IPR2015-01972
`U.S. Patent No. 6,701,344 B1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC., ROCKSTAR GAMES, INC., and
`BUNGIE, INC.,
`Petitioners
`v.
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`ACCELERATION BAY, LLC,
`Patent Owner
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`Case No. IPR2015-019721
`Patent Number 6,701,344 B1
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`__________________________________
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`Before the Honorable SALLY C. MEDLEY, LYNNE E. PETTIGREW, and
`WILLIAM M. FINK, Administrative Patent Judges.
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`PETITIONERS’ CONSOLIDATED OPPOSITION TO PATENT OWNER’S
`MOTIONS TO SEAL
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`1 Bungie, Inc., who filed a Petition in IPR2016-00934, has been joined as a
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`petitioner in this proceeding.
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`U.S. Patent No. 6,701,344 B1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC., ROCKSTAR GAMES, INC., and
`BUNGIE, INC.,
`Petitioners
`v.
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`ACCELERATION BAY, LLC,
`Patent Owner
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`Case No. IPR2015-019721
`Patent Number 6,701,344 B1
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`__________________________________
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`Before the Honorable SALLY C. MEDLEY, LYNNE E. PETTIGREW, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`PETITIONERS’ CONSOLIDATED OPPOSITION TO PATENT OWNER’S
`MOTIONS TO SEAL
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`1 Bungie, Inc., who filed a Petition in IPR2016-00934, has been joined as a
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`petitioner in this proceeding.
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`IPR2015-01972
`U.S. Patent No. 6,701,344 B1
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`The undersigned on behalf of, and acting in a representative capacity for,
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`Petitioners Activision Blizzard, Inc., Electronic Arts Inc., Take-Two Interactive
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`Software, Inc., 2K Sports, Inc., Rockstar Games, Inc., and Bungie, Inc.
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`(collectively “Petitioners”) hereby oppose in part Patent Owner’s (1) Motion to
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`Seal Certain Exhibits Under 37 C.F.R. § 42.14 (Paper 71), (2) Motion to Seal
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`Certain Exhibits Under 37 C.F.R. § 42.14 (Paper 82), and (3) Motion to Seal
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`Opposition to Motion to Exclude and Certain Exhibits Under 37 C.F.R. § 42.14
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`(Paper 87) (collectively, Patent Owner’s “Motions”). As Petitioners stated in their
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`Oppositions (Papers 39, 40) to Patent Owner’s Prior Motions to Seal (Papers 33,
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`35), Petitioners do not oppose the entry of the Board’s Default Protective Order,
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`but Petitioners do object to Patent Owner’s request, under that order, to seal the
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`entirety of each document allegedly containing confidential information without
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`submitting a redacted version such that the non-confidential information contained
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`therein can be part of the public record, and without making the required showing
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`of good cause for sealing the entirety of each document and exhibit subject to
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`Patent Owner’s Motions. In particular, Patent Owner has filed under seal the
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`entirety of Patent Owner’s Opposition to Petitioners’ Consolidated Motion to
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`Exclude Evidence (Paper 85) and multiple declarations thereto (i.e., Exhibits 2112-
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`17), and other exhibits filed with either Patent Owner’s Reply in support of Patent
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`1
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`IPR2015-01972
`U.S. Patent No. 6,701,344 B1
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`Owner’s Contingent Motion to Amend (i.e., Exhibit 2107) or Patent Owner’s
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`Motion for Observations (i.e., Exhibit 2109). See Papers 71, 82, and 87.
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`The Board has confirmed, in both its regulations and its orders, the clear
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`intent that information in PTAB proceedings—including, in particular, information
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`that impacts the Board’s deliberations—is to remain public. See, e.g., 37 C.F.R.
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`§ 42.14 (“The record of a proceeding, including documents and things, shall be
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`made available to the public, except as otherwise ordered.”); Paper 9, Scheduling
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`Order, §A.3 (“Redactions should be limited strictly to isolated passages consisting
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`entirely of confidential information. The thrust of the underlying argument or
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`evidence must be clearly discernible from the redacted version.”). This policy
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`certainly pertains to the papers and exhibits that are the subject of Patent Owner’s
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`Motions. For example, the transcript of the deposition of Petitioners’ expert, Dr.
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`Karger (Exhibit 2109) includes Dr. Karger’s testimony regarding the patentability
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`of the challenged claims and Patent Owner’s proposed substitute claims, but Patent
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`Owner proposes keeping it from the public record in its entirety, without
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`justification for doing so.
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`As explained in Petitioners’ Oppositions to Patent Owner’s Prior Motions to
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`Seal, Petitioners raised this issue with Patent Owner in the context of Patent
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`Owner’s Prior Motions to Seal by email dated July 26, 2016, and during a meet
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`IPR2015-01972
`U.S. Patent No. 6,701,344 B1
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`and confer teleconference on August 2, 2016, requesting that Patent Owner file
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`versions of the documents at issue with redactions appropriately limited to actual
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`confidential information, and citing 37 C.F.R. § 42.14 and Section A.3 of the
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`Scheduling Order in this proceeding (Paper 9). Patent Owner nonetheless stated
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`during these discussions that it does not “see anything else that says that [it]
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`need[s] to file some sort of redacted version in the record.” Ex1168 (transcript of
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`Aug. 2, 2016 meet and confer teleconference) at 8:25-9:3; cf. Patent Owner’s
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`Reply in Support of Motion to Seal, Paper 48 at 1-2 (asserting “Patent Owner did
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`not represent that it ‘was not aware of any authority requiring the filing of redacted
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`versions of these documents.’”); see also Paper 49 at 1-2. But the Default
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`Protective Order itself, which Patent Owner seeks to have entered in this matter
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`(Papers 33 and 35), instructs that “[w]here confidentiality is alleged as to some but
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`not all of the information submitted to the Board, the submitting party shall file
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`confidential and non-confidential versions of its submission, together with a
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`Motion to Seal the confidential version setting forth the reasons why the
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`information redacted from the non-confidential version is confidential and should
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`not be made available to the public.” Paper 35 (Proposed Protective Order) at
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`4.A.ii. Again, Petitioners do not oppose entry of the Protective Order attached to
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`IPR2015-01972
`U.S. Patent No. 6,701,344 B1
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`Paper 35, but they do believe the Board should insist that the requirements of the
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`Protective Order be followed.2
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`Accordingly, Petitioners oppose Patent Owner’s Motions to the extent Patent
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`Owner seeks the unsupported, wholesale sealing in their entirety of the documents
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`that are the subject of its Motions, rather than only those portions that are actually
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`shown to be confidential information, and refuses to file redacted versions of the
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`sealed documents that limit redactions to that confidential information.3
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`2 During the meet and confer discussions, Patent Owner represented to Petitioners
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`that it would ask the Board for guidance on filing redacted copies of papers and
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`exhibits on the parties’ call with the Board seeking the Board’s guidance on
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`potential motions to strike. Ex1168 at 8:16-25. Patent Owner did not do so despite
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`later claiming that the parties’ dispute could have been “resolved through an
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`instructive call with the Board.” Paper 48 at 2; Paper 49 at 2.
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`3 Petitioners have filed a number of Motions to Seal (Papers 58, 91, 97) portions of
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`its papers and exhibits that cite to the purportedly “highly confidential information”
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`subject to Patent Owner’s Motions to Seal. As stated in Petitioners’ Motions, if the
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`Board denies Patent Owner’s Motions to Seal in whole or in part, Petitioners
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`would adjust their request to seal accordingly. Paper 58 at 3-4; Paper 91 at 3-4;
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`Paper 97 at 3. Petitioners are in the process of conferring with Patent Owner and
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`4
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`IPR2015-01972
`U.S. Patent No. 6,701,344 B1
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`Dated: December 2, 2016
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`
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`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
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`Counsel for Petitioner Bungie, Inc.
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`Respectfully submitted by:
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`/J. Steven Baughman/
`J. Steven Baughman (lead counsel)
`Reg. No. 47,414
`Ropes & Gray LLP
`2099 Pennsylvania Ave., NW
`Washington D.C. 20006-6807
`P: 202-508-4606 / F: 202-383-8371
`steven.baughman@ropesgray.com
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`Andrew Thomases (backup counsel)
`Reg. No. 40,841
`ROPES & GRAY LLP
`1900 University Ave., 6th Floor
`East Palo Alto, CA 94303
`P: 650-617-4712 / F: 650-566-4275
`andrew.thomases@ropesgray.com
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`James L. Davis, Jr. (backup counsel)
`Reg. No. 57,325
`Ropes & Gray LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303-2284
`P: 650-617-4794/F: 650-566-4147
`james.l.davis@ropesgray.com
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`Counsel for Petitioners Activision
`Blizzard, Inc., Electronic Arts Inc.,
`Take-Two Interactive Software, Inc.,
`2K Sports,
`Inc., and Rockstar
`Games, Inc.
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`creating redacted versions of the papers and exhibits that Petitioners filed under
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`seal.
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`IPR2015-01972
`U.S. Patent No. 6,701,344 B1
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a copy of the foregoing PETITIONERS’
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`CONSOLIDATED OPPOSITION TO PATENT OWNER’S MOTIONS TO SEAL
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`was served on December 2, 2016 in its entirety by causing the aforementioned
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`document to be electronically mailed, pursuant to the parties’ agreement, to the
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`following attorneys of record:
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`James Hannah
`Reg. No. 56,369
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Phone: 650-752-1712
`Fax: 650-752-1812
`jhannah@kramerlevin.com
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`Michael Lee
`Reg. No. 63,941
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Phone: 650-752-1716
`Fax: 650-752-1812
`mhlee@kramerlevin.com
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`Shannon Hedvat
`Reg. No. 68,417
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Phone: 212-715-9185
`Fax: 212-715-8000
`shedvat@kramerlevin.com
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`IPR2015-01972
`U.S. Patent No. 6,701,344 B1
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`Jeffrey Price
`Reg. No. 69,141
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Phone: 212-715-7502
`Fax: 212-715-8000
`jprice@kramerlevin.com
`svdocketing@kramerlevin.com
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`Counsel for Patent Owner Acceleration Bay
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`Dated:
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`December 2, 2016
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`/Bridget McAuliffe/
`Bridget McAuliffe
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`ROPES & GRAY LLP
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`7
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