EXHIBIT 2
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`EXHIBIT 2
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`EXHIBIT 2
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`DEFAULTUNITED 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
`_____________
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`[PROPOSED] STIPULATED 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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`Mail Stop PATENT BOARD
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`
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`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`
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`This standing protective order governs the treatment and filing of
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`confidential information, including documents and testimony.
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`1.
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`Petitioners Edwards Lifesciences Corporation and Edwards
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`Lifesciences LLC (“Edwards”) and Patent Owner Boston Scientific Scimed, Inc.
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`(“Boston Scientific”) are parties to a patent infringement action in the United
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`States District Court for the District of Delaware captioned Boston Scientific
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`Corp., et al. v. Edwards Lifesciences Corp., et al., No. 1:16-cv-275-SLR (the
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`“Delaware Action”). A protective order was entered in the Delaware Action (the
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`“Delaware Protective Order,” attached hereto as Appendix A) that provides for
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`the protection of trade secret, proprietary, and other confidential research,
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`development, financial, business, or commercial information. The protective order
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`permits the parties to use information designated pursuant to the Delaware
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`Protective Order as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or
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`“HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” (collectively,
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`“Confidential Information”) in inter partes review proceedings relating to the
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`patents-in-suit, including U.S. Patent 8,992,608. Edwards and Boston Scientific
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`intend to use such Confidential Information in this inter partes review proceeding
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`and desire to protect such information to the same extent that such information is
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`protected by the Delaware Protective Order and in accordance with the rules and
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`guidelines issued by the Patent Trial and Appeal Board (the “Board”).
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`1
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`1.2. Any Confidential informationInformation that a party seeks to use from
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`the Delaware Action for purposes of this proceeding shall be clearly marked
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`“PROTECTIVE ORDER MATERIAL.” Confidential Information designated in
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`the Delaware Action shall continue to be maintained with the original
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`confidentiality designation and shall continue to be subject to the protections
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`provided for in the Delaware Protective Order.
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`2.3. Access to confidential informationConfidential Information, for purposes of
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`this proceeding, is limited to the following individuals who have executed the
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`acknowledgment appended to this order (including the acknowledgment that they
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`are bound by the prosecution bar set forth in Paragraph 8 of the Delaware
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`Protective Order and the 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
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`proceeding and other persons who are named parties to the
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`proceedingproceedings, subject to the restrictions in paragraph 3(E) below
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`and only as permitted by the terms of the Delaware Protective Order.
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`(B)
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`Party Representatives. Representatives of record for a party in
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`the proceeding and outside counsel of record in the Delaware Action who
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`would be permitted access to Confidential Information under the Delaware
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`Protective Order, but only as permitted by the terms of the Delaware
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`Protective Order.
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`2
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`(C)
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`Experts. Retained experts of a party in the proceeding or in the
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`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.
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`(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.
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`(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
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`in-house counsel’’s support staff, who sign the Acknowledgement shall be
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`extended access to confidential informationConfidential Information only upon
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`agreement of the parties or by order of the Board upon a motion brought by
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`the party seeking to disclose confidential informationConfidential Information
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`to that person. The party opposing disclosure to that person shall have the
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`burden of proving that such person should be restricted from access to
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`confidential information.such information, except that, to the extent disclosure
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`to that person would not be permitted under the terms of the Delaware
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`Protective Order, the party seeking to expand disclosure to include that
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`person shall bear the burden of proving that such person should be
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`permitted access to such information.
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`3
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`(F)
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`The Office. Employees and representatives of the Office who
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`have a need for access to the confidential informationConfidential Information
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`shall have such access without the requirement to sign an
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`Acknowledgement. Such employees and representatives shall include the
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`Director, members of the Board and their clerical staff, other support
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`personnel, court reporters, and other persons acting on behalf of the Office.
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`(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
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`are reasonably necessary to assist those persons in the proceeding shall not
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`be required to sign an Acknowledgement, but shall be informed of the terms
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`and requirements of the Protective Order by the person they are supporting
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`who receives confidential informationConfidential Information.
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`3.4. Persons receiving confidential informationConfidential Information shall
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`use reasonable efforts to maintain the confidentiality of the information,
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`including:
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`(A)(A) Maintaining such information in a secure location to which
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`persons not authorized to receive the information shall not have access;
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`(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
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`4
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`
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`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
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`access to the confidential informationConfidential Information understand and
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`abide by the obligation to maintain the confidentiality of information
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`received that is designated as confidential; and
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`(D)
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`Limiting the copying of confidential informationConfidential
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`Information to a reasonable number of copies needed for conduct of the
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`proceeding and maintaining a record of the locations of such copies.
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`4.5. Persons receiving confidential informationConfidential Information shall
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`use the following procedures to maintain the confidentiality of the
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`information:
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`(A)(A) Documents and Information Filed With the Board.
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`(i)(i) A party may file documents or information with the Board under
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`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
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`5
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`sponte, the Board determines that the documents or information do not to
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`qualify for confidential treatment.
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`(ii)(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
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`a Motion to Seal the confidential version setting forth the reasons why the
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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
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`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
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`determines that some or all of the redacted information does not qualify for
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`confidential treatment.
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`(B)(B) Documents and Information Exchanged Among the Parties.
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`Information designated as confidentialConfidential Information that is
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`disclosed to another party during discovery or other proceedings before the
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`Board, and that was not previously designated in the Delaware Action, shall
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`be clearly marked as “PROTECTIVE ORDER MATERIAL”,” shall retain
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`6
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`any original confidentiality designations from the Delaware Action, and
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`shall be produced in a manner that maintains its confidentiality.
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`(j)
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`Standard Acknowledgement of Protective Order. The following form may be used
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`to acknowledge a protective order and gain access to information covered by the protective
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`order:6. The parties agree that Confidential Information will be used only in
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`connection with this proceeding and for no other purpose, except as provided
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`by the Delaware Protective Order, law or by the parties’ agreement.
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`[CAPTION]SIGNATURE BLOCKS ON FOLLOWING PAGE]
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`7
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`
`
`/G
`
`regory S. Cordrey (Reg. No. 44,089)
`Brian P. Egan (Reg. No. (54,866)
`Catherine Nyarady (Reg. No. 42,042)
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`Attorneys for Petitioners
`Edwards Lifesciences Corporation,
`Edwards Lifesciences LLC, and
`Edwards Lifesciences AG
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`DATED: ___________ __, 2017
`
`/J
`
`ennifer A. Sklenar (Reg. No. 40,205)
`Wallace Wu (Reg. No. ______)
`ARNOLD & PORTER KAYE
`SCHOLER LLP
`777 S. Figueroa Street, 44th Floor
`Los Angeles, CA 90017-5844
`Tel:
`(213) 243-4000
`Fax: (213) 243-4199
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`Attorneys for Patent Owner Boston
`Scientific Scimed, Inc.
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`SO ORDERED this
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`day of ______________, 2017.
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`PATENT TRIAL AND APPEAL BOARD
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`8
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`
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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
`_____________
`
`Standard Acknowledgment for Access to Protective Order Material
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`I I, __________, affirm that I have read the Protective Order; that I will
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`abide by its terms; that I will use the confidential information (including the prosecution
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`bar set forth in Paragraph 8 of the Delaware Protective Order and the other
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`provisions of the Delaware Protective Order); that I will use 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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`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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`1
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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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`[Signature]
`DATE:
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`SIGNATURE:
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`2
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