`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`FINJAN, INC.,
`Patent Owner.
`____________________
`
`Case IPR2018-00391
`Patent 7,647,633
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION FOR ENTRY OF THE DEFAULT
`PROTECTIVE ORDER AND TO SEAL PATENT OWNER’S RESPONSE
`AND CERTAIN EXHIBITS UNDER 37 C.F.R. §§ 42.14 AND 42.54
`
`
`
`
`
`
`
`
`
`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Patent Owner, Finjan, Inc.,
`
`(“Finjan”) hereby moves for entry of the Default Protective Order and to seal
`
`portions of its Patent Owner Response and certain Exhibits (collectively referred to
`
`herein as the “Subject Exhibits”) to Finjan’s Patent Owner Response which are
`
`identified below:
`
`Filing/Exhibit Content
`
`
`
`Patent Owner’s
`Response
`
`Section
`
`Redacted
`portion on
`pages 40-41
`
`Exhibit 2012
`
`
`Declaration of Phil
`Hartstein in Support of
`Patent Owner’s
`Response
`
`¶ 5
`
`¶ 7
`
`Confidential
`Information1
`Contains highly
`confidential
`information regarding
`licensing practices
`Contains highly
`confidential
`information regarding
`licensing practices
`Contains highly
`confidential
`information regarding
`licensing practices
`
`
`1 Further details regarding the confidential information regarding each of the
`
`filings and exhibits identified in this chart are explained infra at § I. A copy of the
`
`Default Protective Order is concurrently filed herewith and attached hereto as
`
`Exhibit 2026.
`
`1
`
`
`
`I.
`
`GOOD CAUSE EXISTS FOR SEALING CERTAIN CONFIDENTIAL
`INFORMATION
`
`The Board’s standards for granting motions to seal are discussed in Garmin
`
`International v. Cuozzo Speed Technologies, LLC, IPR2012-00001 (Paper 34 at 4-
`
`5)(P.T.A.B. Mar. 14, 2013) and Corning Optical Commc’ns RF, LLC v. PPC
`
`Broadband, Inc., Case IPR2014-00440 (Papers 46, 47, 49) (P.T.A.B. Apr. 6, 14,
`
`and 17, 2015). The standard for granting a motion to seal is “good cause.” 37
`
`C.F.R. § 42.54(a). The moving party bears the burden of showing that the relief
`
`requested should be granted. 37 C.F.R. § 42.20(c). In particular:
`
`The rules aim to strike a balance between the public’s interest in
`maintaining a complete and understandable file history and the
`parties’ interest in protecting truly sensitive information.
`*
`*
`*
`Confidential Information: The rules identify confidential information
`in a manner consistent with Federal Rule of Civil Procedure
`26(c)(1)(G), which provides for protective orders for trade secret or
`other confidential research, development, or commercial information.
`
`Office Trial and Practice Guide, 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012); 35
`
`U.S.C. § 316(a)(7); 37 C.F.R. § 42.54.
`
`Finjan’s Patent Owner Response and the Subject Exhibits contain
`
`confidential information requiring that they be designated as “PROTECTIVE
`
`ORDER MATERIAL” under Default Protective Order (attached hereto as Exhibit
`
`
`
`2
`
`
`
`2026). The Patent Owner Response and Subject Exhibits each contain highly
`
`confidential information of Finjan and third parties Specifically, each discuss and
`
`reveal confidential information regarding Finjan’s and/or third party’s licensing
`
`practices including highly sensitive information relating to such licenses. The
`
`confidential information disclosed in the Patent Owner Response and each of the
`
`Subject Exhibits is outlined in the chart above.
`
`The sealing of the foregoing is of particular importance because the public
`
`disclosure of such “truly sensitive information” would impact Finjan’s and third
`
`party’s competitive position in the market. In particular, information regarding
`
`certain licenses, and the development efforts and strategies at Finjan, would allow
`
`competitors to access information that would significantly harm Finjan’s
`
`competitive position in the marketplace.
`
`
`
`Furthermore, and notwithstanding the foregoing, granting this Motion would
`
`not prejudice nor impact this underlying proceeding. The public’s interest in
`
`accessing the information requiring that the limited identified portions of the Patent
`
`Owner Response and Subject Exhibits be sealed for the purposes of the
`
`patentability of the challenged claims is unquestionably outweighed by the
`
`prejudicial effect and competitive harm of disclosing the above described
`
`confidential business information of third party.
`
`
`
`3
`
`
`
`II. CERTIFICATION OF NON-PUBLICATION
`
`To the best of Finjan’s knowledge, the confidential information contained in
`
`the Patent Owner Response and the Subject Exhibits has not been made publically
`
`available.
`
`III. CERTIFICATION OF CONFERENCE WITH OPPOSING PARTY
`PURSUANT TO 37 C.F.R. § 42.54
`
`Finjan, in good faith, met and conferred with Petitioner regarding the scope
`
`of the Default Protective Order. Petitioner does not object to the entry of the
`
`Default Protective Order.
`
`IV. PROPOSED PROTECTIVE ORDER
`
`Finjan proposes that the Default Protective Order found in Appendix B of
`
`the Trial Practice Guide be entered. A copy of the Default Protective Order is
`
`concurrently filed herewith and attached hereto as Exhibit 2026. Petitioner does
`
`not object to the entry of the Default Protective Order.
`
`V. CONCLUSION AND RELIEF REQUESTED
`
`Accordingly, good cause exists to warrant entry of the Default Protective
`
`Order and to seal Finjan’s Patent Owner Response and the Subject Exhibits from
`
`public disclosure.
`
`
`
`4
`
`
`
`Dated: September 10, 2018
`
`
`(Case No. IPR2018-00391)
`
`Respectfully submitted,
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Tel: 650.752.1700 Fax: 212.715.8000
`
`Jeffrey H. Price (Reg. No. 69,141)
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Tel: 212.715.7502 Fax: 212.715.8302
`
`
`
`Attorneys for Patent Owner
`
`
`
`5
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies, in accordance with 37 C.F.R. § 42.6(e), that
`
`service was made on the Petitioner as detailed below.
`
`Date of service September 10, 2018
`
`Manner of service Electronic Mail (PDMcPherson@duanemorris.com;
`PCMuldoon@duanemorris.com;
`japowers@duanemorris.com)
`
`Documents served PATENT OWNER’S MOTION FOR ENTRY OF THE
`DEFAULT PROTECTIVE ORDER AND TO SEAL
`PATENT OWNER’S RESPONSE AND CERTAIN
`EXHIBITS
`
`
`
`Persons Served Patrick D. McPherson
`Patrick Muldoon
`Joseph A. Powers
`
`
`
`
`
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road,
`Menlo Park, CA 94025
`(650) 752-1700
`
`6
`
`
`
`
`
`
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