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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`Paper No. ___
`Filed: December 22, 2017
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`ACRUX DDS PTY LTD., ACRUX LIMITED, and
`ARGENTUM PHARMACEUTICALS LLC,
`Petitioners,
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`v.
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`KAKEN PHARMACEUTICAL CO., LTD. and
`VALEANT PHARMACEUTICALS INTERNATIONAL, INC.,
`Patent Owner.
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`
`
`Case: IPR2017-001901
`U.S. Patent No. 7,214,506
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`PATENT OWNER’S MOTION TO SEAL
`EXHIBIT 2116
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`1 Case IPR2017-01429 has been joined with the instant proceeding.
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`Case: IPR2017-00190
`U.S. Patent No. 7,214,506
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`TABLE OF CONTENTS
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`Introduction and Statement of Relief Requested ............................................. 1
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`Standard for Granting a Motion to Seal .......................................................... 1
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`I.
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`II.
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`III. Good Cause Exists to Seal Kaken’s and Valeant’s Confidential
`Information ...................................................................................................... 3
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`IV. Certification Regarding the Public Availability of the Confidential
`Information ...................................................................................................... 5
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`V.
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`Certification ..................................................................................................... 5
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`VI. Conclusion ....................................................................................................... 6
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`Case: IPR2017-00190
`U.S. Patent No. 7,214,506
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
`Illumina, Inc. v. The Trustees of Columbia Univ.
` in the City of New York,
`IPR2012-00006, paper 64 (PTAB 2013 ........................................................... 4, 5
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`Garmin Int’l Inc. v. Cuozzo Speed Techs. LLC,
`IPR2012-00001, Paper 34 (PTAB Mar. 14, 2013) ............................................... 2
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`Regulations and Statutes
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`35 U.S.C. 316(a) ........................................................................................................ 2
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`37 C.F.R. § 42.14 ................................................................................................... 1, 2
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`37 C.F.R. § 42.54 ................................................................................................... 1, 2
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`Office Patent Trial Practice Guide,
`77 Fed. Reg. 48,756 (Aug. 14, 2012) ................................................................... 2
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`ii
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`I.
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`Case: IPR2017-00190
`U.S. Patent No. 7,214,506
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`Introduction and Statement of Relief Requested
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`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Kaken Pharmaceutical Co., Ltd.
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`and Valeant Pharmaceuticals International, Inc. (collectively “Patent Owner”)
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`respectfully move to seal portions of the deposition transcript of Mr. Staines
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`(Exhibit 2116), which is filed concurrently herewith.
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`Good cause to seal portions of this document exists because the deposition
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`of Mr. Staines includes discussions of confidential and proprietary sales and
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`commercial market information of Kaken and Valeant, which Patent Owner and
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`Petitioners have previously moved to seal. (Paper No. 25 (addressing Exhibits
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`2093-2095); Paper No. 36 (addressing, inter alia, Mr. Staines’s Declaration
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`(Exhibits 1511).) Patent Owner maintains that the this information is
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`commercially sensitive, non-public information that only retains its value when
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`treated in accordance with laws that protect such confidential information (e.g.,
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`trade secret law). Both Kaken and Valeant restrict the use of their respective
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`confidential information to avoid public disclosure. Accordingly, Patent Owner
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`files this motion to protect certain confidential information from public disclosure,
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`while allowing the parties access to that information in this proceeding.
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`II.
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`Standard for Granting a Motion to Seal
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`A motion to seal may be granted for good cause. 37 C.F.R. § 42.54. To
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`determine whether good cause exists, the Board must “strike a balance between the
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`1
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`public’s interest in maintaining a complete and understandable file history and the
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`Case: IPR2017-00190
`U.S. Patent No. 7,214,506
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`parties’ interest in protecting truly sensitive information.” Garmin Int’l, Inc. v.
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`Cuozzo Speed Techs. LLC, IPR2012-00001, Paper 34, at 2 (PTAB Mar. 14, 2013)
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`(quoting Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,760 (Aug.
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`14, 2012)). To that end, only “confidential information” may be sealed. 35 U.S.C.
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`§ 316(a)(7) (“The Director shall prescribe regulations . . . providing for protective
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`orders governing the exchange and submission of confidential information”);
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`Garmin Int’l, IPR2012-00001, Paper 34, at 2. The Office Trial Practice Guide
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`defines confidential information as follows:
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`Confidential Information: The rules identify confidential
`information in a manner consistent with Federal Rule of
`Civil Procedure 26(c)(1)(G), which provides for
`protective orders for trade secret or other confidential
`research, development, or commercial information.
`§ 42.54.
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`77 Fed. Reg. 48756, 48760 (Aug. 14, 2012).
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`Under 35 U.S.C. § 316(a)(1), a party may file a document with a concurrent
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`motion to seal, and the document will be sealed pending the outcome of the
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`motion. See also 37 C.F.R. § 42.14.
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`2
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`III. Good Cause Exists to Seal Kaken’s and Valeant’s Confidential
`Information
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`Case: IPR2017-00190
`U.S. Patent No. 7,214,506
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`Mr. Staines’s deposition contains information that Kaken and Valeant
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`contend is confidential and proprietary and only retains its value so long as it
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`remains protected from public disclosure. Otherwise, disclosure may lead to
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`competitive business harm. Accordingly, both Kaken and Valeant require certain
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`protections when using their respective confidential information and, thus in this
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`instance, seek to designate the information as “PROTECTIVE ORDER
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`MATERIAL” to be filed under seal.
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`As previously discussed in an earlier motion to seal (Paper No. 25), Exhibits
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`2093-2095 contain confidential Kaken or Valeant’s proprietary commercial and
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`financial information that, to Patent Owner’s knowledge, has not been published or
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`otherwise been made public. Specifically, Exhibits 2093-2095 are select sales and
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`prescription data that constitutes Kaken’s and Valeant’s confidential commercial
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`and financial information and is derived from confidential material provided by
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`third party health analytics companies IMS Health and Symphony Health. IMS
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`and Symphony maintain proprietary databases of information regarding various
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`pharmaceuticals, including their U.S. and international prescriptions, units, and
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`dollar sales, among other performance metrics. Exhibits 2093-2095 are selected
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`3
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`portions of these databases that constitute Valeant’s and Kaken’s confidential
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`Case: IPR2017-00190
`U.S. Patent No. 7,214,506
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`commercial and financial information.
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`In the deposition of Mr. Staines, there are discussions related to Exhibits
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`2093-2095 and Mr. Staines’s declaration testimony regarding these exhibits and
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`the confidential information therein.
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`Because public disclosure of the contents of these documents, or
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`descriptions of those contents, would disclose Kaken’s and Valeant’s confidential
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`commercial and financial information, Patent Owner requests that portions of the
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`deposition transcript of Mr. Staines (Exhibit 2116), which cites or substantially
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`describes Kaken’s or Valeant’s confidential information, be designated
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`“PROTECTIVE ORDER MATERIAL” and sealed for the duration of this
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`proceeding.
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`As Petitioners have signed the Standard Acknowledgements for Access to
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`Protective Order Material provided in the Default Protective Order, all parties to
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`the proceedings―Patent Owner and Petitioners―are able to rely on the
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`confidential information, while the motion to seal will protect the confidentiality of
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`that information.
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`The Board has granted a motion to seal under similar circumstances. In
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`Illumina, Inc. v. The Trustees of Columbia Univ. in the City of New York, IPR2012-
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`00006, paper 64 at 6 (PTAB 2013), the Board granted a Patent Owner’s motion to
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`4
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`seal certain exhibits containing confidential information, such as of Columbia’s
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`Case: IPR2017-00190
`U.S. Patent No. 7,214,506
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`licensee. Like here, the Patent Owner and licensee did not want the exhibits
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`entering the public domain, because they contained the licensee’s confidential
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`information. The Board stated that “when we consider the apparent content of the
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`exhibits, along with the parties’ representations and the reasonably limited scope of
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`the protection sought, we determine that there is good cause to grant the Motion.”
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`Id. Accordingly, the Board permitted the exhibits to be sealed, shielding the
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`information from the public, while still making it available to the parties under the
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`terms of a Protective Order. The same should be done here.
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`IV. Certification Regarding the Public Availability of the Confidential
`Information
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`Patent Owner certifies that, to the best of its knowledge, none of the
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`confidential information has previously been made publicly available.
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`V. Certification
`Patent Owner certifies that it conferred in good faith with counsel for
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`Petitioners, and Petitioners do not oppose this motion.
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`5
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`VI. Conclusion
`For these reasons, Patent Owner respectfully requests that the Board grant its
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`Case: IPR2017-00190
`U.S. Patent No. 7,214,506
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`motion to seal portions of the deposition transcript of Mr. Staines (Exhibit 2116).
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`Patent Owner is filing a redacted, public version of Exhibit 2116.
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`Respectfully submitted,
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`Dated: December 22, 2017
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`By: /John D. Livingstone/
`John D. Livingstone, Reg. No. 59, 613
`FINNEGAN, HENDERSON, FARABOW,
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`GARRETT & DUNNER, LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`(202) 408-4000
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`Counsel for Patent Owner in
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`IPR2017-00190
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`6
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`Case: IPR2017-00190
`U.S. Patent No. 7,214,506
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a copy of the foregoing Patent Owner’s
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`Motion to Seal Exhibit 2116 was served electronically via email on December 22,
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`2017, in its entirety on the following:
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`E. Anthony Figg
`Aydin H. Harston
`Lisa N. Phillips
`Rothwell, Figg, Ernst & Manbeck, P.C.
`607 14th Street, N.W., Suite 800
`Washington, DC 20005
`efigg@rothwellfigg.com
`aharston@rothwellfigg.com
`lphillips@rothwellfigg.com
`litigationparalegals@rothwellfigg.com
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`Teresa Stanek Rea
`Shannon M. Lentz
`Crowell & Moring LLP
`Intellectual Property Group
`1001 Pennsylvania Ave., NW
`Washington, DC 20004-2595
`trea@crowell.com
`slentz@crowell.com
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`Tyler C. Liu
`Argentum Pharmaceuticals, LLC
`tliu@agpharm.com
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`By: /John D. Livingstone/
`John D. Livingstone
`Reg. No. 59,613
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