`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`PALO ALTO NETWORKS, INC.,
`Petitioner
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`v.
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`FINJAN, INC.,
`Patent Owner
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`Patent No. 8,141,154
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`_______________
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`Inter Partes Review No. IPR2016-00151
`____________________________________________________________
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`PETITIONER’S OPPOSITION TO 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
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`va-481906
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`IPR2016-00151
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`Attorney Docket No. 719712801200
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`In accordance with 37 C.F.R. § 42.64, Petitioner hereby opposes Patent
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`Owner's Motion for Entry of the Default Protective Order and to Seal Patent
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`Owner Response and Exhibits 2007, 2008, 2010, 2011, and 2035 filed on August
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`31, 2016 in the above-captioned proceeding.
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`Patent Owner requests that a large and significant portion of these
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`proceedings be hidden from the public, but the Motion to Seal only provides
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`conclusory, vague, and threadbare assertions of confidentiality in support of such
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`an expansive concealment of the record. A Motion to Seal must include facts and
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`reasoning necessary for its meaningful consideration. See Corning Optical
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`Communications RF, LLC v. PPC Broadband, Inc., Case IPR2014-00736, pg. 2-3
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`(PTAB April 14, 2015) (Paper 38). Patent Owner fails to meet this standard and
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`thus fails to meet its burden of persuasion. Petitioner requests that the Board
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`decline to seal the Patent Owner response and other exhibits as requested thus
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`maintaining the public availability of these proceedings.
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`A. Burden of Persuasion
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`There is a strong public policy interest in making all information filed in an
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`inter partes review publically available. See 35 U.S.C. §316(a). In light of this
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`policy, the Board has required that motions to seal be pled under a heightened
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`burden of persuasion. Specifically, a Motion to Seal must provide particular
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`information with respect to the information alleged to be confidential. See LG
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`Electronics Inc. v. ATI Technologies ULC, IPR2015-00325, pg. 4 (PTAB April 14,
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`2016) (Paper 63). First, the Board has required that the movant identify not just the
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`information believed to be confidential and sought to be sealed, but also identify
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`the need to rely on the allegedly confidential information. Id. Second, the movant
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`must explain what adverse consequences and harm would result from public
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`disclosure of each item of information sought to be sealed. Id. Third, the movant
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`must balance all three: (1) the public’s interest in maintaining a complete and
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`understandable record, (2) the harm to a party, by disclosure of the supposedly
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`confidential information, and (3) the need to rely specifically on the information at
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`issue. Id. As discussed in detail below, Patent Owner’s Motion to Seal either fails
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`completely to address the above requirements or provides sparse and conclusory
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`analysis, making meaningful consideration on the basis of the motion impossible.
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`B. Analysis
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`Patent Owner’s Motion to Seal fails to adequately address any of the
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`elements required in order to meet its burden of persuasion. Specifically, Patent
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`Owner fails to identify with any particularity what material it regards as
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`confidential or why it needs to rely on such information. It only conclusory states
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`that there would be adverse consequences if the unidentified confidential
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`information were to be made public without providing any reasoning. Finally,
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`Patent Owner fails to meaningfully balance the public’s interest in maintaining a
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`complete and understandable record.
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`First, Patent Owner does not particularly identify the information it believes
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`is confidential, nor does it identify the need to rely on the allegedly confidential
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`information as required under its burden of persuasion. Patent Owner alleges that
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`its entire Patent Owner Response as well as the subject exhibits contains “highly
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`confidential information of a third party1,” but never identifies what information it
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`considers confidential. See Motion at 2. For instance, Patent Owner seeks to have
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`the entirety of its response sealed without identifying any specific portions of the
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`Patent Owner response allegedly containing any confidential information. Patent
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`Owner fails to engage in the required analysis with respect to the other exhibits it
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`seeks to seal. Patent Owner points to a chart provided in their motion (reproduced
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`below with annotation) and alleges that the chart outlines the confidential
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`information in each exhibit. However, as shown below, Patent Owner’s chart does
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`nothing more than circularly repeat the allegation that each exhibit and the
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`response contain highly confidential information; the chart provides no
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`identification of said information.
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`1 The “third party” that Patent Owner Finjan, Inc. refers to is Finjan Software, Ltd.
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`Unsurprisingly, because it does not identify the specific information it
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`regards as confidential, Patent Owner does not explain why it must rely on the
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`“confidential” information as required under its burden of persuasion.
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`Second, with respect to the requirement that the movant explain what
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`adverse consequences and harm would result from public disclosure, Patent Owner
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`merely provides conclusory statements. For instance, Patent Owner without
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`explanation alleges that public disclosure of the response and exhibits “would
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`allow competitors to access information that would significantly harm its successor
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`entities competitive position in the marketplace.” Motion at 3. Such vague
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`assertions invite the Board to speculate as to whether any harm would result from
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`the public disclosure of the response and exhibits in their entirety. The Board
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`should decline such an invitation. Patent Owner’s conclusory statements and
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`failure to identify any supposedly confidential information makes meaningful
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`analysis of the Patent Owner’s allegation impossible.
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`Finally, Patent Owner’s motion simply ignores the requirement that the
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`movant must balance (1) the public’s interest in maintaining a complete and
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`understandable record, (2) the harm to a party, by disclosure of the supposedly
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`confidential information, and (3) the need to rely specifically on the information at
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`issue. Patent Owner cryptically alleges that “[t]he public’s interest in accessing the
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`information requiring that the Patent Owner Response and Subject Exhibits be
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`sealed for the purposes of the patentability of the challenged claims is
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`unquestionably outweighed by the prejudicial effect and competitive harm of
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`disclosing the above described confidential information of third parties.” Motion at
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`3 (emphasis added). Patent Owner’s bare characterization of their conclusion as
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`“unquestionable” appears to constitute the entire extent of their analysis. Clearly,
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`Patent Owner has not met its burden of persuasion.
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`C. Conclusion
`For the foregoing reasons, Petitioner requests that the Board maintain the
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`public’s access to these proceeding and deny Patent Owner Motion to Seal the
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`Patent Owner Response and Exhibits 2007, 2008, 2010, 2011, and 2035.
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`Dated: September 30, 2016
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`Respectfully submitted,
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`
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`By: / Shouvik Biswas /
`Shouvik Biswas
` Registration No.: 68,439
`MORRISON & FOERSTER LLP
`1650 Tysons Boulevard, Suite 400
`McLean, VA 22102
`Tel: (703) 760-7774
`Attorney for Petitioner
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`Certificate of Service (37 C.F.R. § 42.6(e)(4))
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`I hereby certify that the attached Petitioner’s Opposition to Patent Owner’s
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`Motion for Entry of the Default Protective Order and to Seal Patent Owner
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`Response and Certain Exhibits was served as of the below date on the Patent
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`Owner via e-mail (by agreement) to the following counsel of record for the Patent
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`/ Kim Helenius /
`Kim Helenius
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`Owner:
`
`James Hannah
`KRAMER LEVIN NAFTALIS &
`FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Phone: (650) 752-1712
`Fax: (650) 752-1812
`jhannah@kramerlevin.com
`jprice@kramerlevin.com
`svdocketing@kramerlevin.com
`mkim@finjan.com
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`Dated: September 30, 2016
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