`571.272.7822
`
`
`
`
`
`
` Paper No. 50
` Entered: May 16, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WATSON LABORATORIES, INC.,
`Petitioner,
`v.
`UNITED THERAPEUTICS, CORP.,
`Patent Owner.
`____________
`
`Case IPR2017-01621 and IPR2017-01622
`Patents 9,358,240 B2 and 9,339,507 B2
`____________
`
`
`Before TONI R. SCHEINER, ERICA A. FRANKLIN, and DAVID
`COTTA, Administrative Patent Judges.
`
`COTTA, Administrative Patent Judge.
`
`
`
`ORDER
`Motion to Seal
`37 C.F.R. §§ 42.14 and 42.54
`
`
`
`
`
`
`IPR2017-01621 (Patent 9,358,240 B2)
`IPR2017-01622 (Patent 9,339,507 B2)
`
`
`I.
`
`INTRODUCTION
`
`On May 4, 2018, United Technologies Corp. (“Patent Owner”) filed a
`Motion to Seal. Paper 41 (“Motion” or “Mot.”).1 The motion seeks to seal
`Exhibits 2049–2051, 2055, 2058, 2065–2068, 2071, 2074, 2075, 2083, 2088,
`2089, and portions of Exhibit 2053. Mot. 1. Patent Owner represents:
`Exhibits 2055, 2058, 2065-2068, 2071, 2074, 2075, 2088, 2089
`report marketing, sales, and pricing information for Tyvaso®
`and other United Therapeutic products. Exhibits 2049-2051 and
`2083 describe information on protocols, procedures, and data
`submitted to and held in confidence by the FDA in relation to
`the approval of Tyvaso®. Such information could be improperly
`used by competitors to gain unfair business and competitive
`advantage with customers in the marketplace, including using
`details of Patent Owner’s process for competitive commercial
`products.
`Mot. 3. Patent Owner further represents that the portions of Exhibit 2053
`that it seeks to file under seal are “narrowly limited in this motion to the
`details taken from the exhibits produced and under seal in the litigation.” Id.
`at 3–4.
`Patent Owner asserts that it has made efforts to maintain the
`confidentiality of the information and that to the best of its knowledge, “the
`information sought to be sealed by this Motion to Seal has not been
`published or otherwise made public.” Id. at 4.
`
`
`1 There are slight differences in the numbering of Papers and Exhibits in
`IPR2017-01621 and IPR2017-01622. Notwithstanding these differences, the
`papers relating to the motions addressed herein are substantively identical.
`Unless otherwise noted, for the convenience of the Board, citations to Papers
`and Exhibits referenced herein are only to IPR2017-01621, with the
`understanding that there exists a corresponding, substantively identical,
`Paper or Exhibit in IPR2017-01622.
`
`2
`
`
`
`IPR2017-01621 (Patent 9,358,240 B2)
`IPR2017-01622 (Patent 9,339,507 B2)
`
`
`Patent Owner represents that it has conferred with Petitioner and that
`Petitioner does not oppose the motion. Id.
`The standard for granting a motion to seal is “good cause.” 37 C.F.R.
`§ 42.54. There is a strong public policy that favors making information filed
`in inter partes review proceedings open to the public. See Garmin
`International v. Cuozzo Speed Technologies, LLC, Case IPR2012-00001,
`slip op. at 1-2 (PTAB March 14, 2013) (Paper 34) (discussing the standards
`of the Board applied to motions to seal). Id. at 1–2. The moving party bears
`the burden of showing that the relief requested should be granted. 37 C.F.R.
`§ 42.20(c). That includes showing that the information is truly confidential,
`and that such confidentiality outweighs the strong public interest in having
`an open record.
`Upon consideration of the parties’ arguments and the information
`sought to be redacted, Patent Owner’s motion is granted. Patent Owner has
`shown that the material it seeks to maintain under seal is of a confidential
`nature, the disclosure of which could be used by competitors to gain unfair
`business and competitive advantages. Thus, Patent Owner has shown that
`good cause exists for sealing the entirety of Exhibits 2049–2051, 2055,
`2058, 2065–2068, 2071, 2074, 2075, 2083, 2088, 2089, and portions of
`Exhibit 2053. Those exhibits shall be subject to the protective order entered
`on April 27, 2018 (Paper 36).
`Accordingly, it is hereby
`ORDERED that Patent Owner’s Motion to Seal is granted.
`
`
`
`
`3
`
`
`
`IPR2017-01621 (Patent 9,358,240 B2)
`IPR2017-01622 (Patent 9,339,507 B2)
`
`PETITIONER:
`
`Michael K. Nutter
`Andrew R. Sommer
`WINSTON & STRAWN LLP
`mnutter@winston.com
`asommer@winston.com
`
`
`PATENT OWNER:
`
`Stephen B. Maebius
`George Quillin
`FOLEY & LARDMER LLP
`smaebius@foley.com
`gquillin@foley.com
`
`Shaun R. Snader
`UNITED THERAPEUTICS CORP.
`ssnader@unither.com
`
`Douglas Carsten
`Richard Torczon
`Robert Delafield
`Veronica Ascarrunz
`WILSON, SONSINI, GOODRICH & ROSATI
`dcarsten@wsgr.com
`rtorczon@wsgr.com
`bdelafield@wsgr.com
`vascarrunz@wsgr.com
`
`4
`
`
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