`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`SIRIUS XM RADIO INC.,
`Petitioner,
`
`v.
`
`FRAUNHOFER-GESELLSCHAFT ZUR FÖRDERUNG DER
`ANGEWANDTEN FORSCHUNG E.V.,
`Patent Owner.
`____________________
`
`Case IPR2018-00690
`Patent No. 6,314,289
`
`__________________________________________________________
`
`PETITIONER’S MOTION TO SEAL
`CERTAIN EXHIBITS UNDER 37 C.F.R. § 42.14
`
`
`
`
`
`
`
`Pursuant to 37 C.F.R. § 42.14 and 42.14, Petitioner Sirius XM Radio Inc.
`
`IPR2018-00690
`U.S. Patent No. 6,314,289
`
`
`(“Sirius XM”) hereby moves for entry of the Default Protective Order and to seal a
`
`certain Exhibit (referred to herein as the “Subject Exhibit” or “Exhibit 1018”)
`
`which is identified below:
`
`Filing/Exhibit
`Content
`Exhibit 1018 E-mail Correspondence with
`Exhibits
`
`Confidential Information
`
`Bank Account Numbers, Wire
`Transfer Numbers
`
`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, Mar. 14, 2013). 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.
`
`- 1 -
`
`
`
`35 U.S.C. § 316(a)(7); 37 C.F.R. § 42.54; Office Trial and Practice Guide, 77 Fed.
`
`IPR2018-00690
`U.S. Patent No. 6,314,289
`
`
`Reg. 48756, 48760 (Aug. 14, 2012).
`
`The Subject Exhibit, particularly at page 3, contains confidential financial
`
`account information of Sirius XM’s counsel, requiring that it be designated as
`
`“PROTECTIVE ORDER MATERIAL” under Default Protective Order (attached
`
`hereto as Exhibit 1019). The Subject Exhibit contains highly confidential
`
`information and, in particular, reveals confidential bank account routing numbers
`
`and wire transfer reference numbers. The confidential information disclosed in the
`
`Subject Exhibit is also outlined in the chart above.
`
`The sealing of the Subject Exhibit is of particular importance because of the
`
`otherwise public disclosure of such “truly sensitive information” that the public has
`
`no right or interest in.
`
`Granting this Motion will not prejudice or impact this underlying
`
`proceeding. The public’s interest in accessing the information requiring that the
`
`Subject Exhibit 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 Sirius
`
`XM and its counsel.
`
`- 2 -
`
`
`
`II. CERTIFICATION OF NON-PUBLICATION
`
`IPR2018-00690
`U.S. Patent No. 6,314,289
`
`
`To the best of Sirius XM’s knowledge, the confidential information
`
`contained in the Subject Exhibit has not been made publicly available.
`
`III. CERTIFICATION OF CONFERENCE WITH OPPOSING PARTY
`PURSUANT TO 37 C.F.R. § 42.54
`
`Sirius XM, in good faith, met and conferred with Patent Owner regarding
`
`the scope of the Default Protective Order. Patent Owner does not object to the
`
`entry of the Default Protective Order.
`
`IV. PROPOSED PROTECTIVE ORDER
`Sirius XM 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 1019. Patent Owner
`
`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 the Subject Exhibit from public disclosure.
`
`- 3 -
`
`
`
`IPR2018-00690
`U.S. Patent No. 6,314,289
`
`
`Respectfully submitted,
`
`
`
`
`
`/Jonathan S. Caplan/
`
`Jonathan S. Caplan (Reg. No. 38,094)
`Mark Baghdassarian (pro hac vice)
`Shannon Hedvat (Reg. 68,417)
`Jeffrey H. Price (Reg. No. 69,141)
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Tel: 212.715.9488
`
`Dated: June 20, 2018
`
`
`
`(Case No. IPR2018-00690)
`
`Attorneys for Petitioner
`Sirius XM Radio Inc.
`
`
`
`- 4 -
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that a true and
`
`correct copy of the foregoing Motion to Seal was served on June 20, 2018, by
`
`filing this document through the PTAB E2E System as well as delivering via
`
`electronic mail upon the following counsel of record for Patent Owner:
`
`
`
`
`
`Ben J. Yorks (byorks@irell.com)
`Babak Redjaian (bredjaian@irell.com)
`David McPhie (dmcphie@irell.com)
`Irell & Manella LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, CA 90067
`FraunhoferIPRs@irell.com
`
`
`
`
`
`/Jonathan S. Caplan/
`
`Jonathan S. Caplan (Reg. No. 38,094)
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Tel: 212.715.9488
`
`
`- 1 -
`
`
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