`571-272-7822
`
`
`
`
`Paper No. 89
`
` Entered: February 13, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AMERIGEN PHARMACEUTICALS LIMITED and
`ARGENTUM PHARMACEUTICALS LLC,
`Petitioner,
`
`v.
`
`JANSSEN ONCOLOGY, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-002861
`Patent 8,822,438 B2
`____________
`
`
`Before LORA M. GREEN, RAMA G. ELLURU, and
`KRISTINA M. KALAN, Administrative Patent Judges.
`
`KALAN, Administrative Patent Judge.
`
`
`ORDER
`Granting Motion to Seal
`37 C.F.R § 42.54
`
`
`
`
`
`
`1 Case IPR2016-01317 has been joined with this proceeding.
`
`
`
`IPR2016-00286
`Patent 8,822,438 B2
`
`
`On January 17, 2017, we entered a Final Written Decision (“Final
`
`Decision” or “Final Dec.”) in the above-referenced case. Patent Owner filed
`
`a number of documents in this proceeding as “Parties and Board Only,” but
`
`no Motion to Seal was visible in the record. Patent Owner also filed a
`
`Protective Order (Exhibit 2113) and a Red-line of Protective Order
`
`(Exhibit 2114). We ordered Patent Owner to file a motion to seal within
`
`ten (10) business days of the entry of the Final Decision. Final Dec. 46–47.
`
`On January 31, 2018, Patent Owner filed a Motion to Seal (Paper 87,
`
`“Motion” or “Mot.”), indicating that a Motion to Seal previously had been
`
`filed on October 4, 2016, but assigned a “Motion Initiated” status that may
`
`not permit the Board to retrieve it. Mot. 1 (citing Ex. 2128). Patent Owner
`
`moves to seal the confidential version of the Declaration of Dr. Vellturo
`
`(Exhibit 2044) and the confidential version of the Declaration of Dr. Rettig
`
`(Ex. 2038), as well as Exhibits 2092–94 and 2118. Id. Patent Owner states
`
`that it filed non-confidential, redacted versions of the Declaration of
`
`Dr. Vellturo (Exhibit 2115) and the Declaration of Dr. Rettig (Ex. 2119). Id.
`
`Patent Owner represents that the parties agreed to the modified version of
`
`the Default Protective Order submitted as Exhibit 2113, and submitted a
`
`redline of the Standing Protective Order as Exhibit 2114. Id. at 2.
`
`After having considered the arguments, we determine that Patent
`
`Owner establishes good cause for sealing the documents identified in the
`
`Motion. Specifically, Patent Owner demonstrates that the information it
`
`seeks to seal consists of documents containing non-public research
`
`summaries, non-public research and development information, and the
`
`testimony that relies on those documents. Mot. 2. Accordingly, the
`
`Motion is granted and the modified protective order entered.
`
`
`
`2
`
`
`
`IPR2016-00286
`Patent 8,822,438 B2
`
`
`There is an expectation that information will be made public where
`
`the information is identified in a final written decision, and that
`
`confidential information that is subject to a protective order ordinarily
`
`would become public 45 days after final judgment in a trial, unless a
`
`motion to expunge is granted. 37 C.F.R. § 42.56; Office Patent Trial
`
`Practice Guide, 77 Fed. Reg. 48,756, 48,761 (Aug. 14, 2012). In rendering
`
`our Final Decision, it was not necessary to identify, nor discuss in detail,
`
`any confidential information. However, a party who is dissatisfied with
`
`the Final Decision may appeal the Decision pursuant to 35 U.S.C.
`
`§ 141(c), and has 63 days after the date of the Decision to file a notice of
`
`appeal. 37 C.F.R. § 90.3(a). Thus, it remains necessary to maintain the
`
`record, as is, until resolution of an appeal, if any.
`
`In view of the foregoing, the confidential documents filed in the
`
`instant proceeding will remain under seal, at least until the time period for
`
`filing a notice of appeal has expired or, if an appeal is taken, the appeal
`
`process has concluded. The record for the instant proceeding will be
`
`preserved in its entirety, and the confidential documents will not be
`
`expunged or made public, pending appeal. Notwithstanding 37 C.F.R.
`
`§ 42.56 and the Office Patent Trial Practice Guide, neither a motion to
`
`expunge confidential documents nor a motion to maintain these documents
`
`under seal is necessary or authorized at this time. See 37 C.F.R. § 42.5(b).
`
`In consideration of the foregoing, it is:
`
`ORDER
`
`ORDERED that the Motion to Seal is granted and the modified
`
`protective order entered.
`
`
`
`
`
`
`
`3
`
`
`
`IPR2016-00286
`Patent 8,822,438 B2
`
`FOR PETITIONER:
`
`William Hare
`bill@miplaw.com
`
`Gabriela Materassi
`materassi@miplaw.com
`
`Teresa Rea
`trea@crowell.com
`
`Shannon Lentz
`slentz@crowell.com
`
`
`FOR PATENT OWNER:
`
`Dianne Elderkin
`delderkin@akingump.com
`
`Barbara Mullin
`bmullin@akingump.com
`
`Ruben Munoz
`rmunoz@akingump.com
`
`
`
`
`
`4
`
`
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