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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`BECTON, DICKINSON AND COMPANY,
`Petitioner,
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`v.
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`B. BRAUN MELSUNGEN AG,
`Patent Owner
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`Case IPR2017-01587
`U.S. Patent No. 9,149,626
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`PETITIONER’S MOTION TO SEAL
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`IPR2017-01587
`Petitioner’s Motion to Seal
`Petitioner Becton, Dickinson and Company (“BD” or “Petitioner”)
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`respectfully submits this Motion to Seal.
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`I. RELIEF REQUESTED
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`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, and for the reasons set forth
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`below, Petitioner Becton, Dickinson & Company hereby moves for leave to file
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`under seal the redacted information contained within Petitioner’s Reply as well as
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`the exhibits and declarations filed in connection therewith.
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`II. GOOD CAUSE FOR RELIEF REQUESTED
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`Although “the default rule is that all papers filed in an inter partes review
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`are open and available for access by the public,” a party may file a motion with the
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`Board to seal confidential information that is protected from disclosure. Garmin v.
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`Cuozzo, IPR2012-00001, Paper No. 34 (PTAB March 14, 2013). “The standard
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`for granting a motion to seal is ‘for good cause.’” Id. (quoting 37 C.F.R § 42.54).
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`The Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48760 (Aug. 14,
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`2012) states that the “rules identify confidential information in a manner consistent
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`with Federal Rule of Civil Procedure (‘FRCP’) 26(c)(1)(G), which provides for
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`protective orders for trade secret or other confidential research, development, or
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`commercial information.”
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`The Parties have conferred and agreed to the provisions of the Protective
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`Order set forth in Exhibit 2027 and have stipulated to be bound to the terms set
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`1
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`IPR2017-01587
`Petitioner’s Motion to Seal
`forth therein. Exhibit 2028 shows the proposed modifications from the Board’s
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`Default Protective Order, to which the Parties have stipulated, in redline. The
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`Protective Order provides:
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`(ii) Where confidentiality is alleged as to some but not all of the information
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`submitted to the Board, the submitting party shall file confidential and non-
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`confidential versions of its submission, together with a Motion to Seal the
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`confidential version setting forth the reasons why the information redacted
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`from the non-confidential version is confidential and should not be made
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`available to the public. The nonconfidential version of the submission shall
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`clearly indicate the locations of information that has been redacted. The
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`confidential version of the submission shall be filed under seal. The redacted
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`information shall remain under seal unless, upon motion of a party and after
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`a hearing on the issue, or sua sponte, the Board determines that some or all
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`of the redacted information does not qualify for confidential treatment.
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`(Ex. 2027).
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`Here, Exhibits 1037, 1040, 1042, 1049-1058, 1060-1065, 1067-1071, 1074-
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`1077, 1080-1086, 1088-1093, and 1097, and the redacted portions of Petitioner’s
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`Reply and the accompanying Stamm and Griffis declarations (Exhibits 1035 and
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`1036) consist of or describe certain documents that Petitioner and Patent Owner
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`have designated as PROTECTIVE ORDER MATERIAL, indicating that they
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`IPR2017-01587
`Petitioner’s Motion to Seal
`contain or reflect confidential, proprietary, trade secret, and/or commercially
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`sensitive information.
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`Generally, these documents are cited by Petitioner to rebut Patent Owner’s
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`claims of secondary considerations and, in particular, commercial success. The
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`Board has previously recognized that arguments regarding secondary
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`considerations and commercial success may require sealing of exhibits containing
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`commercially sensitive confidential information. See, e.g., Campbell Soup Co. v.
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`Gamon Plus, Inc., IPR2017-00087, Paper 70, at 3-4 (Feb. 27, 2018) (granting
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`motion to seal “consumer research and internal presentations” cited to rebut claim
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`of commercial success); Hamilton Beach Brands, Inc. v. F’real Foods, LLC,
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`IPR2016-01107, Paper 36, at 2-3 (Nov. 7, 2017) (noting that the Board “granted
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`Patent Owner’s unopposed motion to seal the confidential versions” of “various
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`exhibits related to Patent Owner’s contentions of commercial success”);
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`CaptionCall, L.L.C. v. Ultratec, Inc., IPR2015-01889, Paper No. 118, at 3-4 (Apr.
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`11, 2017) (granting petitioner’s motion to seal “various exhibits and papers
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`purportedly rebutting Patent Owner’s contentions regarding commercial success”
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`due to “the sensitive nature of the contents of the documents”); see also Fletcher v.
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`Leibu, 72 U.S.P.Q.2d 1701 (B.P.A.I. Apr. 7, 2004) (“[T]here may be confidential
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`business information which is relevant to an issue of commercial success.”).
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`IPR2017-01587
`Petitioner’s Motion to Seal
`Exhibits 1049-1055, 1057, 1071, 1085,1 1086, 1092, and 1093 are Patent
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`Owner’s documents produced in this proceeding. These documents were also
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`produced in the district court litigation between the Petitioner and Patent Owner.
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`Each document has been designated as confidential under the district court
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`protective order. The documents reflect confidential communications,
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`presentations, meeting minutes, and memoranda related to Patent Owner’s
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`products, product development, marketing plans, and market assessments.
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`Exhibits 1037, 1040, 1056, 1058, 1060-1065, 1067-1070, 1074-1077, 1080-
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`1084, 1088-1091, and 1097 are Petitioner’s documents. None of the documents
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`are relied upon by Petitioner in support of its affirmative obviousness positions.
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`Rather, these documents are cited to rebut Patent Owner’s claims of secondary
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`considerations. In particular, many of the documents are cited to rebut Patent
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`Owner’s reliance on Petitioner’s product, the Insyte Autoguard BC, in support of
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`1 In the interests of public disclosure, Petitioner conferred with Patent Owner
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`regarding apparently public information contained in Exhibit 1085. Braun
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`consented to public disclosure of pages two and three of the exhibit but requested
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`that page one remain confidential. Accordingly, page one of Exhibit 1085 has
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`been redacted.
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`IPR2017-01587
`Petitioner’s Motion to Seal
`Patent Owner’s secondary considerations claims. The documents fall under the
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`following categories:
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` Exhibits 1056, 1067, 1068, 1074, 1083, 1084, and 1097 are deposition
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`transcripts from the district court litigation between Petitioner and
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`Patent Owner. The transcripts contain significant discussion of
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`confidential product development details, market research, marketing
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`strategy, and sales and pricing strategy. Confidential information
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`permeates the entirety of the transcripts, as the depositions were
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`conducted as part of the discovery process in the district court
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`litigation. The transcripts are also designated as confidential under
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`the district court protective order.
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` Exhibits 1040, 1060, 1061, 1063, 1069, 1070, 1075, 1076, 1077,
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`1080, 1081, 1082, 1088, and 1090 are internal BD documents that
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`contain confidential information regarding product development,
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`marketing strategy, sales strategy and training, market research, and
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`competitive assessments. These documents, produced in the district
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`court litigation, are also designated as confidential under the district
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`court protective order.
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` Exhibits 1062 and 1089 are internal BD product business plans that
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`contain confidential information regarding product development and
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`IPR2017-01587
`Petitioner’s Motion to Seal
`marketing and sales strategies. These documents, produced in the
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`district court litigation, are also designated as confidential under the
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`district court protective order.
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` Exhibits 1064, 1065, and 1091 are internal BD correspondence
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`discussing sales and pricing strategies and product development.
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`These documents, produced in the district court litigation, are also
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`designated as confidential under the district court protective order.
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` Exhibit 1037 are schedules prepared in support of the Rebuttal
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`Declaration of Laura B. Stamm (Ex. 1035). These schedules detail
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`confidential sales, revenue, and costing information relating to
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`Petitioner’s and Patent Owner’s products.
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` Exhibit 1058 is the deposition transcript of Patent Owner’s expert,
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`Brian W. Napper, from the instant action. The transcript contains
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`significant discussion of confidential sales, revenue, cost, and
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`marketing details relating to Petitioner’s and Patent Owner’s products.
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`The transcript is designated Confidential under the Protective Order
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`(Ex. 2027).
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`These materials contain detailed information about Petitioner’s process for
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`designing and developing products, its market and competitor analysis, and its
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`sales and pricing strategies. Petitioner’s interest in protecting its confidential
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`IPR2017-01587
`Petitioner’s Motion to Seal
`business information outweighs the public’s interest in viewing that information.
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`See Garmin, Paper 36 at 9 (finding that the public’s interest in having access to a
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`party’s confidential business information, not related to patent validity, is
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`“minimal”).
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`Furthermore, Petitioner is seeking to seal only portions of Petitioner’s Reply
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`and the accompanying Stamm and Griffis declarations to the extent they reveal the
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`confidential information. Accordingly, Petitioner is submitting a redacted, public
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`version of Petitioner’s Reply, Rebuttal Declaration of Laura B. Stamm (Ex. 1035),
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`Supplemental Declaration of Jack Griffis, III in Support of Petitioner’s Reply and
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`Opposition to Motion to Amend (Ex. 1036) rather than sealing these documents.
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`See Office Patent Trial Practice Guide, 77 Fed. Reg. 48756-01, 48761 (Aug. 14,
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`2012) (noting that parties are encouraged “to redact sensitive information, where
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`possible, rather than seeking to seal entire documents”). Based on Patent Owner’s
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`and Petitioner’s designations, there is good cause to seal the designated
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`information and exhibits.
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`III. CERTIFICATION OF NON-PUBLICATION
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`The undersigned counsel certifies the information sought to be sealed by this
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`Motion to Seal has not, to their knowledge, been published or otherwise made
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`public. Petitioner made efforts to maintain the confidentiality of this information
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`in a related district court proceeding. In that district court proceeding, much of the
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`IPR2017-01587
`Petitioner’s Motion to Seal
`information that Petitioner presently moves to seal was produced pursuant to a
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`Protective Order agreed upon by the Parties and was designated
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`“CONFIDENTIAL OUTSIDE COUNSEL ONLY” pursuant to that Protective
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`Order.
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`IV. CONCLUSION
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`For the reasons set forth above, Petitioner respectfully requests the Board
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`grant its motion to seal.
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`Dated: July 16, 2018
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`Respectfully submitted,
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`By: /Heather M. Petruzzi/
` Heather M. Petruzzi
` Registration No. 71,270
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`Counsel for Petitioner
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