UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`BUNGIE, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`____________________
`
`Case IPR2017-01600
`Patent 6,910,069
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION FOR ENTRY OF THE PROPOSED
`STIPULATED PROTECTIVE ORDER AND TO SEAL CERTAIN
`EXHIBITS UNDER 37 C.F.R. §§ 42.14 AND 42.54
`
`
`
`
`
`
`
`
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`BUNGIE, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`____________________
`
`Case IPR2017-01600
`Patent 6,910,069
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION FOR ENTRY OF THE PROPOSED
`STIPULATED PROTECTIVE ORDER AND TO SEAL CERTAIN
`EXHIBITS UNDER 37 C.F.R. §§ 42.14 AND 42.54
`
`
`
`
`
`
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2017-01600 (U.S. Patent No. 6,910,069)
`
`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Patent Owner Acceleration Bay,
`
`LLC, (“Acceleration Bay”) hereby moves for entry of the Proposed Stipulated
`
`Protective Order and to seal portions of its Patent Owner Preliminary Response
`
`and certain Exhibits (collectively referred to herein as the “Subject Exhibits”)
`
`which are identified below:
`
`Filing/Exhibit1
`
`Content
`
`Section
`
`Paper 6
`
`
`Patent Owner
`Preliminary Response
`
`Redacted
`portion on
`pages 4, 17,
`19-26
`
`Confidential
`Information2
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project codenames
`which the third party
`has deemed
`confidential
`information.
`
`
`1 Non-confidential, redacted versions of Patent Owner’s Preliminary Response and
`
`the Subject Exhibits are concurrently filed herewith.
`
`2 Further details regarding the confidential information regarding each of the
`
`filings and exhibits identified in this chart are explained infra at § I.
`
`- 1 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2017-01600 (U.S. Patent No. 6,910,069)
`
`Filing/Exhibit1
`
`Content
`
`Section
`
`Exhibit 2004
`
`Email from counsel for
`Bungie
`
`Entirety
`
`Exhibit 2005
`
`Email from counsel for
`Bungie
`
`Entirety
`
`Exhibit 2006
`
`Declaration of Dr. Fred
`B. Holt in Support of
`Patent Owner’s
`Response (IPR2015-
`01951)
`
`¶¶ 5, 9, 18, 22,
`26, 27
`
`Confidential
`Information2
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party, which
`the third party has
`deemed confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party, which
`the third party has
`deemed confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details
`which the third party
`has deemed
`confidential
`information.
`
`- 2 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2017-01600 (U.S. Patent No. 6,910,069)
`
`Filing/Exhibit1
`
`Content
`
`Section
`
`Exhibit 2007
`
`
`Declaration of Virgil
`Bourassa in Support of
`Patent Owner’s
`Response (IPR2015-
`01951)
`
`¶¶ 2 – 4, 7, 8,
`15, 24, 25, 27,
`35, 36, 41, 42
`
`Exhibit 2008
`
`Declaration of Robert
`Abarbanel in Support
`of Patent Owner’s
`Response (IPR2015-
`01951)
`
`¶¶ 4–7, 9, 10
`
`Confidential
`Information2
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details
`which the third party
`has deemed
`confidential
`information.
`
`- 3 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2017-01600 (U.S. Patent No. 6,910,069)
`
`Confidential
`Information2
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`internal research and
`development efforts
`of a third party,
`including internal
`project code names
`and project details
`which the third party
`has deemed
`confidential
`information.
`Contains highly
`confidential
`information regarding
`personal information
`of a third party.
`
`Filing/Exhibit1
`
`Content
`
`Section
`
`Exhibit 2009
`
`Declaration of Scott
`Smith in Support of
`Patent Owner’s
`Response (IPR2015-
`01951)
`
`¶¶ 3–5
`
`Exhibit 2010
`
`
`Boeing Invention
`Disclosure Form (19
`pages)
`
`Pages 1-2, 5, 7-
`19
`
`Pages 1-19
`
`- 4 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2017-01600 (U.S. Patent No. 6,910,069)
`
`Filing/Exhibit1
`
`Content
`
`Section
`
`Page 1
`
`Confidential
`Information2
`Contains highly
`confidential
`information regarding
`business information
`of a third party,
`including
`identification of the
`third party’s potential
`and existing business
`relationships which
`the third party has
`deemed confidential
`information.
`
`I.
`
`GOOD CAUSE EXISTS FOR SEALING CERTAIN CONFIDENTIAL
`INFORMATION
`The Board’s standards for granting motions to seal are discussed in Garmin
`
`International v. Cuozzo Speed Technologies, LLC, IPR2012-00001 (Paper 34 at 4-
`
`5, Mar. 14, 2013). The standard for granting a motion to seal is “good cause.” 37
`
`C.F.R. § 42.54(a). The moving party bears the burden of showing that the relief
`
`requested should be granted. 37 C.F.R. § 42.20(c). In particular:
`
`The rules aim to strike a balance between the public’s interest in
`maintaining a complete and understandable file history and the
`parties’ interest in protecting truly sensitive information.
`*
`*
`*
`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.
`
`- 5 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2017-01600 (U.S. Patent No. 6,910,069)
`
`35 U.S.C. § 316(a)(7); 37 C.F.R. § 42.54; Office Trial and Practice Guide, 77 Fed.
`
`Reg. 48756, 48760 (Aug. 14, 2012).
`
`Acceleration Bay’s Patent Owner Preliminary Response, and the Subject
`
`Exhibits contain confidential information requiring that they be designated as
`
`“PROTECTIVE ORDER MATERIAL” under the Proposed Stipulated Protective
`
`Order (attached hereto as Exhibit 2013). The Board granted Acceleration Bay’s
`
`sealing requests regarding Exhibits 2006 - 2010 on March 23, 2017 (see Paper 108
`
`in IPR2015-01951).3
`
`The Patent Owner Preliminary Response and Subject Exhibits each contain
`
`highly confidential information of a third party. Specifically, each discuss and
`
`reveal confidential information regarding the Boeing Company’s (“Boeing”)
`
`highly confidential internal information relating to the conception and development
`
`of the subject patent including an Invention Disclosure Form by the inventors and
`
`first assignee, Boeing. The confidential information disclosed in the Patent Owner
`
`Preliminary Response, and each of the Subject Exhibits is outlined in the chart
`
`above.
`
`
`3 Acceleration Bay previously filed a motion to seal Patent Owner Exhibits 2024,
`2025, 2026, 2027, and 2028 in IPR2015-01951. Exhibits 2006, 2007, 2008, 2009
`and 2010 attached to the instant Patent Owner Preliminary Response are the same
`documents Patent Owner requested to file under seal in IPR2015-01951. See Paper
`103, Motion to Seal (IPR2015-01951); see also Paper 108, March 23, 2017 Order
`granting Patent Owner’s Motion to Seal (IPR2015-01951).
`
`- 6 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2017-01600 (U.S. Patent No. 6,910,069)
`
`The sealing of the foregoing is of particular importance because the public
`
`disclosure of such “truly sensitive information” would impact Boeing’s
`
`competitive position in the market. In particular, information regarding certain
`
`Boeing licenses, and the internal research and development efforts and strategies at
`
`Boeing, would allow competitors to access information that would significantly
`
`harm Boeing’s competitive position in the marketplace.
`
`
`
`Furthermore, and notwithstanding the foregoing, granting this Motion would
`
`not prejudice nor impact the underlying proceeding. The public’s interest in
`
`accessing the information requiring that the limited identified portions of the Patent
`
`Owner Preliminary Response, and Subject Exhibits be sealed for the purposes of
`
`the patentability of the challenged claims is unquestionably outweighed by the
`
`prejudicial effect and competitive harm of disclosing the above described
`
`confidential business information of third party, Boeing.
`
`II. CERTIFICATION OF NON-PUBLICATION
`
`To the best of Acceleration Bay’s knowledge, the confidential information
`
`contained in the Patent Owner Preliminary Response, and the Subject Exhibits has
`
`not been made publically available.
`
`- 7 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2017-01600 (U.S. Patent No. 6,910,069)
`
`III. CERTIFICATION OF CONFERENCE WITH OPPOSING PARTY
`PURSUANT TO 37 C.F.R. § 42.54
`
`Acceleration Bay met and conferred with Petitioner during the IPR2015-
`
`01951 proceeding regarding the scope of the Proposed Stipulated Protective Order.
`
`Petitioner did not object to the entry of the Proposed Stipulated Protective Order.
`
`IV. PROPOSED PROTECTIVE ORDER
`
`Acceleration Bay proposes that the Proposed Stipulated Protective Order
`
`filed in IPR2015-01951 and found in Appendix B of the Trial Practice Guide be
`
`entered. A copy of the Proposed Stipulated Protective Order is concurrently filed
`
`herewith and attached hereto as Exhibit 2013. Petitioner did not object to the entry
`
`of this version of Proposed Stipulated Protective Order in IPR2015-01951. The
`
`Board granted entry of this version of Stipulated Protective Order on March 23,
`
`2017 (see Paper 108 in IPR2015-01951).
`
`V. CONCLUSION AND RELIEF REQUESTED
`
`Accordingly, good cause exists to warrant entry of the Proposed Stipulated
`
`Protective Order and to seal Acceleration Bay’s Patent Owner Preliminary
`
`Response and the Subject Exhibits from public disclosure.
`
`
`
`
`
`- 8 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2017-01600 (U.S. Patent No. 6,910,069)
`
`Dated: October 12, 2017
`
`(Case No. IPR2017-01600)
`
`
`
`Respectfully submitted,
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`jhannah@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Tel: 650.752.1700
`Fax: 212.715.8000
`
`Jeffrey Price (Reg. No. 69,141)
`jprice@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Tel: 212.715.9185
`Fax: 212.715.8385
`
`Attorneys for Patent Owner
`
`- 9 -
`
`
`
`Motion for Entry of the Proposed Stipulated Protective Order
`IPR2017-01600 (U.S. Patent No. 6,910,069)
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that a true and
`
`correct copy of the foregoing Patent Owner’s Motion for Entry of the Proposed
`
`Stipulated Protective Order and to Seal Certain Exhibits under 37 C.F.R. §§ 42.14
`
`and 42.54 was served on October 12, 2017, by filing this document through the
`
`Patent Review Processing System as well as delivering via electronic mail upon
`
`the following counsel of record for Petitioner:
`
`Michael T. Rosato
`Andrew S. Brown
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`mrosato@wsgr.com
`asbrown@wsgr.com
`
`Eric C. Arnell
`WILSON SONSINI GOODRICH & ROSATI
`900 South Capital of Texas Hwy
`Las Cimas IV, Fifth Floor
`Austin, TX 78746-5546
`earnell@wsgr.com
`
`Counsel for Petitioner Bungie, Inc.
`
`
`
`
`10
`
`
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road,
`Menlo Park, CA 94025
`(650) 752-1700
`
`
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