EXHIBIT 1
`
`EXHIBIT 1
`
`

`

`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`EDWARDS LIFESCIENCES CORPORATION, EDWARDS
`LIFESCIENCES LLC, AND EDWARDS LIFESCIENCES AG
`Petitioners
`
`v.
`
`BOSTON SCIENTIFIC SCIMED, INC.
`Patent Owner
`_____________
`
`Case IPR2017-00060
`Patent 8,992,608 B2
`_____________
`
`[PROPOSED] STIPULATED PROTECTIVE ORDER
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`

`

`This standing protective order governs the treatment and filing of
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`confidential information, including documents and testimony.
`
`1.
`
`Petitioners Edwards Lifesciences Corporation and Edwards
`
`Lifesciences LLC (“Edwards”) and Patent Owner Boston Scientific Scimed, Inc.
`
`(“Boston Scientific”) are parties to a patent infringement action in the United
`
`States District Court for the District of Delaware captioned Boston Scientific Corp.,
`
`et al. v. Edwards Lifesciences Corp., et al., No. 1:16-cv-275-SLR (the “Delaware
`
`Action”). A protective order was entered in the Delaware Action (the “Delaware
`
`Protective Order,” attached hereto as Appendix A) that provides for the protection
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`of trade secret, proprietary, and other confidential research, development, financial,
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`business, or commercial information. The protective order permits the parties to
`
`use information designated pursuant to the Delaware Protective Order as
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`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or “HIGHLY
`
`CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” (collectively, “Confidential
`
`Information”) in inter partes review proceedings relating to the patents-in-suit,
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`including U.S. Patent 8,992,608. Edwards and Boston Scientific intend to use such
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`Confidential Information in this inter partes review proceeding and desire to
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`protect such information to the same extent that such information is protected by
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`the Delaware Protective Order and in accordance with the rules and guidelines
`
`issued by the Patent Trial and Appeal Board (the “Board”).
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`1
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`

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`2.
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`Any Confidential Information that a party seeks to use from the
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`Delaware Action for purposes of this proceeding shall be clearly marked
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`“PROTECTIVE ORDER MATERIAL.” Confidential Information designated in
`
`the Delaware Action shall continue to be maintained with the original
`
`confidentiality designation and shall continue to be subject to the protections
`
`provided for in the Delaware Protective Order.
`
`3.
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`Access to Confidential Information, for purposes of this proceeding, is
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`limited to the following individuals who have executed the acknowledgment
`
`appended to this order (including the acknowledgment that they are bound by the
`
`prosecution bar set forth in Paragraph 8 of the Delaware Protective Order and the
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`other provisions of the Delaware Protective Order):
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`(A)
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`Parties. Persons who are owners of a patent involved in the
`
`proceeding and other persons who are named parties to the proceedings,
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`subject to the restrictions in paragraph 3(E) below and only as permitted by
`
`the terms of the Delaware Protective Order.
`
`(B)
`
`Party Representatives. Representatives of record for a party in
`
`the proceeding and outside counsel of record in the Delaware Action who
`
`would be permitted access to Confidential Information under the Delaware
`
`Protective Order, but only as permitted by the terms of the Delaware
`
`Protective Order.
`
`2
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`

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`(C)
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`Experts. Retained experts of a party in the proceeding or in the
`
`Delaware Action who further certify in the Acknowledgement that they are
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`not a competitor to any party, or a consultant for, or employed by, such a
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`competitor with respect to the subject matter of the proceeding.
`
`(D)
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`In-house counsel. In-house counsel of a party but only as
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`permitted by the terms of the Delaware Protective Order.
`
`(E)
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`Other Employees of a Party. Employees, consultants or other
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`persons performing work for a party, other than in-house counsel and in-
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`house counsel’s support staff, who sign the Acknowledgement shall be
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`extended access to Confidential Information only upon agreement of the
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`parties or by order of the Board upon a motion brought by the party seeking
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`to disclose Confidential Information to that person. The party opposing
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`disclosure to that person shall have the burden of proving that such person
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`should be restricted from access to such information, except that, to the
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`extent disclosure to that person would not be permitted under the terms of
`
`the Delaware Protective Order, the party seeking to expand disclosure to
`
`include that person shall bear the burden of proving that such person should
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`be permitted access to such information.
`
`(F)
`
`The Office. Employees and representatives of the Office who
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`have a need for access to Confidential Information shall have such access
`
`3
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`

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`without the requirement to sign an Acknowledgement. Such employees and
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`representatives shall include the Director, members of the Board and their
`
`clerical staff, other support personnel, court reporters, and other persons
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`acting on behalf of the Office.
`
`(G)
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`Support Personnel. Administrative assistants, clerical staff,
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`court reporters and other support personnel of the foregoing persons who are
`
`reasonably necessary to assist those persons in the proceeding shall not be
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`required to sign an Acknowledgement, but shall be informed of the terms
`
`and requirements of the Protective Order by the person they are supporting
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`who receives Confidential Information.
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`4.
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`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)
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`Otherwise using reasonable efforts to maintain the
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`confidentiality of the information, which efforts shall be no less rigorous
`
`than those the recipient uses to maintain the confidentiality of information
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`not received from the disclosing party;
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`(C)
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`Ensuring that support personnel of the recipient who have
`
`access to Confidential Information understand and abide by the obligation to
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`4
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`

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`maintain the confidentiality of information received that is designated as
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`confidential; and
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`(D)
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`Limiting the copying of Confidential Information to a
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`reasonable 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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`5.
`
`Persons receiving Confidential Information shall use the following
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`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 nature of the
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`confidential information that is under seal and the reasons why the
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`information is confidential and should not be made available to the public.
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`The submission 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 issue, or sua
`
`sponte, the Board determines that the documents or information do not to
`
`qualify for confidential treatment.
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`(ii) Where confidentiality is alleged as to some but not all of the
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`information submitted to the Board, the submitting party shall file
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`confidential and non-confidential versions of its submission, together with a
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`Motion to Seal the confidential version setting forth the reasons why the
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`5
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`information redacted from the non-confidential version is confidential and
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`should not be made available to the public. The nonconfidential version of
`
`the submission shall clearly indicate the locations of information that has
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`been redacted. The confidential version of the submission shall be filed
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`under seal. The redacted information shall remain under seal unless, upon
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`motion of a party and after a hearing on the issue, or sua sponte, the Board
`
`determines that some or all of the redacted information does not qualify for
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`confidential treatment.
`
`(B)
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`Documents and Information Exchanged Among the Parties.
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`Information designated as Confidential Information that is disclosed to
`
`another party during discovery or other proceedings before the Board, and
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`that was not previously designated in the Delaware Action, shall be clearly
`
`marked as “PROTECTIVE ORDER MATERIAL,” shall retain any original
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`confidentiality designations from the Delaware Action, and shall be
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`produced in a manner that maintains its confidentiality.
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`6.
`
`The parties agree that Confidential Information will be used only in
`
`connection with this proceeding and for no other purpose, except as provided
`
`by the Delaware Protective Order, law or by the parties’ agreement.
`
`[SIGNATURE BLOCKS ON FOLLOWING PAGE]
`
`6
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`DATED: June 20, 2017
`
`/s/ Jennifer A. Sklenar
`Jennifer A. Sklenar (Reg. No. 40,205)
`Wallace Wu (Reg. No. 45,380)
`ARNOLD & PORTER KAYE
`SCHOLER LLP
`777 S. Figueroa Street, 44th Floor
`Los Angeles, CA 90017-5844
`Tel:
`(213) 243-4000
`Fax: (213) 243-4199
`
`Attorneys for Patent Owner Boston
`Scientific Scimed, Inc.
`
`/s/ Gregory S. Cordrey
`Gregory S. Cordrey (Reg. No. 44,089)
`Brian P. Egan (Reg. No. (54,866)
`Catherine Nyarady (Reg. No. 42,042)
`
`Attorneys for Petitioners
`Edwards Lifesciences Corporation,
`Edwards Lifesciences LLC, and
`Edwards Lifesciences AG
`
`SO ORDERED this
`
`day of ______________, 2017.
`
`PATENT TRIAL AND APPEAL BOARD
`
`7
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`

`

`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`EDWARDS LIFESCIENCES CORPORATION, EDWARDS
`LIFESCIENCES LLC, AND EDWARDS LIFESCIENCES AG
`Petitioners
`
`v.
`
`BOSTON SCIENTIFIC SCIMED, INC.
`Patent Owner
`_____________
`
`Case IPR2017-00060
`Patent 8,992,608 B2
`_____________
`
`Acknowledgment for Access to Protective Order Material
`
`I, __________, affirm that I have read the Protective Order; that I will abide
`
`by its terms (including the prosecution bar set forth in Paragraph 8 of the Delaware
`
`Protective Order and the other provisions of the Delaware Protective Order); that I
`
`will use 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 this proceeding; that prior to any disclosure to such
`
`support staff I informed or will 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
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`1
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`United States District Court for the Eastern District of Virginia for purposes of
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`enforcing the terms of the Protective Order and providing remedies for its breach.
`
`DATE:
`
`SIGNATURE:
`
`2
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`

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`APPENDIX A
`
`APPENDIX A
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`

`

`Case 1:16-cv-00275-SLR-SRF Document 78 Filed 01/06/17 Page 1 of 27 PageID #: 1557
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`______________________________________
`
`BOSTON SCIENTIFIC CORP. and
`BOSTON SCIENTIFIC SCIMED, INC.,
`
`
`Plaintiffs,
`
`
`
`
`
`
`
`
`C.A. No. 16-275-SLR-SRF
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`Defendant.
`______________________________________ )
`
`)
`EDWARDS LIFESCIENCES
`)
`CORPORATION, EDWARDS
`)
`LIFESCIENCES PVT, INC., and EDWARDS )
`LIFESCIENCES LLC,
`)
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`Counterclaim and Third-Party
`)
`Defendants.
`______________________________________ )
`
` [PROPOSED] STIPULATED PROTECTIVE ORDER
`
`
`
`
`
`v.
`
`
`EDWARDS LIFESCIENCES
`CORPORATION,
`
`
`Counterclaim and Third-Party
`Plaintiffs,
`
`v.
`
`
`BOSTON SCIENTIFIC CORPORATION,
`BOSTON SCIENTIFIC SCIMED, INC., and
`SADRA MEDICAL, INC.,
`
`
`
`
`Pursuant to Federal Rule of Evidence 26(c) and to facilitate the production and receipt of
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`information in discovery in this action, Plaintiffs and Counterclaim Defendants Boston Scientific
`
`Corporation and Boston Scientific Scimed, Inc., and Third-Party Defendant Sadra Medical, Inc.
`
`(collectively, “Boston Scientific”) and Defendant and Counterclaim Edwards Lifesciences
`
`Corporation and Third-Party Plaintiffs Edwards Lifesciences PVT, Inc. and Edwards
`
`01:19335783.1
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`

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`Case 1:16-cv-00275-SLR-SRF Document 78 Filed 01/06/17 Page 2 of 27 PageID #: 1558
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`Lifesciences, LLC (collectively, “Edwards”) have agreed and stipulated, through their respective
`
`counsel, to the entry of an order for the protection of trade secret, proprietary, and other
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`confidential research, development, financial, business, or commercial information that may be
`
`produced or otherwise disclosed by them during the course of this action.
`
`Upon consideration of the record and proceedings herein, the parties hereby stipulate to
`
`the following terms:
`
`1.
`
`PURPOSES AND LIMITATIONS
`
`Disclosure and discovery activity in this action are likely to involve production of
`
`confidential, proprietary, or private information for which special protection from public
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`disclosure and from use for any purpose other than those specifically set forth in this Order may
`
`be warranted. The parties acknowledge that this Order does not confer blanket protections on all
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`disclosures or responses to discovery and that the protection it affords from public disclosure and
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`use extends only to the limited information or items that are entitled to confidential treatment
`
`under the applicable legal principles.
`
`2.
`
`DEFINITIONS
`
`2.1
`
`California Action: Boston Scientific Corporation v. Edwards Lifesciences
`
`Corporation, No. 8:16-cv-0730-CJC-GJC (C.D. Cal.).
`
`2.2
`
`2.3
`
`California Party: a party to the California action.
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`Challenging Party: a Party or Non-Party that challenges the designation of
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`information or items under this Order.
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`2.4
`
`“CONFIDENTIAL” Information or Items: information (regardless of how it is
`
`generated, stored, or maintained) or tangible things that qualify for protection under Federal Rule
`
`of Civil Procedure 26(c).
`
`
`
`01:19335783.1
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`-2-
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`Case 1:16-cv-00275-SLR-SRF Document 78 Filed 01/06/17 Page 3 of 27 PageID #: 1559
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`2.5
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`Counsel (without qualifier): Outside Counsel of Record and In-House Counsel (as
`
`well as their support staff).
`
`2.6
`
`Designated In-House Counsel: In-House Counsel who seek access to “HIGHLY
`
`CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
`
`information in this matter who have responsibility for maintaining, defending, or evaluating this
`
`action, including their administrative and support staff, designated pursuant to Paragraph 7.3(b).
`
`2.7
`
`In-House Counsel: attorneys who are employees of a party to this action. In-
`
`House Counsel does not include Outside Counsel.
`
`2.8
`
`Designating Party: a Party or Non-Party that designates Disclosure or Discovery
`
`Material as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or “HIGHLY
`
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
`
`2.9
`
`Disclosure or Discovery Material: all items or information, regardless of the
`
`medium or manner in which it is generated, stored, or maintained (including, among other things,
`
`testimony, transcripts, and tangible things), that are produced or generated for purposes of
`
`litigation in this matter, including documents, data and information, answers to interrogatories,
`
`answers to deposition questions, responses to requests for admission, affidavits, expert reports,
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`any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or
`
`compilations thereof, plus testimony, conversations or presentations by parties or counsel to or in
`
`court or in other settings.
`
`2.10 Expert: a person with specialized knowledge or experience in a matter pertinent to
`
`the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or
`
`as a consultant in this action or the California Action, (2) is not a current employee of a Party or
`
`
`
`01:19335783.1
`
`-3-
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`Case 1:16-cv-00275-SLR-SRF Document 78 Filed 01/06/17 Page 4 of 27 PageID #: 1560
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`a California Party and (3) at the time of retention, is not anticipated to become an employee of a
`
`Party, a Party’s competitor, a California Party, or a California Party’s competitor.
`
`2.11
`
` “HIGHLY CONFIDENTIAL –ATTORNEYS’ EYES ONLY” or “HIGHLY
`
`CONFIDENTIAL” Information or Items: Extremely sensitive “Confidential Information or
`
`Items,” the disclosure of which to another Party or Non-Party would create a substantial risk of
`
`serious harm that could not be avoided by less restrictive means. It includes, without limitation,
`
`(1) highly sensitive settlement and/or licensing agreements (including drafts thereof) that are
`
`subject to a third-party confidentiality agreement requiring Attorneys’ Eyes Only designation;
`
`(2) highly sensitive corporate strategy data; (3) highly sensitive product information containing
`
`information not available to competitors or the public concerning present products, anticipated
`
`products or products in development; (4) pending but unpublished patent applications; and (5)
`
`other highly confidential technical, research and development, and financial information.
`
`Materials or information designated as “HIGHLY CONFIDENTIAL” will be treated the same as
`
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” under the provisions of this
`
`Protective Order and vice versa.
`
`2.12 Non-Party: any natural person, partnership, corporation, association, or other legal
`
`entity not named as a Party to this action.
`
`2.13 Outside Counsel of Record (without qualifier): attorneys and their support staff
`
`who are not employees of a party to this action or the California Action and who (i) have
`
`appeared in this action or the California Action on behalf of such party or (ii) are employed with
`
`a law firm which has appeared on behalf of that party.
`
`2.14 Party: any party to this action, including all of its officers, directors, employees,
`
`consultants, retained experts, and Outside Counsel of Record (and their support staffs).
`
`
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`01:19335783.1
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`2.15 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
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`Material in this action.
`
`2.16 Professional Vendors: persons or entities that provide litigation support services
`
`(e.g., photocopying, videotaping, translating, preparing and reviewing discovery material,
`
`exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium)
`
`and their employees and subcontractors.
`
`2.17 Protected Material: any Disclosure or Discovery Material that is designated as
`
`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY.”
`
`2.18 Receiving Party: a Party that receives Disclosure or Discovery Material from a
`
`Producing Party.
`
`3.
`
`SCOPE
`
`The protections conferred by this Stipulation and Order cover not only Protected Material
`
`(as defined above), but also (1) any information copied or extracted from Protected Material;
`
`(2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
`
`conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
`
`However, the protections conferred by this Stipulation and Order do not cover the following
`
`information: (a) any information that is in the public domain at the time of disclosure to a
`
`Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
`
`a result of publication not involving a violation of this Order, including information that has
`
`become part of the public record through trial or otherwise; and (b) any information known to the
`
`Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure
`
`
`
`01:19335783.1
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`-5-
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`from a source who obtained the information lawfully and under no obligation of confidentiality
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`to the Designating Party.
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`4.
`
`DURATION
`
`Even after final disposition of this litigation, the confidentiality obligations imposed by
`
`this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
`
`order otherwise directs. Final disposition shall be deemed to be the later of: (1) dismissal of all
`
`claims and defenses in this action, with or without prejudice; or (2) final judgment herein after
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`the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this
`
`action, including expiration of the time limits for filing any motions or applications for extension
`
`of time pursuant to applicable law.
`
`5.
`
`DESIGNATING PROTECTED MATERIAL
`
`5.1
`
`Exercise of Restraint and Care in Designating Material for Protection. Each Party
`
`or Non-Party that designates information or items for protection under this Order must take care
`
`to limit any such designation to specific material that qualifies under the appropriate standards.
`
`To the extent it is practical to do so, the Designating Party must designate for protection only
`
`those parts of material, documents, items, or oral or written communications that qualify – so
`
`that other portions of the material, documents, items, or communications for which protection is
`
`not warranted are not swept unjustifiably within the ambit of this Order.
`
`If it comes to a Designating Party’s attention that information or items that it has
`
`designated for protection do not qualify for any protection or do not qualify for the level of
`
`protection initially asserted, that Designating Party must promptly notify all other parties that it
`
`is withdrawing or altering the mistaken designation.
`
`
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`01:19335783.1
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`-6-
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`5.2 Manner and Timing of Designations. Except as otherwise provided in this Order
`
`(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
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`Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
`
`designated before the material is disclosed or produced.
`
`Designation in conformity with this Order requires:
`
`(a)
`
`for information in documentary form (e.g., paper or electronic documents, but
`
`excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
`
`Party affix the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or “HIGHLY
`
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page of the document that contains
`
`protected material.
`
`A Party or Non-Party that makes original documents or materials available for inspection
`
`need not designate them for protection until after the inspecting Party has indicated which
`
`material it would like copied and produced. During the inspection and before the designation, all
`
`of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents that it
`
`wishes to have copied and produced, the Producing Party must determine which documents, or
`
`portions thereof, qualify for protection under this Order. Then, before producing the specified
`
`documents, the Producing Party must affix the appropriate legend (“CONFIDENTIAL” or
`
`“HIGHLY CONFIDENTIAL –ATTORNEYS’ EYES ONLY”) to each page of the document
`
`that contains Protected Material.
`
`(b)
`
`for transcripts of depositions or other pretrial or trial proceedings, at the request of
`
`any party, the original and all copies of any transcript, in whole or in part, shall be marked
`
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” by the
`
`
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`01:19335783.1
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`-7-
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`Case 1:16-cv-00275-SLR-SRF Document 78 Filed 01/06/17 Page 8 of 27 PageID #: 1564
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`court reporter. This request may be made orally during the proceeding or in writing within
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`fifteen (15) days of the proceeding. Deposition transcripts shall be treated by default as
`
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the expiration of the time to
`
`make a confidentiality designation. Any portions so designated shall thereafter be treated in
`
`accordance with the terms of this Order.
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`Transcripts containing Protected Material shall have an obvious legend with the
`
`appropriate designation on the title page and every subsequent page that the transcript contains
`
`Protected Material. If only portions of a transcript are designated as Protected Material, then the
`
`title page shall be followed by a list of all pages (including line numbers as appropriate) that
`
`have been designated as Protected Material and the level of protection being asserted by the
`
`Designating Party. The Designating Party shall inform the court reporter of these requirements.
`
`(c)
`
`for information produced in some form other than documentary and for any other
`
`tangible items, that the Producing Party affix in a prominent place on the exterior of the
`
`container or containers in which the information or item is stored the legend
`
`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
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`“HIGHLY CONFIDENTIAL.” If only a portion or portions of the information or item warrant
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`protection, the Producing Party, to the extent practicable, shall identify the protected portion(s)
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`and specify the level of protection being asserted.
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`5.3
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`Failures to Designate. A failure to designate qualified information or items,
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`whether by inadvertence or otherwise, does not, standing alone, waive in whole or in part the
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`Designating Party’s right to secure protection under this Order for such material. Upon
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`subsequent correction of a designation, the Receiving Party must make reasonable efforts to
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`assure that the material is treated in accordance with any revised designations under the
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`provisions of this Order and promptly collect any copies of the material that have been provided
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`to individuals other than those authorized under Section 7 of this Order. The Designating Party
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`may also request the individuals to execute the “Acknowledgment and Agreement to Be Bound”
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`that is attached hereto as Exhibit A.
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`6.
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`CHALLENGING CONFIDENTIALITY DESIGNATIONS
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`6.1
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`Timing of Challenges. Any Party or Non-Party may challenge a designation of
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`confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
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`designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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`burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
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`challenge a confidentiality designation by electing not to mount a challenge promptly after the
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`original designation is disclosed.
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`6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
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`process by providing written notice of each designation it is challenging and describing the basis
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`for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
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`notice must recite that the challenge to confidentiality is being made in accordance with this
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`specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
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`good faith and must begin the process by conferring directly (in voice to voice dialogue; other
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`forms of communication are not sufficient) within fourteen (14) days of the date of service of
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`notice. In conferring, the Challenging Party must explain the basis for its belief that the
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`confidentiality designation was not proper and must give the Designating Party an opportunity to
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`review the designated material, to reconsider the circumstances, and, if no change in designation
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`is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to
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`the next stage of the challenge process only if it has engaged in this meet and confer process first
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`or establishes that the Designating Party is unwilling to participate in the meet and confer
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`process in a timely manner.
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`6.3
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`Judicial Intervention: Subject to Paragraph 6.2, the Challenging Party may file a
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`motion challenging a confidentiality designation if there is good cause for doing so, including a
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`challenge to the designation of a deposition transcript or any portions thereof. Any motion
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`brought pursuant to this provision must be accompanied by a competent declaration affirming
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`that the movant has complied with the meet and confer requirements imposed by Paragraph 6.2.
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`The burden of persuasion in any such challenge proceeding shall be on the Designating
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`Party. All parties shall continue to afford the material in question the level of protection to
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`which it is entitled under the Producing Party’s designation until the Court rules on the
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`challenge.
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`7.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`7.1
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`Basic Principles. A Receiving Party may use Protected Material that is disclosed
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`or produced by another Party or by a Non-Party in connection with this case only for
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`prosecuting, defending, or attempting to settle this litigation, the California Action, or any inter
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`partes review (“IPR”) proceeding involving a patent asserted in this litigation or the California
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`Action. Such Protected Material may be disclosed only to the categories of persons and under
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`the conditions described in this Order. When the litigation has been terminated, a Receiving
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`Party must comply with the provisions of Section 14 below (FINAL DISPOSITION).
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`Protected Material must be stored and maintained by a Receiving Party at a location and
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`in a secure manner that ensures that access is limited to the persons authorized under this Order.
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`7.2
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`Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
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`ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
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`disclose any information or item designated “CONFIDENTIAL” only to:
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`(a)
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`the Receiving Party’s Outside Counsel of Record; as well as employees of
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`said Outside Counsel of Record to whom it is reasonably necessary to disclose the information
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`for this litigation;
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`(b)
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`the officers, directors, and employees (including In-House Counsel) for the
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`Receiving Party (1) to whom disclosure is reasonably necessary for this litigation, and (2) who
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`have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to
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`whom the procedures set forth in paragraph 7.4(a)(1) below have been followed;
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`(c) Experts (as defined in this Order) of the Receiving Party (1) to whom
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`disclosure is reasonably necessary for purposes of this litigation, (2) who have signed the
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`“Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures
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`set forth in paragraph 7.4 (a)(1) below have been followed;
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`(d)
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`the court and its personnel;
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`(e) court reporters and their staff, including stenographic, videographic, and
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`clerical personnel;
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`(f) professional jury or trial consultants and mock jurors who have signed the
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`“Acknowledgment and Agreement to be Bound” (Exhibit A), which does not need to be
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`disclosed to the Designating Party unless the Court for good cause orders otherwise;
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`(g) Professional Vendors to whom disclosure is reasonably necessary for this
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`litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
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`which does not need to be disclosed to the Designating Party unless the Court for good cause
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`orders otherwise;
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`(h) during their depositions or in court proceedings, witnesses in this action,
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`provided that (1) such documents or information were authored by, addressed to, or received by
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`such persons or other persons employed by the same entity as such persons, or (2) such
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`documents or information were produced by or obtained from such persons or their employer;
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`and
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`(i)
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`the author or recipient of a document containing the information or a
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`custodian or other person who otherwise possessed or knew the information;
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`7.3
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`Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
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`“HIGHLY CONFIDENTIAL” Information or Items. Unless otherwise ordered by the Court or
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`permitted in writing by the Designating Party, a Receiving Party may disclose any inf