth Mot.”). Patent Owner did not
`file an opposition to any of Petitioner’s Fourth, Fifth, or Sixth Motions to
`Seal. A Revised Protective Order previously has been entered in this
`proceeding. Paper 58; Ex. 3001.
`The record for an inter partes review shall be made available to the
`public, except as otherwise ordered, and a document filed with a motion to
`seal shall be treated as sealed until the motion is decided. 35 U.S.C.
`§ 316(a)(1); 37 C.F.R. § 42.14. The standard for granting a motion to seal is
`“good cause.” 37 C.F.R. § 42.54. There is a strong public policy that favors
`making information filed in inter partes review proceedings open to the
`public. See Garmin Int’l v. Cuozzo Speed Techs., LLC, IPR2012-00001,
`Paper 34 at 1–2 (PTAB Mar. 14, 2013) (discussing the standards of the
`Board applied to motions to seal). The moving party bears the burden of
`showing that the relief requested should be granted. 37 C.F.R. § 42.20(c).
`That includes showing that the information is truly confidential, and that
`such confidentiality outweighs the strong public interest in having an open
`record. See Garmin at 3.
`Petitioner certifies that “RPX has in good faith conferred with Patent
`Owner about sealing RPX’s confidential information.” Fourth Mot. 13;
`
`
`2 For expediency, we refer to the Exhibits and Papers filed in
`IPR2015-01750. The same Exhibits and Papers were filed in each
`proceeding. We include in the Appendix a chart showing the corresponding
`paper and exhibit numbers for each proceeding.
`
`2
`
`
`
`IPR2015‐01750 (Patent 8,484,111 B2)
`
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`Fifth Mot. 11; Sixth Mot. 12. In each motion, Petitioner’s counsel further
`“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.”
`Fourth Mot. 13; Fifth Mot. 11; Sixth Mot. 11.
`
`II.
`
`PETITIONER’S FOURTH MOTION TO SEAL
`
`In its Fourth Motion to Seal, Petitioner seeks to seal the entirety of
`Exhibits 1074, 1075, 1076, 1077, 1078, 1079, 1080, 1081, 1091, and 1092;
`portions of Petitioner’s Opening Brief (Paper 98); and portions of
`Exhibits 1073, 1090, 1094, 1095. See generally Fourth Mot. Petitioner
`asserts that these documents “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.” Id. at 2. Petitioner asserts that “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.” Id.
`For the reasons discussed in the following, Petitioner’s Fourth Motion
`to Seal is granted.
`
`A.
`
`Exhibits 1074, 1075, 1076, 1077, 1078, 1079, 1080, 1081,
`1091, and 1092
`
`Petitioner asserts there is good cause to seal Exhibits 1074, 1075,
`1076, 1077, 1078, 1079, 1080, in their entirety, because these exhibits
`contain “highly confidential and sensitive financial terms,” “confidential
`aspects of business relationships,” or “sensitive pricing information,
`purchase terms, purchased products and/or services, as well as personal
`
`3
`
`
`
`IPR2015‐01750 (Patent 8,484,111 B2)
`
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`information.” Fourth Mot. 5. Petitioner asserts there is good cause to seal
`Exhibit 1081 in its entirety because it “is (or is derived from) confidential
`RPX business records that reveal detailed financial terms of the confidential
`agreements.” Id. at 7. Petitioner asserts there is good cause to seal Exhibits
`1091 and 1092, in their entirety, because they are “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.” Id. at 8. Petitioner further asserts that these
`Exhibits “are composed entirely of sensitive confidential information and
`cannot be effectively redacted in a manner that would provide any
`meaningful content to the public without exposing confidential information.”
`Id. at 3.
`Upon consideration of Exhibits 1074, 1075, 1076, 1077, 1078, 1079,
`1080, 1081, 1091, and 1092, along with Petitioner’s representations of the
`confidentiality of the information contained therein, and the pervasiveness of
`the confidential information in each document, we are persuaded Petitioner
`has shown good cause for sealing Exhibits 1074, 1075, 1076, 1077, 1078,
`1079, 1080, 1081, 1091, and 1092 in their entirety.
`
`B.
`
`Petitioner’s Opening Brief & Exhibits 1073, 1090, 1094, and
`1095
`
`Petitioner asserts that there is good cause to seal portions of its
`Opening Brief (Paper 98) and Exhibits 1073, 1090, 1094, and 1095 because
`they “reference sensitive confidential information, including information
`from [the confidential Exhibits discussed above in Section II.A] and 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.”
`
`4
`
`
`
`IPR2015‐01750 (Patent 8,484,111 B2)
`
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`Fourth Mot. 3; see also id. at 5–6, 8–11 (detailing the locations of specific
`confidential information). Petitioner filed redacted versions of its Opening
`Brief (Paper 95), and of Exhibits 1073, 1090, 1094, and 1095, and states that
`“[t]o ensure 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.” Fourth Mot. 3.
`Upon review of Petitioner’s Opening Brief and Exhibits 1073, 1090,
`1094, and 1095, and the redacted versions thereof, we are persuaded good
`cause exists to maintain under seal the redacted portions of Petitioner’s
`Opening Brief3 and Exhibits 1073, 1090, 1094, and 1095.
`As noted above, Petitioner’s Fourth Motion to Seal is granted.
`
`III.
`
`PETITIONER’S FIFTH MOTION TO SEAL
`
`In its Fifth Motion to Seal, Petitioner moves to seal portions of Patent
`Owner’s Opposition Brief (Paper 100), portions of Petitioner’s Reply Brief
`(Paper 101), and portions of Exhibit 1096. See generally Fifth Mot.
`Petitioner asserts there is good cause to seal these documents because they
`“reference sensitive confidential information, including information from
`[the confidential Exhibits discussed above in Section II.A] 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.” Id.
`
`3 Regarding the redacted text on page 34 of the Opening Brief, Petitioner
`explains that “the redacted text in the Opening Brief at 34 corresponds to
`personal information that need not be injected into the public record here.”
`Fourth Mot. 12. Although this information is not confidential, we agree with
`Petitioner that the redacted information is unnecessary to understand the
`issues in this proceeding and allow this redaction to remain. See 37 C.F.R.
`§ 42.5.
`
`5
`
`
`
`IPR2015‐01750 (Patent 8,484,111 B2)
`
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`at 2; see also id. at 4, 6–9 (detailing the locations of specific confidential
`information). We agree.
`Petitioner filed redacted versions of Patent Owner’s Opposition Brief
`(Paper 104), Petitioner’s Reply Brief (Paper 102), and Exhibit 1096, and
`states that “[t]o ensure 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.”
`Fifth Mot. 2–3. Upon review of Patent Owner’s Opposition Brief,
`Petitioner’s Reply Brief, and Exhibit 1096, and the redacted versions
`thereof, we are persuaded good cause exists to maintain under seal the
`redacted portions of these documents.
`Petitioner’s Fifth Motion to Seal is granted.
`
`IV.
`
`PETITIONER’S SIXTH MOTION TO SEAL
`
`In its Sixth Motion to Seal, Petitioner moves to seal portions the
`April 25, 2019, Oral Hearing Transcript (Paper 112), portions of Petitioner’s
`Demonstrative Exhibits for the April 25, 2019, Oral Hearing (Ex. 1098), and
`portions of Patent Owner’s Demonstrative Exhibits for the April 25, 2019,
`Oral Hearing (Ex. 2037). See generally Sixth Mot. Petitioner asserts there
`is good cause to seal these documents because they “reference sensitive
`confidential information, including information from [the confidential
`Exhibits discussed above in Section II.A and in Section III] 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.” Id.
`at 2–3; see also id. at 4–5, 7–9 (detailing the locations of specific
`confidential information). We agree.
`
`6
`
`
`
`IPR2015‐01750 (Patent 8,484,111 B2)
`
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`Petitioner filed redacted versions of the April 25, 2019, Oral Hearing
`Transcript (Ex. 11014), Petitioner’s Demonstrative Exhibits for the April 25,
`2019, Oral Hearing (Ex. 10985), and Patent Owner’s Demonstrative Exhibits
`for the April 25, 2019, Oral Hearing (Ex. 1100). Petitioner states that “[t]o
`ensure 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.” Sixth Mot. 3. Upon review
`of the Oral Hearing Transcript and the redacted version thereof, we are
`persuaded good cause exists to maintain under seal the redacted portions of
`this document.6 As to the Demonstrative Exhibits, because these are not
`evidence, we expunge them rather than maintain sealed and redacted
`versions in the record. See 37 C.F.R. § 42.5(a).
`Petitioner’s Sixth Motion to Seal is granted.
`
`
`4 The proposed redacted version of the Oral Hearing Transcript filed by
`Petitioner as Exhibit 1101 maintained the “NON-PUBLIC VERSION –
`PROTECTIVE ORDER MATERIAL” marking present on the original version of
`the document. To avoid confusion, we expunge the version submitted by
`Petitioner, and concurrently herewith enter a “PUBLIC VERSION” of the
`redacted Oral Hearing Transcript.
`5 Petitioner filed both the confidential and redacted versions of its
`Demonstrative Exhibits as Exhibit 1098.
`6 Petitioner explains that “the redacted text . . . at 13:1, 62:19–20, and 63:1
`[of the hearing transcript] corresponds to personal or identifying information
`that need not be injected into the public record here.” Sixth Mot. 10.
`Although this information is not confidential, we agree with Petitioner that
`the redacted information is unnecessary to understand the issues in this
`proceeding and allow this redaction to remain. See 37 C.F.R. § 42.5.
`
`7
`
`
`
`IPR2015‐01750 (Patent 8,484,111 B2)
`
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`AUTHORIZATION FOR MOTIONS TO EXPUNGE
`
`V.
`
`The parties are reminded that confidential information that is subject
`to a protective order ordinarily becomes public 45 days after final judgment
`in a trial. Consolidated Trial Practice Guide7 at 21–22. A party seeking to
`maintain the confidentiality of information, however, may file a motion to
`expunge the information from the record prior to the information becoming
`public. Id. at 22; see 37 C.F.R. § 42.56. As set forth in the Order below, the
`record in each of these proceedings will be preserved for any appeal, and all
`sealed documents will remain under seal during the appeal process.
`
`VI.
`
`ORDER
`
`For the foregoing reasons, it is:
`ORDERED that Petitioner’s Fourth Motion to Seal is granted in each
`of IPR2015-01750, IPR2015-01751, and IPR2015-01752;
`FURTHER ORDERED that Petitioner’s Fifth Motion to Seal is
`granted in each of IPR2015-01750, IPR2015-01751, and IPR2015-01752;
`FURTHER ORDERED that Petitioner’s Sixth Motion to Seal is
`granted in each of IPR2015-01750, IPR2015-01751, and IPR2015-01752;
`FURTHER ORDERED that the following Exhibits will be expunged:
`in IPR2015-01750: Ex. 1098 (confidential version, parts 1
`and 2, filed April 22, 2019), Ex. 1098 (public version, parts 1 and 2,
`filed June 19, 2019), Ex. 1100, Ex. 1101, and Ex. 2037;
`
`
`7 Available at https://www.uspto.gov/TrialPracticeGuideConsolidated.
`
`8
`
`
`
`IPR2015‐01750 (Patent 8,484,111 B2)
`
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`in IPR2015-01751: Ex. 1098 (confidential version, parts 1
`and 2, filed April 22, 2019), Ex. 1098 (public version, parts 1 and 2,
`filed June 19, 2019), Ex. 1100, Ex. 1101, and Ex. 2037;
`in IPR2015-01752: Ex. 1198 (confidential version, parts 1
`and 2, filed April 22, 2019), Ex. 1198 (public version, parts 1 and 2,
`filed June 19, 2019), Ex. 1200, Ex. 1201, and Ex. 2037;
`FURTHER ORDERED that the record in each of IPR2015-01750,
`IPR2015-01751, and IPR2015-01752 will be preserved for any appeal, and
`that sealed documents will remain under seal until at least 45 days after the
`expiration of any period for appeal or, if an appeal is taken, 45 days after the
`appeal process has concluded; and
`FURTHER ORDERED that the parties are each authorized to file a
`Motion to Expunge Confidential Information after the expiration of any
`period for appeal or, if an appeal is taken, after the appeal process has
`concluded.
`
`
`
`
`
`
`9
`
`
`
`IPR2015‐01750 (Patent 8,484,111 B2)
`
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`APPENDIX
`IPR2015-
`01750
`Paper 97
`Paper 105
`Paper 114
`Paper 98
`Paper 95
`Paper 100
`Paper 104
`
`IPR2015-
`01751
`Paper 99
`Paper 107
`Paper 114
`Paper 100
`Paper 97
`Paper 102
`Paper 106
`
`Document Description
`Fourth Motion to Seal
`Fifth Motion to Seal
`Sixth Motion to Seal
`Opening Brief
`Opening Brief (Redacted)
`Opposition Brief
`Opposition Brief
`(Redacted)
`Reply Brief
`Reply Brief (Redacted)
`Hearing Transcript
`Second Declaration of
`William W. Chuang
`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
`
`IPR2015-
`01752
`Paper 97
`Paper 105
`Paper 112
`Paper 98
`Paper 95
`Paper 100
`Paper 104
`
`Paper 101
`Paper 102
`Paper 110
`Ex. 1173
`
`Paper 101
`Paper 102
`Paper 112
`Ex. 1073
`
`Paper 103
`Paper 104
`Paper 112
`Ex. 1073
`
`Ex. 1074
`
`Ex. 1074
`
`Ex. 1174
`
`Ex. 1075
`
`Ex. 1075
`
`Ex. 1175
`
`Ex. 1076
`Ex. 1077
`
`Ex. 1076
`Ex. 1077
`
`Ex. 1176
`Ex. 1177
`
`Ex. 1078
`Ex. 1079
`Ex. 1080
`
`Ex. 1078
`Ex. 1079
`Ex. 1080
`
`Ex. 1178
`Ex. 1179
`Ex. 1180
`
`Ex. 1081
`
`Ex. 1081
`
`Ex. 1181
`
`10
`
`
`
`IPR2015‐01750 (Patent 8,484,111 B2)
`
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`IPR2015-
`01750
`Ex. 1090
`
`Document Description
`Declaration of Steve W.
`Chiang
`RPX Notice of
`Production of
`Confidential Information
`to Salesforce
`Email Thread Responsive
`to RPX Notice of
`production of
`Confidential Information
`to Salesforce
`Transcript of Deposition
`of Steve W. Chiang,
`January 29, 2019
`Transcript of Deposition
`of William W Chuang,
`January 30, 2019
`Petitioner’s Responses to
`Patent Owner’s Requests
`for Production
`Petitioner Demonstrative
`Exhibits
`Patent Owner
`Demonstrative Exhibits
`(Redacted)
`Hearing Transcript
`(Proposed Redactions)
`Patent Owner
`Demonstrative Exhibits
`
`
`IPR2015-
`01751
`Ex. 1090
`
`IPR2015-
`01752
`Ex. 1190
`
`Ex. 1091
`
`Ex. 1091
`
`Ex. 1191
`
`Ex. 1092
`
`Ex. 1092
`
`Ex. 1192
`
`Ex. 1094
`
`Ex. 1094
`
`Ex. 1194
`
`Ex. 1095
`
`Ex. 1095
`
`Ex. 1195
`
`Ex. 1096
`
`Ex. 1096
`
`Ex. 1196
`
`Ex. 1098
`
`Ex. 1098
`
`Ex. 1198
`
`Ex. 1100
`
`Ex. 1100
`
`Ex. 1200
`
`Ex. 1101
`
`Ex. 1101
`
`Ex. 1201
`
`Ex. 2037
`
`Ex. 2037
`
`Ex. 2037
`
`
`
`
`
`11
`
`
`
`IPR2015‐01750 (Patent 8,484,111 B2)
`
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`
`For PETITIONER:
`
`Richard Giunta
`Elisabeth Hunt
`Randy Pritzker
`Michael Rader
`WOLF, GREENFIELD & SACKS, P.C.
`RGiunta-PTAB@wolfgreenfield.com
`EHunt-PTAB@wolfgreenfield.com
`RPritzker-PTAB@wolfgreenfield.com
`MRader-PTAB@wolfgreenfield.com
`
`
`For PATENT OWNER:
`
`Steven Sereboff
`Jonathan Pearce
`SOCAL IP LAW GROUP LLP
`ssereboff@socalip.com
`jpearce@socalip.com
`
`
`
`
`
`
`12
`
`
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