Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 43
`Entered: May 16, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS INC.
`Petitioner,
`
`v.
`
`FALL LINE PATENTS, LLC
`Patent Owner.
`____________
`
`Case IPR2018-00043
`Patent 9,454,748 B2
`____________
`
`
`Before MICHELLE N. WORMMEESTER, SHEILA F. McSHANE, and
`JOHN R. KENNY, Administrative Patent Judges.
`
`KENNY, Administrative Patent Judge.
`
`
`ORDER
`Motions to Seal
`37 C.F.R. § 42.54
`
`BACKGROUND
`On February 22, 2019, Patent Owner moved to seal Patent Owner’s
`RPI Observations (Paper 30) in its entirety and to seal the deposition
`transcript of Mr. Kevin Jakel (Ex. 2009) in its entirety. Paper 29, 2.
`Petitioner did not oppose this motion. On March 1, 2019, Petitioner moved
`to seal Petitioner’s Response to Patent Owner’s Observations (Paper 31) in
`its entirety and to seal the errata sheet for the deposition transcript of Mr.
`
`
`Tel: 571-272-7822
`
`
`Paper 43
`Entered: May 16, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS INC.
`Petitioner,
`
`v.
`
`FALL LINE PATENTS, LLC
`Patent Owner.
`____________
`
`Case IPR2018-00043
`Patent 9,454,748 B2
`____________
`
`
`Before MICHELLE N. WORMMEESTER, SHEILA F. McSHANE, and
`JOHN R. KENNY, Administrative Patent Judges.
`
`KENNY, Administrative Patent Judge.
`
`
`ORDER
`Motions to Seal
`37 C.F.R. § 42.54
`
`BACKGROUND
`On February 22, 2019, Patent Owner moved to seal Patent Owner’s
`RPI Observations (Paper 30) in its entirety and to seal the deposition
`transcript of Mr. Kevin Jakel (Ex. 2009) in its entirety. Paper 29, 2.
`Petitioner did not oppose this motion. On March 1, 2019, Petitioner moved
`to seal Petitioner’s Response to Patent Owner’s Observations (Paper 31) in
`its entirety and to seal the errata sheet for the deposition transcript of Mr.
`
`
`
`IPR2018-00043
`Patent 9,454,748 B2
`
`Jakel (Ex. 1028) in its entirety. Paper 32, 2–3. Patent Owner did not timely
`file an opposition to this motion.
`On April 4, 2019, we addressed the parties’ motions to seal (Papers 29
`and 32). Paper 33. We noted that the parties had represented that the papers
`and exhibits they sought to seal contain confidential, sensitive business
`information that has not been published or made public, but the parties had
`not justified sealing the entirety of each of those papers and exhibits. Id., 2.
`Therefore, we ordered the parties, for each paper and exhibit that they
`sought to seal, to file a redacted, public version of that paper or exhibit or
`provide a detailed explanation as to why the entirety of that paper or exhibit
`must be sealed. Id. We also allowed each party to submit a responsive
`paper to the other side’s filing. Id. at 3.
`In response, Petitioner filed redacted, public versions of Papers 30 and
`31 and Exhibit 2009 (see Paper 37, Paper 38, and Exhibit 1029,
`respectively), and Petitioner withdrew its request that Exhibit 1028 be
`sealed. Paper 36, 1. Patent Owner responded, arguing that Petitioner had
`not sufficiently justified its proposed redactions to Papers 30 and 31 and
`Exhibit 2009 and, therefore, Papers 30 and 31 should be made public in their
`entireties and Exhibit 2009 should also be made public in its entirety or
`should be appropriately redacted. Paper 39, 2–4.
`DISCUSSION
`We grant the parties’ motions to seal with respect to Papers 29 and 32
`and Exhibit 2009, but deny Petitioner’s motion to seal with respect to
`Exhibit 1028. During the normal course of briefing, neither motion to seal
`was opposed, and both motions contained representations by Petitioner
`(presented directly by Petitioner’s motion or through Patent Owner’s
`
`2
`
`
`
`IPR2018-00043
`Patent 9,454,748 B2
`
`motion) that the information the parties sought to seal was confidential.
`After reviewing those motions, we ordered the parties to file redacted copies
`of the involved papers and exhibits (or justify not doing so), and Petitioner
`filed redacted versions of Papers 29 and 32 and Exhibit 2009. Paper 33, 2–
`3. None of the redactions proposed by Petitioner affect public access to our
`Final Written Decision (Paper 34), as neither party requested that we seal
`any portion of that decision. Accordingly, under the circumstances, we
`grant the pending motions to seal with respect to Papers 30 and 31 and
`Exhibit 2009.1
`Regarding Patent Owner’s recent opposition to the motions to seal, we
`do not find it persuasive. First, we note that Patent Owner changed its
`position regarding sealing Papers 30 and 31 and Exhibit 2009 without
`explaining that change in position. Paper 39, 2–4. As mentioned above,
`Patent Owner initially moved to seal Paper 30 and Exhibit 2009, with no
`redacted versions of those documents filed, and without any argument that
`its motion should be denied. Paper 29, 2. To the contrary, Patent Owner
`stated that “[g]ood cause exists” for granting that motion. Id. Patent Owner
`also initially did not oppose Petitioner’s motion to seal Paper 31, with no
`redacted version of that paper filed, or include objections in its own motion,
`Paper 29. Patent Owner does not explain why, now that redacted versions of
`these documents have been filed, it now opposes the motions to seal. Paper
`39, 2–4.
`
`
`1 In reaching this ruling, we consider only the issue before us: whether, in
`light of this record with the final written decision in this proceeding and the
`challenge to the redactions presented to us, we should grant these motions.
`
`
`3
`
`
`
`IPR2018-00043
`Patent 9,454,748 B2
`
`
`Second, Patent Owner had the opportunity to provide what it believes
`are appropriately redacted copies of the involved papers and exhibits, but
`Patent Owner did not submit such copies. Paper 33, 3. Although Patent
`Owner indicates it gave Petitioner a list of appropriate redactions for Exhibit
`2009, Patent Owner did not provide that list to the Board, or provide a copy
`of Exhibit 2009 with the redactions on that list. Paper 39, 3. Therefore, the
`list of no value for deciding the pending motions to seal.
`Third, Patent Owner has not specifically identified to the Board a
`single redaction that it contends is improper and explained why that
`redaction is improper or how it should be modified. Id. at 2–4.
`Accordingly, Patent Owner’s response regarding the parties’ motions to seal
`is not persuasive.
`
`Accordingly, it is ORDERED:
`
`
`
`The pending motions to seal (see Papers 29 and 32) are GRANTED
`for Papers 30 and 31 and for Exhibit 2009.
`
`Petitioner’s motion to seal (see Paper 32) is DENIED for Exhibit
`1028.
`
`
`FOR PETITIONER:
`
`David W. O’Brien
`Raghav Bajaj
`Roshan Mansinghani
`David L. McCombs
`HAYNES AND BOONE, LLP
`david.obrien.ipr@haynesboone.com
`raghav.bajaj.ipr@haynesboone.com
`
`4
`
`
`
`IPR2018-00043
`Patent 9,454,748 B2
`
`roshan@unifiedpatents.com
`david.mccombs.ipr@haynesboone.com
`
`Jonathan Stroud
`Jonathan Bowser
`UNIFIED PATENTS INC.
`jonathan@unifiedpatents.com
`jbowser@unifiedpatents.com
`
`FOR PATENT OWNER:
`
`Terry L. Watt
`CROWE & DUNLEVY
`terry.watt@crowedunlevy.com
`
`Matthew J. Antonelli
`Michael E. Ellis
`Larry D. Thompson, Jr.
`Zachariah Harrington
`ANTONELLI, HARRINGTON & THOMPSON LLP
`matt@ahtlawfirm.com
`michael@ahtlawfirm.com
`larry@ahlawfirm.com
`zac@ahtlawfirm.com
`
`
`5
`
`
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