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`Case No. IPR2018-00234
`U.S. Patent No. 8,805,948
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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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`INTEL CORP., CAVIUM, INC., and DELL INC.,
`Petitioners,
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`v.
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`ALACRITECH, INC.,
`Patent Owner
`________________
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`Case IPR2018-002341
`U.S. Patent No. 8,805,948
`________________
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`PATENT OWNER’S OPPOSITION TO
`PETITIONER’S MOTION TO SEAL
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`1 Cavium LLC (formerly Cavium, Inc.), which filed a Petition in Case IPR2018-
`00403, and Dell Inc., which filed a Petition in Case IPR2018-01307, have been
`joined as petitioners in this proceeding.
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`Case No. IPR2018-00234
`U.S. Patent No. 8,805,948
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`Patent Owner Alacritech, Inc. (“Patent Owner” or “Alacritech”) hereby
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`opposes Petitioner Intel Corporation’s (“Petitioner” or “Intel”) Motion to Seal
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`(Paper 68, “Motion to Seal”). Instead of attempting to show “good cause” to seal
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`portions of the Board’s June 4, 2019 Order (Paper 66, “Order”), Petitioner merely
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`references undefined “commercial information” related to Intel and its customers
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`and “Intel business practices”—none of which deserve protection either under the
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`Protective Order entered in this IPR or by way of a motion to seal. Petitioner’s
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`request to seal portions of the Order is a blatant attempt to hide its abuse and serial
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`IPR filing practices from the public.
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`Because Petitioner has failed to demonstrate any of the four factors required
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`to show good cause to seal under this Board’s precedent, Petitioner’s motion
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`should be denied and the default rule of public availability should control.
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`I. LEGAL STANDARD
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`In an inter partes review, the moving party bears the burden of showing that
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`the relief requested should be granted. 37 C.F.R. § 42.20(c). A party moving to
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`seal must show “good cause” for the relief requested. 37 C.F.R. § 42.54(a). This
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`principle and the detailed factors for showing good cause have been articulated in
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`many decisions before the Board, including the informative decision Argentum
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`Pharm. LLC v. Alcon Research, Ltd., Case IPR2017-01053, Paper 27 (Jan. 19,
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`2018). See also Garmin Int’l v. Cuozzo Speed Techs., LLC, Case IPR2012-00001,
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`Case No. IPR2018-00234
`U.S. Patent No. 8,805,948
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`Paper 34 (Mar. 14, 2013) and Corning Optical Communications RF, LLC, v. PPC
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`Broadband, Inc., Case IPR2014-00440 Papers 46, 47, 49 (April 6, 14, and 17,
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`2015).
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`In Argentum Pharm, the Board explained that “[t]he ‘good cause’ standard
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`for granting a motion to seal reflects the strong public policy for making all
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`information in an inter partes review open to the public,” and unlike in a civil
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`action in district court, “the default rule is that all papers . . . are open and available
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`for access by the public.” Argentum Pharm. LLC v. Alcon Research, Ltd., Case
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`IPR2017-01053, Paper 27 at 3 (internal quotation and citations omitted).
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`“Good cause” for sealing is established by a “sufficient explanation as
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`to why” the “information sought to be sealed is confidential
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`information”, a demonstration that the information is not “excessively
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`redacted”, and a showing that, on balance, the strong “public[] interest
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`in maintaining a complete and understandable record” is outweighed
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`by “the harm to a party, by disclosure of information” and “the need
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`of either party to rely specifically on the information at issue.”
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`Consequently, a movant to seal must demonstrate adequately that (1)
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`the information sought to be sealed is truly confidential, (2) a concrete
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`harm would result upon public disclosure, (3) there exists a genuine
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`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
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`outweighs the strong public interest in having an open record.
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`Id. at 3-4 (internal citation omitted and emphasis added).
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`Case No. IPR2018-00234
`U.S. Patent No. 8,805,948
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`II. PETITIONER HAS FAILED TO SHOW GOOD CAUSE TO
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`SEAL PORTIONS OF THE ORDER
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`a. Petitioner failed to sufficiently explain why the information
`sought to be sealed was confidential
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`A movant to seal must first show that “the information sought to be sealed
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`is truly confidential.” Id. The confidentiality allegations made by Petitioner are
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`conclusory in nature and are not supported by any specific evidence or even a
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`sufficient explanation. Such allegations are terse, including three sentences total:
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`The redacted version of Paper 66 is redacted to protect highly
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`sensitive, commercial information related to the relationship between
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`Intel and its customers and other internal Intel business practices. For
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`example, Paper 66 includes specific details about and quotes from
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`commercially sensitive agreements with Intel’s customer Dell. As
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`such, portions of Paper 66 are designated Petitioner’s Restricted –
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`Attorneys’ Eyes Only under the Protective Order in this IPR.
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`Motion to Seal at 3. Here, Petitioner has only asserted confidentiality over one
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`example, the agreements between Intel and Dell. However, this general assertion
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`does not explain why such agreements are sensitive and confidential and does not
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`explain why each proposed redaction is sensitive and confidential. Indeed, many
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`confidential agreements routinely include confidentiality clause, prohibiting parties
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`from disclosing the agreements or certain terms of the agreements without mutual
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`Case No. IPR2018-00234
`U.S. Patent No. 8,805,948
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`consent, but Petitioner here did not identify any such clauses or even allege that the
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`terms of the agreements are confidential.
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`In fact, the two agreements have been summarized multiple times by
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`Petitioner in both IPR proceedings and the District Court case. For example, in
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`Intel’s motion to intervene, which is already of public record in this IPR, Intel
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`stated that “Intel has agreed to defend and partially indemnify Dell as to
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`Alacritech’s allegations based on Intel components incorporated into the accused
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`Dell products.” Ex. 2051 at 1. In Petitioner’s Reply brief, it stated that “Intel also
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`has no obligation to indemnify (and therefore no right to control) any Defendant on
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`the 205 Patent because PO’s allegations for the 205 Patent are not directed
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`exclusively to components supplied by Intel (e.g. operating systems).” Paper 35 at
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`18-19. These statements are coextensive with corresponding language proposed to
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`be sealed in the Order.2 See, e.g., Motion to Seal, Exhibit A, Order at 13, 15,
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`Dissenting at 29-32.
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`2 The only basis for Petitioner’s request to seal appears to be Petitioner’s prior
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`designation of the agreements as “Petitioner’s Restricted – Attorneys’ Eyes Only”
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`under the Protective Order entered in this IPR. Motion to Seal at 3. Obviously,
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`designation under the Protective Order does not give Petitioner carte blanche to
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`Case No. IPR2018-00234
`U.S. Patent No. 8,805,948
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`b. Petitioner failed to prove that concrete harm would result
`upon public disclosure
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`A movant to seal must also show that “a concrete harm would result upon
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`public disclosure.” IPR2017-01053, Paper 27 at 3-4. Petitioner’s allegation with
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`regard to harm is not substantiated either. There is only one sentence in
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`Petitioner’s brief mentioning potential harm and it is speculative. Petitioner argues
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`that “[b]ecause Paper 76 contains certain confidential business information as
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`indicated above, the public disclosure of which could cause Petitioner irreparable
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`harm, good cause exists to seal portions of demonstrative exhibits as Petitioner’s
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`Restricted – Attorneys’ Eyes Only information under the Protective Order.”
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`Motion to Seal at 3 (emphasis added). This type of speculative statement has been
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`found insufficient to prove concrete harm. For example, in Argentum Pharm. LLC
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`v. Alcon Research, Ltd., the movant averred that disclosure “has the potential to
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`cause” competitive harm. Case IPR2017-01053, Paper 27 at 4. The Board found
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`that this “potential” harm is not an adequate harm that “will result in the event of
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`disclosure.” Id. Similarly, “the public disclosure of which could cause Petitioner
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`later move to seal or remove Petitioner’s burden of proof to establish “good cause”
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`to seal.
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`Case No. IPR2018-00234
`U.S. Patent No. 8,805,948
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`irreparable harm” is no more than a “potential” harm. Such an allegation, even if
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`true, is insufficient to meet the concrete harm requirement.
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`c. Petitioner’s public interest analysis is misplaced
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`A movant to seal must also show that “on balance, an interest in maintaining
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`confidentiality outweighs the strong public interest in having an open record.”
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`IPR2017-01053, Paper 27 at 3-4. Petitioner spent two sentences on its public
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`interest analysis: “the information that Petitioner requests to be sealed was
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`submitted only to rebut Patent Owner’s arguments regarding real party in interest.
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`The information is otherwise unimportant to the merits of this proceeding, and
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`therefore the public’s interest in having access to this information in minimal.”
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`Motion to Seal at 3. Petitioner suggests that the Board’s real-party-in-interest
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`analysis is a minor issue in this proceeding and of no interest to the public.
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`Petitioner’s position is belied by Order itself. The Order is almost entirely about
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`real party in interest, and it is the very reason the Board vacated the institution
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`decision and terminated the proceeding. Contrary to Petitioner’s assertion, there is
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`therefore a strong public interest in fully understanding the Board’s decision,
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`including the entirety of its real-party-in-interest analysis. A complete
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`understanding of the Board’s rationale would not be possible without disclosing
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`the full record. Petitioner does not justify how maintaining the alleged
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`Case No. IPR2018-00234
`U.S. Patent No. 8,805,948
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`confidentiality outweighs the strong public policy that favors an open record and
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`full and complete disclosure to the public.
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`In addition, the Board has routinely held that information identified in a final
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`decision should be made public. See Argentum Pharm. LLC v. Alcon Research,
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`Ltd., Case IPR2017-01053, Paper 27 at 8 (“This Order shall place both parties on
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`notice that a movant to seal in this proceeding shall assume the risk that its
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`confidential information will become public if relied upon in a final written
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`decision.”), Google Inc. v. Summit 6 LLC, Case IPR2015-00806, Paper 44 at 3 (“If
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`the Board’s final written decision substantively relies on any information in the
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`sealed exhibit, that exhibit will be unsealed by an Order of the Board”); see also
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`Rule of Practice, 77 Fed. Reg. No. 157, Part V at Section I.E.6. (Aug. 14, 2012)
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`(“There is an expectation that information will be made public where the existence
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`of the information . . . is identified in a final written decision following a trial.”).
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`Since the Board’s Order was a final decision terminating the IPR, it should be
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`maintained public in its entirety.
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`III. CONCLUSION
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`For the foregoing reasons, Patent Owner respectfully requests that the Board
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`deny Petitioner’s motion to seal.
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`Date: August 5, 2019
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` Respectfully submitted,
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`Case No. IPR2018-00234
`U.S. Patent No. 8,805,948
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`By: /s/ James M. Glass, Reg. No. 46,729
` James M. Glass (Reg. No. 46,729)
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`Tel: (212) 849-7000
`Fax: (212) 849-7100
`Email: jimglass@quinnemanuel.com
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`Lead Attorney for Patent Owner –
`Alacritech, Inc.
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`Case No. IPR2018-00234
`U.S. Patent No. 8,805,948
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned hereby certify that
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`PATENT OWNER’S OPPOSITION TO PETITIONER’S MOTION TO
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`SEAL was served on August 5, 2019 by filing it through the Patent Review
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`Processing System, as well as by e-mailing copies to:
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`
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`Garland T. Stephens (Reg. No. 37,242)
`garland.stephens@weil.com
`intel.alacritech.ipr@weil.com
`WEIL, GOTSHAL & MANGES LLP
`700 LOUISIANA, SUITE 1700
`HOUSTON, TX 77002-2784
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`Anne M. Cappella (Reg. No. 43,217)
`Adrian Percer (Reg. No. 46,986)
`Jeremy Jason Lang (Reg. No. 73,604)
`Weil, Gotshal & Manges LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`Tel: (650) 802-3141
`Fax: (650) 802-3100
`anne.cappella@weil.com
`adrian.percer@weil.com
`jason.lang@weil.com
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`David T. Xue
`Karineh Khachatourian
`RIMÔN LAW
`david.xue@rimonlaw.com
`karinehk@rimonlaw.com
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`Christopher Douglas
`Kirk Bradley
`Derek Neilson
`ALSTON & BIRD LLP
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`Case No. IPR2018-00234
`U.S. Patent No. 8,805,948
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`christopher.douglas@alston.com
`kirk.bradley@alston.com
`derek.neilson@alston.com
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`Date: August 5, 2019
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`Respectfully submitted,
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`By: /s/ James M. Glass, Reg. No. 46,729
` James M. Glass (Reg. No. 46,729)
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`jimglass@quinnemanuel.com
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`Lead Attorney for Patent Owner –
`Alacritech, Inc.
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