`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`UNIFIED PATENTS INC.,
`Petitioner
`
`v.
`
`UNILOC LUXEMBOURG S.A. & UNILOC USA,
`Patent Owner
`
`
`IPR2018-00199
`Patent 7,092,671
`
`
`
`
`
`
`
`
`
`
`
`
`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE TO
`PETITIONER’S MOTIONS TO SEAL AND MOTION TO EXPUNGE
`
`
`
`Introduction
`Petitioner Unified Patents (“Petitioner”) voluntarily produced competitively
`
`IPR2018-00199
`Patent 7,092,671
`
`
`I.
`
`sensitive confidential information in good faith, and that confidential information
`
`should be protected. After agreeing to and accepting Petitioner’s voluntary discovery
`
`under the Default Protective Order, Patent Owner continues its attempt to publicly
`
`disclose that confidential information. Good cause exists to seal the confidential
`
`information in the Final Written Decision (Paper 33), the Transcript of Oral Hearing
`
`(Paper 30), and Patent Owner Response (Paper 12, redacted version filed as Paper 37).
`
`Also, good cause exists to expunge the confidential versions of papers and exhibits.
`
`Patent Owner’s attempt to publicly disclose Petitioner’s confidential information
`
`is mistaken and contrary to law. Good cause exists to protect Petitioner’s confidential
`
`information. Petitioner’s motions should therefore be granted. Moreover, Patent
`
`Owner’s Opposition (Paper 40) fails to comply with the rules governing practice before
`
`the Board. Therefore, the Board should not consider Patent Owner’s Opposition.
`
`II. Argument
`A. Good Cause Exists for Granting Petitioner’s Motions
`Patent Owner has failed to contest Petitioner’s showing that the information
`
`Petitioner seeks to protect is properly confidential. Nor is Patent Owner correct that
`
`Petitioner has waived confidentiality.
`
`1.
`
`The Information Petitioner Seeks to Protect Is Confidential
`
`1
`
`
`
`IPR2018-00199
`Patent 7,092,671
`
`Patent Owner does not contest the confidentiality of the vast majority of the
`
`redactions. Rather, Patent Owner only disputes that citations to Exhibit 2005 and the
`
`identity of a third-party, who is an alleged member of Petitioner, are confidential
`
`information. See Paper 40, 2. Patent Owner is incorrect.
`
`As Petitioner has previously explained, Exhibit 2005 contains confidential
`
`information and should be sealed in its entirety. Paper 16, 3, 5-7. The confidential
`
`information contained within Exhibit 2005 is subject to confidentiality agreements with
`
`non-parties. Paper 16, 5. Similarly, the identity of a third-party who is an alleged
`
`member of Petitioner is confidential information, and this confidential information is
`
`also subject to confidentiality agreements with non-parties. Paper 28, 3. Thus,
`
`Petitioner is contractually bound to third-parties to protect its confidential information.
`
`Petitioner produced the confidential information pertaining to the alleged member with
`
`the understanding that the confidential information was protected from being made
`
`public under the terms of the Default Protective Order. EX1019 (email attaching and
`
`share site providing access to documents bore Protective Order Material designations).
`
`2.
`Petitioner Did Not Waive Confidentiality
`Patent Owner
`repeats
`its baseless allegation
`that Petitioner waived
`
`confidentiality by providing documents to Patent Owner’s counsel. In a parallel
`
`proceeding before the Board involving the same parties and similar confidential
`
`information as here, the Board categorically rejected Patent Owner’s unreasonable and
`
`2
`
`
`
`IPR2018-00199
`Patent 7,092,671
`
`extreme position, finding that Petitioner did not waive confidentiality. See Unified
`
`Patents, Inc. v. Uniloc 2017 LLC, IPR2017-02148, Paper 76, 6 (rejecting Patent
`
`Owner’s suggestion that the Board “adopt a per se rule” regarding waiver of
`
`confidentiality”). The Board should find so here. See, e.g., Paper 18, 4-5.
`
`Additionally, even if Patent Owner were correct that Petitioner waived
`
`confidentiality (and as explained above, Petitioner has not), Patent Owner’s actions in
`
`the present case have rendered its argument moot. Patent Owner alleges that
`
`documents were provided to Travis Richins, one of Patent Owner’s attorneys, who was
`
`not of record at the time. See Paper 17, 4-5. But Mr. Richins is now counsel of record
`
`in this proceeding. See Paper 29 (Order Granting Patent Owner's Motion for
`
`Admission Pro Hac Vice of Travis Richins).1 Therefore, Patent Owner’s own actions
`
`belie its allegation of waiver of confidentiality.
`
`Patent Owner also argues that because Patent Owner failed to properly redact all
`
`of Petitioner’s confidential information in the originally-filed redacted version of the
`
`Patent Owner Response (filed as Paper 13, now expunged), that Petitioner has waived
`
`confidentiality. Patent Owner is mistaken. Notably, Patent Owner has pointed to no
`
`authority in support of its extreme claim that the actions of an opposing party, i.e.,
`
`Patent Owner, who is in receipt of voluntarily produced information subject to a
`
`
`1 Mr. Richins has also signed the Standard Acknowledgement of the Protective Order.
`
`3
`
`
`
`IPR2018-00199
`Patent 7,092,671
`
`protective order, can make that information public such that production of the
`
`information constitutes waiver of confidentiality by Petitioner, regardless of the time
`
`span involved. Indeed, Petitioner has consistently and properly redacted all of its
`
`confidential information in all papers it has submitted before the Board in this
`
`proceeding. See, e.g., Paper 28, 3; Paper 36, 3-4.
`
`Patent Owner’s unilateral action is not a basis for finding Petitioner waived
`
`confidentiality. As Petitioner has explained, Patent Owner filed the improperly
`
`redacted version of the Patent Owner Response without conferring with or receiving
`
`permission from Petitioner. See, e.g., Paper 16, 2; Paper 36, 2-3. The documents
`
`Petitioner voluntarily produced under the governing Protective Order, were clearly
`
`marked “PROTECTIVE ORDER MATERIAL.” Paper 16, 2. Thus, contrary to Patent
`
`Owner’s statements, Patent Owner reasonably should have considered the material
`
`contained within those documents to be confidential. Instead, Patent Owner decided,
`
`unilaterally, to be the arbiter of Petitioner’s confidential information when it filed its
`
`Patent Owner Response (Paper 13) with Petitioner’s confidential information without
`
`proper redactions. But Patent Owner’s error cannot be attributed to Petitioner, who has
`
`properly protected its confidential information.
`
`B.
`Patent Owner’s Opposition Fails to Comply with the Board’s Rules
`Patent Owner’s Opposition brief (filed as Paper 40) fails to comply with the rules
`
`governing practice before the Board. Specifically, Patent Owner’s Opposition is styled
`
`4
`
`
`
`IPR2018-00199
`Patent 7,092,671
`
`“Patent Owner’s Response to Papers 35, 36, 38, and 39 (Petitioner’s Motions to Seal
`
`and Motion to Expunge).” Patent Owner’s Opposition is a combined motion, at least
`
`because it combines an opposition to more than one motion to seal and a motion to
`
`expunge, contrary to the Board’s rules. See 37 CFR § 42.6 (“Combined motions,
`
`oppositions, replies, or other combined documents are not permitted.”).
`
`Additionally, Patent Owner’s Opposition expressly “incorporates by reference
`
`Papers 17 and 22.” Paper 40, 2. Thus, Patent Owner’s Opposition includes arguments
`
`by incorporation by reference, contrary to the Board’s rules. See 37 CFR § 42.6
`
`(“Arguments must not be incorporated by reference from one document into another
`
`document.”). Because Patent Owner’s Opposition fails to comply with the rules, the
`
`Board should not consider Patent Owner’s Opposition.
`
`C. Good Cause Exists to Expunge Petitioner’s Confidential Information
`Patent Owner raises no reason for denying Petitioner’s Motion to Expunge
`
`other than those it alleges with respect to Petitioner’s Motions to Seal. See Paper 40,
`
`4. But Petitioner has shown that good cause exists to grant Petitioner’s Motion to
`
`Expunge. See Paper 39, 2-3, 5-6.
`
`Accordingly, the Motions to Seal (Papers 35, 26, and 38) and the Motion to
`
`Expunge (Paper 29) should be granted.
`
`Unified Patents Inc.
`By: /Daniel V. Williams/
`Daniel V. Williams, Reg. No. 45,221
`
`5
`
`
`
`IPR2018-00199
`Patent 7,092,671
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on August 30, 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
`Motions to Seal and Motion to Expunge
`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
`
`Sean D. Burdick
`Uniloc USA, Inc.
`7160 Dallas Parkway, Ste. 380
`Plano, TX 75024
`
`Emails:
`
`
`
`
`
`
`
`
`
`
`
`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
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
