UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MYLAN PHARMACEUTICALS INC.,
`Petitioner
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`v.
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`ALLERGAN, INC.
`Patent Owner
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`Case IPR2016-01128
`Patent 8,629,111
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`PATENT OWNER ALLERGAN, INC.’S MOTION TO SEAL
`UNDER 37 CFR §§ 42.14 and 42.55
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MYLAN PHARMACEUTICALS INC.,
`Petitioner
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`v.
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`ALLERGAN, INC.
`Patent Owner
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`Case IPR2016-01128
`Patent 8,629,111
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`PATENT OWNER ALLERGAN, INC.’S MOTION TO SEAL
`UNDER 37 CFR §§ 42.14 and 42.55
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`Case IPR2016-01128
`Attorney Docket No: 13351-0008IP2
`Pursuant to 35 U.S.C. § 316 and 37 C.F.R. §§ 42.14 and 42.55, Allergan,
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`Inc. (“Patent Owner”) respectfully submit this Motion to Seal Exhibits ALL 2028,
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`ALL 2038, ALL 2046, ALL 2051, ALL 2055, ALL 2056, ALL 2057, ALL 2061,
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`ALL 2062, ALL 2063, ALL 2054, ALL 2065, ALL 2072, and ALL 2073, which
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`are being filed concurrent with the Response to Petition and this Motion, such that
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`they are available to the Board and Parties only.
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`In support of this Motion, Patent Owner states as follows:
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`1.
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`Exhibit ALL 2038 is a true and correct copy of the deposition
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`transcript of David LeCause, Petitioner’s Vice President of U.S. Eye
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`Care Sales, taken on February 10, 2017 in Civil Action No. 2:15-cv-
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`1455-WCB (E.D. Tex.). The deposition transcript contains
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`confidential information regarding financials, sales, and marketing of
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`Petitioner’s Restasis® product.
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`2.
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`Exhibits ALL 2046 and ALL 2063 are true and correct copies of
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`confidential strategic marketing plans for Petitioner’s Restasis®
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`product. The strategic plans contain confidential financial,
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`marketing, and forecast information regarding Restasis®.
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`3.
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`Exhibit ALL 2051 is a true and correct copy of a confidential U.S.
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`Profit & Loss statement for Petitioner’s Restasis® product. The Profit
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`& Loss statement contains confidential information regarding
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`Case IPR2016-01128
`Attorney Docket No: 13351-0008IP2
`Petitioner’s revenues, expenses, and profits related to Restasis®.
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`4.
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`Exhibits ALL 2055, ALL 2056, and ALL 2057 are true and correct
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`copies of confidential documents detailing managed care coverage for
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`Petitioner’s Restasis® product. These documents contain confidential
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`information regarding formulary coverage and reimbursement for
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`Restasis® from managed care organizations.
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`5.
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`Exhibits ALL 2061, ALL 2062, ALL 2064, and ALL 2065 are true
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`and correct copies of confidential marketing plans related to
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`Petitioner’s Restasis® product. These documents contain confidential
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`information regarding sales, marketing, and financial information
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`regarding Restasis®.
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`6.
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`Exhibit ALL 2072 is a true and correct copy of a document detailing
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`internal prescription data for Petitioner’s Restasis® product. The
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`document contains confidential internal information regarding
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`Restasis® prescriptions.
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`7.
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`Exhibit ALL 2073 is a true and correct copy of a document detailing
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`research and development expenses Petitioner incurred in developing
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`Restasis®. The document contains confidential information regarding
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`Petitioner’s development expenses.
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`Case IPR2016-01128
`Attorney Docket No: 13351-0008IP2
`Exhibit ALL 2028 is a true and correct copy of a Declaration by
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`8.
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`Robert S. Maness, Ph.D. The document is confidential as it discusses
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`one or more of the exhibits denoted as confidential.
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`9.
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`The information included in Exhibits ALL 2028, ALL 2038, ALL
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`2046, ALL 2051, ALL 2055, ALL 2056, ALL 2057, ALL 2061, ALL
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`2062, ALL 2063, ALL 2054, ALL 2065, ALL 2072, and ALL 2073 is
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`of a truly sensitive nature, and is being offered for the sole purpose of
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`assisting the Board with understanding Patent Owner’s arguments
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`regarding non-obviousness.
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`For these reasons, Patent Owner respectfully requests the Board grant this
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`Motion to Seal.
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`Pursuant to 37 CFR § 42.55(a), Patent Owner proposes entry of the default
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`protective order found in Appendix B of the Trial Practice Guide.
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` Respectfully submitted,
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` / Dorothy P. Whelan/
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` Dorothy P. Whelan, Reg. No. 33,814
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` Michael J. Kane, Reg. No. 39,722
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` Attorneys for Allergan, Inc.
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`Dated: /March 20, 2017/
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`Customer Number 26171
`Fish & Richardson P.C.
`Telephone: (612) 337-2508
`Facsimile: (612) 288-9696
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`Case IPR2016-01128
`Attorney Docket No: 13351-0008IP2
`DEFAULT PROTECTIVE ORDER
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`The following Standing Protective Order will be automatically entered into the
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`proceeding upon the filing of a petition for review or institution of a derivation:
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`Standing Protective Order
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`This standing protective order governs the treatment and filing of confidential
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`information, including documents and testimony.
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`1. Confidential information shall be clearly marked “PROTECTIVE ORDER
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`MATERIAL.”
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`2. Access to confidential information is limited to the following individuals
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`who have executed the acknowledgment appended to this 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 the
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`proceeding.
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`(C) Experts. Retained experts of a party in the proceeding who further
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`certify in the Acknowledgement that they are not a competitor to any
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`party, or a consultant for, or employed by, such a competitor with
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`respect to the subject matter of the proceeding.
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`(D) In-house counsel. In-house counsel of a party.
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`(E) Other Employees of a Party. Employees, consultants or other persons
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`performing work for a party, other than in-house counsel and in-house
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`counsel’s support staff, who sign the Acknowledgement shall be
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`extended access to confidential information only upon agreement of
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`the parties or by order of the Board upon a motion brought by the
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`party seeking to disclose confidential information to that person. The
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`party 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 have a
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`need for access to the confidential information shall have such access
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`without the requirement to sign an Acknowledgement. Such
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`employees and representatives shall include the Director, members of
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`the Board and their clerical staff, other support personnel, court
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`reporters, and other persons acting on behalf of the Office.
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`(G) Support Personnel. Administrative assistants, clerical staff, court
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`reporters and other support personnel of the foregoing persons who
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`are reasonably necessary to assist those persons in the proceeding
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`shall not be required to sign an Acknowledgement, but shall be
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`informed of the terms and requirements of the Protective Order by the
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`person they are supporting who receives confidential information.
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`3. Persons receiving confidential information shall use reasonable efforts to
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`maintain the confidentiality of the information, including:
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`(A) Maintaining such information in a secure location to which persons
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`not authorized to receive the information shall not have access;
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`(B) Otherwise using reasonable efforts to maintain the confidentiality of
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`the information, which efforts shall be no less rigorous than those the
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`recipient uses to maintain the confidentiality of information not
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`received from the disclosing party;
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`(C) Ensuring that support personnel of the recipient who have access to
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`the confidential information understand and abide by the obligation to
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`maintain the confidentiality of information received that is designated
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`as confidential; and
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`(D) Limiting the copying of confidential information to a reasonable
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`number of copies needed for conduct of the proceeding and
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`maintaining a record of the locations of such copies.
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`4. 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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`Attorney Docket No: 13351-0008IP2
`(i) 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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`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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`Attorney Docket No: 13351-0008IP2
`shall be filed under seal. The redacted information shall
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`remain under seal unless, upon motion of a party and after
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`a hearing on the issue, or sua sponte, the Board determines
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`that some or all of the redacted information does not
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`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 another
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`party during discovery or other proceedings before the Board shall be
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`clearly marked as “PROTECTIVE ORDER MATERIAL” and shall
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`be produced in a manner that maintains its confidentiality.
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`5. (j) Standard Acknowledgement of Protective Order. The following form
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`may be used to acknowledge a protective order and gain access to
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`information covered by the protective order:
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`Case IPR2016-01128
`Attorney Docket No: 13351-0008IP2
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_______________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________________
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`MYLAN PHARMACEUTICALS INC.,
`Petitioner
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`v.
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`ALLERGAN, INC.
`Patent Owner
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`Case IPR2016-01128
`Patent 8,629,111
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`Standard Acknowledgment for Access to Protective Order Material
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`I __________________________________________, affirm that I have read the
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`Protective Order; that I will abide by its terms; that I will use the confidential
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`information only in connection with this proceeding and for no other purpose; that
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`I will only allow access to support staff who are reasonably necessary to assist me
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`Attorney Docket No: 13351-0008IP2
`in this proceeding; that prior to any disclosure to such support staff I informed or
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`will inform them of the requirements of the Protective Order; that I am personally
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`responsible for the requirements of the terms of the Protective Order and I agree to
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`submit to the jurisdiction of the Office and the United States District Court for the
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`Eastern District of Virginia for purposes of enforcing the terms of the Protective
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`Order and providing remedies for its breach.
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`By
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`Date:
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`Case IPR2016-01128
`Attorney Docket No: 13351-0008IP2
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR §§ 42.6(e)(4) and 42.205(b), the undersigned certifies
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`that on March 20, 2017, a complete and entire copy of this Patent Owner Allergan,
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`Inc.’s Motion to Seal was provided via electronic service, to the Petitioner by
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`serving the correspondence address of record as follows:
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`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
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` /Jessica K. Detko/
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`Jessica K. Detko
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`(612) 337-2516
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