`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________________
`
`MYLAN PHARMACEUTICALS INC.,
`Petitioner
`
`v.
`
`ALLERGAN, INC.
`Patent Owner
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2016-01127
`Patent 8,685,930
`
`
`
`
`
`
`
`
`
`
`PATENT OWNER ALLERGAN, INC.’S MOTION TO SEAL
`UNDER 37 CFR §§ 42.14 and 42.55
`
`
`
`
`
`
`
`Case IPR2016-01127
`Attorney Docket No: 13351-0008IP1
`
`Pursuant to 35 U.S.C. § 316 and 37 C.F.R. §§ 42.14 and 42.55, Allergan, Inc.
`
`(“Patent Owner”) respectfully submit this Motion to Seal Exhibits ALL 2028, ALL
`
`2038, ALL 2046, ALL 2051, ALL 2055, ALL 2056, ALL 2057, ALL 2061, ALL
`
`2062, ALL 2063, ALL 2054, ALL 2065, ALL 2072, and ALL 2073, which are being
`
`filed concurrent with the Response to Petition and this Motion, such that they are
`
`available to the Board and Parties only.
`
`In support of this Motion, Patent Owner states as follows:
`
`1.
`
`Exhibit ALL 2038 is a true and correct copy of the deposition transcript
`
`of David LeCause, Petitioner’s Vice President of U.S. Eye Care Sales,
`
`taken on February 10, 2017 in Civil Action No. 2:15-cv-1455-WCB
`
`(E.D. Tex.). The deposition transcript contains confidential information
`
`regarding financials, sales, and marketing of Petitioner’s Restasis®
`
`product.
`
`2.
`
`Exhibits ALL 2046 and ALL 2063 are true and correct copies of
`
`confidential strategic marketing plans for Petitioner’s Restasis® product.
`
`The strategic plans contain confidential financial, marketing, and
`
`forecast information regarding Restasis®.
`
`3.
`
`Exhibit ALL 2051 is a true and correct copy of a confidential U.S. Profit
`
`& Loss statement for Petitioner’s Restasis® product. The Profit & Loss
`
`statement contains confidential information regarding Petitioner’s
`2
`
`
`
`
`
`Case IPR2016-01127
`Attorney Docket No: 13351-0008IP1
`
`revenues, expenses, and profits related to Restasis®.
`
`4.
`
`Exhibits ALL 2055, ALL 2056, and ALL 2057 are true and correct
`
`copies of confidential documents detailing managed care coverage for
`
`Petitioner’s Restasis® product. These documents contain confidential
`
`information regarding formulary coverage and reimbursement for
`
`Restasis® from managed care organizations.
`
`5.
`
`Exhibits ALL 2061, ALL 2062, ALL 2064, and ALL 2065 are true and
`
`correct copies of confidential marketing plans related to Petitioner’s
`
`Restasis® product. These documents contain confidential information
`
`regarding sales, marketing, and financial information regarding
`
`Restasis®.
`
`6.
`
`Exhibit ALL 2072 is a true and correct copy of a document detailing
`
`internal prescription data for Petitioner’s Restasis® product. The
`
`document contains confidential internal information regarding Restasis®
`
`prescriptions.
`
`7.
`
`Exhibit ALL 2073 is a true and correct copy of a document detailing
`
`research and development expenses Petitioner incurred in developing
`
`Restasis®. The document contains confidential information regarding
`
`Petitioner’s development expenses.
`
`3
`
`
`
`
`
`
`
`
`
`Case IPR2016-01127
`Attorney Docket No: 13351-0008IP1
`
`8.
`
`Exhibit ALL 2028 is a true and correct copy of a Declaration by Robert
`
`S. Maness, Ph.D. The document is confidential as it discusses one or
`
`more of the exhibits denoted as confidential.
`
`9.
`
`The information included in Exhibits ALL 2028, ALL 2038, ALL 2046,
`
`ALL 2051, ALL 2055, ALL 2056, ALL 2057, ALL 2061, ALL 2062,
`
`ALL 2063, ALL 2054, ALL 2065, ALL 2072, and ALL 2073 is of a
`
`truly sensitive nature, and is being offered for the sole purpose of
`
`assisting the Board with understanding Patent Owner’s arguments
`
`regarding non-obviousness.
`
`For these reasons, Patent Owner respectfully requests the Board grant this
`
`Motion to Seal.
`
`Pursuant to 37 CFR § 42.55(a), Patent Owner proposes entry of the default
`
`protective order found in Appendix B of the Trial Practice Guide.
`
` Respectfully submitted,
`
`
`
` / Dorothy P. Whelan/
`
` Dorothy P. Whelan, Reg. No. 33,814
`
` Michael J. Kane, Reg. No. 39,722
`
` Attorneys for Allergan, Inc.
`
`
`
`
`4
`
`
`
`Dated: /March 20, 2017/
`
`
`
`
`Customer Number 26171
`Fish & Richardson P.C.
`Telephone: (612) 337-2508
`Facsimile: (612) 288-9696
`
`
`
`
`
`
`
`Case IPR2016-01127
`Attorney Docket No: 13351-0008IP1
`
`DEFAULT PROTECTIVE ORDER
`
`The following Standing Protective Order will be automatically entered into the
`
`proceeding upon the filing of a petition for review or institution of a derivation:
`
`Standing Protective Order
`
`This standing protective order governs the treatment and filing of confidential
`
`information, including documents and testimony.
`
`1. Confidential information shall be clearly marked “PROTECTIVE ORDER
`
`MATERIAL.”
`
`2. Access to confidential information is limited to the following individuals who
`
`have executed the acknowledgment appended to this order:
`
`(A) Parties. Persons who are owners of a patent involved in the proceeding
`
`and other persons who are named parties to the proceeding.
`
`(B) Party Representatives. Representatives of record for a party in the
`
`proceeding.
`
`(C) Experts. Retained experts of a party in the proceeding who further
`
`certify in the Acknowledgement that they are not a competitor to any
`
`party, or a consultant for, or employed by, such a competitor with
`
`respect to the subject matter of the proceeding.
`
`(D) In-house counsel. In-house counsel of a party.
`
`
`
`5
`
`
`
`Case IPR2016-01127
`Attorney Docket No: 13351-0008IP1
`
`(E) Other Employees of a Party. Employees, consultants or other persons
`
`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 disclosure to that person shall have the burden of proving that
`
`such person should be restricted from access to confidential information.
`
`(F) The Office. Employees and representatives of the Office who have a
`
`need for access to the confidential information 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 clerical staff, other support personnel, court reporters, and other
`
`persons acting on behalf of the Office.
`
`(G) Support Personnel. Administrative assistants, 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 they are
`
`supporting who receives confidential information.
`6
`
`
`
`
`
`
`
`Case IPR2016-01127
`Attorney Docket No: 13351-0008IP1
`
`3. Persons receiving confidential information shall use reasonable efforts to
`
`maintain the confidentiality of the information, including:
`
`(A) Maintaining such information in a secure location to which persons not
`
`authorized to receive the information shall not have access;
`
`(B) Otherwise using reasonable efforts to maintain the confidentiality of the
`
`information, which efforts shall be no less rigorous than those the
`
`recipient uses to maintain the confidentiality of information not received
`
`from the disclosing party;
`
`(C) Ensuring that support personnel of the recipient who have access to the
`
`confidential information understand and abide by the obligation to
`
`maintain the confidentiality of information received that is designated as
`
`confidential; and
`
`(D) Limiting the copying of confidential information to a reasonable number
`
`of copies needed for conduct of the proceeding and maintaining a record
`
`of the locations of such copies.
`
`4. Persons receiving confidential information shall use the following procedures
`
`to maintain the confidentiality of the information:
`
`(A) Documents and Information Filed With the Board.
`
`(i) A party may file documents or information with the Board
`
`under seal, together with a non-confidential description of the
`7
`
`
`
`
`
`
`
`Case IPR2016-01127
`Attorney Docket No: 13351-0008IP1
`
`nature of the confidential information that is under seal and
`
`the reasons why the information is confidential and should
`
`not be made available to the public. The submission shall be
`
`treated as confidential and remain under seal, unless, upon
`
`motion of a party and after a hearing on the issue, or sua
`
`sponte, the Board determines that the documents or
`
`information do not to qualify for confidential treatment.
`
`(ii)
`
` Where confidentiality is alleged as to some but not all of the
`
`information submitted to the Board, the submitting party shall
`
`file confidential and non-confidential versions of its
`
`submission, together with a Motion to Seal the confidential
`
`version setting forth the reasons why the information redacted
`
`from the non-confidential version is confidential and should
`
`not be made available to the public. The non-confidential
`
`version of the submission shall clearly indicate the locations
`
`of information that has been redacted. The confidential
`
`version of the submission shall be filed under seal. The
`
`redacted information shall remain under seal unless, upon
`
`motion of a party and after a hearing on the issue, or sua
`
`8
`
`
`
`
`
`
`
`Case IPR2016-01127
`Attorney Docket No: 13351-0008IP1
`
`sponte, the Board determines that some or all of the redacted
`
`information does not qualify for confidential treatment.
`
`(B) Documents and Information Exchanged Among the Parties. Information
`
`designated as confidential that is disclosed to another party during
`
`discovery or other proceedings before the Board shall be clearly marked
`
`as “PROTECTIVE ORDER MATERIAL” and shall be produced in a
`
`manner that maintains its confidentiality.
`
`5. (j) Standard Acknowledgement of Protective Order. The following form may
`
`be used to acknowledge a protective order and gain access to information
`
`covered by the protective order:
`
`9
`
`
`
`
`
`
`
`
`
`
`Case IPR2016-01127
`Attorney Docket No: 13351-0008IP1
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________________
`
`MYLAN PHARMACEUTICALS INC.,
`Petitioner
`
`v.
`
`ALLERGAN, INC.
`Patent Owner
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2016-01127
`Patent 8,685,930
`
`
`
`
`
`
`
`
`
`
`Standard Acknowledgment for Access to Protective Order Material
`
`
`
`I __________________________________________, affirm that I have read the
`
`Protective Order; that I will abide by its terms; that I will use the confidential
`
`information 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
`10
`
`
`
`
`
`
`this proceeding; that prior to any disclosure to such support staff I informed or will
`
`Case IPR2016-01127
`Attorney Docket No: 13351-0008IP1
`
`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.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By
`
`Date:
`
`
`
`11
`
`
`
`Case IPR2016-01127
`Attorney Docket No: 13351-0008IP1
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. §§ 42.6(e)(4)(i) et seq. and 42.105(b), the undersigned
`
`certifies that on March 20, 2017, a complete and entire copy of this Motion to Seal
`
`was provided by electronic service to the Petitioner by serving the correspondence
`
`address of record as follows:
`
`Steven W. Parmelee
`Michael T. Rosato
`Jad A. Mills
`Wilson Sonsini Goodrich & Rosati
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`sparmelee@wsgr.com
`mrosato@wsgr.com
`jmills@wsgr.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/Jessica K. Detko/
`
`Jessica K. Detko
`Fish & Richardson P.C.
`3200 RBC Plaza, 60 South Sixth St.
`Minneapolis, MN 55402
`(612) 337-2516
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`