`______________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`INTEL CORP., CAVIUM, LLC, and DELL INC.,
`Petitioners,
`v.
`ALACRITECH, INC.,
`Patent Owner.
`______________________
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`Case IPR2018-002341
`U.S. Patent No. 8,805,948
`______________________
`PETITIONER’S REPLY TO PATENT OWNER’S OPPOSITION TO
`PETITIONER’S MOTION TO SEAL
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`1Cavium, LLC (formerly Cavium, Inc.) which filed a Petition in Case IPR2018-
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`00403, and Dell Inc., which filed a Petition in Case IPR2018-01307, have been
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`joined as petitioners in this proceeding.
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`Patent Owner’s (“PO”) Opposition is a waste of the Board’s time and
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`resources. The Board routinely grants motions to seal upon a showing of good cause
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`such as the one Petitioner set forth here, particularly when the request is narrowly
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`tailored to specific sensitive information. As PO has made no arguments sufficient
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`to rebut Petitioner’s good cause showing, the Motion should be granted.
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`Petitioner moved to seal certain limited portions of the Board’s June 4, 2019
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`Order (“Paper 66”). As explained in the Motion, the information sought to be sealed
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`relates to highly sensitive commercial information regarding the relationship
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`between Petitioner Intel and its customers, specifically details from confidential
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`agreements with its customer Dell. Petitioner, understanding the public interest in
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`access while balancing the need to protect commercially sensitive information, thus
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`proposed very limited redactions to Paper 66 in connection with its Motion.
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`While PO contends that Petitioner’s Motion failed to satisfy the “good cause”
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`standard, the Board routinely grants motions like the one at issue here. See Google
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`v. Seven Networks, IPR2018-01047, Paper 34 (Mar. 29, 2019); Unified Patents vs.
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`American GNC, IPR2019-00505, Paper 31 (granting motion to seal, even in denial
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`of institution inter partes review, where “the information sought to be sealed reflects
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`confidential business information of Petitioner.”). Indeed, to demonstrate good
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`cause, Petitioner’s Motion provided explanation regarding why the information
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`sought to be sealed should be maintained as confidential (highly sensitive
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`commercial information including excerpts from customer agreements) and
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`demonstrated it was not excessively redacted (redacting limited information
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`regarding specific exhibits, never entire pages or the Board’s conclusions).
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`Petitioner averred in its Motion that the information sought to be sealed is
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`confidential and not publicly known, and PO has not demonstrated otherwise.
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`Petitioner also set forth that harm could result from public disclosure, including by
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`noting the information sought to be sealed was commercially sensitive as it pertains
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`to details of Petitioner’s customer relationships. Given this, on balance, Petitioner
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`demonstrated that maintaining the confidentiality outweighed the public’s interest,
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`and therefore established good cause. Nothing more is required.
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`Despite this, PO opposes the Motion. But aside from reciting the general
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`standard favoring public disclosure of IPR proceedings, PO’s opposition provides
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`no explanation for why the particular information sought to be sealed is needed to
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`advance that goal. Notably, PO did not previously oppose a motion to seal the
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`underlying exhibits relied upon by the Board in the termination decision (see Paper
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`43), which are also under seal in the related District Court litigations.
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`PO makes the inflammatory assertion that, “Petitioner’s request to seal
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`portions of the Order is a blatant attempt to hide its abuse and serial IPR filing
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`practices from the public.” Paper 70 at 2. This Board carefully considered and
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`squarely rejected this baseless and scurrilous allegation in its Institution Decision,
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`finding that “the typical hallmarks of abusive, strategic serial petitioning are absent
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`from this case.” Paper 7 at 14. PO’s repetition of this baseless allegation here is all
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`the more remarkable because it bears no relation to the information sought to be
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`redacted. Nothing about the requested redactions prevents the public from seeing
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`the IPR petitions Petitioner filed, the manner in which they proceeded, and their
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`outcome. The redactions merely protect details of commercially sensitive
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`confidential agreements with an important customer.
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`In attempting to undermine Petitioner’s showing, PO alleges that, because
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`Petitioner has discussed the general contours of its agreements with its customer
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`Dell, this justifies publishing the entirety of these confidential business agreements.
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`This contorted argument is unsupported by any authority. PO also argues against
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`itself by, on the one hand, contending the sealed portions of the opinion are
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`“coextensive” with statements in the public record, while on the other hand arguing
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`that the precise details of these statements must be unsealed to fully understand the
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`Board’s analysis. Instead, by PO’s own admission, the only details pertinent to the
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`Board’s analysis, who the parties to the agreement are and whether there is
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`indemnification, are already public. See Google v. Seven Networks, IPR2018-01047
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`Paper 34 (granting motion to seal and noting the “public’s interest in the confidential
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`information is minimal because it relates to real party in interest and privy issues and
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`otherwise is not relevant to the merits of the case.”) The Board did not rely on the
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`content of Petitioner’s agreements with its customer Dell in reaching its ultimate
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`conclusion that Dell was a real party in interest. Rather, the fact that there was an
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`indemnification provision in the otherwise confidential agreements was just one
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`factor that indicated, according to the Board, a preexisting relationship such that Dell
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`“benefitted directly” from Petitioner’s filing the Petitions. Paper 66 at 18. Petitioner
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`has not denied the basic facts regarding the existence of an indemnification
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`agreement, and does not seek to seal them now.
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`Further, PO’s opposition does not acknowledge that Petitioner did not
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`affirmatively seek to publicize or produce the highly sensitive confidential
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`agreements. Indeed, Petitioner only produced these agreements as a result of PO’s
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`motion for additional discovery, which the Board granted in PO’s favor following
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`Petitioner’s well founded objections. In opposing that motion, Petitioner explained
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`that the underlying customer agreements were “highly confidential,” and expressed
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`specific concern that default IPR protective order would “not provide sufficient
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`confidentiality protection for the requested documents.” Paper 28 at 1,10. To
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`address these concerns, Petitioner negotiated a further protective order specifically
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`to protect these documents. Throughout this proceeding, Petitioner has sought to
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`preserve the confidentiality of the underlying highly sensitive details of the
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`agreements. Ultimately, PO’s opposition does not dispute that the underlying
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`agreements are confidential and not publicly known.
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`PO also takes issue with Petitioner’s statement that the disclosure of the
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`confidential information sought to be sealed “could” cause Petitioner irreparable
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`harm. PO’s argument is nothing more than an issue of semantics and elevates form
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`over substance. Further, PO cites no authority for the proposition that such a
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`statement of prospective harm is alone sufficient to defeat a showing of good cause.
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`Instead, in the Argentum decision PO cites, the evidence sought to be sealed were
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`laboratory notebooks and associated data, and the Board specifically discussed the
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`lack of relevant analysis, noting the parties had “failed to identify sufficiently either
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`a harm incident to disclosure or a reason why the information is necessary in this
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`trial.” IPR2017-01053, Paper 27. One does not have to look far to identify the harm
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`Petitioner is concerned about. As has been explained in this proceeding, Cavium
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`was joined in the IPR, and Petitioner took great pains to prevent the disclosure of
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`confidential customer information to its direct competitor. Paper 28 at 10. Further,
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`the declaration of Mr. Schmisseur, filed herewith as Exhibit 1506, provides
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`additional detail regarding the consequences of public disclosure.
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`Finally, even if PO’s motion had any substantive merit, in Argentum, on which
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`PO heavily relies, the Board denied the motion to seal without prejudice and
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`provided specific instructions allowing refiling. IPR2017-01053, Paper 27. To
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`avoid burdening the Board with any further motions to seal (which are disfavored as
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`the Board has “limited resources” to address multiple motions to seal, see id.)
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`Petitioner requests the Board grant the Motion, as further supported by this reply.
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`Dated: September 5, 2019
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`Case IPR2018-00234
`U.S. Patent No. 8,805,948
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`Respectfully submitted,
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`/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
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`Attorneys for Petitioner Intel Corporation
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`Case IPR2018-00234
`U.S. Patent No. 8,805,948
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`CERTIFICATE OF SERVICE
`I hereby certify that on September 5, 2019, a copy of PETITIONER’S
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`REPLY TO PATENT OWNER’S OPPOSITION TO PETITIONER’S
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`MOTION TO SEAL was served by filing this document through the PTAB’s E2E
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`Filing System as well as delivering a copy via electronic mail upon the following:
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`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
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`Dated: September 5, 2019
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`/s/ Melissa L. Hotze
`Melissa L. Hotze
`Reg. No. 55,279
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