UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ARISTA NETWORKS, INC.
`Petitioner
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`v.
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`CISCO SYSTEMS, INC.
`Patent Owner
`____________________
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`Case IPR2016-00309
`Patent 7,224,668
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`____________________
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`PATENT OWNER’S MOTION TO SEAL DOCUMENTS
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ARISTA NETWORKS, INC.
`Petitioner
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`v.
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`CISCO SYSTEMS, INC.
`Patent Owner
`____________________
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`
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`Case IPR2016-00309
`Patent 7,224,668
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`____________________
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`PATENT OWNER’S MOTION TO SEAL DOCUMENTS
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`IPR2016-00309
`Patent No. 7,224,668
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`I.
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`INTRODUCTION
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`In conjunction with filing its Patent Owner Response, Patent Owner, Cisco
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`Systems Inc. (“Cisco”), also submits this Motion to Seal and to Enter the Default
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`Protective Order. Pursuant to the Protective Order, Cisco moves to seal several
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`exhibits filed in connection with its Patent Owner Response. Specifically, Cisco
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`seeks to seal the entirety of: Exhibit 2008 (declaration of Wayne Ogozaly); Exhibit
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`2009 (Cisco CoPP Specification); Exhibit 2010 (declaration of Laurie Wall);
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`Exhibit 2011 (Cisco e-bill); Exhibit 2012 (declaration of David J. Thibodeau);
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`Exhibit 2046 (Cisco’s Guidelines for Patent Attorneys); and Exhibit 2047
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`(exemplary prior conception claim chart). Cisco also seeks to seal portions of the
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`Patent Owner Response.
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`Pursuant to 37 C.F.R. § 42.54(a), Cisco’s counsel attempted in good faith to
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`confer with Arista’s counsel in an attempt to resolve any dispute regarding the
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`entry of the Default Protective Order. Arista’s counsel did not respond to Cisco’s
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`request.
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`II. ARGUMENT
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`In determining whether to grant a Motion to Seal, the Board must find “good
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`cause” and “strike a balance between the public’s interest in maintaining a
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`complete and understandable file history and the parties’ interest in protecting truly
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`sensitive information.” 37 C.F.R. § 42.54(a); 77 Fed. Reg. 48756, 48760 (Aug. 14,
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`IPR2016-00309
`Patent No. 7,224,668
`2012). As laid out in the Office Trial Practice Guide, the Board identifies
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`confidential information in a manner “consistent with Federal Rule of Civil
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`Procedure 26(c)(1)(G), which provides for protective orders for trade secret or
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`other confidential research, development, or commercial information.” 77 Fed.
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`Reg. 48756, 48760 (Aug. 14, 2012).
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`Cisco has designated Exhibits 2008-2012, 2046, and 2047 as for “the Board
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`and Parties’ Eyes Only.” The first group of exhibits (2009, 2011, 2046, and 2047)
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`contains Cisco’s financial and technical confidential business information. The
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`second group of exhibits (2008, 2010, and 2012) are declarations referencing
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`Cisco’s confidential business information.
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`As detailed below, portions of the Patent Owner Response and the above-
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`referenced exhibits contain confidential information that fall squarely under 37
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`C.F.R. § 42.54 (a)(7). Accordingly, good cause exists for sealing these documents
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`and granting this Motion.
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`A. Exhibits 2009, 2011, 2046, and 2047—Documents containing
`Cisco’s financial and technical confidential business information
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`The Board has good cause to issue an order to protect Cisco from disclosing
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`the entirety of Exhibits 2009, 2011, 2046, and 2047.
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` Exhibit 2009 details Cisco’s confidential research and development into
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`routers and switches protecting against denial-of-service (DoS) attacks (hereinafter
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`the “CoPP Spec”). The CoPP Spec discloses the invention contained in U.S. Patent
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`- 2 -
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`IPR2016-00309
`Patent No. 7,224,668
`7,224,668 (“’668 Patent”), and also contains other non-public technical
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`information and project considerations, such as Cisco’s internal testing related to
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`control plane policing. Cisco would be harmed if this technical specification were
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`made public, because the document contains Cisco’s secrets related to widely used
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`technology in the networking space in which Cisco competes.
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`Exhibit 2047 is a claim chart mapping the contents of the CoPP Spec to the
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`elements of claims 7, 23, and 59 of the ʼ668 Patent. This document is confidential
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`business information for the same reasons as Exhibit 2009 above.
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`Exhibit 2011 is Cisco’s invoice from Hamilton, Brook, Smith & Reynolds,
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`PC (“Hamilton Brook”) for fees and costs incurred during the preparation and
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`prosecution of the ’668 Patent. Cisco’s expenditures related to the prosecution of
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`the ’668 application—or any application—is highly confidential, and reveals
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`Cisco’s legal procedures and financial commitments, which would be harmful if
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`revealed to third parties who could use that information against Cisco in the
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`competitive marketplace.
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`Exhibit 2046 is Cisco’s Guidelines for Patent Attorneys. The document
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`instructs Cisco’s outside counsel on every element of patent preparation and
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`prosecution including legal and financial considerations. Making these guidelines
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`public would harm Cisco because it would give third parties valuable insight into
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`Cisco’s proprietary legal procedures for prosecuting patent applications and would
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`IPR2016-00309
`Patent No. 7,224,668
`provide a tutorial on how Cisco derives value and competitive advantage from its
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`IP.
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`Consequently, disclosure of any of these Exhibits effectively grants third
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`parties an opportunity to peer into Cisco’s proprietary financial or technical
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`information. Thus, disclosure would confer competitive advantages to third parties
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`at Cisco’s sole detriment.
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`B.
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`Exhibits 2008, 2010, and 2012—Declarations referencing Cisco’s
`internal confidential business information
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`Exhibit 2008 is R. Waynes Ogozaly’s declaration. Exhibit 2008 reveals the
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`confidential details of conception and reduction to practice of the ʼ668 Patent.
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`Exhibit 2008 also references the confidential information disclosed in Exhibits
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`2009 and 2011 and should remain confidential for the same reasons as discussed in
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`detail in Part II.A.
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`Exhibit 2010 is Laurie Wall’s declaration authenticating the CoPP Spec,
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`Hamilton Brook Invoice, and patent prosecution guidelines. Exhibit 2010 explains
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`how Cisco maintains its billing records, guidelines, and technical documents,
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`which are kept confidential because exposure to third parties could result in
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`significant competitive harm to Cisco. Exhibit 2010 also references the
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`confidential Exhibits 2009 and 2011 and should remain confidential for the same
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`reasons as discussed in detail in Part II.A.
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`IPR2016-00309
`Patent No. 7,224,668
`Exhibit 2012 is David J. Thibodeau, Jr.’s declaration. Exhibit 2012 reveals
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`the confidential details of Mr. Thibodeau’s diligence after conception and before
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`constructive reduction to practice. Exhibit 2012 also references confidential
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`information disclosed in the invoices received from Hamilton Brook related to the
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`’668 Patent (Attachment A). The information disclosed in Attachment A to Mr.
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`Thibodeau’s declaration is substantially identical to the information disclosed in
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`Exhibit 2011, and its public disclosure would harm Cisco in the same manner.
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`C.
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`Patent Owner Response
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`The information contained within the designated exhibits is used to
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`demonstrate Cisco’s conception and diligence towards reduction to practice prior
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`to the issuance of Moberg. The disclosure of such information is likely to cause
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`significant harm to Cisco because it would grant competitors access to highly
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`sensitive and proprietary technical information, commercially sensitive financial
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`information, and business information relating to the design, development,
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`management, and implementation regarding the claimed technology. Accordingly,
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`the Board also has good cause to issue an order to protect Cisco from disclosing
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`these portions of the Patent Owner Response for the same reasons.
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`III. CERTIFICATION OF NON-PUBLICATION
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`To the best of Cisco’s knowledge, the documents sought to be protected
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`have not been made publically available.
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`IPR2016—00309
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`Patent No. 7,224,668
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`IV. PROPOSED PROTECTIVE ORDER
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`Cisco respectfully requests entry of the attached Default Protective Order.
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`Upon entry of the Default Protective Order, Cisco designates Exhibits 2008-2012,
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`2046, 2047 and portions of the Patent Owner Response “PROTECTIVE ORDER
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`MATERIAL.”
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`V. CONCLUSION
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`For the reasons stated above, Cisco requests that the Board seal and protect
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`Cisco’s confidential information contained in Exhibits 2008-2012, 2046, 2047, and
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`portions of the Patent Owner Response for at least the duration of this proceeding.
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`Cisco further requests that the Board seal and protect the confidential information
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`in these documents until such time as it receives and rules on this Motion.
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`Respectfully submitted,
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`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
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`Lori A. Gordon (Reg. No. 50,633)
`Daniel S. Block (Reg. No. 68,395)
`Attorneys for Patent Owner
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`Date: September 29, 2016
`1 100 New York Avenue, N.W.
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`Washington, D.C. 20005-3934
`(202) 371-2600
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`IPR2016-00309
`Patent No. 7,224,668
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`
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`ATTACHMENT:
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`Default Protective Order
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`IPR2016-00309
`Patent No. 7,224,668
`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
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`ORDER MATERIAL.’’
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`2.
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`Access to confidential information is limited to the following
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`individuals who have executed the acknowledgment appended to this
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`order:
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`(A) Parties. Persons who are owners of a patent involved in the
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`proceeding and other persons who are named parties to the
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`proceeding.
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`(B) Party Representatives. Representatives of record for a party in
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`the proceeding.
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`(C) Experts. Retained experts of a party in the proceeding who
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`further certify in the Acknowledgement that they are not a
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`competitor to any party, or a consultant for, or employed by,
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`such a competitor with respect to the subject matter of the
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`proceeding.
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`(D)
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`In-house counsel. In-house counsel of a party.
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`(E) Other Employees of a Party. Employees, consultants or other
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`persons performing work for a party, other than in-house
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`IPR2016-00309
`Patent No. 7,224,668
`counsel and in-house counsel’s support staff, who sign the
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`Acknowledgement shall be extended access to confidential
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`information only upon agreement of the parties or by order of
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`the Board upon a motion brought by the party seeking to
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`disclose confidential information to that person. The party
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`opposing disclosure to that person shall have the burden of
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`proving that such person should be restricted from access to
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`confidential information.
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`(F) The Office. Employees and representatives of the Office who
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`have a need for access to the confidential information shall have
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`such access without the requirement to sign an
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`Acknowledgement. Such employees and representatives shall
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`include the Director, members of the Board and their clerical
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`staff, other support personnel, court reporters, and other persons
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`acting on behalf of the Office.
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`(G) Support Personnel. Administrative assistants, clerical staff,
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`court reporters and other support personnel of the foregoing
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`persons who are reasonably necessary to assist those persons in
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`the proceeding shall not be required to sign an
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`Acknowledgement, but shall be informed of the terms and
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`IPR2016-00309
`Patent No. 7,224,668
`requirements of the Protective Order by the person they are
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`supporting who receives confidential information.
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`3.
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`Persons receiving confidential information shall use reasonable efforts
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`to maintain the confidentiality of the information, including:
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`(A) Maintaining such information in a secure location to which
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`persons not authorized to receive the information shall not have
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`access;
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`(B) Otherwise using reasonable efforts to maintain the
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`confidentiality of the information, which efforts shall be no less
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`rigorous than those the recipient uses to maintain the
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`confidentiality of information not received from the disclosing
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`party;
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`(C) Ensuring that support personnel of the recipient who have
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`access to the confidential information understand and abide by
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`the obligation to maintain the confidentiality of information
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`received that is designated as confidential; and
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`(D) Limiting the copying of confidential information to a
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`reasonable number of copies needed for conduct of the
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`proceeding and maintaining a record of the locations of such
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`copies.
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`IPR2016-00309
`Patent No. 7,224,668
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`4.
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`Persons receiving confidential information shall use the following
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`procedures to maintain the confidentiality of the information:
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`(A) Documents and Information Filed With the Board.
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`(i)
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`A party may file documents or information with the Board
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`under seal, together with a non-confidential description of
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`the nature of the confidential information that is under seal
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`and the reasons why the information is confidential and
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`should not be made available to the public. The submission
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`shall be treated as confidential and remain under seal,
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`unless, upon motion of a party and after a hearing on the
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`issue, or sua sponte, the Board determines that the
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`documents or information do not to qualify for confidential
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`treatment.
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`(ii)
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`Where confidentiality is alleged as to some but not all of
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`the information submitted to the Board, the submitting
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`party shall file confidential and non-confidential versions
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`of its submission, together with a Motion to Seal the
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`confidential version setting forth the reasons why the
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`information redacted from the non-confidential version is
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`IPR2016-00309
`Patent No. 7,224,668
`confidential and should not be made available to the
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`public. The non-confidential version of the submission
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`shall clearly indicate the locations of information that has
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`been redacted. The confidential version of the submission
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`shall be filed under seal. The redacted information shall
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`remain under seal unless, upon motion of a party and
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`after a hearing on the issue, or sua sponte, the Board
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`determines that some or all of the redacted information
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`does not qualify for confidential treatment.
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`(B) Documents and Information Exchanged Among the Parties.
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`Information designated as confidential that is disclosed to
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`another party during discovery or other proceedings before the
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`Board shall be clearly marked as “PROTECTIVE ORDER
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`MATERIAL” and shall be produced in a manner that maintains
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`its confidentiality.
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`CERTIFICATION OF SERVICE
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`IPR20l6-00309
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`Patent No. 7,224,668
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`The undersigned hereby certifies that the foregoing PATENT OWNER’S
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`MOTION TO SEAL DOCUMENTS was served electronically Via e-mail on
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`September 29, 2016 in its entirety on the following:
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`W. Karl Renner (Lead Counsel)
`Lauren A. Degnan (Back—Up Counsel)
`FISH & RICHARDSON P.C.
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`IPR40963-0003IP4@fr.com
`PTABInbound@fr.com
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`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
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`
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`Lo ' A. Gordon
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`Registration No. 50,633
`Attorney for Patent Owner
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`Date: September 29, 2016
`1 100 New York Avenue, N.W.
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`Washington, D.C.20005—3934
`(202) 371-2600
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