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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________
`
`SONY CORPORATION,
`
`Petitioner,
`
`v.
`
`RAYTHEON COMPANY,
`
`Patent Owner.
`
`_____________
`
`Case IPR2015-00209
`
`U.S. Pat. No. 5,591,678
`
`___________________________________________________
`
`PETITIONER’S UNOPPOSED MOTION TO SEAL PURSUANT TO
`37 C.F.R. § 42.14
`
`
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`
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`I.
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`INTRODUCTION
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`Pursuant to 37 CFR § 42.14, Petitioner requests that the Board enter the
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`attached protective order and seal Petitioner’s Reply to Patent Owner’s Response
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`and Exhibit No. 1021. Exhibit 1021 is a transcript of a deposition of one of the
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`Patent Owner’s declarants (Dr. Drab). Patent Owner requested that the deposition
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`transcripts be marked confidential/ITAR-Restricted under the Protective Order
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`entered in IPR2015-001201 pending for the same ’678 patent. Information from the
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`Drab deposition
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`transcript
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`that Patent Owner requested
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`to be marked
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`confidential/ITAR-Restricted is discussed in Petitioner’s Reply to Patent Owner’s
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`Response. Petitioner is therefore filing the instant motion to seal the Reply and
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`Exhibit Nos. 1021, as a courtesy to the Patent Owner and in deference to Patent
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`Owner’s confidentiality designations. Patent Owner does not oppose.
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`II. THE PROPOSED PROTECTIVE ORDER
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`In co-pending inter partes review IPR2015-01201 (involving the same patent
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`and parties), Raytheon moved for a protective order. Sony opposed certain
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`provisions in the order. The panel rendered a decision directing Raytheon to file a
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`revised order with certain specified changes. (IPR2015-01201, Paper No. 19).
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`The parties in this proceeding have conferred, and agree that the protective
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`order from co-pending IPR2015-01201 (as directed by the panel) can be entered in
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`
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`1
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`
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`this proceeding. A copy is attached at the end of this motion.
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`Raytheon requested that Sony provide the following statement in this motion:
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`“For the purposes of this motion, Raytheon does not oppose entry of the protective
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`order from IPR2015-01201. Raytheon is investigating whether additional
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`governmental restrictions apply to material that may be submitted in the IPR, and
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`whether Raytheon will need to seek authorization to add additional provisions to the
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`protective order.”
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`III. PETITIONER’S MOTION TO SEAL
`
`The Office Patent Trial Practice Guide provides that “the rules aim to strike a
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`balance between the public’s interest in maintaining a complete and understandable
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`file history and the parties’ interest in protecting truly sensitive information.” 77
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`Fed. Reg. 48,756, 48,760 (Aug. 14, 2012). Those rules “identify confidential
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`information in a manner consistent with Federal Rule of Civil Procedure
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`26(c)(1)(G), which provides for protective orders for trade secret or other
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`confidential research, development, or commercial information.” Id. (citing 37
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`C.F.R. § 42.54).
`
`Raytheon indicated that the transcript of the deposition of Dr. Drab relates to
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`national defense and is thus subject to strict confidentiality requirements and
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`regulations, including ITAR. Accordingly, Petitioner requests that Ex. 1021 be
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`sealed. Patent Owner does not oppose.
`
`
`
`2
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`
`
`
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`Petitioner’s Reply to Patent Owner’s Response contains excerpts from and
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`discussion of Exhibit 1021. Accordingly, because information that Patent Owner
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`requested to be marked confidential and ITAR-Restricted under the Protective Order
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`is discussed in the Reply, Petitioner respectfully requests that the Reply be sealed.
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`Patent Owner does not oppose. Petitioner is concurrently filing a non-confidential
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`version of the Reply with the confidential and ITAR-Restricted material redacted.
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`IV. CONCLUSION
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`For the foregoing reasons, Petitioner respectfully requests that the Board seal
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`Petitioner’s Reply to Patent Owner’s Response and Exhibit 1021.
`
`
`
`Dated: August 19, 2016
`
`
`
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`
`
`Respectfully submitted,
`
`By: /Matthew A. Smith/
`
`Matthew A. Smith (Reg. No. 49,003)
`Jennifer Seraphine (pro hac vice)
`Jacob Zweig (pro hac vice)
`Turner Boyd LLP
`702 Marshall Street, Suite 640
`Redwood City, CA 94063
`(650) 265-6109
`
`T. Cy Walker (Reg. No. 52,337)
`Robert Hails (Reg. No. 39,702)
`BakerHostetler
`1050 Connecticut Avenue, NW
`Suite 1100
`Washington, D.C. 20036-5304
`(202) 861-1688
`
`
`
`
`3
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`
`
`
`
`
`
`
`
`
`
`Attorneys for Petitioner
`Attorneys for Petitioner
`Sony Corporation
`Sony Corporation
`
`4
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`
`
`
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`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on August 19, 2016, I served a copy of Petitioner’s
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`Motion to Seal Pursuant to 37 C.F.R. § 42.14, on counsel for patent owner at the
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`following email addresses: tfilarski@steptoe.com, sschlitter@steptoe.com,
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`dstringfield@steptoe.com, 678IPR@steptoe.com, and jabramic@steptoe.com.
`
`
`
`Dated: August 19, 2016
`
`
`
`
`
`/Matthew A. Smith/
`Matthew A. Smith
`
`Attorney for Petitioner
`Sony Corporation
`
`
`
`
`
`5
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`
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`Protective Order
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`This protective order governs the treatment and filing of confidential information,
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`including documents and testimony.
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`1.
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`Confidential information shall be clearly marked "PROTECTIVE ORDER
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`MATERIAL.''
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`2.
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`The parties further contemplate designating "PROTECTIVE ORDER
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`MATERIAL" as material and information subject to The International Traffic in Arms
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`Regulations ("ITAR") found in Title 22 of the Code of Federal Regulations, parts 120 to
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`130 ("ITAR Restricted Documents"). ITAR Restricted Documents shall be clearly
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`marked "THIS DOCUMENT CONTAINS TECHNICAL DATA CONTROLLED
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`UNDER THE INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR) AND
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`MAY NOT BE EXPORTED, REEXPORTED, TEMPORARILY IMPORTED,
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`TRANSFERRED, OR RETRANSFERRED TO ANY NON-U.S. PERSON, COUNTRY
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`OR ENTITY, BY ANY MEANS, WITHOUT THE APPROPRIATE APPROVAL OF
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`THE U.S. DEPARTMENT OF STATE, DIRECTORATE OF DEFENSE TRADE
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`CONTROLS (DDTC)" ("IT AR-RESTRICTED"). A Party shall designate documents,
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`infonnation or material as "IT AR-RESTRICTED" only upon a good faith belief that the
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`documents, information or material are subject to restrictions under the ITAR regulations.
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`Confidential Information and ITAR Restricted Documents shall be collectively referred
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`to as "Designated Material").
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`3.
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`Access to Confidential Information is limited to the following individuals
`
`who have executed the acknowledgment appended to this order:
`
`Raytheon2065-0001
`
`Sony Corp. v. Raytheon Co.
`IPR2015-01201
`
`
`
`(A) Partie . ersons who are own rs of a patent involved in the proceeding and
`
`other persons who are named parties to the proceeding.
`
`(B) Coun
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`I ofR cord. Counsel of record for the parties in the proceeding,
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`including counsel (whether licen ed to practice before the U PTO or not)
`
`employed at the same law firm a any Counsel of Record.
`
`(C) Experts. Retained expe.rts of a party in the proceeding who further certify in
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`the Acknowl dgement that they are not a competitor to any party, or a
`
`consultant for or employed by uch a competitor with resp ct to the subject
`
`matter of the proceeding.
`
`(D) In-hou
`
`(E) ~~~~"---==--'==.=~
`
`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 di closure to that
`
`person hall have the burden of pr ving that such person should b restricted
`
`from acce s to confidential information.
`
`mployees and representatives of the Office who have a need for
`
`access to th confidential inf ormati n 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
`
`Raytheon2065-0002
`
`
`
`clerical staff other support per onnel court reporters, and other persons acting
`
`on behalf of the Office.
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`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 th y are supporting who receives confidential
`
`information.
`
`4.
`
`Subject to all !TAR export and temporary import controls ITAR Restricted
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`Documents are further limited to the individuals in paragraph 3 above who are U.S.
`
`Persons (as defined by ITAR. §120.15). Notwithstanding anything in this Order, access to
`
`or disclosure or release of IT AR Restricted Documents by any unauthorized person is
`
`controlled by the IT AR and nothing in this ord r shall be construed to contravene the
`
`ITAR, without the prior written approval of the U.S . Department of State, Directorate of
`
`Defense Trade Controls or a violation of the !TAR could result.
`
`5.
`
`'ITAR-
`
`STRICTED' docum nts information and material may not be
`
`exported, reexported temporarily imported, transferred, or retransferred to any foreign
`
`person (as defined by IT AR§ 120 .16), country, or entity, by any means, without the
`
`appropriate approval of the U.S . Department of State, Directorate of Defense Trade
`
`Controls. These r
`
`triction also apply to Unit d States citizens and p rmanent residents
`
`employed by a company or organization that falls within the definition of foreign
`
`person.' See ITAR § 120.16. United States persons employed by such a foreign
`
`Raytheon2065-0003
`
`
`
`organization or company are not eligible to receive !TAR-controlled information absent
`
`an authorization from the DDTC.
`
`6.
`
`In any instance where information designated as "!TAR-RESTRICTED" is
`
`accessed, the person with such access shall not transfer, carry, or send such information
`
`to a location outside the United States, including via any electronic device or means, nor
`
`otherwise share such infom1ation with any person not explicitly authorized to receive
`
`such information as set forth above. "IT AR-RESTRICTED" documents related to this
`
`case containing technical data under the IT AR must be protected from export or transfer
`
`to unauthorized foreign persons, whether located inside or outside of the United States,
`
`including any foreign persons (as defined under these export control regimes) that may be
`
`employed by law firms, consultants, or any other third party involved in this dispute.
`
`Additionally, the furnishing of technical assistance (including the disclosure or release of
`
`!TAR-controlled technical data) may constitute a "defense service," which also requires
`
`approval. Any disclosure of export-controlled technical data, or furnishing of technical
`
`assistance where an authorization is needed but not secured, constitutes an export
`
`violation. Counsel will take all necessary steps to ensure that any "!TAR-RESTRICTED"
`
`documents will only be provided to, or accessible by, U.S. persons employed by Counsel
`
`that have entered an appearance in this case. Counsel also must ensure that only U.S.
`
`persons serving as expert or fact witnesses, or acting on behalf of Counsel as contractors,
`
`vendors, or other service providers, have access to export control restricted Documents.
`
`Additionally, Counsel will take all necessary steps to ensure access to these documents
`
`will be restricted to U.S. Persons (as defined by ITAR §120.15), that these documents
`
`Raytheon2065-0004
`
`
`
`will not be exported to foreign persons or foreign countries, and that no technical
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`assistance directly related to controlled defense articles or other commodities will be
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`provided to foreign persons or foreign countries. No provision her in shall be construed
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`as preventing Coun el from submitting IT AR-Restricted infonnation to the Board
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`consistent with the Board's procedures for filing sealed documents.
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`7.
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`The IT AR contains additional provisions relating to the disclosure of any
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`actual or suspected infractions regarding ''IT AR-RESTRICTED documents and things.
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`See ITAR § 127.12.
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`8.
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`Per ons receiving Designated Material shall use reasonable efforts to
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`maintain the confidentiality of the infonnation, including:
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`(A) Maintaining such information in a secure location to which persons not
`
`authorized to receive the infonnation hall not have access·
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`(B) Otherwi e using reasonable efforts to maintain the confidentiality of the
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`information, which efforts shall be no less rigorous than those the recipient
`
`uses to maintain the confidentiality of information not rec ived from the
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`disclosing party;
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`(C) Ensuring that support personnel of the recipient who have access to the
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`Designated Material understand and abide by the obligation to maintain the
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`confidentiality of information received that is designated; and
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`(D) Limiting the copying of Designated Material to a reasonabl number of copies
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`needed for conduct of the proceeding and maintaining a record of the locations
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`of such copi s.
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`Raytheon2065-0005
`
`
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`9.
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`Persons receiving Designated Material shall use the following procedures
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`to maintain the confidentiality of the information:
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`(A) Documents and f nformation Filed With the oard.
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`(i) A party may file documents or information with the Board under seal
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`together with a non-confidential description of the nature of the Designated
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`Material that is under seal and the reasons why the information is
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`confidential and should not be made available to the public. Subject to
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`IT~ the submission shall be treated a confidential and remain under
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`eal unless, upon motion of a party and after a hearing on the issue, or sua
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`sponte the Board determines that the documents or information do not to
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`qualify for confidential treatmen .
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`(ii) Where confidentiality is alleged as to some but not all of the
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`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
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`should not be made available to the public. he nonconfidential version of
`
`th submission shall clearly indicate the location of information that has
`
`be n redacted. The confidential ver ion of th submission shall be filed
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`under seal. Subject to IT AR, the redact d infi rmation shall remain under
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`seal unless upon motion of a party and after a hearing on the issue, or sua
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`Raytheon2065-0006
`
`
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`sponte the Board determines that some or all of th redacted information
`
`does not qualify for confidential treatment.
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`(B) Documents and Information Exchanged Among the Parties. Designated
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`Material that is disclosed to another party during discovery or other proceedings
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`before the Board shall be clearly marked as PROTECTIVE ORDER
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`MATERIAL' ' and shall be produced in a manner that maintains its confidentiality.
`
`Date: March 11, 2016
`
`By:
`
`Registration No. 31 6 2
`Steptoe & Johnson, LLP
`J 15 S. LaSalle Street
`Chicago, IL 60603
`Telephone: 312-577-1252
`acsimile: 312-577-1370
`
`Counsel for Raytheon Company
`
`Raytheon2065-0007
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SONY CORPORATION,
`Petitioner,
`
`V.
`
`RAYTHEON COMPANY,
`Patent Owner.
`
`Case IPR2015-0120l
`
`Patent 5,591,678
`
`Acknowledgement for Access to Protective Order Material
`
`affirm that I have read the
`I
`- - - - -- - - - -- - - - -- ---·
`Protective Order; that I will abide by its terms; that I will use the Designated
`Material 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.
`
`Name (print): _ _ _ _ _ _ _ _ _ _ _ _ _
`
`Signature: _ _ _ _ _ _ _ _ _ _ _ _ _ _ ~
`
`Raytheon2065-0008
`
`
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