UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC.,
`ROCKSTAR GAMES, INC., and
`BUNGIE, INC.,
`Petitioner,
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`____________________
`
`Case IPR2015-019721
`Patent 6,701,344
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION FOR ENTRY OF THE PROPOSED
`STIPULATED PROTECTIVE ORDER AND TO SEAL CERTAIN
`EXHIBITS UNDER 37 C.F.R. §§ 42.14 AND 42.54
`
`
`
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00934, has been joined as a
`petitioner in this proceeding.
`
`
`
`
`
`
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC.,
`ROCKSTAR GAMES, INC., and
`BUNGIE, INC.,
`Petitioner,
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`____________________
`
`Case IPR2015-019721
`Patent 6,701,344
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION FOR ENTRY OF THE PROPOSED
`STIPULATED PROTECTIVE ORDER AND TO SEAL CERTAIN
`EXHIBITS UNDER 37 C.F.R. §§ 42.14 AND 42.54
`
`
`
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00934, has been joined as a
`petitioner in this proceeding.
`
`
`
`
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, and the Board’s Order entered
`
`December 12, 2016 (Paper 101), Patent Owner, Acceleration Bay, LLC,
`
`(“Acceleration Bay”) hereby moves for entry of the Proposed Stipulated Protective
`
`Order and to seal portions of its Patent Owner Response, Patent Owner’s
`
`Opposition to Petitioner’s Motion to Exclude, and certain Exhibits (collectively
`
`referred to herein as the “Subject Exhibits”) which are identified below:
`
`Filing/Exhibit2
`Content
`Paper 103
`Patent Owner
`
`Response
`
`2 Pursuant to the Board’s instructions, confidential and non-confidential versions of
`
`Section
`Redacted
`portion on
`
`Confidential
`Information3
`Contains highly
`confidential
`
`Patent Owner’s Response and the Subject Exhibits are concurrently filed herewith.
`
`With respect to Patent Owner’s Response, the confidential version is filed as Paper
`
`31 and the non-confidential version is filed as Paper 103. With respect to Patent
`
`Owner’s Opposition to Petitioner Motion to Exclude, the confidential version is
`
`filed as Paper 85 and the non-confidential version is filed as Paper 104.
`
`Furthermore, pursuant to the Board’s request, Patent Owner will concurrently
`
`notify the Board of the exhibits and papers for which it no longer seeks to maintain
`
`their confidentiality.
`
`3 Further details regarding the confidential information regarding each of the
`
`filings and exhibits identified in this chart are explained infra at § I.
`
`- 1 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Filing/Exhibit2
`
`Content
`
`Section
`Pages 5, 62
`
`Exhibit 2023
`
`
`Declaration of Dr.
`Harry Bims in Support
`of Patent Owner’s
`Response with
`Appendix A
`(Curriculum Vitae of
`Dr. Harry Bims)
`
`¶ 10
`
`¶ 32
`
`Exhibit 2024
`
`Declaration of Dr. Fred
`B. Holt in Support of
`Patent Owner’s
`Response
`
`¶¶ 5, 9, 18, 22,
`26, 27
`
`- 2 -
`
`Confidential
`Information3
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project codenames
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`licensing practices of
`a third party,
`including names and
`licensing terms which
`the third party has
`deemed confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Filing/Exhibit2
`
`Content
`
`Section
`
`Exhibit 2025
`
`
`Declaration of Virgil
`Bourassa in Support of
`Patent Owner’s
`Response
`
`¶¶ 2 – 4, 7, 8,
`15 (Fig. 5), 24,
`25, 27, 35, 36,
`41, 42
`
`Exhibit 2026
`
`Declaration of Robert
`Abarbanel in Support
`of Patent Owner’s
`Response
`
`¶¶ 4–7, 9, 10
`
`Exhibit 2028
`
`
`Boeing Invention
`Disclosure Form (19
`pages)
`
`Pages 1-2, 5, 7-
`19
`
`- 3 -
`
`Confidential
`Information3
`of a third party,
`including internal
`project code names
`and project details
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Filing/Exhibit2
`
`Content
`
`Section
`
`Pages 1-19
`
`Page 1
`
`Exhibit 2029
`
`Patent License
`Agreement between
`Boeing Management
`Company and Sony
`Computer
`Entertainment America
`Inc.
`
`Pages 1, 4, 5
`
`- 4 -
`
`Confidential
`Information3
`development efforts
`of a third party,
`including internal
`project codenames
`and project details
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`personal information
`of a third party.
`Contains highly
`confidential
`information regarding
`business information
`of a third party,
`including
`identification of the
`third party’s potential
`and existing business
`relationships which
`the third party has
`deemed confidential
`information.
`Contains highly
`confidential
`information regarding
`licensing practices of
`a third party,
`including names and
`licensing terms which
`the third party has
`deemed confidential
`information.
`
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Filing/Exhibit2
`
`Content
`
`Section
`
`Exhibit 2048
`
`Print-out of a source
`code C++ header file,
`dated April 22, 1997
`
`ALL
`
`Exhibit 2049
`
`Print-out of a source
`code C software
`module, dated June 8,
`1999
`
`ALL
`
`Exhibit 2083
`
`Claim Chart Created by
`Dr. Michael Goodrich
`Regarding the ‘344
`Patent and the Boeing
`Invention Disclosure
`Form
`
`2 – 12, 14, 15,
`17, 18, 20, 22 –
`25, 27, 29 – 34,
`36, 38 – 41
`
`- 5 -
`
`Confidential
`Information3
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details,
`such as source code,
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details,
`such as source code,
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details
`which the third party
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Filing/Exhibit2
`
`Content
`
`Section
`
`Exhibit 2094
`
`Declaration of Michael
`Goodrich, Ph.D., in
`Support of Patent
`Owner’s Contingent
`Motion to Amend U.S.
`Patent No. 6,701,344 in
`IPR2015-01972
`
`¶ 62
`
`Exhibit 2107
`
`Claim chart created by
`Dr. Michael Goodrich
`regarding the amended
`claims of the ‘344
`Patent and the Boeing
`Invention Disclosure
`Form
`
`2, 3, 5 – 13, 15
`– 36
`
`Paper 104
`
`Opposition to Motion
`to Exclude
`
`2
`
`- 6 -
`
`Confidential
`Information3
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Filing/Exhibit2
`
`Content
`
`Section
`
`Confidential
`Information3
`which the third party
`has deemed
`confidential
`information.
`
`I.
`
`GOOD CAUSE EXISTS FOR SEALING CERTAIN CONFIDENTIAL
`INFORMATION
`The Board’s standards for granting motions to seal are discussed in Garmin
`
`International v. Cuozzo Speed Technologies, LLC, IPR2012-00001 (Paper 34 at 4-
`
`5, Mar. 14, 2013). The standard for granting a motion to seal is “good cause.” 37
`
`C.F.R. § 42.54(a). The moving party bears the burden of showing that the relief
`
`requested should be granted. 37 C.F.R. § 42.20(c). In particular:
`
`The rules aim to 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.
`*
`*
`*
`Confidential Information: The rules identify confidential information
`in a manner consistent with Federal Rule of Civil Procedure
`26(c)(1)(G), which provides for protective orders for trade secret or
`other confidential research, development, or commercial information.
`
`35 U.S.C. § 316(a)(7); 37 C.F.R. § 42.54; Office Trial and Practice Guide, 77 Fed.
`
`Reg. 48756, 48760 (Aug. 14, 2012).
`
`Acceleration Bay’s Patent Owner Response, Patent Owner’s Opposition to
`
`Petitioner’s Motion to Exclude, and the Subject Exhibits contain confidential
`
`- 7 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`information requiring that they be designated as “PROTECTIVE ORDER
`
`MATERIAL” under Proposed Stipulated Protective Order (attached hereto as
`
`Exhibit 2118). The Patent Owner Response, Patent Owner’s Opposition to
`
`Petitioner’s Motion to Exclude, and Subject Exhibits each contain highly
`
`confidential information of a third party. Specifically, each discuss and reveal
`
`confidential information regarding either or both (1) The Boeing Company’s
`
`(“Boeing”) licensing practices including highly sensitive information relating to
`
`the terms of certain licenses and (2) highly confidential internal information
`
`relating to the conception and development of the subject patent including an
`
`Invention Disclosure Form by the inventors and first assignee, Boeing. The
`
`confidential information disclosed in the Patent Owner Response, Patent Owner’s
`
`Opposition to Petitioner’s Motion to Exclude, and each of the Subject Exhibits is
`
`outlined in the chart above.
`
`The sealing of the foregoing is of particular importance because the public
`
`disclosure of such “truly sensitive information” would impact Boeing’s
`
`competitive position in the market. In particular, information regarding certain
`
`Boeing licenses, and the internal research and development efforts and strategies at
`
`Boeing, would allow competitors to access information that would significantly
`
`harm Boeing’s competitive position in the marketplace.
`
`- 8 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`
`
`Furthermore, and notwithstanding the foregoing, granting this Motion would
`
`not prejudice nor impact this underlying proceeding. The public’s interest in
`
`accessing the information requiring that the limited identified portions of the Patent
`
`Owner Response, Patent Owner’s Opposition to Petitioner’s Motion to Exclude,
`
`and Subject Exhibits be sealed for the purposes of the patentability of the
`
`challenged claims is unquestionably outweighed by the prejudicial effect and
`
`competitive harm of disclosing the above described confidential business
`
`information of third party, Boeing.
`
`II. CERTIFICATION OF NON-PUBLICATION
`
`To the best of Acceleration Bay’s knowledge, the confidential information
`
`contained in the Patent Owner Response, Patent Owner’s Opposition to
`
`Petitioner’s Motion to Exclude, and the Subject Exhibits has not been made
`
`publically available.
`
`III. CERTIFICATION OF CONFERENCE WITH OPPOSING PARTY
`PURSUANT TO 37 C.F.R. § 42.54
`
`Acceleration Bay, in good faith, met and conferred with Petitioner regarding
`
`the scope of the Proposed Stipulated Protective Order. Petitioner does not object
`
`to the entry of the Proposed Stipulated Protective Order.
`
`IV. PROPOSED PROTECTIVE ORDER
`
`Acceleration Bay proposes that the Proposed Stipulated Protective Order
`
`found in Appendix B of the Trial Practice Guide be entered. A copy of the
`
`- 9 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Proposed Stipulated Protective Order is concurrently filed herewith and attached
`
`hereto as Exhibit 2118. Petitioner does not object to the entry of the Proposed
`
`Stipulated Protective Order.
`
`V. CONCLUSION AND RELIEF REQUESTED
`
`Accordingly, good cause exists to warrant entry of the Proposed Stipulated
`
`Protective Order and to seal Acceleration Bay’s Patent Owner Response, Patent
`
`Owner’s Opposition to Petitioner’s Motion to Exclude, and the Subject Exhibits
`
`Respectfully submitted,
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`jhannah@kramerlevin.com
`Michael Lee (Reg. No. 63,941)
`mhlee@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Tel: 650.752.1700
`Fax: 212.715.8000
`
`Shannon Hedvat (Reg. No. 68,417)
`shedvat@kramerlevin.com
`Jeffrey Price (Reg. No. 69,141)
`jprice@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`
`- 10 -
`
`from public disclosure.
`
`
`
`Dated: January 6, 2017
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Tel: 212.715.9185
`Fax: 212.715.8385
`
`Attorneys for Patent Owner
`
`(Case No. IPR2015-01972)
`
`
`
`- 11 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that a true and
`
`correct copy of the foregoing Patent Owner’s Motion for Entry of the Proposed
`
`Stipulated Protective Order and to Seal Certain Exhibits under 37 C.F.R. §§ 42.14
`
`and 42.54 was served on January 6, 2017, by filing this document through the
`
`Patent Review Processing System as well as delivering via electronic mail upon
`
`the following counsel of record for Petitioner:
`
`J. Steven Baughman
`Ropes & Gray LLP
`2099 Pennsylvania Ave., NW
`Washington D.C. 20006-6807
`steven.baughman@ropesgray.com
`Activision_Blizzard_PTAB_Service@ropesgray.com
`
`Andrew Thomases
`Daniel W. Richards
`James L. Davis, Jr.
`ROPES & GRAY LLP
`1900 University Ave., 6th Floor
`East Palo Alto, CA 94303
`andrew.thomases@ropesgray.com
`Daniel.w.richards@ropesgray.com
`james.l.davis@ropesgray.com
`
`Matthew R. Shapiro
`Joseph E. Van Tassel
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, NY 10036
`matthew.shapiro@ropesgray.com
`joseph.vantassel@ropesgray.com
`
`
`
`
`
`12
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Mike Tomasulo
`WINSTON &STRAWN LLP
`333 S. Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`mtomasulo@winston.com
`
`Michael M. Murray
`WINSTON &STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`mmurray@winston.com
`
`Andrew R. Sommer
`WINSTON &STRAWN LLP
`1700 K. Street, N.W.
`Washington D.C. 20006-3817
`asommer@winston.com
`
`Counsel for Petitioner Activision Blizzard, Inc.,
`Electronic Arts Inc., Take-Two Interactive Software,
`Inc., 2K Sports, Inc., and Rockstar Games, Inc.
`
`Michael T. Rosato
`Andrew S. Brown
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`mrosato@wsgr.com
`asbrown@wsgr.com
`
`Jose C. Villarreal
`Eric C. Arnell
`WILSON SONSINI GOODRICH & ROSATI
`900 South Capital of Texas Hwy
`Las Cimas IV, Fifth Floor
`Austin, TX 78746-5546
`jvillarreal@wsgr.com
`earnell@wsgr.com
`
`Counsel for Petitioner Bungie, Inc.
`
`
`
`13
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road,
`Menlo Park, CA 94025
`(650) 752-1700
`
`14
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