Trials@uspto.gov
`571-272-7822
`
`Paper 79
`Entered: June 6, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACRUX DDS PTY LTD., ACRUX LIMITED, and
`ARGENTUM PHARMACEUTICALS LLC,
`Petitioner,
`v.
`KAKEN PHARMACEUTICAL CO., LTD. and VALEANT
`PHARMACEUTICALS INTERNATIONAL, INC.,
`Patent Owner.
`
`
`Case IPR2017-001901
`Patent 7,214,506 B2
`
`
`
`
`
`
`
`Before ERICA A. FRANKLIN, SUSAN L. C. MITCHELL, and
`ROBERT A. POLLOCK, Administrative Patent Judges.
`
`MITCHELL, Administrative Patent Judge.
`
`DECISION
`Motions to Seal
`37 C.F.R. §§ 42.1 and 42.54
`
`
`
`
`
`
`
`1 Case IPR2017-01429 has been joined with the instant proceeding.
`
`
`571-272-7822
`
`Paper 79
`Entered: June 6, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACRUX DDS PTY LTD., ACRUX LIMITED, and
`ARGENTUM PHARMACEUTICALS LLC,
`Petitioner,
`v.
`KAKEN PHARMACEUTICAL CO., LTD. and VALEANT
`PHARMACEUTICALS INTERNATIONAL, INC.,
`Patent Owner.
`
`
`Case IPR2017-001901
`Patent 7,214,506 B2
`
`
`
`
`
`
`
`Before ERICA A. FRANKLIN, SUSAN L. C. MITCHELL, and
`ROBERT A. POLLOCK, Administrative Patent Judges.
`
`MITCHELL, Administrative Patent Judge.
`
`DECISION
`Motions to Seal
`37 C.F.R. §§ 42.1 and 42.54
`
`
`
`
`
`
`
`1 Case IPR2017-01429 has been joined with the instant proceeding.
`
`
`
`IPR2017-00190
`Patent 7,214,506 B2
`
`
`Kaken Pharmaceutical Co., Ltd. and Valeant Pharmaceuticals
`International, Inc. (collectively, “Patent Owner”) filed three motions to seal.
`See Papers 25, 59, 72. Acrux DDS PTY Ltd. and Acrux Limited
`(collectively, “Petitioner”) filed four motions to seal. See Papers 36, 50, 62,
`77. Both parties request entry of the Board’s default protective order. See
`Paper 25, 1, 1 n.1; Paper 36, 2. None of the motions is opposed.
`We grant the parties’ request to enter the default protective order. See
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,771 (2012)
`(Appendix B: Standing Protective Order). Additionally, as discussed
`below, we grant each motion to seal.
`Discussion
`The Board’s standards for granting motions to seal are discussed in
`Garmin International v. Cuozzo Speed Technologies, LLC, IPR2012-00001
`(PTAB Mar. 14, 2013) (Paper 34). In summary, there is a strong public
`policy for making all information filed in inter partes review proceedings
`open to the public, especially because the proceeding determines the
`patentability of claims in an issued patent and, therefore, affects the rights of
`the public. Id. at slip op. 1–2. Under 35 U.S.C. § 316(a)(1) and 37 C.F.R.
`§ 42.14, the default rule is that all papers filed in an inter partes review are
`open and available for access by the public; a party, however, may file a
`concurrent motion to seal and the information at issue is sealed pending the
`outcome of the motion. It is only “confidential information” that is
`protected from disclosure. 35 U.S.C. § 316(a)(7); see Office Patent Trial
`Practice Guide, 77 Fed. Reg. 48,756, 48,760 (Aug. 14, 2012). The standard
`for granting a motion to seal is “for good cause.” 37 C.F.R. § 42.54(a). The
`party moving to seal bears the burden of proof in showing entitlement to the
`
`
`
`2
`
`
`
`IPR2017-00190
`Patent 7,214,506 B2
`
`requested relief, and must explain why the information sought to be sealed
`constitutes confidential information. 37 C.F.R. § 42.20(c).
`We remind the parties of the expectation that confidential information
`relied upon or identified in a final written decision will be made public. See
`Office Trial Practice Guide, 77 Fed. Reg. 48756, 48761 (Aug. 14, 2012).
`Confidential information that is subject to a protective order ordinarily
`becomes public 45 days after final judgment in a trial. A party seeking to
`maintain the confidentiality of the information may file a motion to expunge
`the information from the record prior to the information becoming public.
`37 C.F.R. § 42.56.
`1. Patent Owner’s Motions to Seal (Papers 25, 59, 72)
`Patent Owner moves to seal Exhibits 2093–2095, 2098, and 2099 in
`their entirety because these exhibits contain select sales and prescription data
`that constitute Patent Owner’s confidential commercial and financial
`information, which is not publicly available. See Paper 26, 3–5.
`Patent Owner also moved to seal portions of the deposition transcript
`of Mr. Staines, Exhibit 2116 (unredacted version), in which confidential and
`proprietary sales and commercial market information of Patent Owner was
`discussed. See Paper 59, 1. Patent Owner maintains that “this information
`is commercially sensitive, non-public information that only retains its value
`when treated in accordance with laws that protect such confidential
`information . . . .” Id. Patent Owner filed also a redacted, public version of
`Mr. Staines’ deposition. See Ex. 2116 (redacted version).
`Additionally, Patent Owner seeks to seal portions of “Patent Owner’s
`Opposition to Petitioners’ Motion to Exclude Evidence Submitted by Patent
`Owner Under 37 C.F.R. § 42.64(c),” Paper 69 (unredacted version)
`
`
`
`3
`
`
`
`IPR2017-00190
`Patent 7,214,506 B2
`
`(hereinafter, “Opposition”). Paper 72, 1. Patent Owner submits that these
`portions of its Opposition discuss confidential and proprietary sales and
`commercial market information of Patent Owner. Id. Patent Owner filed
`also a redacted, public version of its Opposition. See Paper 70.
`We have considered Patent Owner’s arguments for sealing Exhibits
`2093–2095, 2098, and 2099, portions of Mr. Staines’ deposition transcript,
`portions of Patent Owner’s Opposition, and the information sought to be
`sealed by Patent Owner. We determine that Patent Owner has demonstrated
`good cause for its request.
`Patent Owner’s motions to seal are granted. If the final written
`decision in this proceeding substantively relies on information in a sealed
`document, the document will be unsealed by an Order of the Board. If any
`sealed document contains information that is not substantively relied on in
`the final written decision, the sponsoring party may file a motion to expunge
`that document from the official record. See 37 C.F.R. § 42.56.
`
`Petitioner’s Motions to Seal (Papers 36, 50, 62, 77)
`2.
`Petitioner filed a motion to seal portions of Exhibit 1506 (unredacted
`version), Dr. Tatsumi’s deposition transcript; portions of Exhibit 1507
`(unredacted version), Mr. Thomas’s deposition transcript; portions of
`Exhibit 1511 (unredacted version), Mr. Staines’ rebuttal declaration; and the
`entirety of Exhibit 1663,2 all of which Patent Owner has designated as
`containing confidential information. See Paper 36, 2–3. Redacted, public
`
`
`2 Petitioner explains that Exhibit 1663 is also marked as Patent Owner’s
`Exhibit 2110, which was served on Petitioner, but not filed by Patent Owner
`as part of the record here. Paper 36, 2.
`4
`
`
`
`
`
`IPR2017-00190
`Patent 7,214,506 B2
`
`versions of each of the deposition transcripts and the declaration has also
`been filed. See Exs. 1506, 1507, 1511 (redacted versions).
`Petitioner also moved to seal portions of its Motion to Exclude
`Evidence Submitted by Patent Owner Under 37 C.F.R. § 42.64(c), Paper 52
`(unredacted version) (“Motion”), because it discusses information that has
`been designed by Patent Owner as confidential. Paper 50, 2–3. Petitioner
`also filed a redacted, public version of this Motion. See Paper 51. Petitioner
`also moves to seal portions of its Response to Patent Owner’s Motion for
`Observations on the Cross-Examination of John C. Staines, Jr., Paper No. 64
`(unredacted version) (“Response”). See Paper 62. Petitioner also filed a
`redacted, public version of its Response. See Paper 65. Finally, Petitioner
`moves to seal portions of its Reply in Support of Their Motion to Exclude
`Under 27 C.F.R. § 42.64(c), Paper 74 (unredacted version) (“Reply”). Paper
`77. Petitioner also filed a redacted, public version of its Reply. See
`Paper 75.
`We have considered Petitioner’s arguments for sealing the requested
`portions of the documents set forth above, and the information sought to be
`sealed by Petitioner. Petitioner asserts it has no independent basis for
`sealing portions of the documents designated in its four motions to seal
`described above, but relies on Patent Owner’s assertions that information
`described in the documents discussed in the portions of the documents that
`Petitioner seeks to have sealed. See Paper 36, 3; Paper 50, 2–3; Paper 62, 2–
`3; Paper 77, 2. We find that because we determined that the Patent Owner
`has demonstrated good cause for sealing these underlying exhibits discussed
`in confidential portions of Petitioner’s Response and Reply, see supra at 2–
`3, we also determine that good cause exists to seal the unredacted versions
`
`
`
`5
`
`
`
`IPR2017-00190
`Patent 7,214,506 B2
`
`of Exhibits 1506, 1507, and 1511, and Papers 52 (Motion), 64 (Response),
`and 74 (Reply) pursuant to the default protective order entered in this
`proceeding. Because Exhibit 1663 is designated as containing antifungal
`sales data of Patent Owner, we also find good cause for sealing this exhibit
`in its entirety.
`Petitioner’s motions to seal are granted. If the final written decision
`in this proceeding substantively relies on information in a sealed document,
`the document will be unsealed by an Order of the Board. If any sealed
`document contains information that is not substantively relied on in the final
`written decision, the sponsoring party may file a motion to expunge that
`document from the official record. See 37 C.F.R. § 42.56.
`ORDER
`In consideration of the foregoing, it is
`ORDERED that the Default Protective Order, see 77 Fed. Reg. at
`48,771 (Appendix B: Standing Protective Order), is hereby entered and
`shall govern the conduct of this proceeding unless otherwise modified;
`FURTHER ORDERED that Patent Owner’s Motions to Seal (Papers
`25, 59, 72) are granted;
`FURTHER ORDERED that Petitioner’s Motions to Seal (Papers 36,
`50, 62, 77) are granted; and
`FURTHER ORDERED that the following documents shall be sealed
`as “Board and Parties Only,” and will be kept under seal unless and until we
`refer to material in the papers or exhibits in a final written decision:
`Exhibits 1663, 2093–2095, 2098, and 2099; designated portions of Exhibits
`1506, 1507, 1511, and 2116; and Papers 52, 64, 69, and 74.
`
`
`
`
`
`6
`
`
`
`IPR2017-00190
`Patent 7,214,506 B2
`
`For PETITIONER:
`
`E. Anthony Figg
`Aydin H. Harston
`ROTHWELL FIGG, ERNST & MANBECK, P.C.
`effig@rothwellfigg.com
`aharston@rothwellfigg.com
`litigationparalegals@rothwellfigg.com
`
`Teresa Rea
`Shannon Lentz
`CROWELL & MORING LLP
`trea@crowell.com
`slentz@crowell.com
`
`Tyler Liu
`AGENTUM PHARMACEUTICALS, LLC
`tliu@agpharm.com
`
`
`For PATENT OWNER:
`
`John D. Livingstone
`Naoki Yoshida
`Anthony Hartman
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`John.livingstone@finnegan.com
`Naoki.yoshida@finnegan.com
`hartmana@finnegan.com
`
`Toan P. Vo
`Valeant Pharmaceuticals North America LLC
`Toan.vo@bausch.com
`
`
`
`
`7
`
`
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