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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`IPR2018-00199
`Patent 7,092,671
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`UNIFIED PATENTS INC.,
`Petitioner
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`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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`OPPOSED MOTION TO SEAL
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`IPR2018-00199
`Patent 7,092,671
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`Introduction
`Petitioner Unified Patents (“Unified”) respectfully requests that the Board seal
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`I.
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`Exhibit 2005, a compilation of core Unified business information that is
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`commercially and competitively sensitive, and maintain under seal the unredacted
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`version of the Patent Owner Response filed on September 21, 2018. In response to
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`Patent Owner’s contentions concerning the real party-in-interest (“RPI”) in this
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`proceeding, Unified voluntarily produced confidential documents under the Board’s
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`Default Protective Order to confirm that Unified properly identified itself as the sole
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`RPI. The confidential documents detail Unified’s non-public business model and
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`membership lists and practices, precisely the type of competitively sensitive and
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`trade secret information for which there is good cause to grant a motion to seal.
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`Despite producing the confidential documents to Patent Owner’s counsel
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`under the Board’s Default Protective Order, Patent Owner incredulously asserts that
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`Petitioner has waived the confidentiality of the documents because the documents
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`were served to all counsel of record and an attorney at the law firm representing
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`Patent Owner who did not specifically sign the Standard Acknowledgement of the
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`Default Protective Order. Patent Owner is incorrect. The Board should reject Patent
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`Owner’s attempt to use Unified’s voluntary disclosure under the Protective Order as
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`a vehicle for publicly disclosing Unified’s sensitive and confidential business
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`1
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`IPR2018-00199
`Patent 7,092,671
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`information. For the reasons below, good cause exists to seal Unified’s confidential
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`documents (Ex. 2005) and the unredacted Patent Owner Response.
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`II. Background and Procedural History
`On August 8, 2018, two months after institution of this proceeding, Patent
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`Owner asked Petitioner to provide additional discovery relating to RPI and privity.
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`The parties agreed to use the Board’s Default Protective Order to protect that
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`information. Exhibit 1017 is the Default Protective Order with a Standard
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`Acknowledgement executed by Patent Owner’s counsel, Brett Mangrum.
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`The documents Petitioner voluntarily produced under the Protective Order
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`were marked “PROTECTIVE ORDER MATERIAL.” At no point did Patent Owner
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`challenge this confidentiality designation. On September 21, 2018, Patent Owner
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`filed a Patent Owner Response under seal that quotes and discusses Petitioner’s
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`confidential business information, including information subject to third-party
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`confidentiality provisions. Contrary to the PTAB Trial Practice Guide, Patent
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`Owner filed its Response under seal without the required motion to seal. On that
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`same date, without giving Petitioner prior notice, Patent Owner also filed a redacted
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`version of the Patent Owner Response (Paper 13).
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`Pursuant to 37 C.F.R. § 42.54, Petitioner certifies that the parties conferred in
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`a good faith effort to resolve the dispute regarding a motion to seal; however, an
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`agreement was not reached. Thus, Petitioner submits this Opposed Motion to Seal.
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`2
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`III. Motion to Seal
`Patent Owner filed the Patent Owner Response together with Exhibit 2005, a
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`IPR2018-00199
`Patent 7,092,671
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`compilation of the entirety of Petitioner’s voluntarily produced confidential
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`information. Exhibit 2005 contains sample Unified Membership Agreements and
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`Subscription Forms that contain only confidential and sensitive business,
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`commercial, and financial information. Exhibit 2005 also includes membership
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`lists, closely held information related to Unified’s core business, and information
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`subject to confidentiality agreements with third-parties. The Patent Owner Response
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`directly quotes, references, and cites to confidential information in these documents.
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`Exhibit 2005 contains invoices with sensitive financial information and the
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`identity of Unified members, Subscription Fee Schedules with sensitive financial
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`and commercial information (Ex. 2005: UP-000001; UP-000016; UP-000033; UP-
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`000036; UP-000042 through UP-000043; UP-000048 through UP-000050; UP-
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`000077), and Unified Member Agreements and Subscription Forms (id.: UP-000002
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`through UP-000015; UP-000017 through UP-000019; UP-000020 through UP-
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`000032; UP-000034 through UP-000035; UP-000037 through UP-000041; UP-
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`000074 through UP-000076). Exhibit 2005 also includes non-public lists of Unified
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`members and contact information for individuals at those entities (id.: UP-000044
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`through UP-000047). Thus, pursuant to 37 C.F.R. § 42.14, Petitioner moves to seal
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`Exhibit 2005 in its entirety and the unredacted Patent Owner Response.
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`3
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`IV. Good Cause Exists for Sealing These Documents
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`IPR2018-00199
`Patent 7,092,671
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`To seal documents, the Board must find “good cause.” Garmin v. Cuozzo,
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`IPR2012-00001, Paper 36 (PTAB Apr. 5, 2013) and 37 C.F.R. § 42.54(a). Good
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`cause is established by demonstrating that the balance of the following factors favors
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`sealing the material: whether (1) the information sought to be sealed is truly
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`confidential, (2) a concrete harm would result upon public disclosure, (3) there exists
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`a genuine need to rely in the trial on the specific information sought to be sealed,
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`and (4), on balance, an interest in maintaining confidentiality outweighs the strong
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`public interest in having an open record. Argentum Pharms. LLC v. Alcon Research,
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`Ltd., IPR2017-01053, Paper 27 at 4 (PTAB Jan. 19, 2018) (informative); see also
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`Corning Optical Commc’ns RF, LLC, v. PPC Broadband, Inc., IPR2014-00440,
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`Paper 47 at 3 (PTAB Apr. 14, 2015). The balance of these factors favors sealing the
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`documents at issue.1
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`1 The Board has granted numerous motions to seal where maintaining
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`confidentiality of sensitive information outweighed the public interest in an open
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`record. See, e.g., Hospira, Inc. v. Genentech, Inc., IPR2017-00731, Paper 24
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`(PTAB Oct. 10, 2017); Unified Patents, Inc v. American Vehicular Scis., LLC,
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`IPR2016-00364, Paper 15 (PTAB Jun. 27, 2016). This includes proceedings
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`involving substantially the same information at issue here. See Unified Patents,
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`4
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`First, the information Unified seeks to seal is truly confidential. As described
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`in the PTAB Trial Practice Guide, 37 C.F.R. § 42.54 identifies “confidential
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`information in a manner consistent with Federal Rule of Civil Procedure
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`26(c)(1)(G), which provides for protective orders for trade secret or other
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`confidential research, development, or commercial information.” 77 Fed. Reg.
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`48,756, 48,760 (Aug. 14, 2012). The information sought to be sealed relates to
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`Unified’s trade secrets and highly confidential business practices, including
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`confidential and sensitive information relating to the identity of, and dealings with,
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`Unified’s members. Much of the information in Exhibit 2005 is subject to
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`confidentiality agreements with non-party members of Unified. Exhibit 2005
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`includes details of how Unified conducts its proprietary business, which Unified
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`closely guards and does not publicly disclose, sensitive financial information,
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`confidential contractual agreements between Unified and its members, and the
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`identity of, and details of the relationship with, Unified’s members. Patent Owner
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`has not contested the sensitivity of this information or the fact that it is core to
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`Unified’s business. The Board has separately found that substantially similar or the
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`Inc. v. Dragon Intellectual Prop., LLC, IPR2014-01252, Paper 40 (PTAB Feb. 27,
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`2015); Unified Patents, Inc. v. Realtime Adaptive Streaming, LLC, IPR2018-
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`00883, Paper 31 (PTAB Oct. 17, 2018).
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`5
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`same information produced by Unified should be sealed in other proceedings. See,
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`e.g., Unified Patents, Inc v. Dragon Intellectual Prop., LLC, IPR2014-01252, Paper
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`40 (PTAB Feb. 27, 2015) (granting Unified’s Motion to Seal information identifying
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`Unified’s members, membership terms and business strategy, and financial
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`information); Unified Patents, Inc. v. Realtime Adaptive Streaming, LLC, IPR2018-
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`00883, Paper 31 (PTAB Oct. 17, 2018) (instituting IPR despite similar RPI
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`arguments to those here and granting Motion to Seal information relating to
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`Unified’s business strategy, financial, and membership information).
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`For example, Unified’s Member Agreements and Subscription Forms detail
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`contractual terms between Unified and its members. Many of these terms are
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`irrelevant to this proceeding, and Patent Owner has cited only limited provisions of
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`these documents. These terms are highly confidential and extremely sensitive trade
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`secret information because they detail Unified’s core business and strategy.
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`California law governs Unified’s membership agreements. Ex. 2005: UP-000014
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`and UP-000031. Under California law, a trade secret includes “(a) information (b)
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`which is valuable because unknown to others and (c) which the owner has attempted
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`to keep secret.” ABBA Rubber Co. v. Seaquist, 286 Cal. Rptr. 518, 526 (Cal. Ct. App.
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`1991). Unified closely guards the information in its Member Agreements and
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`Subscription Forms as trade secrets to protect its members and business interests.
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`Unified has not made, and does not intend to make, this information public.
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`6
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`Unified is contractually obligated to maintain the confidentiality of this highly
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`sensitive business information. See Ex. 2005: UP-000010 and UP-000027 (Member
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`Agreements). Without assurance that this information is protected, Unified’s
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`members that wish to remain confidential may be adversely affected, as public
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`disclosure of membership and/or its terms could lead to retribution or other business
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`harms from members’ competitors.
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`Sensitive financial and commercial information in invoices and subscription
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`fee schedules for Unified members (Ex. 2005: UP-000001; UP-000016; UP-000033;
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`UP-000036; UP-000042 through UP-000043; UP-000048 through UP-000050; UP-
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`000077) and identification of Unified members (Ex. 2005: UP-000002 through UP-
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`000015; UP-000020 through UP-000032; UP-000044 through UP-000047) is also
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`closely guarded proprietary information. This information is strategically sensitive
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`information that is core to Unified’s business and public disclosure could
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`significantly disadvantage Unified and/or its members.
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`Second, Unified and its members would suffer several concrete harms from
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`the public disclosure of the confidential information sought to be sealed. Because
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`the Confidential Information details Unified’s proprietary and closely guarded
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`business model and methods, sensitive financial information, and the identity of and
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`dealings with Unified’s members (which is subject to the confidentiality provisions
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`discussed above), public access to this information could give Unified’s competitors
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`and would-be rivals unfair competitive advantages, including a roadmap of how to
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`replicate Unified’s unique and valuable business model. Further, it would reveal
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`confidential contractual business
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`information,
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`including sensitive financial
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`information, between two parties. Public disclosure of this information could also
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`undermine Unified’s business and competitiveness in the market and expose Unified
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`members and their confidential information to potential harms and jeopardize
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`agreements between Unified and its members.
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`Third, to the extent Unified’s confidential information is relied upon in
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`determining the RPI in the present proceeding, the role of confidential information
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`in the trial does not require public disclosure. Indeed, the Board can rely on
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`confidential information in its Final Written Decision and adequately disclose the
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`bases for its decision to the public, while maintaining sensitive information under
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`seal. The Board has routinely done so. See, e.g., Petrol. Geo-Services Inc. v.
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`WesternGeco LLC, IPR2014-01477, Paper 71 at 62-68 (PTAB Jul. 11, 2016)
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`(redacting confidential information and finding no privity between Petitioner and
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`third party defendant in litigation); Weatherford Int’l v. Packers Plus Energy Servs.,
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`Inc., IPR2016-01514, Paper 65 at 37-43 (PTAB Apr. 3, 2018) (redacting financial
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`information); VSR Indus., Inc. v. Cole Kepro Int’l, LLC, IPR2015-00182, Paper 33
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`at 46-47 (PTAB Apr. 28, 2016) (redacting financial information); Baker Hughes,
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`Inc. v. Lubrizol Specialty Prods., Inc., IPR2016-00734, Paper 85 at 59-60 (PTAB
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`Nov. 1, 2017); CaptionCall, L.L.C. v. Ultratec, Inc., IPR2015-01889, Paper 119 at
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`78-92 (PTAB Apr. 11, 2017). Thus, even to the extent that the Board determines it
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`needs to consider Unified’s confidential information in reaching its final decision,
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`the balance would continue to overwhelmingly favor protecting and sealing
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`Unified’s voluntarily produced, highly confidential, and commercially sensitive
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`information.
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`Fourth, the balance of interests favors sealing Unified’s confidential
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`information. Patent Owner, not Unified, raised the RPI issue in this proceeding. In
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`an effort to avoid unnecessary disputes and burden on the Board, Unified voluntarily
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`provided its confidential information in response to Patent Owner’s RPI contention,
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`and only after agreement between the parties that the Default Protective Order would
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`govern its disclosure. Petitioner then produced the sensitive information under the
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`terms of and in reliance on the Protective Order. Ex. 1019.
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`The public interest is well-served in encouraging parties to voluntarily
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`disclose information in IPR proceedings to resolve RPI disputes. Publicly disclosing
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`such information, even when produced under the terms of a Protective Order, will
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`significantly reduce the willingness of parties to voluntarily resolve disputes and
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`may require pre-adjudication of confidentiality before disclosure. Unified requests,
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`and will continue to endeavor, to seal or redact only closely guarded confidential
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`information. The Board is able to decide the RPI issue and give notice to the public
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`without disclosing the contents of the full documents and the most commercially
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`sensitive information sought to be sealed. Accordingly, Petitioner’s interest in
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`maintaining confidentiality of the information outweighs the strong public interest
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`in making all information in the proceeding open to the public. Id.; see also Multi
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`Packing Solutions, Inc. v. CPI Card Group – Minnesota, Inc., IPR2017-01650,
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`Paper 25 at 4 (PTAB May 7, 2018).
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`V.
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`Petitioner Did Not Waive Confidentiality
`Patent Owner does not dispute that Exhibit 2005 is confidential. Instead,
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`Patent Owner argues that no protective order has been filed in this matter and that
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`because Petitioner sent its voluntarily produced documents to Patent Owner’s
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`counsel of record and an attorney for Patent Owner, Petitioner waived confidentiality
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`as to the public. Paper 13 at 4-5, n.5. Patent Owner is incorrect.
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`The Board’s Default Protective Order governs this proceeding. The parties
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`agreed to follow the Default Protective Order in correspondence and Patent Owner’s
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`counsel signed the Acknowledgement of the Default Protective Order (Ex. 1017).
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`Petitioner relied upon Patent Owner’s representations that it agreed to the Default
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`Protective Order and the signed undertaking by Patent Owner’s counsel when it
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`provided voluntary discovery to Patent Owner’s counsel, including attorneys at the
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`law firm representing Patent Owner included on correspondence by counsel of
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`record. See Ex. 1017 (including “[e]mployees, consultants, or other persons
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`performing work for a party” as persons entitled to access confidential information).
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`Petitioner produced its voluntary discovery to Patent Owner’s counsel of record and
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`Mr. Richins, an attorney for Patent Owner, after Patent Owner’s counsel, Mr.
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`Mangrum, included those individuals in email communications between the parties
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`directed to negotiating the terms of discovery and reaching agreement that the
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`Default Protective Order would govern. Patent Owner attempts to cast doubt on the
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`validity of the governing Default Protective Order to which the parties agreed by
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`arguing that the Protective Order was not “filed.” This argument is unavailing.
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`Patent Owner, not Petitioner, filed Petitioner’s confidential information in this
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`proceeding without filing the Protective Order or a motion to seal. Regardless,
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`Patent Owner’s counsel “acknowledged” the Protective Order and states he abided
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`by its terms. Paper 13 at 4, n.5. The Board has in the past rejected similar attempts
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`to avoid obligations under an agreed-to Protective Order. See RPX Corp. v.
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`Applications in Internet Time, LLC, IPR2015-01750, Paper 58 at 3 (PTAB May 6,
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`2016) (noting that “the parties were operating with the understanding that the
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`Standard Default Protective Order. . . applied to these proceedings,” as evidenced
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`by Patent Owner’s counsel-of-record returning a signed Acknowledgement). It
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`should do so here as well.
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`The correspondence between the respective counsel of Petitioner and Patent
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`Owner makes it clear that Petitioner maintained confidentiality. See Ex. 1019 at 1,
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`2. Petitioner, in reliance on the agreed-to Default Protective Order, confidentially
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`provided Unified’s documents to Patent Owner’s counsel. Id. The email and share
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`site access sent by Petitioner’s counsel clearly indicated that the provided documents
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`“have been designated as Protective Order Material under the protective order and
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`should be treated accordingly.” Id. Patent Owner’s counsel was therefore on notice
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`as to the confidential nature of the documents and that the documents were produced
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`under the Protective Order. Petitioner did not waive confidentiality.
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`Petitioner took reasonable steps to protect its confidential information;
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`however, to the extent that the Board entertains Patent Owner’s waiver argument,
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`any disclosure of confidential material to unauthorized persons was inadvertent.
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`Inadvertent disclosure of confidential information does not constitute waiver when
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`the holder of such information promptly takes reasonable steps to correct the
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`inadvertent disclosure. See In Re: Optuminsight, Inc., 2017 WL 3096300 at *3 (Fed.
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`Cir. 2017) (noting that the Federal Rules of Evidence govern waiver, providing that
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`“[i]nadvertent disclosures do not operate as a waiver so long as the ‘holder of the
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`privilege or protection took reasonable steps to prevent disclosure; and . . . promptly
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`took reasonable steps to rectify the error.’”) (citing Fed. R. Evid. 502(b)); GEA
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`Process Eng’g, Inc. v. Steuben Foods, Inc., IPR2014-00041, Paper 134 at 5, n.2
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`(Petitioner’s inadvertent public filing of a paper that included Petitioner’s
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`confidential information “does not affect our analysis of Petitioner’s motion(s) to
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`seal”); see also Trial Practice Guide, 77 Fed. Reg. 48,772 (discussing waiver of
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`privilege in the context of inadvertent production) (citing Fed. R. Evid. 502(b)).
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`Indeed, the USPTO’s practice rules contemplate that a document or information may
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`be inadvertently disclosed and provide guidance to practitioners when such
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`inadvertent disclosure occurs. See USPTO Rules of Practice in Patent Cases §
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`11.404 (a “practitioner who receives a document or electronically stored information
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`relating to the representation of the practitioner’s client and knows or reasonably
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`should know that the document or electronically stored information was
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`inadvertently sent shall promptly notify the sender”); see also ABA Model Rules of
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`Prof. Conduct R. 4.4, cmt [2] (“A document or electronically stored information is
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`inadvertently sent when it is accidentally transmitted…, such as when an email or
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`letter is misaddressed or a document or electronically stored information is
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`accidentally included with information that was intentionally transmitted. If a
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`lawyer knows or reasonably should know that such a document…was sent
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`inadvertently, then this Rule requires the lawyer to promptly notify the sender in
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`order to permit that person to take protective measures.”). Patent Owner’s
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`suggestion that inadvertent disclosure constitutes complete waiver without
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`exception is inconsistent with governing rules and practice and should be rejected.
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`The facts here make clear that any disclosure was inadvertent. On September
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`11, 2018, Petitioner’s counsel provided Unified’s confidential documents under the
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`agreed Protective Order with a “confidential” designation. The email including the
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`share site link containing the produced documents was sent by Petitioner’s counsel
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`only to Patent Owner’s counsel of record and attorney involved in discovery in this
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`proceeding, was marked as “Protective Order Material”, and conveyed that access
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`should only be given to those that subscribed to the terms of the Protective Order.
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`Ex. 1019.
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`Patent Owner has no credible argument that Petitioner intended to waive
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`confidentiality. In such circumstance, it was incumbent on Patent Owner’s counsel
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`to identify any purported inadvertent disclosure to allow Petitioner to take protective
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`measures. See USPTO Rules of Practice in Patent Cases § 11.404. Instead, Patent
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`Owner has sought strategic advantage by not informing Petitioner about its position
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`prior to filing its Patent Owner’s Response and then seeking a draconian remedy of
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`complete waiver and public disclosure. When Petitioner became aware of Patent
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`Owner’s position on September 25, 2018, upon reading the Patent Owner Response,
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`it sent on the same day an automatic recall message to all recipients of the email,
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`withdrew access to the share site containing the produced documents, and further
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`requested that unauthorized individuals take appropriate action to dispose of any
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`confidential material. Ex. 1018. Petitioner’s immediate remedial steps to address
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`any inadvertent disclosure of its confidential information were sufficient to avoid
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`waiver. Id. Patent Owner’s arguments to the contrary should be rejected.
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`VI. Certification of Non-Publication
`The undersigned counsel for Petitioner certifies the information sought to
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`be sealed by this Motion has not been published or otherwise made public.
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`VII. Protective Order
`Petitioner files herewith (Ex. 1017) a copy of the Default Protective Order
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`with a Standard Acknowledgement signed by Patent Owner’s counsel. Unified’s
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`confidential information was produced under the Protective Order.
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`VIII. Request for Conference Call with the Board
`Should the Board be inclined to deny this Opposed Motion to Seal,
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`Petitioner hereby requests a conference call with the Board to discuss any concerns
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`prior to the Board issuing a decision on the Motion.
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`
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`Unified Patents Inc.
`By:/ David L. Cavanaugh /
`David L. Cavanaugh
`Daniel V. Williams
`Ellyar Y. Barazesh
`Wilmer Cutler Pickering Hale and Dorr LLP
`1875 Pennsylvania Avenue, NW
`Washington, DC 20006
`david.cavanaugh@wilmerhale.com
`Roshan Mansinghani
`Jonathan Stroud
`Jonathan Bowser
`Unified Patents Inc.
`1875 Connecticut Ave., NW. Floor 10
`Washington, D.C., 20009
`roshan@unifiedpatents.com
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`Description
`U.S. Patent No. 7,092,671
`U.S. Patent No. 6,084,949 (“Yun”) (filed on June 5, 1997;
`published on July 4, 2000)
`U.K. Patent Application Publication No. GB 2318703
`(“Langlois”) (published on April 29, 1998)
`U.S. Patent No. 5,428,671 (“Dykes”) (filed on November 9,
`1992; published on June 27, 1995)
`U.S. Patent No. 6,738,643 (“Harris”) (filed on October 31,
`2000; published on May 18, 2004)
`U.S. Patent No. 7,577,910 (“Husemann”) (filed on July 10,
`2000; published on August 18, 2009)
`Declaration of Herbert Cohen
`File History, ’727 application, Office Action (10/09/2003)
`File History, ’727 application, Response (12/18/2003)
`File History, ’727 application, Office Action (03/12/2004)
`File History, ’727 application, Response (06/17/2004)
`File History, ’727 application, Office Action (11/26/2004)
`File History, ’727 application, Response (05/27/2005)
`File History, ’727 application, Office Action (08/12/2005)
`File History, ’727 application, Response (02/21/2006)
`File History, ’727 application, Notice of Allowance
`(03/23/2006)
`Default Protective Order with Standard Acknowledgement
`signed by Patent Owner’s counsel
`Email regarding claw back and instruction to dispose of
`confidential information
`Email and share site access providing Unified’s produced
`documents under the terms of the Protective Order to Patent
`Owner’s counsel and attorney
`
`Exhibit
`1001
`1002
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`1003
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`1004
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`1005
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`1006
`1007
`1008
`1009
`1010
`1011
`1012
`1013
`1014
`1015
`1016
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`1017
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`1018
`
`1019
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`CERTIFICATE OF SERVICE
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`IPR2018-00199
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`I hereby certify that on November 16, 2018, 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:
`• Opposed Motion to Seal
`• Exhibits 1017, 1018, and 1019
`
`Ryan Loveless
`Brett Mangrum
`James Etheridge
`Jeffrey Huang
`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
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`Emails:
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`ryan@etheridgelaw.com
`brett@etheridgelaw.com
`jim@etheridgelaw.com
`jeff@etheridgelaw.com
`sean.burdick@unilocusa.com
`Respectfully submitted,
`
`/Ellyar Y. Barazesh/
`Ellyar Y. Barazesh, Reg. No. 74,096
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`1875 Pennsylvania Avenue NW
`Washington, DC 20006
`Tel: (202) 663-6000
`Fax: (202) 663-6363
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