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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`Case IPR2017-01053
`Patent 8,268,299
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ARGENTUM PHARMACEUTICALS LLC,
`Petitioner
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`v.
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`ALCON RESEARCH, LTD.,
`Patent Owner
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`Case IPR2017-01053
`Patent 8,268,299
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`ALCON RESEARCH, LTD.’S MOTION TO SEAL AND MOTION FOR
`ENTRY OF PROPOSED PROTECTIVE ORDER
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`Case IPR2017-01053
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`Patent 8,268,299
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`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Patent Owner Alcon Research,
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`Ltd. (“Alcon”) hereby respectfully moves to seal confidential laboratory notebooks
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`and adjunctive data (Exhibits 2008–2022), portions of the Declaration of Dr. Henry
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`Grabowski, Ph.D. (Exhibit 2029), and certain exhibits on which Dr. Grabowski
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`relied in forming his opinions (Exhibits 2040–2058). In support of this Motion,
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`Alcon is also submitting a proposed protective order (Exhibit 2140), which is the
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`Default Standing Protective Order. See 37 C.F.R. § 42.54(a).
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`A. Motion to Seal
`The standard for granting a motion to seal is “for good cause.” 37 C.F.R.
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`§ 42.54; Decision – Revised Motion to Seal, Garmin Int’l, Inc. v. Cuozzo Speed
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`Techs. LLC, Case IPR2012-00001 (JL), at 4 (Apr. 5, 2013) (hereinafter Garmin
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`Decision). Good cause exists for sealing these exhibits.
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`Laboratory notebooks and adjunctive data
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`1.
`Exhibits 2008–2022 are excerpts of confidential laboratory notebooks and
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`adjunctive data used by Alcon employees to record their research and development
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`work. These documents are being submitted in support of affidavits filed pursuant
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`to 37 C.F.R. § 42.61 describing how certain data in the specifications of Alcon
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`patents were generated. Although the data on which Alcon relies in this
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`proceeding are disclosed in public patent specifications, the documents Alcon
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`proposes to seal also disclose internal Alcon laboratory methods and practices and
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`Case IPR2017-01053
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`Patent 8,268,299
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`additional, unpublished testing data. Public disclosure of these confidential,
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`internal documents reflecting Alcon’s research and development work has the
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`potential to cause Alcon competitive harm.
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`Because the data on which Alcon relies in this proceeding are already in the
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`public record, the public’s interest in having access to these documents in order to
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`“maintain a complete and understandable file history” is minimal. Garmin
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`Decision at 8 (balancing need for confidentiality against public’s interest).
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`Moreover, pursuant to 37 C.F.R. § 42.61, these documents are being submitted in
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`conjunction with the declarations of Bhagwati Kabra, Ph.D., and Stephen Shannon,
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`MBA, Ph.D. Dr. Kabra’s and Dr. Shannon’s declarations explain the testing data
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`in the patent specification, explain in general the significance of the laboratory
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`notebooks and adjunctive data, and are not being filed under seal. Accordingly, a
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`“complete and understandable file history” will be available to the public even if
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`these exhibits are sealed.
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`2.
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`Summaries of IMS Health/IQVIA and Encuity Research
`Data
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`Exhibits 2040–2058 summarize data provided to Alcon by IMS
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`Health/IQVIA and Encuity Research. These exhibits contain data on sales, units,
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`prescriptions, and promotional spending for a number of pharmaceutical products.
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`These data were provided by IMS Health/IQVIA and Encuity Research to Alcon or
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`to counsel for Alcon pursuant to agreements to keep the data confidential. It is
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`Case IPR2017-01053
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`Patent 8,268,299
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`undersigned counsel’s understanding that IMS Health/IQVIA and Encuity
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`Research charge customers for these data, that they do not make their data
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`generally available to the public, and that they would be harmed by the public
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`disclosure of these data without a confidentiality agreement.
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`The public’s interest in having access to these exhibits is minimal. See
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`Garmin Decision at 8. These exhibits are being provided in support of the
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`declaration of Dr. Henry Grabowski, Ph.D. In conjunction with this motion, Alcon
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`is submitting a non-confidential, redacted version of Dr. Grabowski’s declaration.
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`The substance of Dr. Grabowski’s opinions can be fully ascertained from the
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`redacted declaration; the only information not reflected in the redacted declaration
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`is data from IMS Health/IQVIA and Encuity Research and Dr. Grabowski’s
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`specific calculations based on that data. Moreover, interested members of the
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`public can obtain the data in question directly from IMS Health/IQVIA and
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`Encuity Research (presumably for a fee).
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`Dr. Grabowski’s Declaration
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`3.
`Exhibit AL 2029 is the declaration of Dr. Henry Grabowski, Ph.D. This
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`exhibit discloses data (and calculations derived therefrom) obtained from IMS
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`Health/IQVIA and Encuity Research. As explained above, good cause exists to
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`seal these data, see supra Part A.2, and for the same reasons, good cause exists to
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`Case IPR2017-01053
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`Patent 8,268,299
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`seal the portions of Dr. Grabowski’s declaration which disclose these data or
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`calculations derived therefrom.
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`Proposed Protective Order
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`B.
`Pursuant to 37 C.F.R. § 42.54, Alcon is submitting a proposed protective
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`order, attached hereto as Exhibit 2140, which is the Default Standing Protective
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`Order. Alcon requests that the proposed protective order be entered and that its
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`terms govern the confidentiality of the exhibits which are the subject of this
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`motion.
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`C. Certification of Conference with Opposing Party Pursuant to 37
`C.F.R. § 42.54
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`Alcon certifies that it wrote to Argentum’s counsel on December 22, 2017
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`regarding Argentum’s consent to the entry of the proposed protective order, but did
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`not receive a response before filing this motion.
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`D. Conclusion
`For the foregoing reasons, Alcon respectfully requests that its motion to seal
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`be granted and that the PTAB enter the proposed protective order.
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`Dated: December 22, 2017
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`Respectfully submitted,
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`/David M. Krinsky/
`David M. Krinsky
`Reg. No. 72,339
`Lead Counsel for
`Patent Owner
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`Case IPR2017-01053
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`Patent 8,268,299
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`Williams & Connolly LLP
`725 Twelfth Street NW
`Washington, D.C. 20005
`202-434-5338 (Telephone)
`202-434-5029 (Facsimile)
`dkrinsky@wc.com
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`Case IPR2017-01053
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`Patent 8,268,299
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`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
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`The undersigned hereby certifies that the foregoing “ALCON RESEARCH,
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`LTD.’S MOTION TO SEAL AND MOTION FOR ENTRY OF PROPOSED
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`PROTECTIVE ORDER” was served on December 22, 2017, via electronic mail
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`upon the following attorneys of record for the Petitioner:
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`Michael R. Houston
`Joseph P. Meara
`James P. McParland
`FOLEY & LARDNER LLP
`mhouston@foley.com
`jmeara-pgp@foley.com
`jmcparland@foley.com
`ARG-travatanZ@foley.com
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`Tyler C. Liu
`ARGENTUM PHARMACEUTICALS LLC
`tliu@agpharm.com
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`Respectfully submitted,
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`/David M. Krinsky/
`David M. Krinsky
`Reg. No. 72,339
`Lead Counsel for Patent Owner
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`Dated: December 22, 2017
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