UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`
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`MYLAN PHARMACEUTICALS INC.,
`Petitioner,
`
`v.
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`COSMO TECHNOLOGIES LIMITED,
`Patent Owner.
`
`
`Case IPR2017-01035
`
`Patent 9,320,716
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`
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`PETITIONER’S RESPONSE TO
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`PATENT OWNER’S MOTION TO SEAL
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`MYLAN PHARMACEUTICALS INC.,
`Petitioner,
`
`v.
`
`COSMO TECHNOLOGIES LIMITED,
`Patent Owner.
`
`
`Case IPR2017-01035
`
`Patent 9,320,716
`
`
`
`PETITIONER’S RESPONSE TO
`
`PATENT OWNER’S MOTION TO SEAL
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`
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`
`
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`
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`Pursuant to 37 C.F.R. § 42.25(a)(1), Petitioner Mylan Pharmaceuticals Inc.
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`(“Mylan” or “Petitioner’) hereby responds to Patent Owner Cosmo Technologies
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`Ltd.’s (“Cosmo” or “Patent Owner”) Motion to Seal and for Entry of a Protective
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`Order (Paper 9). Patent Owner’s Motion attempts to seal excerpts from the trial
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`transcript in Cosmo Techs. Ltd. v. Actavis Labs. FL, No. 15-164-LPS (D. Del. May
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`23, 2017) (the “Transcript”) (Exhibit 2025) and the Patent Owner’s Preliminary
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`Response (“Preliminary Response”) (Paper 7). While Petitioner does not oppose
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`that Exhibit 2025 and the Preliminary Response should be sealed, Petitioner files
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`this motion to clarify the record and respond to certain issues raised by Patent
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`Owner’s Motion to Seal.
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`Patent Owner’s Motion to Seal states there is good cause to seal the
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`Transcript and portions of the Patent Owner Preliminary Response because the
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`Transcript “is not available on the public docket” and because the Preliminary
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`Response “quotes the Transcript.” Paper 9 at 3. Mylan was not a party in the
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`Cosmo Techs. Ltd. v. Actavis Labs. FL case. Because Patent Owner’s grounds for
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`moving is due to presumably third party confidential information contained in a
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`trial transcript in which Petitioner is not a party, Petitioner takes no position as to
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`whether Exhibit 2025 and any description of Exhibit 2025 by Patent Owner in its
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`
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`1
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`
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`Preliminary Response contains confidential information. As such, Petitioner does
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`not oppose Patent Owner’s Motion to Seal.1
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`However, as explained in Petitioner’s Motion to Seal filed on July 13, 2017
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`(Paper 11), the Preliminary Response does reveal Petitioner’s confidential
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`information regarding its ANDA product. Petitioner has identified portions of
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`Patent Owner’s Preliminary Response that reveal confidential information
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`1 As of the filing of this paper, the district court records on PACER states the
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`following with respect to the trial transcript that was filed as Exhibit 2025:
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`Official Transcript of Bench Trial - Volume B held on May 23, 2017
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`before Chief Judge Leonard P. Stark. Court Reporter Brian Gaffigan,
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`Telephone (302) 573-6360. Transcript may be viewed at the court
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`public terminal or purchased through the Court Reporter before the
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`deadline for Release of Transcript Restriction. After that date, it may
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`be obtained through PACER. Redaction Request due 7/18/2017.
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`Redacted Transcript Deadline set for 7/28/2017. Release of Transcript
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`Restriction set for 9/25/2017. (bpg)
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`Petitioner, not being a party to that trial, is not aware whether any of the parties in
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`that trial have requested redactions by July 18, 2017.
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`
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`2
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`
`
`
`
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`regarding Petitioner’s ANDA product. See Paper 11 at 3.2 Petitioner provided its
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`justification to seal these limited portions of Patent Owner’s Preliminary Response
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`to the Board in its Motion to Seal (Paper 11), and Patent Owner does not oppose
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`Petitioner’s claim that the identified portions contain Petitioner’s confidential
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`information. Paper 13 at 1.
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`Given that it was Petitioner’s confidential information at issue, Petitioner
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`was required to move to seal portions of the Preliminary Response that revealed
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`Petitioner’s confidential information. See Clio USA, Inc. v. Proctor & Gamble
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`Co., IPR2013-00438, -00448, -00450, Paper No. 51 at 3 (P.T.A.B. Sep. 29, 2014)
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`(“P&G should have been the party moving to seal . . . because it is supposedly
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`P&G’s confidential information at issue.”). Petitioner moved as soon as practical
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`as detailed in Petitioner’s Motion to Expunge. Paper 12 at 5-6.3
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`2 The portions that Petitioner seeks to redact on pages 36 and 51 of the
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`Preliminary Response are portions that Patent Owner also sought to seal and
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`redacted. See Original Redacted Preliminary Response (Paper 8) at 36, 51.
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`3 Although Patent Owner’s has attempted to recount its version of the
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`timeline of events to suggest that Petitioner was not diligent in moving for seal and
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`expunge, Patent Owner did not account for weekends and a federal holiday
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`3
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`Furthermore, 37 C.F.R. § 42.54(a) requires the movant to include “a
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`certification that the moving party has in good faith conferred or attempted to
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`confer with other affected parties in an effort to resolve the dispute.” Patent
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`Owner’s Motion to Seal includes a statement that “Patent Owner and Mylan
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`conferred regarding the entry of a protective order in this case.” Petitioner does
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`not dispute this assertion as the parties did communicate regarding the entry of a
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`protective order. Patent Owner’s Motion to Seal, however, does not include any
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`certification regarding the sealing of the Transcript and the content of Patent
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`Owner’s Preliminary Response. Indeed, Petitioner was not made aware of Patent
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`Owner’s intention to file a motion to seal.4
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`(Independence Day), and ignored the time that was required to fully meet and
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`confer on the issue. See Paper 14 at 4-5.
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`4 Petitioner is not aware whether Patent Owner has conferred with or
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`attempted to confer with the other parties affected by the submission of the
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`Transcript, defendants Actavis Laboratories FL, Inc. and Alvogen Pine Brook,
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`LLC who were parties in the Cosmo Techs. Ltd. v. Actavis Labs. FL case.
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`
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`4
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`
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`The Preliminary Response states that “Petitioner refused patent owner’s
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`request to submit under seal to the Board an underacted version of petitioner’s
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`relevant statements in this letter [EX2003].” Preliminary Response at 6. While
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`Petitioner thanks Patent Owner for meeting and conferring regarding EX2003 in
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`advance of its filing, unfortunately Patent Owner never communicated to Petitioner
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`that it intended to file the Transcript under seal, or that it would be sealing portions
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`of the Preliminary Response on the basis of the Transcript, or that Patent Owner’s
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`Preliminary Response would, in fact, contain Petitioner’s confidential information.
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`The Petitioner thanks the Board’s consideration on this matter.
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`Date: July 24, 2017
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`Respectfully submitted,
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`Alston & Bird LLP
`
`By: /Jitendra Malik/
`
`Jitendra Malik, Ph.D.
`Reg. No. 55823
`Alston & Bird LLP
`4721 Emperor Blvd., Suite 400
`Durham, NC 27703-8580
`jitty.malik@alston.com
`
`Lead Counsel for Petitioner
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`5
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`
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`CERTIFICATION OF SERVICE
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`Pursuant to 37 C.F.R. §§ 42.6(e), 42.8(b)(4) and 42.105, the undersigned
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`certifies that on the 24th day of July, 2017, a complete copy of the foregoing
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`Petitioner’s Response to Patent Owner’s Motion to Seal was served on counsel of
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`record for the Patent Owner:
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`Gary N. Frischling (Reg. No. 35,515)
`gfrischling@irell.com
`
`Yite John Lu (Reg. No. 63,158)
`yjlu@irell.com
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`CosmoIPR@irell.com
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`
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`Respectfully submitted,
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`Alston & Bird LLP
`
`By: /Jitendra Malik/
`
`Jitendra Malik, Ph.D.
`Reg. No. 55823
`Alston & Bird LLP
`4721 Emperor Blvd., Suite 400
`Durham, NC 27703-8580
`jitty.malik@alston.com
`
`Lead Counsel for Petitioner
`
`
`6
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