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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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`v.
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`MONKEYmedia, INC.
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`Patent Owner
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`____________
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`Case IPR2018-00059
`Patent 9,247,226
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`____________________
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`PROTECTIVE ORDER
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`1
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`UNIFIED 1018
`Unified Patents v. MONKEYmedia
`IPR2018-00059
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`IPR2018-00059 Protective Order
`U.S. Patent 9,247,226
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`WHEREAS, Unified Patents, Inc. and MONKEYmedia, Inc. (collectively
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`“parties” and, as the context requires “party”) are private entities that desire to keep
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`confidential, in good faith, information that is not reasonably believed to be in the
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`public domain; and
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`WHEREAS, to promote fairness and efficiency in this proceeding without
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`the need to seek a separate protective order for each competitively sensitive
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`document and/or any competitively sensitive information requested or exchanged,
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`including, but not limited to, trade secrets or other confidential research,
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`development or other commercial information, the parties desire to voluntarily enter
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`into this Protective Order.
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`NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED,
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`as follows:
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`1.
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`“Confidential information” includes information (regardless of how it is
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`generated, stored, or maintained) or tangible things that would qualify for
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`protection under Federal Rule of Civil Procedure 26(c) or any other
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`applicable rule of procedure, evidence, and/or substantive law.
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`2. Confidential Information shall be clearly marked “CONFIDENTIAL -
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`PROTECTIVE ORDER MATERIAL” or “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY.” Confidential Information shall include
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`IPR2018-00059 Protective Order
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`U.S. Patent 9,247,226
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`information disclosed by one party to the other, which, if in written, graphic,
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`machine-readable or other tangible form is marked as “CONFIDENTIAL -
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`PROTECTIVE ORDER MATERIAL” or “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” or which, if disclosed orally or by
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`demonstration, is identified at the time of initial disclosure as confidential.
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`Confidential Information shall not include any Information which (i) the
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`parties agree, or the Board rules, is already public knowledge, (ii) the parties
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`agree, or the Board rules, has become public knowledge other than as a result
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`of disclosure by the receiving party, or (iii) is in the receiving party’s
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`legitimate possession independently of the producing party.
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`3.
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`In the event that Confidential Information is made available for inspection,
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`marking such information CONFIDENTIAL - PROTECTIVE ORDER
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`MATERIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY need not be completed with respect to inspected materials until
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`copies of the materials are produced. Making documents and things
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`available for inspection shall not constitute a waiver of any claim of
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`confidentiality, and all materials provided for inspection by the party’s
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`counsel shall be treated as though designated HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY at the time of the inspection, unless otherwise
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`agreed by the parties in writing.
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`IPR2018-00059 Protective Order
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`U.S. Patent 9,247,226
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`4. Any party may challenge a designation of confidentiality at any time. In the
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`event of a challenge, the parties shall attempt to resolve such challenge in
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`good faith and must meet and confer directly in voice to voice dialogue in
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`connection with doing so.
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`5. HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Information
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`may be disclosed only to:
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`(a) Outside counsel of record for a party in the proceeding, including
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`employees of outside counsel of record’s law firm(s) to whom it is
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`reasonably necessary to disclose this information to assist outside
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`counsel of record in connection with this proceeding, including
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`members of their firms, associate attorneys, paralegal, clerical, and
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`other regular employees of such counsel. All in-house counsel and
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`other representatives of the parties (other than outside counsel of
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`record) shall not be allowed to view HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY Information.
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`(b) Experts. Retained experts of a party in the proceeding who are not
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`employed by any party, not a competitor to any party, and not a
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`consultant for, or employed by, such a competitor with respect to the
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`subject matter of the proceeding and certify in accordance with and
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`sign the Standard Acknowledgment for Access to Protective Order
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`IPR2018-00059 Protective Order
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`U.S. Patent 9,247,226
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`Material (“Acknowledgment”), which is attached to this Protective
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`Order as Exhibit A.
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`(c) The Office. Employees and representatives of the Office and Board
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`who have a need for access to the information shall have such access
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`without the requirement to sign the Acknowledgement. Such
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`employees and representatives shall include the Director, members of
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`the Board and their clerical staff, other support personnel, court
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`reporters, and other persons acting on behalf of the Office.
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`(d) Support Personnel. Administrative assistants, clerical staff, court
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`reporters, outside copying and exhibit preparation services and other
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`support personnel of the foregoing persons (other than employees of
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`outside counsel of record for a party in the proceeding) who are
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`reasonably necessary to assist those persons in the proceeding and
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`who execute the Acknowledgement.
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`6. CONFIDENTIAL - PROTECTIVE ORDER MATERIAL may be disclosed
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`only to the following individuals:
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`(a) Above Personnel. Those persons or entities identified in paragraph 5
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`of this Protective Order under the conditions set forth in that
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`paragraph.
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`IPR2018-00059 Protective Order
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`U.S. Patent 9,247,226
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`(b) Parties to the Present Proceeding. Persons who are owners of a patent
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`involved in the proceeding and other persons who are named parties
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`to the proceeding, who sign the Acknowledgment.
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`(c) In-house counsel. In-house counsel of a party who signs the
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`Acknowledgement.
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`(d) Other Employees of a Party. No more than two (2) employees of each
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`party who have been designated to assist with this matter who sign the
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`Acknowledgement.
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`7. 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
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`not 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
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`receiving party uses to maintain the confidentiality of information not
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`received from the disclosing party;
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`(c) Ensuring that support personnel of the receiving party who have
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`access to the Confidential Information understand and abide by the
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`obligation to maintain the confidentiality of information received that
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`is designated as confidential; and
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`IPR2018-00059 Protective Order
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`U.S. Patent 9,247,226
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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
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`maintaining a record of the locations of such copies.
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`8. 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 under
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`seal, together with a non-confidential description of the nature of
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`the Confidential Information that is under seal and the reasons
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`why the information is confidential and should not be made
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`available to the public. The submission shall be treated as
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`confidential and remain under seal, unless, upon motion of a
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`party and after a hearing on the issue, or sua sponte, the Board
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`determines that the documents or information do not qualify for
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`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
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`file confidential and nonconfidential versions of its submission,
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`together with a Motion to Seal the confidential version setting
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`forth the reasons why the information redacted from the non-
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`IPR2018-00059 Protective Order
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`U.S. Patent 9,247,226
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`confidential version is confidential and should not be made
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`available to the public. The nonconfidential version of the
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`submission shall clearly indicate the locations of information that
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`has been redacted. The confidential version of the submission
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`shall be filed under seal. The redacted information shall remain
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`under seal unless, upon motion of a party and after a hearing on
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`the issue, or sua sponte, the Board determines that some or all of
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`the redacted information does not qualify for confidential
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`treatment.
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`(b) Documents and Information Exchanged Among
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`the Parties.
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`Information designated as Confidential Information that is disclosed
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`to another party during discovery or other proceedings before the
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`Board shall be clearly marked as “CONFIDENTIAL - PROTECTIVE
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`ORDER MATERIAL” or
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`“HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY,” respectively, and shall be exchanged
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`in a manner that maintains its confidentiality.
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`9. Unless otherwise provided herein, redacted copies of documents may be
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`produced where the redacted portions contain privileged matter. Any
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`redactions must be conspicuous. Any redacted copies of documents shall be
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`accompanied by a privilege log describing the nature of the redacted
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`IPR2018-00059 Protective Order
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`U.S. Patent 9,247,226
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`information in a manner that will enable the other party to assess the claim of
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`privilege.
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`10. All Confidential Information, whether marked as “CONFIDENTIAL -
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`PROTECTIVE ORDER MATERIAL” or “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY,” shall be used only for this proceeding and
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`shall not be used for any other purpose.
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`Unified Patents Inc.
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`By:
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`Stuart A. Nelson, Reg. No. 63,947
`W. Karl Renner, Reg. No. 43,350
`Ryan Chowdhury, Reg. No. 74,466
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`snelson@fr.com
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`Ashraf Fawzy, Reg. No. 67,914
`Jonathan Stroud, Reg. No. 72,518
`Unified Patents Inc.
`1875 Connecticut Ave., NW, Floor 10
`Washington, DC 20009
`afawzy@unifiedpatent.com
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`IPR2018-00059 Protective Order
`U.S. Patent 9,247,226
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`MONKEYmedia, Inc.
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`By:
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`10
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`EXHIBIT A
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`IPR2018-00059 Protective Order
`U.S. Patent 9,247,226
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`UNIFIED PATENTS, INC. v. MONKEYmedia, INC.
`Case IPR2018-00059
`Patent No. 9,247,226
`Standard Acknowledgment for Access to Protective Order Material
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`I __________________________________________, affirm that I have
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`read the Protective Order; that I will abide by its terms; that I will use the confidential
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`information only in connection with this proceeding and for no other purpose; that I
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`will only allow access to support staff who are reasonably necessary to assist me in
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`this proceeding; that prior to any disclosure to such support staff I informed or will
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`inform them of the requirements of the Protective Order; that I am personally
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`responsible for the requirements of the terms of the Protective Order and I agree to
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`submit to the jurisdiction of the Office and the United States District Court for the
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`Eastern District of Virginia for purposes of enforcing the terms of the Protective
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`Order and providing remedies for its breach.
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`Executed on
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`, 20____.
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`11
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