`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INTEL CORP., and
`CAVIUM, INC.,
`Petitioner,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner
`____________
`
`Case IPR2017-014061
`U.S. Patent No. 7,673,072
`____________
`
`MOTION TO FILE UNDER SEAL
`PURSUANT TO 37 C.F.R. §§ 42.14 AND 42.54
`
`
`1 Cavium, who filed a Petition in Case IPR2017-01707, has been joined as
`
`a petitioner in this proceeding.
`
`
`
`
`
`

`

`
`
`I.
`
`INTRODUCTION
`
`Pursuant to 37 C.F.R. §§ 42.114 and 42.54, Patent Owner Alacritech, Inc.
`
`(“PO”) respectfully moves to file Exhibit 2038 under seal. PO has good cause to
`
`request the sealing of this exhibit because it contains confidential business
`
`information of PO and third parties. Specifically, Exhibit 2038 includes a number
`
`of license agreements (each with associated payment terms) that PO regards as
`
`confidential. PO would be placed in a competitive disadvantage should the terms
`
`of these license agreements become public.
`
`Pursuant to 37 C.F.R. § 42.54, Exhibit A attached to this motion incudes a
`
`proposed protective order. PO certifies that it has conferred in good faith with
`
`Petitioner via email both on February 22, 2018 and February 23, 2018 in an effort
`
`to come to an agreement as to the scope of the proposed protective order. While
`
`Petitioner opposes the scope of the proposed protective order in Exhibit A, the
`
`parties are optimistic they will reach agreement and will submit a joint protective
`
`order as soon as possible. In the meantime, PO requests that Exhibit 2038 be
`
`sealed under the default protective order and treated as a confidential outside
`
`attorneys’ eyes only document.
`
`II. CONCLUSION
`
`For the above reasons, PO requests that the Board authorize Exhibit 2038 to
`
`be filed under seal.
`
`
`
`

`

`
`
`
`
`Date: February 23, 2018
`
` Respectfully submitted,
`
`
`By: /s/ James M. Glass, Reg. No. 46,729
`
` James M. Glass (Reg. No. 46,729)
`
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`Tel: (212) 849-7000
`Fax: (212) 849-7100
`
`Email: jimglass@quinnemanuel.com
`
`
`Lead Attorney for Patent Owner –
`Alacritech, Inc.
`
`
`
`
`
`
`
`
`
`2
`
`

`

`
`
`EXHIBIT A
`
`
`INTEL CORP., and
`CAVIUM, INC.,
`Petitioner,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2017-01406
`
`PROVISIONS FOR PROTECTING
`CONFIDENTIALITY OF INFORMATION
`REVEALED DURING BOARD PROCEEDING
`
`
`Information disclosed by any party or non-party witness during this proceeding
`may be considered confidential, a trade secret, or commercially sensitive by a party
`or witness. To preserve the confidentiality of the information so disclosed, either
`the parties have agreed to be bound by the terms of this order, in its standard form
`or as modified by agreement, and by any additional provisions to which they may
`have agreed and attached to this order, or the Board has ordered that the parties be
`bound by the provisions within. As used in this order, the term "information"
`covers both oral testimony and documentary material.
`
`
`Parties may use this standard form order as the entirety of their agreement or may
`use it as a template from which they may fashion a modified agreement. If the
`Board orders that the parties abide by the terms of this order, they may
`subsequently agree to modifications or additions, subject to Board approval.
`Agreement of the parties is indicated by the signatures of the parties' attorneys
`and/or the parties themselves at the conclusion of the order. Imposition of the
`terms by the Board is indicated by signature of a Board attorney or Administrative
`Patent Judge at the conclusion of the order. If the parties have signed the order,
`they may have created a contract. The terms are binding from the date the parties
`or their attorneys sign the order, in standard form or as modified or supplemented,
`or from the date of imposition by a Board attorney or judge.
`
`
`TERMS OF ORDER
`1) Classes of Protected Information.
`
`
`
`

`

`
`
`The Office Patent Trial Practice Guide provides that all inter partes proceeding
`files, as well as the involved patent and application files, are open to public
`inspection. The terms of this order are not to be used to undermine public access to
`files. When appropriate, however, a party or witness, on its own or through its
`attorney, may seek to protect the confidentiality of information by employing one
`of the following designations.
`
`Confidential - Material to be shielded by the Board from public access.
`Highly Confidential - Material to be shielded by the Board from public access and
`subject to agreed restrictions on access even as to the parties and/or their attorneys.
`Trade Secret/Commercially Sensitive - Material to be shielded by the Board
`from public access, restricted from any access by the parties, and available for
`review by outside counsel for the parties and, subject to the provisions of
`paragraph 4 and 5, by independent experts or consultants for the parties.
`
`2) Information Not to Be Designated as Protected.
`Information may not be designated as subject to any form of protection if it (a) is,
`or becomes, public knowledge, as shown by publicly available writings, other than
`through violation of the terms of this document; (b) is acquired by a non-
`designating party or non-party witness from a third party lawfully possessing such
`information and having no obligation to the owner of the information; (c) was
`lawfully possessed by a non-designating party or non-party witness prior to the
`opening of discovery in this proceeding, and for which there is written evidence of
`the lawful possession; (d) is disclosed by a non-designating party or non-party
`witness legally compelled to disclose the information; or (e) is disclosed by a non-
`designating party with the approval of the designating party.
`
`3) Access to Protected Information.
`The provisions of this order regarding access to protected information are subject
`to modification by written agreement of the parties or their attorneys, or by motion
`filed with and approved by the Board.
`Judges, attorneys, and other employees of the Board are bound to honor the parties'
`designations of information as protected but are not required to sign forms
`acknowledging the terms and existence of this order. Court reporters,
`stenographers, video technicians or others who may be employed by the parties or
`their attorneys to perform services incidental to this proceeding will be bound only
`to the extent that the parties or their attorneys make it a condition of employment
`or obtain agreements from such individuals, in accordance with the provisions of
`paragraph 4.
`
`
`
`ii
`
`

`

`
`
`• Parties are defined as including individuals, officers of corporations,
`partners of partnerships, and management employees of any type of business
`organization.
`• Attorneys for parties are defined as including in-house counsel and outside
`counsel , including support staff operating under counsel's direction, such as
`paralegals or legal assistants, secretaries, and any other employees or
`independent contractors operating under counsel's instruction.
`• Independent experts or consultants include individuals retained by a party
`for purposes related to prosecution or defense of the proceeding but who are
`not otherwise employees of either the party or its attorneys.
`• Non-party witnesses include any individuals to be deposed during
`discovery or trial, whether willingly or under subpoena issued by a court of
`competent jurisdiction over the witness.
`
`
`Parties and their attorneys shall have access to information designated as
`confidential or highly confidential, subject to any agreed exceptions.
`
`Outside counsel, but not in-house counsel, shall have access to information
`designated as trade secret/commercially sensitive .
`
`Independent experts or consultants, non-party witnesses, and any other
`individual not otherwise specifically covered by the terms of this order may be
`afforded access to confidential or highly confidential information in accordance
`with the terms that follow in paragraph 4. Further, independent experts or
`consultants may have access to trade secret/commercially sensitive information
`if such access is agreed to by the parties or ordered by the Board, in accordance
`with the terms that follow in paragraph 4 and 5.
`
`4) Disclosure to Any Individual.
`Prior to disclosure of protected information by any party or its attorney to any
`individual not already provided access to such information by the terms of this
`order, the individual shall be informed of the existence of this order and provided
`with a copy to read. The individual will then be required to certify in writing that
`the order has been read and understood and that the terms shall be binding on the
`individual. No individual shall receive any protected information until the party or
`attorney proposing to disclose the information has received the signed certification
`from the individual. A form for such certification is attached to this order. The
`party or attorney receiving the completed form shall retain the original.
`
`5) Disclosure to Independent Experts or Consultants.
`
`
`
`iii
`
`

`

`
`
`In addition to meeting the requirements of paragraph 4, any party or attorney
`proposing to share disclosed information with an independent expert or consultant
`must also notify the party which designated the information as protected.
`
`Notification must be personally served or forwarded by certified mail, return
`receipt requested, and shall provide notice of the name, address, occupation and
`professional background of the expert or independent consultant.
`
`The party or its attorney receiving the notice shall have ten (10) business days to
`object to disclosure to the expert or independent consultant. If objection is made,
`then the parties must negotiate the issue before raising the issue before the Board.
`If the parties are unable to settle their dispute, then it shall be the obligation of the
`party or attorney proposing disclosure to bring the matter before the Board with an
`explanation of the need for disclosure and a report on the efforts the parties have
`made to settle their dispute. The party objecting to disclosure will be expected to
`respond with its arguments against disclosure or its objections will be deemed
`waived.
`
`6) Responses to Written Discovery.
`Responses to interrogatories under Federal Rule 33 and requests for admissions
`under Federal Rule 36, and which the responding party reasonably believes to
`contain protected information shall be prominently stamped or marked with the
`appropriate designation from paragraph 1. Any inadvertent disclosure without
`appropriate designation shall be remedied as soon as the disclosing party learns of
`its error, by informing all adverse parties, in writing, of the error. The parties
`should inform the Board only if necessary because of the filing of protected
`information not in accordance with the provisions of paragraph 12.
`
`7) Production of Documents.
`If a party responds to requests for production under Federal Rule 34 by making
`copies and forwarding the copies to the inquiring party, then the copies shall be
`prominently stamped or marked, as necessary, with the appropriate designation
`from paragraph 1. If the responding party makes documents available for
`inspection and copying by the inquiring party, all documents shall be considered
`protected during the course of inspection. After the inquiring party informs the
`responding party what documents are to be copied, the responding party will be
`responsible for prominently stamping or marking the copies with the appropriate
`designation from paragraph 1. Any inadvertent disclosure without appropriate
`designation shall be remedied as soon as the disclosing party learns of its error, by
`informing all adverse parties, in writing, of the error. The parties should inform the
`
`
`
`iv
`
`

`

`
`
`Board only if necessary because of the filing of protected information not in
`accordance with the provisions of paragraph 12.
`
`8) Depositions.
`Protected documents produced during a discovery deposition, or offered into
`evidence during a testimony deposition shall be orally noted as such by the
`producing or offering party at the outset of any discussion of the document or
`information contained in the document. In addition, the documents must be
`prominently stamped or marked with the appropriate designation.
`During discussion of any non-documentary protected information, the interested
`party shall make oral note of the protected nature of the information.
`The transcript of any deposition and all exhibits or attachments shall be considered
`protected for 30 days following the date of service of the transcript by the party
`that took the deposition. During that 30-day period, either party may designate the
`portions of the transcript, and any specific exhibits or attachments, that are to be
`treated as protected, by electing the appropriate designation from paragraph 1.
`Appropriate stampings or markings should be made during this time. If no such
`designations are made, then the entire transcript and exhibits will be considered
`unprotected.
`
`9) Filing Notices of Reliance.
`When a party or its attorney files a notice of reliance during the party's testimony
`period, the party or attorney is bound to honor designations made by the adverse
`party or attorney, or non-party witness, who disclosed the information, so as to
`maintain the protected status of the information.
`
`10) Briefs.
`When filing briefs, memoranda, or declarations in support of a motion, or briefs at
`final hearing, the portions of these filings that discuss protected information,
`whether information of the filing party, or any adverse party, or any non-party
`witness, should be redacted. The rule of reasonableness for redaction is discussed
`in paragraph 12 of this order.
`
`11) Handling of Protected Information.
`Disclosure of information protected under the terms of this order is intended only
`to facilitate the prosecution or defense of this case. The recipient of any protected
`information disclosed in accordance with the terms of this order is obligated to
`maintain the confidentiality of the information and shall exercise reasonable care in
`handling, storing, using or disseminating the information.
`
`
`
`
`v
`
`

`

`
`
`12) Redaction; Filing Material With the Board.
`When a party or attorney must file protected information with the Board, or a brief
`that discusses such information, the protected information or portion of the brief
`discussing the same should be redacted from the remainder. A rule of
`reasonableness should dictate how redaction is effected.
`Redaction can entail merely covering a portion of a page of material when it is
`copied in anticipation of filing but can also entail the more extreme measure of
`simply filing the entire page under seal as one that contains primarily confidential
`material. If only a sentence or short paragraph of a page of material is confidential,
`covering that material when the page is copied would be appropriate. In contrast, if
`most of the material on the page is confidential, then filing the entire page under
`seal would be more reasonable, even if some small quantity of non-confidential
`material is then withheld from the public record. Likewise, when a multi-page
`document is in issue, reasonableness would dictate that redaction of the portions or
`pages containing confidential material be effected when only some small number
`of pages contain such material. In contrast, if almost every page of the document
`contains some confidential material, it may be more reasonable to simply submit
`the entire document under seal. Occasions when a whole document or brief must
`be submitted under seal should be very rare.
`
`Protected information, and pleadings, briefs or memoranda that reproduce, discuss
`or paraphrase such information, shall be filed with the Board under seal. The
`envelopes or containers shall be prominently stamped or marked with a legend in
`substantially the following form:
`
`CONFIDENTIAL
`This envelope contains documents or information that are subject to a protective
`order or agreement. The confidentiality of the material is to be maintained and the
`envelope is not to be opened, or the contents revealed to any individual, except by
`order of the Board.
`
`
`13) Acceptance of Information; Inadvertent Disclosure.
`Acceptance by a party or its attorney of information disclosed under designation as
`protected shall not constitute an admission that the information is, in fact, entitled
`to protection. Inadvertent disclosure of information which the disclosing party
`intended to designate as protected shall not constitute waiver of any right to claim
`the information as protected upon discovery of the error.
`
`14) Challenges to Designations of Information as Protected.
`
`
`
`vi
`
`

`

`
`
`If the parties or their attorneys disagree as to whether certain information should be
`protected, they are obligated to negotiate in good faith regarding the designation by
`the disclosing party. If the parties are unable to resolve their differences, the party
`challenging the designation may make a motion before the Board seeking a
`determination of the status of the information.
`
` A
`
` challenge to the designation of information as protected must be made
`substantially contemporaneous with the designation, or as soon as practicable after
`the basis for challenge is known. When a challenge is made long after a
`designation of information as protected, the challenging party will be expected to
`show why it could not have made the challenge at an earlier time.
`
`The party designating information as protected will, when its designation is timely
`challenged, bear the ultimate burden of proving that the information should be
`protected.
`
`15) Board's Jurisdiction; Handling of Materials After Termination.
`The Board's jurisdiction over the parties and their attorneys ends when this
`proceeding is terminated. A proceeding is terminated only after a final order is
`entered and either all appellate proceedings have been resolved or the time for
`filing an appeal has passed without filing of any appeal.
`
`The parties may agree that archival copies of evidence and briefs may be retained,
`subject to compliance with agreed safeguards. Otherwise, within 30 days after the
`final termination of this proceeding, the parties and their attorneys shall return to
`each disclosing party the protected information disclosed during the proceeding,
`and shall include any briefs, memoranda, summaries, and the like, which discuss or
`in any way refer to such information. In the alternative, the disclosing party or its
`attorney may make a written request that such materials be destroyed rather than
`returned.
`
`16) Other Rights of the Parties and Attorneys.
`This order shall not preclude the parties or their attorneys from making any
`applicable claims of privilege during discovery or at trial. Nor shall the order
`preclude the filing of any motion with the Board for relief from a particular
`provision of this order or for additional protections not provided by this order.
`
`By Agreement of the Following, effective:
`______________________
`[insert signature date]
`
`
`
`vii
`
`

`

`
`
`___________________________
`[print or type name and title of
`individual signing for defendant]
`_________________________
`[print or type name and law firm of
`attorney for defendant]
`_________________________
`[print or type name and title of
`individual signing for plaintiff]
`_________________________
`[print or type name and law firm of
`attorney for plaintiff]
`
`
`By Order of the Board, effective _____________________.
`
`
`________________________________________
`[print or type name and title of Board attorney
`or judge imposing order]
`
`
`
`
`
`
`
`
`viii
`
`

`

`
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned hereby certify that
`
`MOTION TO FILE UNDER SEAL, and all exhibits filed therewith, were served on
`
`February 23, 2018 by filing these documents through the Patent Review Processing
`
`System, as well as by e-mailing copies to:
`
`Patrick D. McPherson
`David T. Xue
`Karineh Khachatourian
`DUANE MORRIS LLP
`PDMcPherson@duanemorris.com
`DTXue@duanemorris.com
`karinehk@duanemorris.com
`
`Garland T. Stephens
`Registration No. 37,242
`garland.stephens@weil.com
`Intel.Alacritech.IPR@weil.com
`Weil, Gotshal & Manges LLP
`700 Louisiana St., Suite 1700
`Houston, TX 77002
`T: 713-546-5011
`F: 713-224-9511
`
`Jeremy Jason Lang
`Registration No. 73,604
`jason.lang@weil.com
`Anne Cappella
`Registration No. 43,217
`anne.cappella@weil.com
`Adrian Percer
`Registration No. 46,986
`adrian.percer@weil.com
`Weil, Gotshal & Manges LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`T: 650-802-3237
`F: 650-802-3100
`
`
`
`
`
`
`
`
`ix
`
`

`

`
`
`Date: February 23, 2018
`
` Respectfully submitted,
`
`By: /s/ James M. Glass, Reg. No. 46,729
`
` James M. Glass (Reg. No. 46,729)
`
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`jimglass@quinnemanuel.com
`
`Lead Attorney for Patent Owner –
`Alacritech, Inc.
`
`
`
`
`
`x
`
`