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`Paper No. __
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`SWAGWAY, LLC,
`Petitioner,
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`v.
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`DEKA PRODUCTS LIMITED PARTNERSHIP,
`Patent Owner.
`____________
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`IPR2017-00084
`Patent 6,302,230
`____________
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`Filed: October 14, 2016
`On behalf of Petitioner Swagway, LLC.
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`PETITIONER’S MOTION TO EXPUNGE
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`IPR2017-00084
`Patent 6,302,230
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`I.
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`INTRODUCTION
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`Pursuant 37 C.F.R. § 42.56, Petitioner Swagway, LLC (“Swagway”),
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`through counsel, hereby requests that certain confidential information in the record
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`be expunged. Specifically, Petitioner respectfully submits that
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`(i)
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`Confidential version of Swagway’s Reply
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`to Patent Owner’s
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`Preliminary Response (Paper No. 14);
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`(ii) Confidential version of Patent Owner’s Sur-Reply on Real Party-In-
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`Interest (Paper No. 18);
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`(iii) Confidential version of the Zhu Declaration (Ex. 1012); and
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`(iv) Zhu Deposition Transcript (Ex. 2040);
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`(collectively, the “Confidential Documents”) should be expunged from the record
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`as these pleadings and exhibits contain highly confidential personal and business
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`information.
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`The deadline for filing a motion to expunge in this case is 45 days from the
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`Final Written Decision. See Trial Practice Guide (“TP Guide”), 77 Fed. Reg.
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`48756, 48761 (Aug. 14, 2012).
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`II.
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`PRIOR AUTHORIZATION
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`Prior authorization was sought from the Board via e-mail on June 5, 2017,
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`which was copied to counsel for Patent Owner. Permission to file this motion was
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`received via e-mail on June 9, 2017.
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`IPR2017-00084
`Patent 6,302,230
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`III. STATEMENT OF REASONS FOR RELIEF REQUESTED
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`A.
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`Procedural Background
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`Both Petitioner and Patent Owner have filed motions to seal in this
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`proceeding, and requested that the Board maintain the Confidential Documents
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`under seal. The confidential information for these motions to seal stems from the
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`Zhu Declaration (Ex. 1012) and the Zhu Deposition (Ex. 2040) (collectively, the
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`“Zhu Documents,”) which were both introduced as a result of the special briefing
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`into the question of real party-in-interest, and are currently under a protective order.
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`That is, the confidential information in Swagway’s Reply to Patent Owner’s
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`Preliminary Response and Patent Owner’s Sur-Reply comes from one or both of
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`the Zhu Documents. See Paper No. 18; Paper No. 14. The Board granted Patent
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`Owner authorization to depose Mr. Zhu, via email, on February 16, 2017.
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`Petitioner designated the entirety of the transcript as confidential protective order
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`material (Ex. 2040 at 10).
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`The Zhu Documents comprise four categories of confidential information: (1)
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`Petitioner’s members’ identities; (2) Petitioner’s membership terms and business
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`strategy; (3) Petitioner’s financial information; (4) third-party confidential
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`information. See Ex. 1012, Ex. 2040. There was no opposition to any motion to
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`seal.
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`IPR2017-00084
`Patent 6,302,230
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`B. Applicable Legal Standards
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`The TP Guide provides, in pertinent part, that:
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`There is an expectation that information will be made public
`where the existence of the information is referred to . . . in a final
`written decision following a trial. A party seeking to maintain the
`confidentiality of information, however, may file a motion to expunge
`the information from the record prior to the information becoming
`public.
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`TP Guide, 77 Fed. Reg. at 48761. Additionally, 37 C.F.R. § 42.56 provides that
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`“[a]fter a denial of a petition to institute a trial or after final judgment in a trial, a
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`party may file a motion to expunge confidential information in the record.”
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`The TP Guide further explains:
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`The rule balances the needs of the parties to submit confidential
`information with the public interest in maintaining a complete and
`understandable file history for public notice purposes.
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`TP Guide, 77 Fed. Reg. at 48761.
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`C. Good Cause Exists for Expunging the Confidential Documents
`from the Record
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`Good cause exists for expunging the Confidential Documents. All of the
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`Confidential Documents contain Swagway’s highly confidential business
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`information, which Swagway guards in order to protect its own business as well as
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`its members. Specifically, the Confidential Documents contain information relating
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`to Swagway’s owner, its business strategy, Swagway’s financial information, as
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`well as confidential information of, for example, 3B Tech, Pro-Com, and several
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`IPR2017-00084
`Patent 6,302,230
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`other third-party entities. Indeed, the sensitive information has nothing to do with
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`patentability, but rather involves Swagway’s status as the real party-in-interest
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`(“RPI”). The sensitive information is Confidential Business Information (“CBI”)
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`that is regularly protected during litigation by limiting access to attorneys’ eyes
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`only. Moreover, Patent Owner is a competitor of Swagway. Granting Patent Owner
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`access to Petitioner’s CBI would give Patent Owner an unfair competitive
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`advantage. Likewise, granting other competitors access to Swagway’s CBI would
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`be unfair.
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`Here, the public will have a complete and understandable file history even if
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`the Confidential Documents are expunged because the public will have access to
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`the Board’s Decision Dismissing the Petition for Inter Partes Review (“Board’s
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`Decision”). In the Board’s Decision, the Board indicated exactly which portions of
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`the Zhu Documents it relied on in making the Board’s Decision. Accordingly,
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`there is no need for any additional information in the Confidential Documents, and
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`thus, there is no public interest in now making the Confidential Documents
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`publicly available. For at least these reasons, good cause exists to expunge the
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`Confidential Documents. Indeed, except the Zhu Deposition, there has already
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`been a redacted version filed of each of the Confidential Documents. Therefore,
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`expunging the Confidential Documents would not unduly harm the record.
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`With respect to the Zhu Deposition, should the court rule that it should not
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`IPR2017-00084
`Patent 6,302,230
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`be expunged, Swagway requests permission to file a redacted version of that
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`document.
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`IV. CONCLUSION
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`Petitioner respectfully requests that the Board protect Petitioner’s highly
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`confidential business information and expunge the Confidential Documents
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`pursuant to 37 C.F.R. § 42.56.
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`Respectfully submitted,
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`/Jeff Pearson/
`Jeff Pearson, Reg. No. 54,657
`Lei Mei, Reg. No. 56,913
`MEI & MARK LLP
`P.O. Box 65981
`Washington, DC 20035
`Telephone: 888-860-5678
`Facsimile: 888-706-1173
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`Counsel for Petitioner
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`5
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`Dated: June 9, 2017
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`(Trial No. IPR2017-00084)
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on June 9, 2017, copies of this Motion to
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`Expunge was served via e-mail to counsel for the Patent Owner, Maureen Toohey
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`at mtoohey@tooheylaw.com and Daniel Bretzius at dbretzius@tooheylaw.com
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`with Toohey Law Group LLC and Richard F. Giunta at RGuinta-
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`PTAB@wolfgreenfield.com,
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`Robert
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`E.
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`Hunt
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`at
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`RHunt-
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`PTAB@wolfgreenfield.com,
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`and Michael
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`J. Attisha
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`at MAttisha-
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`PTAB@wolfgreenfield.com with Wolf, Greenfield & Sacks, P.C.
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`/Jeff Pearson, Reg. No. 54,657/
`Jeff Pearson
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