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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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`UNIFIED PATENTS INC.,
`Petitioner
`
`v.
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`UNILOC LUXEMBOURG S.A. & UNILOC USA,
`Patent Owner
`
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`IPR2018-00199
`Patent 7,092,671
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`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE TO
`PETITIONER’S MOTION TO SEAL (PAPER 22)
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`
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`IPR2018-00199
`Patent 7,092,671
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`I.
`
`Introduction
`The competitively sensitive confidential information voluntarily produced by
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`Petitioner Unified Patents (“Petitioner”) in good faith should be sealed. After agreeing
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`to and accepting discovery under the Default Protective Order, Patent Owner
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`continues in its attempt to publicly disclose that confidential information. Good cause
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`exists to seal the confidential information in the Declaration of Kevin Jakel (Ex.
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`1022) and Petitioner’s Reply (Paper 20). The Motion to Seal should be granted.
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`II.
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`Background and Procedural History
`On August 8, 2018, two months after trial was instituted in this proceeding,
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`Patent Owner requested discovery from Petitioner related to real parties-in-interest
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`(RPI) and privity. As evidenced by the Standard Acknowledgement executed by
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`Patent Owner’s counsel, Mr. Brett Mangrum,1 the parties agreed to use the Board’s
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`Default Protective Order to protect Petitioner’s confidential information. See
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`Kamstrup A/S v. Apator Miitors APS, IPR2015-01403, Paper 18, 4 (agreement to the
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`Default Protective Order is shown by signed Acknowledgement) (citing Fed. Reg.
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`48,756, 48,770, app. B, §(e) (Aug. 14, 2012)).
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`Thereafter, in reliance on the Protective Order, Petitioner provided voluntary
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`discovery to Patent Owner on September 11, 2018. The produced documents were
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`1 Mr. Travis Richins, who has sought to be admitted pro hac vice, also signed the
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`Standard Acknowledgement of the Protective Order.
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`1
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`IPR2018-00199
`Patent 7,092,671
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`marked “PROTECTIVE ORDER MATERIAL.” On September 21, 2018, Patent
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`Owner filed, under seal, its Patent Owner Response including a discussion of
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`Petitioner’s confidential business information. On that same date, without consulting
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`with Petitioner’s counsel or otherwise giving Petitioner prior notice, Patent Owner
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`also filed a redacted version of the Patent Owner Response (Paper 13), only partially
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`redacting Petitioner’s confidential information. Patent Owner did not file a Motion to
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`Seal with its Response, nor did Patent Owner’s counsel reach out to Petitioner’s
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`counsel to request that they prepare a Motion to Seal. Petitioner subsequently filed a
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`Motion to Seal, which Patent Owner opposed. See Papers 16 and 17.
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`Concurrently with filing its Reply brief (Paper 20) on December 21, 2018,
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`Petitioner also filed a Motion to seal the confidential information in both its Reply
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`(Paper 20; Paper 21, redacted version) and in the Declaration of Kevin Jakel (Ex.
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`1022). Patent Owner filed its Opposition on January 22, 2019. See Paper 22.
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`III. Argument
`A. There is Good Cause to Seal Petitioner’s Confidential Information
`in the Declaration of Kevin Jakel (Exhibit 1022)
`Good cause exists to seal the confidential information in the Declaration of
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`Kevin Jakel (Ex. 1022). See Garmin v. Cuozzo, IPR2012-00001, Paper 36 and 37
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`C.F.R. § 42.54(a) (setting forth the good cause standard). Petitioner has filed a public
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`version of Exhibit 1022, with confidential information properly redacted. The
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`confidential information should be sealed.
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`2
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`IPR2018-00199
`Patent 7,092,671
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`Patent Owner does not contest the confidentiality of the vast majority of the
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`redactions in the public version of Exhibit 1022. Rather, Patent Owner only disputes
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`that information related to the identities of various third-parties (who may or may not
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`be members of Unified, as the case may be) is publicly available and therefore not
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`confidential information. See Paper 22, 2, 3. Patent Owner is incorrect.
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`As required, Petitioner included Mandatory Notices in its Petition, including a
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`statement of related matters pertaining to U.S. Pat. 7,092,671 (the “’671 patent”). That
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`statement listed several litigations in which Patent Owner had asserted the ’671 patent
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`against various third parties. See Paper 2, 2. That statement of related matters does
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`not identify any of those various third parties as members or non-members (as the case
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`may be) of Petitioner, nor does Petitioner disclose such information anywhere else in
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`the Petition or other papers. Thus, contrary to Patent Owner’s unsupported assertion,
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`Petitioner has not publicly disclosed information in this proceeding relating to whether
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`particular third parties are members or non-members of Petitioner. Petitioner has
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`properly kept such information confidential.
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`The information redacted in Exhibit 1022 is confidential because it relates to
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`confidential and sensitive business practices, commercial, and financial information,
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`trade secrets, and information regarding membership in Unified. Information relating
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`to the identity of, and dealings with, Petitioner’s members is subject to confidentiality
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`agreements with third parties. Additionally, the redacted information includes details
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`3
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`IPR2018-00199
`Patent 7,092,671
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`of Petitioner’s closely guarded proprietary business model and methods, and sensitive
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`financial information, the disclosure of which could give Petitioner’s rivals an unfair
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`competitive advantage, including a roadmap on how to replicate Petitioner’s unique
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`and valuable business model. Cf. Paper 16, 5-8.
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`Finally, Patent Owner is incorrect that the public interest requires that
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`Petitioner’s confidential information be made public. It is unnecessary for the
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`unnamed entities to be identified in the Board’s analysis of Uniloc’s RPI contentions.
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`Indeed, the Board has routinely relied, as necessary, on confidential information in a
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`Final Written Decision while maintaining that confidential information under seal.
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`See, e.g., Petrol. Geo-Services Inc. v. WesternGeco LLC, IPR2014-01477, Paper 71,
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`62-68 (redacting confidential information and finding no privity between Petitioner
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`and third party defendant in litigation). The public interest strongly favors sealing
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`confidential information provided as voluntary discovery in reliance on a protective
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`order, or else parties will be dissuaded from engaging in voluntary discovery out of
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`fear that confidential information will be publicly disclosed, as would be the result if
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`Patent Owner’s arguments here are followed.
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`B. Good Cause Exists to Seal the Confidential Information in
`Petitioner’s Reply (Paper 20)
`Good cause exists to seal the confidential information in Petitioner’s Reply
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`(Paper 20; public, redacted version filed as Paper 21). See Garmin and 37 C.F.R. §
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`42.54(a). As with Exhibit 1022, Patent Owner does not contest the vast majority of
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`4
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`IPR2018-00199
`Patent 7,092,671
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`redactions in the public version of Paper 21. Rather, Patent Owner repeats its same
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`argument for Exhibit 1022 and only disputes that information related to the identities
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`of various third parties (who may or may not be members of Unified, as the case may
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`be) is publicly available. See Paper 22, 3. As explained above, Patent Owner is
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`incorrect and the confidential information in Petitioner’s Reply should be sealed.
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`Patent Owner incorrectly repeats its spurious allegation that Petitioner waived
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`confidentiality by producing its voluntary discovery to Patent Owner’s counsel
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`(including only counsel of record and additional counsel that counsel of record
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`described as Patent Owner’s counsel to Petitioner’s counsel). See Paper 22, 3.
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`Petitioner has not, nor ever has, waived confidentiality in this proceeding.
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`Correspondence between the respective counsel of Petitioner and Patent Owner makes
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`it clear that Petitioner maintained confidentiality of its confidential information.
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`Petitioner, in reliance on the agreed-to Default Protective Order, confidentially
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`provided documents to Patent Owner’s counsel, clearly indicating and designating the
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`provided documents as “Protective Order Material.” Patent Owner’s counsel was
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`therefore on notice as to the confidential nature of the documents and that the
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`documents were produced under the terms of the Protective Order.
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`Accordingly, the Motion to Seal should be granted.
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`Unified Patents Inc.
`By:/David L. Cavanaugh/
`David L. Cavanaugh, Registration No. 36,476
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`5
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`IPR2018-00199
`Patent 7,092,671
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`CERTIFICATE OF SERVICE
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`I hereby certify that on February 22, 2019, I caused a true and correct copy
`of each of the following to be served via electronic mail to the attorneys of record
`at the following email addresses:
`• Petitioner’s Reply to Patent Owner’s Response to Petitioner’s
`Motion to Seal
`Ryan Loveless
`Brett Mangrum
`James Etheridge
`Jeffrey Huang
`Travis Richins (pro hac vice pending)
`Etheridge Law Group
`2600 E. Southlake Blvd., Ste. 120-324
`Southlake, TX 76092
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`Sean D. Burdick
`Uniloc USA, Inc.
`7160 Dallas Parkway, Ste. 380
`Plano, TX 75024
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`Emails:
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`ryan@etheridgelaw.com
`brett@etheridgelaw.com
`jim@etheridgelaw.com
`jeff@etheridgelaw.com
`travis@etheridgelaw.com
`sean.burdick@unilocusa.com
`Respectfully submitted,
`
`/ Jonathan E Robe /
`Jonathan E. Robe, Reg. No. 76,033
`WILMER CUTLER PICKERING HALE
`AND DORR LLP
`1875 Pennsylvania Avenue NW
`Washington, DC 20006
`Tel: (202) 663-6000
`Fax: (202) 663-6363
`i
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