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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`———————
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`———————
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`UNIFIED PATENTS INC.
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`Petitioner
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`- vs. -
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`FALL LINE PATENTS, LLC
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`Patent Owner
`———————
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`IPR2018-00043
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`U.S. Patent 9,454,748
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`PETITIONER’S MOTION TO EXPUNGE
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`Petitioner’s Motion to Expunge
`IPR2018-00043 (U.S. Patent 9,454,748)
`Pursuant to 37 C.F.R. § 42.56, Petitioner, Unified Patents Inc. (“Unified” or
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`“Petitioner”), hereby requests that certain confidential information in the record be
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`expunged. Specifically, Petitioner respectfully submits that (i) Paper 30, Patent
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`Owner’s RPI Observations; (ii) Paper 31, Petitioner’s Response to Patent Owner’s
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`Observations; and (iii) Exhibit 2009, the transcript of the deposition of Kevin Jakel
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`(collectively, the “Confidential Documents”) should be expunged from the record
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`as these pleadings and exhibits contain Petitioner’s highly confidential business
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`information.
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`This motion is being timely filed within 45 days from the Final Written
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`Decision. See Office Patent Trial Practice Guide (“Trial Practice Guide”), 77 Fed.
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`Reg. 48756, 48761 (Aug. 14, 2012). For the reasons set forth below, Petitioner
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`requests that the Confidential Documents be expunged.
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`I. Applicable Legal Standards
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`37 C.F.R. § 42.56 provides that “[a]fter a denial of a petition to institute a
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`trial or after final judgment in a trial, a party may file a motion to expunge
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`confidential information in the record.” Likewise, the Trial Practice Guide states,
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`in pertinent part, that “There is an expectation that information will be made public
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`where the existence of the information is referred to . . . in a final written decision
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`following a trial. A party seeking to maintain the confidentiality of information,
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`however, may file a motion to expunge the information from the record prior to the
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`1
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`Petitioner’s Motion to Expunge
`IPR2018-00043 (U.S. Patent 9,454,748)
`information becoming public.” Trial Practice Guide, 77 Fed. Reg. at 48761.
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`II. Reasons for Relief Requested
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`A. Procedural Background
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`Two unopposed Motions to Seal have been filed in this proceeding (Paper
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`29 and Paper 32), requesting that the Board maintain the Confidential Documents
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`under seal. As indicated in the Motions to Seal, the Confidential Documents
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`contain confidential, sensitive business information that has not been published or
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`made public. See Paper 29 at 2, Paper 32 at 2–3. The Confidential Documents
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`contain, inter alia, Petitioner’s members’ identities, Petitioner’s membership terms
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`and business strategy; and Petitioner’s financial information.
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`The Board deferred ruling on the Motions to Seal until the parties filed
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`redacted, public versions of the exhibits. Paper 33 at 2. Petitioner has filed
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`redacted, publicly-available versions of Paper 30 (as Paper 37), Paper 31 (as Paper
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`38), and Exhibit 2009 (as Exhibit 1028).
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`A. Good Cause Exists for Expunging the Confidential Documents
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`All of the Confidential Documents contain Petitioner’s highly confidential
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`business information, which Petitioner guards in order to protect its own business
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`as well as its members. Specifically, the Confidential Documents contain
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`information relating to Petitioner’s membership list, its membership terms and
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`business strategy, and Petitioner’s financial information.
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`2
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`Petitioner’s Motion to Expunge
`IPR2018-00043 (U.S. Patent 9,454,748)
`Although the Board has yet to grant the parties’ unopposed Motions to Seal,
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`in other proceedings, the Board has granted motions to seal Petitioner’s
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`confidential information, finding that Petitioner had “shown good cause to seal the
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`identities of its members;” “shown good cause for maintaining its membership
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`terms and business strategy under seal;” and that “the public’s interest in knowing
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`Petitioner’s financial information is relativity low, such that it is outweighed by
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`Petitioner’s interest in maintaining its financial information confidential.” See
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`Unified Patents Inc. v. Dragon Intellectual Property, LLC, IPR2014-01252, Paper
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`40, at 6–7 (PTAB Feb. 27, 2015).
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`The Board did not specifically rely on any of the sealed Confidential
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`Documents in its Final Written Decision (See Paper 34), so there is no public
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`interest in now making the Confidential Documents publicly available. First, the
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`Board’s Final Written Decision “decline[d] to consider” “Patent Owner’s belated
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`challenge regarding Petitioner’s real party in interest [certification].” Paper 34 at
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`18. Second, the Board’s Final Written Decision found that did not “identify any
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`third party that should be named” and had not “produced any evidence to support
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`such an argument.” Id. at 20. Given these findings, which did not rely specifically
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`on any of the information contained in the Confidential Documents, good cause
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`exists to expunge the Confidential Documents.
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`3
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`Petitioner’s Motion to Expunge
`IPR2018-00043 (U.S. Patent 9,454,748)
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`III. Conclusion
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`Because the parties have argued for sealing the Confidential Documents,
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`because other panels have found that similar information should be maintained
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`under seal, and because the Board did not rely on them in its Final Written
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`Decision, Petitioner respectfully requests that the Board protect Petitioner’s highly
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`confidential business information and expunge the Confidential Documents
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`pursuant to 37 C.F.R. § 42.56.
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`May 14, 2019
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`Respectfully submitted,
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`/David W. OBrien/
`David W. O’Brien
`Counsel for Petitioner
`Registration No. 40,107
`HAYNES AND BOONE, LLP
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`4
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`Petitioner’s Motion to Expunge
`IPR2018-00043 (U.S. Patent 9,454,748)
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`Unified Patents, Inc.
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`Petitioner
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`§
`§
`§
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`§
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`Petition for Inter Partes Review
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`IPR2018-00043
`U.S. Patent No. 9,454,748
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`CERTIFICATE OF SERVICE
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`The undersigned certifies, in accordance with 37 C.F.R. § 42.6, that service
`was made on the Patent Owner as detailed below.
`Date of service May 14, 2019
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`Manner of service Electronic Service by E-Mail
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`Documents served Petitioner’s Motion to Expunge
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`Persons served Terry L. Watt (terry.watt@crowedunlevy.com)
`Matthew J. Antonelli (matt@ahtlawfirm)
`Michael E. Ellis (michael@ahtlawfirm.com)
`Larry D. Thompson, Jr. (larry@ahtlawfirm.com)
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`/Raghav Bajaj/
`Raghav Bajaj
`Counsel for Petitioner
`Registration No. 66,630
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`5
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