UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`UNIFIED PATENTS INC.
`Petitioner
`
`v.
`
`REALTIME ADAPTIVE STREAMING, LLC
`Patent Owner.
`
`____________________
`
`Case IPR2018-00883
`U.S. Patent 8,934,535
`
`____________________
`
`JOINT MOTION TO SEAL THE DECISION ON INSTITUTION
`
`
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`UNIFIED PATENTS INC.
`Petitioner
`
`v.
`
`REALTIME ADAPTIVE STREAMING, LLC
`Patent Owner.
`
`____________________
`
`Case IPR2018-00883
`U.S. Patent 8,934,535
`
`____________________
`
`JOINT MOTION TO SEAL THE DECISION ON INSTITUTION
`
`
`
`Case IPR2018-00883
`U.S. Patent 8,934,535
`
`I.
`
`Introduction
`
`On October 11, 2018, the Board issued a Decision on Institution (Paper 29,
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`“Non-Public Decision”) in this proceeding, which contained certain confidential
`
`information. On October 17, 2018, the Board issued an Order granting Patent
`
`Owner’s Motion to Seal (Paper 20) and Petitioner’s Motion to Seal (Paper 24) and
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`further instructing the parties to file a Joint Motion to Seal the Non-Public Decision
`
`and a proposed redacted version of the Non-Public Decision.
`
`Accordingly, the parties request that the Board’s Non-Public Decision, be
`
`maintained under seal under 37 C.F.R. § 42.54 and the Modified Default Standing
`
`Protective Order (Paper 19). Good cause to seal the Non-Public Decision exists
`
`because it contains Petitioner’s sensitive, confidential business information.
`
`Furthermore, the parties provide along with this motion a proposed Public Version
`
`of the Decision on Institution, which redacts the confidential information.
`
`II. Good Cause Exists for Sealing Certain Confidential Information
`
`The Office Patent Trial Practice Guide provides that “the rules aim to strike a
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`balance between the public’s interest in maintaining a complete and understandable
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`file history and the parties’ interest in protecting truly sensitive information.” 77
`
`FED. REG. 48756, 48760 (Aug. 14, 2012). Further, those rules “identify
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`confidential information in a manner consistent with Federal Rule of Civil Procedure
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`26(c)(1)(G), which provides for protective orders for trade secret or other
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`1
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`
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`Case IPR2018-00883
`U.S. Patent 8,934,535
`confidential research, development, or commercial information.” Id. (citing 37
`
`C.F.R. § 42.54).
`
`The Board’s Non-Public Decision contains information that Petitioner has
`
`identified as confidential business and commercial information. More particularly,
`
`the Board’s Non-Public Decision references and describes the content of certain
`
`confidential materials, that Petitioner and Patent Owner previously moved to file
`
`under seal (See Paper 20, Patent Owner’s Motion to Seal, and Paper 24, Petitioner’s
`
`Motion to Seal) and marked “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY” under the Protective Order in this case. As set forth in these motions, good
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`cause exists for maintaining Petitioner’s sensitive information as confidential. See
`
`Paper 20, Patent Owner’s Motion to Seal; Paper 24, Petitioner’s Motion to Seal.
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`More particularly, these confidential documents referenced in the Non-Public
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`Decision contain materials distributed by Petitioner to one or more of its members
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`describing its business strategy, containing Petitioner’s spending and business
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`activities, and other information relating to Petitioner and its members that Petitioner
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`has a duty to maintain as confidential, including information subject to
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`confidentiality obligations of agreements with third parties. See id.
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`III. A Proposed Public Version of the Decision on Institution
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`The parties provide a proposed Public Version of the Decision on Institution,
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`which redacts the confidential information, along with this motion as Exhibit 1019. The
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`2
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`Case IPR2018-00883
`U.S. Patent 8,934,535
`proposed redactions in this Public Version of the Decision on Institution are limited
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`to those statements that reveal sensitive and confidential information. As identified
`
`further below, quotations from and references to exhibits which have been placed
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`under seal by the Board’s October 17, 2018 Order granting the parties motions to
`
`seal have been redacted. As instructed in the Board’s October 17, 2018 Order on
`
`Conduct of the Proceeding, the parties identify below why the redacted portions are
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`truly confidential.
`
`• Page 12, Paragraph One: redacted due to information subject to
`
`confidentiality provisions of agreements with third parties, including
`
`the terms of such agreements and/or the zone participation of any
`
`Unified members.
`
`• Page 12, Paragraph Two, citation to sealed Exs. 2007 and 2008:
`
`redacted due to confidential nature of financial and other sensitive
`
`commercial
`
`information communicated
`
`to Petitioner’s member,
`
`including confidential license agreements.
`
`• Page 12, Paragraph Two, citation to sealed Ex. 2008: redacted due to
`
`information
`
`related
`
`to confidential settlement and/or
`
`license
`
`agreements and confidential nature of
`
`the sensitive business,
`
`commercial, and financial information in a non-public presentation to
`
`a member.
`
`3
`
`
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`Case IPR2018-00883
`U.S. Patent 8,934,535
`
`• Page 13, Paragraph One, citation to sealed Ex. 2006: redacted due to
`
`confidential nature of the sensitive business information quoted from a
`
`non-public presentation to a member describing Petitioner’s business
`
`strategy and
`
`including
`
`information subject
`
`to confidentiality
`
`obligations of agreements with third parties.
`
`• Page 14, Paragraph One: redacted due to information subject to
`
`confidentiality provisions of agreements with third parties, including
`
`the terms of such agreements and/or the zone participation of any
`
`Unified members.
`
`• Page 15, Paragraph Two, citation to Ex. sealed 1018: redacted due to
`
`confidential nature of information quoted from a sealed declaration
`
`containing
`
`confidential business,
`
`commercial,
`
`and
`
`financial
`
`information.
`
`• Page 15, Paragraph Two, citation to sealed Ex. 2006: redacted due to
`
`confidential nature of the sensitive business information quoted from a
`
`non-public presentation to a member describing Petitioner’s business
`
`strategy and
`
`including
`
`information subject
`
`to confidentiality
`
`obligations of agreements with third parties.
`
`4
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`
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`Case IPR2018-00883
`U.S. Patent 8,934,535
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`• Page 17, Paragraph Two, citation to sealed Ex. 2006: redacted due to
`
`confidentiality provisions of agreements of agreements with third
`
`parties, including information regarding Petitioner’s members.
`
`• Page 18, Paragraph Two, citations to sealed Ex. 2008: redacted due to
`
`information
`
`related
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`to confidential settlement and/or
`
`license
`
`agreements and confidential nature of
`
`the sensitive business,
`
`commercial, and financial information in a non-public presentation to
`
`a member.
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`• Page 18, Paragraph Two, identification of particular member: redacted
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`due to information subject to confidentiality provisions of agreements
`
`with third parties, including the terms of such agreements and/or the
`
`zone participation of any Unified members.
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`• Page 18, Paragraph Two and Page 19, citations to sealed Ex. 2010:
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`redacted due to information related to confidential settlement and/or
`
`license agreements and confidential nature of the sensitive business,
`
`commercial, and financial information in a non-public presentation to
`
`a member, including regarding Petitioner’s spending and business
`
`activities.
`
`As identified above, the redacted portions of the Decision on Institution do
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`not include information that Petitioner releases to the public but include only
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`5
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`
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`Case IPR2018-00883
`U.S. Patent 8,934,535
`information that is sensitive and confidential business and financial information of
`
`the Petitioner. Due to the sensitive and confidential nature of the information
`
`redacted, Petitioner’s interest in maintaining this sensitive business and financial
`
`information as confidential outweighs the public interest in having these limited
`
`redactions to the Board’s Non-Public Decision open to the public. Petitioner
`
`suggests that the reasoning behind the Board’s determination in its Decision on
`
`Institution is open to the public in the proposed Public Version of the Decision on
`
`Institution and all that is redacted are confidential aspects of Petitioner’s business
`
`and financial information.
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`IV. Conclusion
`
`For the above reasons, Petitioner and Patent Owner request that the Board’s
`
`Non-Pubic Decision, be maintained under seal. Furthermore, Petitioner and Patent
`
`Owner jointly request entry of the proposed Public Version of the Decision on
`
`Institution attached hereto as Exhibit 1019.
`
`Dated: October 18, 2018
`
`Respectfully submitted,
`
`By: /Lionel M. Lavenue/
`Lionel M. Lavenue (Reg. No. 46,859)
`Lead Counsel
`
`By: /William P. Rothwell/
`William P. Rothwell (Reg. No. 72,522)
`Lead Counsel
`
`Counsel for Petitioner
`Unified Patents Inc.
`
`Counsel for Patent Owner
`Realtime Adaptive Streaming LLC
`
`6
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`Case IPR2018-00883
`U.S. Patent 8,934,535
`
`
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`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a copy of the foregoing Joint Motion to Seal
`
`was filed on PTABE2E and served on October 18, 2018, via email directed to
`
`counsel of record for the Patent Owner at the following:
`
`William P. Rothwell
`william@noroozipc.com
`Kayvan B. Noroozi
`kayvan@noroozipc.com
`Joel P.N. Stonedale
`joel@noroozipc.com
`
`NOROOZI PC
`2245 Texas Drive, Suite 300
`Sugar Land, TX 77479
`
`Neil A. Rubin
`nrubin@raklaw.com
`Kent Shum
`kshum@raklaw.com
`
`RUSS AUGUST & KABAT
`12424 Wilshire Blvd., 12th Fl.
`Los Angeles, CA 90025
`
`
`
`Dated: October 18, 2018
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`By: /Daniel E. Doku/
`Daniel E. Doku
`Litigation Clerk
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
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