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 IPR2015-019961
`Patent 6,829,634
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION FOR ENTRY OF THE DEFAULT
`PROTECTIVE ORDER AND TO SEAL PATENT OWNER RESPONSE
`AND CERTAIN EXHIBITS UNDER 37 C.F.R. §§ 42.14 AND 42.54
`
`
`
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00964, 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 IPR2015-019961
`Patent 6,829,634
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION FOR ENTRY OF THE DEFAULT
`PROTECTIVE ORDER AND TO SEAL PATENT OWNER RESPONSE
`AND CERTAIN EXHIBITS UNDER 37 C.F.R. §§ 42.14 AND 42.54
`
`
`
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00964, has been joined as a
`
`petitioner in this proceeding.
`
`
`
`
`
`
`
`Motion for Entry of Default Protective Order
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Patent Owner, Acceleration Bay,
`
`LLC, (“Acceleration Bay”) hereby moves for entry of the Default Protective Order
`
`and to seal its Patent Owner Response and certain Exhibits (collectively referred to
`
`herein as the “Subject Exhibits”) thereto which are identified below:
`
`Filing/Exhibit
`
`Content
`
`Paper 33
`
`Patent Owner Response
`
`Declaration of Michael
`Goodrich, Ph.D. in Support of
`Patent Owner’s Response with
`Appendix A (Curriculum Vitae
`of Michael Goodrich)
`
`Exhibit 2022
`
`Exhibit 2023
`
`Confidential Information2
`Contains highly confidential
`information regarding
`licensing practices and internal
`research and development
`efforts of a third party.
`Contains highly confidential
`information regarding
`licensing practices, internal
`research and development
`efforts of a third party.
`
`Declaration of Dr. Harry Bims in
`Support of Patent Owner’s
`Response with Appendix A
`(Curriculum Vitae of Dr. Harry
`Bims)
`
`Contains highly confidential
`information regarding
`licensing practices, internal
`research and development
`efforts of a third party.
`
`Exhibit 2024
`
`Declaration of Dr. Fred Holt in
`Support of Patent Owner’s
`Response
`
`Contains highly confidential
`information regarding internal
`research and development
`efforts of a third party.
`
`
`2 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 Default Protective Order
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`Exhibit 2025
`
`Declaration of Virgil Bourassa in
`Support of Patent Owner’s
`Response
`
`Exhibit 2026
`
`Declaration of Robert Abarbanel
`in Support of Patent Owner’s
`Response
`
`Exhibit 2028 Boeing Invention Disclosure
`Form (19 pages)
`
`Contains highly confidential
`information regarding internal
`research and development
`efforts of a third party.
`
`Contains highly confidential
`information regarding internal
`research and development
`efforts of a third party.
`
`Contains highly confidential
`information regarding internal
`research and development
`efforts of a third party.
`
`Exhibit 2029
`
`Exhibit 2032
`
`Exhibit 2033
`
`Exhibit 2034
`
`Patent License Agreement
`between Boeing Management
`Company and Sony Computer
`Entertainment America Inc.
`
`Contains highly confidential
`information regarding
`licensing practices of a third
`party.
`
`Deposition Transcript of Dr.
`David R. Karger for Case Nos.
`IPR2015-01964 and IPR2015-
`01996, taken on July 6, 2016
`
`Contains highly confidential
`information regarding internal
`research and development
`efforts of a third party.
`
`Deposition Transcript of Dr.
`David R. Karger for Case
`Nos. IPR2015-01970 and
`IPR2015-01972, taken on July 7,
`2016
`
`Contains highly confidential
`information regarding internal
`research and development
`efforts of a third party.
`
`Deposition Transcript of Dr.
`David R. Karger for Case Nos.
`IPR2015-01951 and IPR2015-
`01953, taken on July 8, 2016
`
`Contains highly confidential
`information regarding internal
`research and development
`efforts of a third party.
`
`Exhibit 2047 Dr. Fred Holt’s handwritten
`notes, dated March 27, 1997
`
`Contains highly confidential
`information regarding internal
`research and development
`efforts of a third party.
`
`- 2 -
`
`
`
`Motion for Entry of Default Protective Order
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`Exhibit 2048 Printout of a source code C++
`header file, dated April 22, 1997
`
`Exhibit 2049
`
`Printout of a source code C
`software module, dated June 8,
`1999
`
`Contains highly confidential
`information regarding internal
`research and development
`efforts of a third party.
`
`Contains highly confidential
`information regarding internal
`research and development
`efforts of a third party.
`
`Exhibit 2085
`
`Claim chart created by Dr.
`Michael Goodrich regarding the
`‘634 Patent and the Boeing
`Invention Disclosure Form
`
`Contains highly confidential
`information regarding internal
`research and development
`efforts of a third party.
`
`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.
`
`- 3 -
`
`
`
`Motion for Entry of Default Protective Order
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`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 and the Subject Exhibits contain
`
`confidential information requiring that they be designated as “PROTECTIVE
`
`ORDER MATERIAL” under Default Protective Order (attached hereto as Exhibit
`
`A). The Patent Owner Response 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 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.
`
`- 4 -
`
`
`
`Motion for Entry of Default Protective Order
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`
`
`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 Patent Owner Response 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 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 Petitioners
`
`regarding the scope of the Default Protective Order. Petitioners do not object to
`
`the entry of the Default Protective Order.
`
`IV. PROPOSED PROTECTIVE ORDER
`
`Acceleration Bay proposes that the Default Protective Order found in
`
`Appendix B of the Trial Practice Guide be entered. A copy of the Default
`
`Protective Order is concurrently filed herewith and attached hereto as Exhibit A.
`
`Petitioners do not object to the entry of the Default Protective Order.
`
`- 5 -
`
`
`
`Motion for Entry of Default Protective Order
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`V. CONCLUSION AND RELIEF REQUESTED
`
`Accordingly, good cause exists to warrant entry of the Default Protective
`
`Order and to seal Acceleration Bay’s Patent Owner Response and the Subject
`
`Exhibits from public disclosure.
`
`Dated: July 18, 2016
`
`(Case No. IPR2015-01996)
`
`
`
`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
`Tel: 212.715.9185
`Fax: 212.715.8385
`
`
`Attorneys for Patent Owner
`
`- 6 -
`
`
`
`Motion for Entry of Default Protective Order
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`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 Default
`
`Protective Order and to Seal Certain Exhibits Under 37 C.F.R. §§ 42.14 and 42.54
`
`was served on July 18, 2016, 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 and Joinder Petitioner:
`
`J. Steven Baughman
`ROPES & GRAY LLP
`2099 Pennsylvania Ave., NW
`Washington, DC 20005-3948
`steven.baughman@ropesgray.com
`Activision_Blizzard_PTAB_Service@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
`
`Andrew Thomases
`James Davis, Jr.
`Daniel W. Richards
`ROPES & GRAY LLP
`1900 University Ave., 6th Floor
`East Palo Alto, CA 94303
`andrew.thomases@ropesgray.com
`james.l.davis@ropesgray.com
`daniel.w.richards@ropesgray.com
`
`
`- 1 -
`
`
`
`Motion for Entry of Default Protective Order
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`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
`
` /James Hannah/
`James Hannah (Reg. No. 56,369)
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road,
`Menlo Park, CA 94025
`(650) 752-1700
`
`
`
`
`- 2 -
`
`
`
`
`
`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.,
`Petitioners
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner
`____________________
`
`Case IPR2015-019961
`Patent 6,829,634
`
`__________________________________________________________
`
`PROPOSED STIPULATED PROTECTIVE ORDER
`
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00964, has been joined as a
`
`petitioner in this proceeding.
`
`
`
`
`
`
`
`This standing Protective Order governs the treatment and filing of
`
`confidential information, including documents and testimony.
`
`1. Confidential information shall be clearly marked “PROTECTIVE
`
`ORDER MATERIAL.”
`
` 2. Access to confidential information is limited to the following individuals
`
`who have executed the acknowledgment appended to this order:
`
`(A) Parties. Persons who are owners of a patent involved in the proceeding
`
`and other persons who are named parties to the proceeding.
`
`(B) Party Representatives. Representatives of record for a party in the
`
`proceeding.
`
`(C) Experts. Retained experts of a party in the proceeding who further certify
`
`in the Acknowledgement that they are not a competitor to any party, or a consultant
`
`for, or employed by such a competitor with respect to the subject matter of the
`
`proceeding.
`
`(D) In-house counsel. In-house counsel of a party.
`
`(E) Other Employees of a Party. Employees, consultants or other persons
`
`performing work for a party, other than in-house counsel and in-house counsel’s
`
`support staff, who sign the Acknowledgement shall be extended access to
`
`confidential information only upon agreement of the parties or by order of the
`
`Board upon a motion brought by the party seeking to disclose confidential
`
`information to that person. The party opposing disclosure to that person shall have
`
`
`
`
`
`
`
`the burden of proving that such person should be restricted from access to
`
`confidential information.
`
` (F) The Office. Employees and representatives of the Office who have a
`
`need for access to the confidential information shall have such access without the
`
`requirement to sign an Acknowledgement. Such employees and representatives
`
`shall include the Director, members of the Board and their clerical staff, other
`
`support personnel, court reporters, and other persons acting on behalf of the Office.
`
`(G) Support Personnel. Administrative assistants, clerical staff, court
`
`reporters and other support personnel of the foregoing persons who are reasonably
`
`necessary to assist those persons in the proceeding shall not be required to sign an
`
`Acknowledgement, but shall be informed of the terms and requirements of the
`
`Protective Order by the person they are supporting who receives confidential
`
`information.
`
`3. Persons receiving confidential information shall use reasonable efforts to
`
`maintain the confidentiality of the information, including:
`
`(A) Maintaining such information in a secure location to which persons not
`
`authorized to receive the information shall not have access;
`
`(B) Otherwise using reasonable efforts to maintain the confidentiality of the
`
`information, which efforts shall be no less rigorous than those the recipient uses to
`
`maintain the confidentiality of information not received from the disclosing party;
`
`
`
`
`
`
`
`
`
`(C) Ensuring that support personnel of the recipient who have access to the
`
`confidential information understand and abide by the obligation to maintain the
`
`confidentiality of information received that is designated as confidential; and
`
`(D) Limiting the copying of confidential information to a reasonable number
`
`of copies needed for conduct of the proceeding and maintaining a record of the
`
`locations of such copies.
`
`4. Persons receiving confidential information shall use the following
`
`procedures to maintain the confidentiality of the information:
`
`(A) Documents and Information Filed With the Board.
`
`(i) A party may file documents or information with the Board under seal,
`
`together with a non-confidential description of the nature of the confidential
`
`information that is under seal and the reasons why the information is confidential
`
`and should not be made available to the public. The submission shall be treated as
`
`confidential and remain under seal, unless, upon motion of a party and after a
`
`hearing on the issue, or sua sponte, the Board determines that the documents or
`
`information do not to qualify for confidential treatment.
`
`(ii) 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. The redacted information shall remain under
`
`seal unless, upon motion of a party and after a hearing on the issue, or sua sponte,
`
`the Board determines that some or all of the redacted information does not qualify
`
`for confidential treatment.
`
`(B) Documents and Information Exchanged Among the Parties. Information
`
`designated as confidential that is disclosed to another party during discovery or
`
`other proceedings before the Board shall be clearly marked as “PROTECTIVE
`
`ORDER MATERIAL” and shall be produced in a manner that maintains its
`
`confidentiality.
`
`(j). Standard Acknowledgement of Protective Order. The following form
`
`may be used to acknowledge the Protective Order and gain access to information
`
`covered by this Protective Order:
`
`
`
`
`
`
`
`
`
`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.,
`Petitioners
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner
`____________________
`
`Case IPR2015-019962
`Patent 6,829,634
`
`__________________________________________________________
`
`Standard Acknowledgment for Access to Protective Order Material
`
`
`
`
`
`
`2 Bungie, Inc., who filed a Petition in IPR2016-00964, has been joined as a
`
`petitioner in this proceeding.
`
`
`
`
`
`
`
`I, _____ ________, affirm that I have read the Protective Order; that I will
`
`abide by its terms; that I will use the confidential information only in connection
`
`with this proceeding and for no other purpose; that I will only allow access to
`
`support staff who are reasonably necessary to assist me in this proceeding; that
`
`prior to any disclosure to such support staff I informed or will inform them of the
`
`requirements of the Protective Order; that I am personally responsible for the
`
`requirements of the terms of the Protective Order and I agree to submit to the
`
`jurisdiction of the Office and the United States District Court for the Eastern
`
`District of Virginia for purposes of enforcing the terms of the Protective Order and
`
`providing remedies for its breach.
`
`Signed
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