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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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`WATSON LABORATORIES, INC.
`Petitioner
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`v.
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`UNITED THERAPEUTICS CORP.
`Patent Owner
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`Patent No. 9,339,507
`Issue Date: July 13, 2017
`Title: TREPROSTINIL ADMINISTRATION BY INHALATION
`_______________
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`Inter Partes Review No. 2017-01622
`____________________________________________________________
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`PATENT OWNER’S MOTION TO FILE UNDER SEAL
`37 C.F.R. § 42.54
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`4832-8475-7344.1
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`Pursuant to 37 C.F.R. § 42.54, United Therapeutics Corporation (“Patent
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`Owner”) hereby submits this Motion to Seal certain portions of Exhibit
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`2204.
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`I. Good Cause Exists for Sealing Certain Confidential Information
`The Office Patent Trial Practice Guide provides that “the rules aim to
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`strike a balance between the public’s interest in maintaining a complete and
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`understandable file history and
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`the parties’
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`interest
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`in protecting
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`truly
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`sensitive information.” 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012). These
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`rules “identify confidential information in a manner consistent with Federal
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`Rule of Civil Procedure 26(c)(1)(G), which provides for protective orders for
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`trade secret or other confidential research, development, or commercial
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`information.” Id. (citing 37 C.F.R. § 42.54).
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`Good cause exists to support the sealing of the requested portions of Ex.
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`2204. These portions contain confidential material describing details about the
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`development of Patent Owner’s commercial product, Tyvaso®. The proposed
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`scope of confidential information in Ex. 2204 is narrowly limited in this motion to
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`details about expertise in particular areas possessed by certain inventors, and this
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`proposed scope of confidential
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`information
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`is also currently designated
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`confidential in the litigation where the deposition occurred (United Therapeutics
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`Corp. v. Watson Laboratories, Inc. (D.N.J., Civil Action No. 3:15-cv-5723)). The
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`confidential information designated by this motion could be improperly used by
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`competitors to gain unfair business and competitive advantage with customers in
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`the marketplace, including using details of Patent Owner’s development process
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`for competitive commercial products.
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`II. Certification of Non-Publication
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`On behalf of Patent Owner, undersigned counsel certifies that, to the best
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`of their knowledge, the information sought to be sealed by this Motion to Seal
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`has not been published or otherwise made public. Efforts to maintain the
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`confidentiality of this information have been undertaken by Patent Owner in
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`the related district court proceeding noted above, and such information currently
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`is under seal in that litigation.
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`III. Certification of Conference with Opposing Party Pursuant to
`37 C.F.R. § 42.54
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`Patent Owner has conferred with Petitioner about both this motion to seal
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`and the acceptance of the appended default protective order, and Petitioner has
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`consented to the default protective order attached as Appendix A.
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`IV. Proposed Protective Order
`Patent Owner submits a copy of the stipulated protective order attached
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`as Appendix A, to which both parties have agreed. It is the Default
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`Protective Order in the Office Patent Trial Practice Guide, 77 Fed. Reg.
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`4832-8475-7344.1
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`48756, 48771 (Aug. 14, 2012).
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`V. Conclusion
`For the reasons stated above, Patent Owner respectfully requests that the
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`proposed portions of Exhibit 2204 remain under seal.
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`Date: March 23, 2018
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`Respectfully submitted,
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`/Stephen B. Maebius/
`Stephen B. Maebius
`Registration No. 35,264
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`George E. Quillin
`Registration No. 32,792
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`Foley & Lardner LLP
`3000 K Street, N.W., Suite 600
`Washington, D.C. 20007
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`Shaun R. Snader
`Registration No. 59,987
`United Therapeutics Corporation
`1735 Connecticut Avenue, N.W.
`Second Floor
`Washington, DC 20009
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`Counsel for Patent Owner
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`4832-8475-7344.1
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing MOTION TO
`SEAL, is being served on March 23, 2018, by filing this document through the
`PTAB E2E System as well as delivering copies via email to the following counsel
`for the Petitioner:
`Michael K. Nutter (Reg. No. 44,979)
`WINSTON & STRAWN LLP
`35 W. Wacker Dr.
`Chicago, IL 60601
`Email: mnutter@winston.com
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`Andrew R. Sommer (Reg. No. 53,932)
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006-3817
`Email: asommer@winston.com
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`Kurt A. Mathas
`WINSTON & STRAWN LLP
`35 W. Wacker Dr.
`Chicago, IL 60601
`Email: kmathas@winston.com
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`/Stephen B. Maebius/
`Stephen B. Maebius
`Registration No. 35,264
`George E. Quillin
`Registration No. 32,792
`Shaun R. Snader
`Registration No. 59,987
` Counsel for Patent Owner
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`IPR2017-01622
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`IPR2017-01622
`Patent 9,339,507
`Patent 9,339,507
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`APPENDIX A
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`APPENDIX A
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`4832-8475-7344.1
`4832-8475-7344.1
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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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`WATSON LABORATORIES, INC.
`Petitioner
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`v.
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`UNITED THERAPEUTICS CORP.
`Patent Owner
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`Patent No. 9,339,507
`Issue Date: June 7, 2016
`Title: TREPROSTINIL ADMINISTRATION BY INHALATION
`_______________
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`Inter Partes Review No. 2017-01622
`____________________________________________________________
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`PROPOSED PROTECTIVE ORDER
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`This standing protective order governs the treatment and filing of confidential
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`information, including documents and testimony.
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`1. Confidential information shall be clearly marked “PROTECTIVE ORDER
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`MATERIAL.”
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`2. Access to confidential information is limited to the following individuals
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`who have executed the acknowledgement appended to this order:
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` (A) Parties. Persons who are owners of a patent involved in the proceeding
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`and other persons who are named parties to the proceeding.
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` (B) Party Representatives. Representatives of record for a party in the
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`proceeding.
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` (C) Experts. Retained experts of a party in the proceeding who further
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`certify in the Acknowledgement that they are not a competitor to any party, or a
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`consultant for, or employed by, such a competitor with respect to the subject matter
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`of the proceeding.
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` (D) In-house counsel. In-house counsel of a party.
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` (E) Other Employees of a Party. Employees, consultants or other persons
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`performing work for a party, other than in-house counsel and in-house counsel’s
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`support staff, who sign the Acknowledgement shall be extended access to
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`confidential information only upon agreement of the parties or by order of the Board
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`upon a motion brought by the party seeking to disclose confidential information to
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`that person. The party opposing disclosure to that person shall have the burden of
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`proving that such person shall be restricted from access to confidential information.
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` (F) The Office. Employees and representatives of the Office who have a
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`need for access to the confidential information shall have such access without the
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`requirement to sign an Acknowledgement. Such employees and representatives shall
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`include the Director, members of the Board and their clerical staff, other support
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`personnel, court reporters, and other persons acting on behalf of the Office.
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` (G) Support Personnel. Administrative assistants, clerical staff, court
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`reporters and other support personnel of the foregoing persons who are reasonably
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`necessary to assist those persons in the proceeding shall not be required to sign an
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`Acknowledgement, but shall be informed of the terms and requirements of the
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`Protective Order by the person they are supporting who receives confidential
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`information.
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`3. Persons receiving confidential information shall use reasonable efforts to
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`maintain the confidentiality of the information, including:
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` (A) Maintaining such information in a secure location to which persons not
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`authorized to receive the information shall not have access;
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` (B) Otherwise using reasonable efforts to maintain the confidentiality of
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`the information, which efforts shall be no less rigorous than those the recipient uses
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`to maintain the confidentiality of information not received from the disclosing party;
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` (C) Ensuring that support personnel of the recipient who have access to the
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`confidential information understand and abide by the obligation to maintain the
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`confidentiality of information received that is designated as confidential; and
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` (D) Limiting the copying of confidential information to a reasonable
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`number of copies needed for conduct of the proceeding and maintaining a record of
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`the locations of such copies.
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`4. Persons receiving confidential information shall use the following
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`procedures to maintain the confidentiality of the information:
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` (A) Documents and Information Filed With the Board
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` (i) A party may file documents or information with the Board
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`under seal, together with a non-confidential description of the nature of the
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`confidential information that is under seal and the reasons why the information is
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`confidential and should not be made available to the public. The submission shall be
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`treated as confidential and remain under seal, unless, upon motion of a party and
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`after a hearing on the issue, or sua sponte, the Board determines that the documents
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`or information do not to qualify for confidential treatment.
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` (ii) Where confidentiality is alleged as to some but not all of the
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`information submitted to the Board, the submitting party shall file confidential and
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`non-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 from the
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`non-confidential version is confidential and should not be made available to the
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`public. The nonconfidential version of the submission shall clearly indicate the
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`locations of information that has been redacted. The confidential version of the
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`submission shall be filed under seal. The redacted information shall remain under
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`seal unless, upon motion of a party and after a hearing on the issue, or sua sponte, the
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`Board determines that some or all of the redacted information does not qualify for
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`confidential treatment.
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` (B) Documents and Information Exchanged Among the Parties.
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`Information designated as confidential that is disclosed to another party during
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`discovery or other proceedings before the Board shall be clearly marked as
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`“PROTECTIVE ORDER MATERIAL” and shall be produced in a manner that
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`maintains its confidentiality.
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`(i) Standard Acknowledgement of Protective Order. The following form may be used
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`to acknowledge a protective order and gain access to information covered by the
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`protective order:
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`**************************
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`STANDARD ACKNOWLEDGMENT FOR
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`ACCESS TO PROTECTIVE ORDER MATERIAL
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`I, _________________________, affirm that I have read the Protective Order;
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`that I will abide by its terms; that I will use the confidential information only in
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`connection with this proceeding and for no other purpose; that I will only allow
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`access to support staff who are reasonably necessary to assist me in this proceeding;
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`that prior to any disclosure to such support staff I informed or will inform them of
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`the requirements of the Protective Order; that I am personally responsible for the
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`requirements of the terms of the Protective Order and I agree to submit to the
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`jurisdiction of the Office and the United States District Court for the Eastern District
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`of Virginia for purposes of enforcing the terms of the Protective Order and providing
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`remedies for its breach.
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`Signed by: _______________________________
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`Title: ___________________________________
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`Company: _______________________________
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