Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 101
`Entered: December 12, 2016
`
`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.
`____________
`
`Cases IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)1,2
`Cases IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Cases IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`____________
`
`
`Before SALLY C. MEDLEY, LYNNE E. PETTIGREW and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`FINK, Administrative Patent Judge.
`
`
`1 This Order applies to each of the listed cases. We exercise our discretion
`to issue one Order to be entered in each case. The parties, however, are not
`authorized to use this caption for any subsequent papers.
`2 Bungie, Inc., who filed Petitions in IPR2016-00933, IPR2016-00934,
`IPR2016-00935, IPR2016-00936, IPR2016-00963, and IPR2016-00964, has
`been joined as a Petitioner in these proceedings.
`
`

`
`IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`
`ORDER
`Denying all Motions for Entry of the Default Protective Order
`and to Seal Certain Papers and Exhibits and all
`Motions to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`In each of the Proceedings, Patent Owner filed two Motions for Entry
`of the Default Protective Order and requesting certain papers or exhibits be
`sealed. E.g., IPR2015-01951, Paper 34, Paper 36.3 In its first motion, Patent
`Owner states that Petitioner does not oppose entry of the Default Protective
`Order, which, Patent Owner represents, is “concurrently filed herewith and
`attached hereto as Exhibit A.” Paper 34, 4. However, no “Exhibit A” is
`attached. In its second motion, Patent Owner moves to seal its Response and
`additional exhibits and also represents that the Default Protective Order is
`attached as Exhibit A. Paper 36, 4. In this motion, a Proposed Stipulated
`Protective Order is appended to the Motion at unnumbered pages 11–17 of
`the paper. We assume this is intended to be Exhibit A, although it is not
`marked as such. Patent Owner has since filed additional motions to seal
`regarding certain papers and exhibits. See Paper 67, Paper 81, Paper 86.
`None of the confidential exhibits are accompanied by non-confidential,
`redacted exhibits.
`Petitioner filed Oppositions to Patent Owner’s respective Motions.
`Paper 40, Paper 41. Although Petitioner does not oppose entry of the
`“Default Protective Order,” Petitioner points out Patent Owner’s request to
`“seal the entirety of each document allegedly containing confidential
`
`
`3 We hereinafter refer to the papers and exhibits in IPR2015-01951.
`
`2
`
`

`
`IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`
`information without submitting a redacted version,” is not in accordance
`with our orders. E.g., Paper 40, 2. For example, “Patent Owner has filed
`under seal the entirety of its Patent Owner Response (Paper 32) and multiple
`declarations and exhibits thereto. See Paper 36.” Paper 41, 2. Petitioner has
`also filed motions to seal for certain papers and exhibits. See Paper 56,
`Paper 90, Paper 96. As with Patent Owner, Petitioner did not file redacted,
`non-confidential versions, although Petitioner did indicate it was prepared to
`do so upon meeting and conferring with Patent Owner. Paper 56, 2.
`Petitioner is correct regarding the lack of non-confidential, redacted
`versions of exhibits and papers for the public record. Our regulations
`emphasize that the “[r]ecord of a proceeding, including documents and
`things, shall be made available to the public, except as otherwise ordered.”
`37 C.F.R. § 42.14. To this end, as set forth in the Board’s default protective
`order (and reproduced in the proposed Joint Stipulated Protective Order,
`appended to Paper 36):
`Where confidentiality is alleged as to some but not all of
`the information submitted to the Board, the submitting party
`shall file confidential and non-confidential versions of its
`submission, together with a Motion to Seal the confidential
`version setting forth the reasons why the information redacted
`from the non-confidential version is confidential and should not
`be made available to the public.. The nonconfidential version of
`the submission shall clearly indicate the locations of information
`that has been redacted. The confidential version of the
`submission shall be filed under seal.
`
`Trial Practice Guide, 77 Fed. Reg. 48,756, 48,771 (Aug. 14, 2012)
`(emphasis added). Similarly, as set forth in the Scheduling Order (Paper 12)
`3
`
`

`
`IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`
`for these proceedings, “[r]edactions should be limited strictly to isolated
`passages consisting entirely of confidential information. The thrust of the
`underlying argument or evidence must be clearly discernible from the
`redacted version.” Paper 12, 3 (emphasis added).4
`These instructions have not been followed. As noted above, as best
`we can discern, none of the papers and exhibits that have been filed as
`confidential have been accompanied by redacted, public versions clearly
`indicating the locations of the redacted information.5 With regard to the
`papers (e.g., Patent Owner Response), there are no accompanying, non-
`confidential versions in which the thrust of the underlying argument or
`evidence is clearly discernible. Because we cannot determine which
`portions of the papers and exhibits allegedly contain confidential
`information, as opposed to argument and non-confidential information, the
`
`
`4 The Scheduling Order also makes clear that the proposed protective order
`should have been filed as a separate exhibit to the motion. Id.
`5 To the extent further guidance is necessary (see Paper 49, 2), we make the
`following observation. Few, if any, exhibits, even business records, should
`ever be confidential in their entirety, without good cause to show that all of
`the information contained therein is truly sensitive. See 37 C.F.R.
`§ 42.54(a). Even business records (e.g., sales forecasts, license agreements)
`often contain some non-confidential information serving to identify the
`nature of confidential portions of the exhibit. Conversely, deposition
`transcripts, declarations, and papers containing a party’s arguments will
`generally contain substantial non-confidential portions. In all cases, the
`Motion to Seal must set forth the reasons why the information redacted from
`the non-confidential version is confidential and should not be made publicly
`available. Trial Practice Guide, 77 Fed. Reg. at 48,771 (emphasis added).
`4
`
`

`
`IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`
`Board is presently unable to satisfy its obligation under 37 C.F.R. § 42.14 to
`make the record of the proceedings public. Consequently, we do not find
`good cause to grant the motions.
`
`Accordingly, we deny all of the motions without prejudice. However,
`for each proceeding, we grant Patent Owner leave to file a single
`consolidated motion for entry of the Proposed Stipulated Protective Order
`(which must be identified therein and filed as a separate exhibit) and to seal
`certain papers and exhibits that it seeks to maintain as confidential. Along
`with its single consolidated motion, Patent Owner is instructed to file non-
`confidential, redacted versions of those exhibits (with the same exhibit
`numbers as the currently filed confidential exhibits) and papers (to be
`numbered by the system) identified in its single consolidated motion. To the
`extent Patent Owner has reconsidered the need to maintain confidentiality as
`to any exhibit or paper, Patent Owner is instructed to notify the Board via
`email of any currently confidential exhibits that it wishes to de-designate as
`confidential (such exhibits or papers will therefore not be subject to its
`single consolidated motion). Patent Owner should file its single
`consolidated motion and redacted exhibits and papers on or before January
`6, 2017.
`Similarly, after Patent Owner has complied with the above
`instructions for each proceeding, Petitioner is granted leave to file a single
`consolidated motion to seal those papers and exhibits it seeks to maintain as
`confidential, along with non-confidential, redacted versions of each (with
`exhibits having the same numbering as currently filed confidential exhibits).
`
`5
`
`

`
`IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`
`To the extent Petitioner wishes to de-designate any paper or exhibit as
`confidential, it should notify the Board via email (such papers and exhibits
`will likewise not be subject to its single consolidated motion). Recognizing
`that Petitioner’s confidentiality designations will substantially depend on
`Patent Owner’s submissions, Petitioner should file its single consolidated
`motion and redacted exhibits and papers on before January 20, 2017.
`The parties are instructed to meet and confer in good faith as
`necessary to comply with the foregoing instructions. 37 C.F.R. § 42.11.
`
`ORDER
`
`
`
`It is:
`ORDERED that the parties’ respective motions to seal are denied
`without prejudice;
`FURTHER ORDERED that Patent Owner’s motions to enter the
`default protective order are denied without prejudice;
`FURTHER ORDERED that on or before January 6, 2017, Patent
`Owner is instructed to file a single consolidated motion for entry of the
`Proposed Stipulated Protective Order (which must be identified therein and
`filed as a separate exhibit) and to seal certain papers and exhibits that it
`seeks to maintain as confidential in accordance with the foregoing guidance;
`FURTHER ORDERED that on or before January 6, 2017, to the
`extent Patent Owner seeks to maintain their confidentiality, Patent Owner is
`instructed to file non-confidential, redacted versions of all exhibits and
`papers identified in its single consolidated motion, or, to the extent Patent
`
`6
`
`

`
`IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`
`Owner no longer seeks to maintain their confidentiality, to notify the Board
`via email of such exhibits and papers;
`FURTHER ORDERED that on or before January 20, 2017, Petitioner
`is instructed to file a single consolidated motion to seal certain papers and
`exhibits that it seeks to maintain as confidential in accordance with the
`foregoing guidance;
`FURTHER ORDERED that on or before January 20, 2017, to the
`extent Petitioner seeks to maintain their confidentiality, Petitioner is
`instructed to file non-confidential, redacted versions of all exhibits and
`papers identified in its single consolidated motion, or, to the extent
`Petitioner no longer seeks to maintain their confidentiality, to notify the
`Board via email of such exhibits and papers; and
`FURTHER ORDERED that parties are instructed to meet and confer
`in good faith as necessary to give effect to the foregoing instructions.
`
`FOR PETITIONER:
`J. Steven Baughman
`Andrew N. Thomases
`James L. Davis, Jr.
`Daniel W. Richards
`Matthew R. Shapiro
`ROPES & GRAY LLP
`steven.baughman@ropesgray.com
`andrew.thomases@ropesgray.com
`james.l.davis@ropesgray.com
`daniel.richards@ropesgray.com
`matthew.shapiro@ropesgray.com
`
`
`7
`
`

`
`IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`
`Michael T. Rosato
`Andrew S. Brown
`WILSON SONSINI GOODRICH & ROSATI
`mrosato@wsgr.com
`asbrown@wsgr.com
`
`Michael Tomasulo
`Michael Murray
`Andrew Sommer
`WINSTON & STRAWN LLP
`mtomasulo@winston.com
`mmurray@winston.com
`asommer@winston.com
`
`FOR PATENT OWNER:
`James Hannah
`Michael Lee
`Shannon Hedvat
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`jhannah@kramerlevin.com
`mhlee@kramerlevin.com
`shedvat@kramerlevin.com
`
`8