Trials@uspto.gov
`571-272-7822
`
`
` Paper 66
`
`Entered: July 24, 2017
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`BRADIUM TECHNOLOGIES LLC,
`Patent Owner.
`____________
`
`Case IPR2016-00448
`Patent 7,908,343 B2
`____________
`
`
`
`Before BRYAN F. MOORE, BRIAN J. McNAMARA, and MINN CHUNG,
`Administrative Patent Judges.
`
`
`McNAMARA, Administrative Patent Judge.
`
`
`
`DECISION ON MOTIONS TO SEAL
`37 C.F.R. §§ 42.14 AND 42.54
`
`
`
`571-272-7822
`
`
` Paper 66
`
`Entered: July 24, 2017
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`BRADIUM TECHNOLOGIES LLC,
`Patent Owner.
`____________
`
`Case IPR2016-00448
`Patent 7,908,343 B2
`____________
`
`
`
`Before BRYAN F. MOORE, BRIAN J. McNAMARA, and MINN CHUNG,
`Administrative Patent Judges.
`
`
`McNAMARA, Administrative Patent Judge.
`
`
`
`DECISION ON MOTIONS TO SEAL
`37 C.F.R. §§ 42.14 AND 42.54
`
`
`
`
`IPR2016-00448
`Patent 7,908,343 B2
`
`
`Introduction
`Before us are four motions to seal—one filed by Microsoft Corporation
`(“Petitioner”) and three filed by Bradium Technologies LLC (“Patent Owner”).
`All motions to seal are unopposed. The parties stipulated to and filed the Board’s
`Standing Protective Order on November 7, 2016. Paper 14. The Stipulated
`Protective Order is entered.
`There is a strong public policy for making all information filed in a
`quasijudicial administrative proceeding open to the public, especially in an inter
`partes review which determines the patentability of claims in an issued patent and
`therefore affects the rights of the public. Our rules aim to strike a balance between
`the public’s interest in maintaining a complete and understandable file history and
`the parties’ interests in protecting truly sensitive information. Office Trial Practice
`Guide, 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012). The standard we apply for
`granting a motion to seal is “for good cause.” 37 C.F.R. § 42.54. To grant the
`motion to seal, we examine why the information sought to be placed under seal
`constitutes confidential information. Applying these principles, we consider the
`parties’ motions.
`Petitioner’s Motion
`Petitioner moves to seal Exhibits 2012, 2013, 2014, 2015 and 2034, filed by
`Patent Owner and referenced in the Patent Owner Response (Paper 17) and
`Corrected Patent Owner Response (Paper 20), on the basis that these Exhibits
`include Petitioner’s confidential business information. Paper 19 (“Pet. Mot. to
`Seal”). Petitioner contends that good cause exists for its motion because the
`Exhibits that are the subject of the motion relate to Microsoft’s preliminary
`discussions with 3DVU, a prior assignee of U.S. Patent 7,908, 343 (“the ’343
`Patent”) that is the subject of this proceeding. Pet. Mot. to Seal 1–2. According to
`
`
`
`2
`
`
`
`IPR2016-00448
`Patent 7,908,343 B2
`
`Petitioner, Exhibits 2012 and 2013 reflect Microsoft’s internal discussions,
`including pricing terms and policies and procedures for evaluating acquisitions. Id.
`at 2. Petitioner states that Exhibits 2014, 2015, and 2034 reflect confidential
`communications between Microsoft and the counter-party. Id. According to
`Petitioner, release of these documents will cause competitive harm, e.g., by
`allowing a competitor to estimate Microsoft’s likely pricing range for other
`companies of similar size and technology. Id.
`The existence of discussions between Microsoft and 3DVU is not
`confidential, as it has been revealed by the parties in non-confidential papers. See,
`e.g., Paper 34, Petitioner Reply to Patent Owner Response (“Pet. Reply”), 26. In
`addition, in our Final Written Decision we have referenced these discussions and
`Exhibits 2012, 2013, 2015 and 2034, but not Exhibit 2014. Our references to these
`Exhibits in the Final Written Decision do not discuss the financial and strategic
`details that legitimately concern Microsoft. In view of these circumstances, we are
`persuaded that Microsoft has shown good cause for maintaining the confidentiality
`of the Exhibits it seeks to protect. One option is to deny the Motion to Seal with
`respect to Exhibits we do not cite and allow Petitioner to expunge them. However,
`in view of the state of the record, we maintain the confidential status of Exhibits
`2012, 2013, 2014, 2015, and 2034 and leave it to Petitioner’s choice whether to
`move to expunge any confidential Exhibit not referenced in the Final Written
`Decision.
`Patent Owner’s Motions
`In its First Motion to Seal, Patent Owner moves to seal its Patent Owner
`Response (Paper 17) and, presumably, its Corrected Patent Owner Response
`(Paper 20), as well as Exhibit 2022, Exhibit 2029, and portions of Exhibit 2004.
`Paper 15 (PO First Mot. to Seal). Patent Owner has filed redacted public versions
`
`
`
`3
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`IPR2016-00448
`Patent 7,908,343 B2
`
`of its Patent Owner Response and Corrected Patent Owner Response (Papers 18
`and 21, respectively). Patent Owner filed a redacted version of Exhibit 2004 as
`Exhibit 2072.
`The confidential versions of the Patent Owner Responses both reference
`Microsoft confidential information in the Exhibits that we have ordered sealed
`above. Therefore, we grant Patent Owner’s Motion to seal the confidential version
`of the Patent Owner Response and Corrected Patent Owner Response (Papers 17
`and 20, respectively).
`Patent Owner states that Exhibit 2022 is a confidential report signed by
`inventor Isaac Levanon that contains technical information, financial summaries,
`financial terms, and projected sales information. Paper 51 (PO Second Mot. to
`Seal). Patent Owner provides no explanation as to why this particular information
`should remain confidential. Nevertheless, as Patent Owner’s motion is unopposed
`and there is no obvious public interest in making the information non-confidential,
`we exercise our discretion to maintain Patent Owner’s confidentiality designation.
`Patent Owner states that Exhibit 2029 is a confidential agreement with
`DENSO Corporation that includes a confidentiality provision. Id. The existence
`of the agreement with DENSO is public, as Patent Owner reveals that information
`in its non-confidential motion. Id. Patent Owner has shown good cause that
`Exhibit 2029 should be treated as confidential in this proceeding.
`Exhibit 2004 is a confidential version of the Declaration of inventor Isaac
`Levanon and references confidential information concerning licensing activities,
`such as those involving DENSO. A non-confidential version was filed as Exhibit
`2072. For the reasons discussed above relative to Ex. 2029, we are persuaded that
`Patent Owner has shown good cause that Exhibit 2004 should be treated as
`confidential in this proceeding.
`
`
`
`4
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`IPR2016-00448
`Patent 7,908,343 B2
`
`
`We do not cite Exhibit 2022 or Exhibit 2029 or the confidential portions of
`Exhibit 2004 in our Final Written Decision. As discussed above, one option is to
`deny Patent Owner’s motion and allow Patent Owner to move to expunge the
`documents. However, we maintain the confidentiality of the documents and leave
`the decision to move to expunge documents not relied upon in the final Written
`Decision up to Patent Owner.
`Patent Owner moves to seal its Opposition to Petitioner’s Motion to Exclude
`(Paper 52) on the basis that it references Exhibits 2022 and 2029 and portions of
`Exhibit 2004. PO Second Mot. to Seal. We maintain the confidentiality of Paper
`52 for the same reasons as those discussed above relative to Exhibits 2022 and
`2029.
`
`In its Third Motion to Seal, Patent Owner moves to seal its Reply to
`Petitioner’s Opposition to Patent Owner’s Motion to Exclude (Paper 58) and
`Exhibit 2082, on the basis that Paper 58 cites Ex. 2029 and Exhibit 2082, and are
`related and subject to the same confidentiality obligation. Paper 57 (PO Third
`Mot. to Seal). We do not cite Exhibit 2082 in our Final Written Decision, but
`agree that Patent Owner has shown good cause that Paper 58 and Exhibit 2082
`should be maintained as confidential for the reasons discussed with respect to
`Exhibit 2029.
`
`ORDER
`In consideration of the above it is
`ORDERED that the Stipulated Protective Order (Paper 14) is ENTERED;
`FURTHER ORDERED that Petitioner’s Motion to Seal Exhibits 2012,
`2013, 2014, 2015, and 2034 is GRANTED;
`FURTHER ORDERED that Patent Owner’s Motions to Seal Papers 17, 20,
`52, and 58, and Exhibits 2004, 2022, 2029, and 2082 are GRANTED.
`5
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`IPR2016-00448
`Patent 7,908,343 B2
`
`
`
`
`
`
`PETITIONER
`Chun M. Ng
`Patrick J. McKeever
`Matthew C. Bernstein
`Vinay Sathe
`Evan S. Day
`PERKINS COIE LLP
`cng@perkinscoie.com
`pmckeever@perkinscoie.com
`mbernstein@perkinscoie.com
`vsathe@perkinscoie.com
`eday@perkinscoie.com
`
`
`PATENT OWNER
`
`Christopher J. Coulson
`Clifford Ulrich
`KENYON & KENYON, LLP
`ccoulson@kenyon.com
`culrich@kenyon.com
`
`
`
`
`
`6
`
`
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