UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`INTEL CORP., CAVIUM, LLC, and DELL INC.,
`Petitioners,
`v.
`ALACRITECH, INC.,
`Patent Owner.
`______________________
`
`Case IPR2018-002341
`U.S. Patent No. 8,805,948
`______________________
`PETITIONER’S REPLY TO PATENT OWNER’S OPPOSITION TO
`PETITIONER’S MOTION TO SEAL
`
`
`
`
`1Cavium, 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.
`
`
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`INTEL CORP., CAVIUM, LLC, and DELL INC.,
`Petitioners,
`v.
`ALACRITECH, INC.,
`Patent Owner.
`______________________
`
`Case IPR2018-002341
`U.S. Patent No. 8,805,948
`______________________
`PETITIONER’S REPLY TO PATENT OWNER’S OPPOSITION TO
`PETITIONER’S MOTION TO SEAL
`
`
`
`
`1Cavium, 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.
`
`
`
`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`
`Patent Owner’s (“PO”) Opposition is a waste of the Board’s time and
`
`resources. The Board routinely grants motions to seal upon a showing of good cause
`
`such as the one Petitioner set forth here, particularly when the request is narrowly
`
`tailored to specific sensitive information. As PO has made no arguments sufficient
`
`to rebut Petitioner’s good cause showing, the Motion should be granted.
`
`Petitioner moved to seal certain limited portions of the Board’s June 4, 2019
`
`Order (“Paper 66”). As explained in the Motion, the information sought to be sealed
`
`relates to highly sensitive commercial information regarding the relationship
`
`between Petitioner Intel and its customers, specifically details from confidential
`
`agreements with its customer Dell. Petitioner, understanding the public interest in
`
`access while balancing the need to protect commercially sensitive information, thus
`
`proposed very limited redactions to Paper 66 in connection with its Motion.
`
`While PO contends that Petitioner’s Motion failed to satisfy the “good cause”
`
`standard, the Board routinely grants motions like the one at issue here. See Google
`
`v. Seven Networks, IPR2018-01047, Paper 34 (Mar. 29, 2019); Unified Patents vs.
`
`American GNC, IPR2019-00505, Paper 31 (granting motion to seal, even in denial
`
`of institution inter partes review, where “the information sought to be sealed reflects
`
`confidential business information of Petitioner.”). Indeed, to demonstrate good
`
`cause, Petitioner’s Motion provided explanation regarding why the information
`
`sought to be sealed should be maintained as confidential (highly sensitive
`
`
`
`1
`
`
`
`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`
`commercial information including excerpts from customer agreements) and
`
`demonstrated it was not excessively redacted (redacting limited information
`
`regarding specific exhibits, never entire pages or the Board’s conclusions).
`
`Petitioner averred in its Motion that the information sought to be sealed is
`
`confidential and not publicly known, and PO has not demonstrated otherwise.
`
`Petitioner also set forth that harm could result from public disclosure, including by
`
`noting the information sought to be sealed was commercially sensitive as it pertains
`
`to details of Petitioner’s customer relationships. Given this, on balance, Petitioner
`
`demonstrated that maintaining the confidentiality outweighed the public’s interest,
`
`and therefore established good cause. Nothing more is required.
`
`Despite this, PO opposes the Motion. But aside from reciting the general
`
`standard favoring public disclosure of IPR proceedings, PO’s opposition provides
`
`no explanation for why the particular information sought to be sealed is needed to
`
`advance that goal. Notably, PO did not previously oppose a motion to seal the
`
`underlying exhibits relied upon by the Board in the termination decision (see Paper
`
`43), which are also under seal in the related District Court litigations.
`
`PO makes the inflammatory assertion that, “Petitioner’s request to seal
`
`portions of the Order is a blatant attempt to hide its abuse and serial IPR filing
`
`practices from the public.” Paper 70 at 2. This Board carefully considered and
`
`squarely rejected this baseless and scurrilous allegation in its Institution Decision,
`
`finding that “the typical hallmarks of abusive, strategic serial petitioning are absent
`
`
`
`2
`
`
`
`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`
`from this case.” Paper 7 at 14. PO’s repetition of this baseless allegation here is all
`
`the more remarkable because it bears no relation to the information sought to be
`
`redacted. Nothing about the requested redactions prevents the public from seeing
`
`the IPR petitions Petitioner filed, the manner in which they proceeded, and their
`
`outcome. The redactions merely protect details of commercially sensitive
`
`confidential agreements with an important customer.
`
`In attempting to undermine Petitioner’s showing, PO alleges that, because
`
`Petitioner has discussed the general contours of its agreements with its customer
`
`Dell, this justifies publishing the entirety of these confidential business agreements.
`
`This contorted argument is unsupported by any authority. PO also argues against
`
`itself by, on the one hand, contending the sealed portions of the opinion are
`
`“coextensive” with statements in the public record, while on the other hand arguing
`
`that the precise details of these statements must be unsealed to fully understand the
`
`Board’s analysis. Instead, by PO’s own admission, the only details pertinent to the
`
`Board’s analysis, who the parties to the agreement are and whether there is
`
`indemnification, are already public. See Google v. Seven Networks, IPR2018-01047
`
`Paper 34 (granting motion to seal and noting the “public’s interest in the confidential
`
`information is minimal because it relates to real party in interest and privy issues and
`
`otherwise is not relevant to the merits of the case.”) The Board did not rely on the
`
`content of Petitioner’s agreements with its customer Dell in reaching its ultimate
`
`
`
`3
`
`
`
`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`
`conclusion that Dell was a real party in interest. Rather, the fact that there was an
`
`indemnification provision in the otherwise confidential agreements was just one
`
`factor that indicated, according to the Board, a preexisting relationship such that Dell
`
`“benefitted directly” from Petitioner’s filing the Petitions. Paper 66 at 18. Petitioner
`
`has not denied the basic facts regarding the existence of an indemnification
`
`agreement, and does not seek to seal them now.
`
`Further, PO’s opposition does not acknowledge that Petitioner did not
`
`affirmatively seek to publicize or produce the highly sensitive confidential
`
`agreements. Indeed, Petitioner only produced these agreements as a result of PO’s
`
`motion for additional discovery, which the Board granted in PO’s favor following
`
`Petitioner’s well founded objections. In opposing that motion, Petitioner explained
`
`that the underlying customer agreements were “highly confidential,” and expressed
`
`specific concern that default IPR protective order would “not provide sufficient
`
`confidentiality protection for the requested documents.” Paper 28 at 1,10. To
`
`address these concerns, Petitioner negotiated a further protective order specifically
`
`to protect these documents. Throughout this proceeding, Petitioner has sought to
`
`preserve the confidentiality of the underlying highly sensitive details of the
`
`agreements. Ultimately, PO’s opposition does not dispute that the underlying
`
`agreements are confidential and not publicly known.
`
`PO also takes issue with Petitioner’s statement that the disclosure of the
`
`
`
`4
`
`
`
`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`
`confidential information sought to be sealed “could” cause Petitioner irreparable
`
`harm. PO’s argument is nothing more than an issue of semantics and elevates form
`
`over substance. Further, PO cites no authority for the proposition that such a
`
`statement of prospective harm is alone sufficient to defeat a showing of good cause.
`
`Instead, in the Argentum decision PO cites, the evidence sought to be sealed were
`
`laboratory notebooks and associated data, and the Board specifically discussed the
`
`lack of relevant analysis, noting the parties had “failed to identify sufficiently either
`
`a harm incident to disclosure or a reason why the information is necessary in this
`
`trial.” IPR2017-01053, Paper 27. One does not have to look far to identify the harm
`
`Petitioner is concerned about. As has been explained in this proceeding, Cavium
`
`was joined in the IPR, and Petitioner took great pains to prevent the disclosure of
`
`confidential customer information to its direct competitor. Paper 28 at 10. Further,
`
`the declaration of Mr. Schmisseur, filed herewith as Exhibit 1506, provides
`
`additional detail regarding the consequences of public disclosure.
`
`Finally, even if PO’s motion had any substantive merit, in Argentum, on which
`
`PO heavily relies, the Board denied the motion to seal without prejudice and
`
`provided specific instructions allowing refiling. IPR2017-01053, Paper 27. To
`
`avoid burdening the Board with any further motions to seal (which are disfavored as
`
`the Board has “limited resources” to address multiple motions to seal, see id.)
`
`Petitioner requests the Board grant the Motion, as further supported by this reply.
`
`
`
`5
`
`
`
`Dated: September 5, 2019
`
`
`
`
`
`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`
`
`
`Respectfully submitted,
`
`/s/ Garland T. Stephens
`Garland T. Stephens, Reg. No. 37,242
`Melissa L. Hotze, Reg. No. 55,279
`Justin L. Constant, Reg. No. 66,883
`Weil, Gotshal & Manges LLP
`700 Louisiana, Suite 1700
`Houston, TX 77002
`Tel: (713) 546-5000
`Fax: (713) 224-9511
`garland.stephens@weil.com
`melissa.hotze@weil.com
`justin.constant@weil.com
`Anne M. Cappella, Reg. No. 43,217
`Adrian Percer, Reg. No. 46,986
`Amanda Branch (admitted pro hac vice)
`Weil, Gotshal & Manges LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`Tel: (650) 802-3000
`Fax: (650) 802-3100
`anne.cappella@weil.com
`adrian.percer@weil.com
`amanda.branch@weil.com
`William S. Ansley, Reg. No. 67,828
`Weil, Gotshal & Manges LLP
`2001 M Street, N.W, Suite 600
`Washington, DC 20036
`Tel: (202) 682-7000
`Fax: (202) 857-0940
`sutton.ansley@weil.com
`
`Attorneys for Petitioner Intel Corporation
`
`6
`
`
`
`
`
`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`
`CERTIFICATE OF SERVICE
`I hereby certify that on September 5, 2019, a copy of PETITIONER’S
`
`REPLY TO PATENT OWNER’S OPPOSITION TO PETITIONER’S
`
`MOTION TO SEAL was served by filing this document through the PTAB’s E2E
`
`Filing System as well as delivering a copy via electronic mail upon the following:
`
`James M. Glass
`Registration No. 46,729
`Quinn Emanuel Urquhart & Sullivan LLP
`51 Madison Ave., 22nd Fl.
`New York, NY 10010
`Tel.: (212) 849-7000
`Email: jimglass@quinnemanuel.com
`Joseph M. Paunovich
`Registration No. 59,033
`Quinn Emanuel Urquhart & Sullivan LLP
`865 S. Figueroa Street, 10th Fl.
`Los Angeles, CA 90017
`Tel.: (213) 443-3000
`Email: joepaunovich@quinnemanuel.com
`Brian E. Mack
`Registration No. 57,189
`Quinn Emanuel Urquhart & Sullivan LLP
`50 California Street, 22nd Fl.
`San Francisco, CA 94111
`Tel.: (415) 875-6600
`Email: brianmack@quinnemanuel.com
`
`Dated: September 5, 2019
`
`
`
`/s/ Melissa L. Hotze
`Melissa L. Hotze
`Reg. No. 55,279
`
`
`
`
`
`
`
`
`
`
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
