UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MICROSOFT CORPORATION,
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`Petitioner,
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`v.
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`BRADIUM TECHNOLOGIES LLC,
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`Patent Owner.
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`PTAB Case No. IPR2016-00448
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`Patent No. 7,908,343 B2
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`PETITIONER’S MOTION TO SEAL CONFIDENTIAL INFORMATION
`AND REQUEST FOR ENTRY OF DEFAULT PROTECTIVE ORDER
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`_____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MICROSOFT CORPORATION,
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`Petitioner,
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`v.
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`BRADIUM TECHNOLOGIES LLC,
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`Patent Owner.
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`PTAB Case No. IPR2016-00448
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`Patent No. 7,908,343 B2
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`
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`PETITIONER’S MOTION TO SEAL CONFIDENTIAL INFORMATION
`AND REQUEST FOR ENTRY OF DEFAULT PROTECTIVE ORDER
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`_____________
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`IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner's Motion to Seal Confidential Information
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`Pursuant to 37 CFR §§ 42.14 and 42.55, Petitioner Microsoft Corporation
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`moves to seal certain exhibits which contain information designated as confidential
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`subject to a protective order governing the litigation proceedings.
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`Petitioner respectfully requests entry of the default protective order set forth
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`in the Office Patent Trial Practice Guide. An identical version of the default
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`protective order was filed by Patent Owner as Paper No. 14. Microsoft
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`Corporation and Bradium Technologies LLC have agreed to be bound by the
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`default protective order and that it will govern this proceeding.
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`The Trial Practice Guide provides that “the rules aim to strike a balance
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`between the public’s interest in maintaining a complete and understandable file
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`history and the parties’ interest in protecting truly sensitive information.” 77 Fed.
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`Reg. 48756 at 48760 (Aug. 14, 2012). Petitioner submits that this motion protects
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`sensitive information while not significantly impacting the public’s interest in
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`maintaining a complete and understandable record of this proceeding.
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`Good cause exists for this motion because the documents sought to be sealed
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`contain Microsoft’s highly confidential business information. Specifically, all five
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`documents purportedly relate to Microsoft’s preliminary discussions with a
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`potential acquisition target, 3DVU, which was a prior assignee of patents related to
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`1
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`IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner's Motion to Seal Confidential Information
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`those challenged in this proceeding. 1 Exs. 2012 and 2013 are documents reflecting
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`Microsoft’s internal discussions regarding a potential acquisition, including
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`potential pricing terms and Microsoft’s policies regarding procedures for
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`evaluating potential acquisitions, while Exs. 2014, 2015, and 2034 purportedly
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`reflect confidential communications between Microsoft and the counter-party to
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`those negotiations. The public release of these documents will cause competitive
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`disadvantage and serious injury to Microsoft. For example, based on the pricing
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`ranges disclosed in Exs. 2012 and 2013, a competitor of Microsoft or another
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`acquisition target company will be able to estimate Microsoft’s likely pricing range
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`for other companies having similar size or similar technology as 3DVU, and thus
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`put Microsoft at competitive disadvantage in future acquisition negotiations.
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`Additionally, both Exs. 2012 and 2013 discuss strategic considerations and factors
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`evaluated by Microsoft in making its acquisition decisions, such as how well the
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`target company’s technology can be integrated into and enhance existing Microsoft
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`products. Revealing such strategic considerations to the public will also put
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`Microsoft at competitive disadvantage for future acquisitions, because target
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`companies meeting those strategic considerations or factors may demand a higher
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`1 By filing this motion, Microsoft does not admit the authenticity of any of these
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`documents or waive any other potential objections.
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`2
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`IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner's Motion to Seal Confidential Information
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`acquisition price if they become aware that Microsoft considers those factors as
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`important in assessing acquisition targets. Likewise, Microsoft’s communications
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`with 3DVU, as reflected in Exhibits 2014, 2015, and 2034 reveal details of
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`Microsoft’s processes for considering acquisitions of other business entities,
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`including the factors that Microsoft considers in such an acquisition, that might be
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`exploited by a competitor or another entity desiring to be acquired by Microsoft.
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`The filing of these exhibits under seal will have negligible or no impact on
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`the public’s interest in maintaining a complete and understandable file history.
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`Bradium relies on these documents in support of arguments relating to secondary
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`indicia of non-obviousness. However, the specific details contained in the
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`documents proposed to be sealed regarding Microsoft’s deliberative process would
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`not contribute in any meaningful way to a member of the public’s understanding of
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`the fundamental arguments made in this proceeding. Therefore, allowing these
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`exhibits to be filed under seal is consistent with the Board’s recognized need for a
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`“balance between
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`the public’s
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`interest
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`in maintaining a complete and
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`understandable file history and the parties’ interest in protecting truly sensitive
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`information.”
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`Petitioner certifies that it conferred with Bradium concerning the filing of
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`Microsoft-designated confidential documents. Bradium does not oppose this
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`motion.
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`3
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`Accordingly, Petitioner moves to seal the following:
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`IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner's Motion to Seal Confidential Information
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`Ex. 2012 Microsoft internal document relating to 3DVU evaluation
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`Ex. 2013 Microsoft internal document relating to 3DVU evaluation
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`(September, 2005)
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`Ex. 2014 Microsoft-3DVU Non-Disclosure Agreement and email (June-
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`August, 2005)
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`Ex. 2015 Email communications between Microsoft and 3DVU (September,
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`2005)
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`Ex. 2034 Document relating to Microsoft-3DVU discussions
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`For the foregoing reasons, Petitioner respectfully requests that the Board seal
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`and protect Exhibits 2012-2015 and 2034.
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`Dated: November 8, 2016
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`Respectfully submitted,
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` /Bing Ai /
`Lead Counsel
`Bing Ai, Reg. No. 43,312
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`Back-up Counsel
`Matthew Bernstein, Pro Hac Vice
`Vinay Sathe, Reg. No. 55,595
`Patrick J. McKeever, Reg. No. 66,019
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`Attorneys for Microsoft Corporation
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`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
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`4
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`IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner's Motion to Seal Confidential Information
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true copy of the foregoing
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`PETITIONER'S MOTION TO SEAL CONFIDENTIAL INFORMATION has
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`been served in its entirety this 8th day of November 2016 by electronic mail on the
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`Patent Owner via its attorneys of record:
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`Chris Coulson (ccoulson@kenyon.com)
`Michael Zachary (mzachary@kenyon.com)
`Clifford Ulrich (culrich@kenyon.com)
`Bradiumiprservice@kenyon.com
`ANDREWS KURTH KENYON LLP
`One Broadway
`New York, NY 10004
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`Respectfully submitted,
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` /Bing Ai /
`Lead Counsel
`Bing Ai, Reg. No. 43,312
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`Back-up Counsel
`Matthew Bernstein, Pro Hac Vice
`Vinay Sathe, Reg. No. 55,595
`Patrick J. McKeever, Reg. No. 66,019
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`Attorneys for Microsoft Corporation
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`Dated: November 8, 2016
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`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
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`1
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