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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________________
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`UNIFIED PATENTS, LLC
`Petitioner
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`v.
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`BRADIUM TECHNOLOGIES LLC
`Patent Owner
`_________________________
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`IPR2018-00952
`U.S. Patent 9,253,239
`_________________________
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`MOTION TO EXPUNGE CONFIDENTIAL INFORMATION
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`Introduction
`Pursuant to 37 C.F.R. § 42.56, Petitioner, Unified Patents, LLC
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`IPR2018-00952
`U.S. 9,253,239
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`I.
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`(“Petitioner”), hereby requests that certain confidential information in the record be
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`expunged. This motion is timely filed prior to the information becoming public.
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`See Office Patent Trial Practice Guide (“Trial Practice Guide”), 77 Fed. Reg.
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`48,756, 48,761 (Aug. 14, 2012). For the reasons set forth below, Petitioner
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`respectfully requests that certain papers and documents be expunged.
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`Specifically, Petitioner hereby requests that the following documents
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`currently either under seal or awaiting a decision under a motion to seal be
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`expunged from the record as these documents contain Petitioner’s highly
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`confidential business information:
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` Exhibit 2008 – Petitioner’s Member Agreement
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` Exhibit 2009 – Petitioner’s Subscription Form
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` Exhibit 2013 - Petitioner’s Voluntary Interrogatory Responses of
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`Kevin Jakel;
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` Exhibit 2004 – Deposition Transcript of Kevin Jakel;
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` Paper 19 – Patent Owner Preliminary Response (POPR);
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` Paper 25 – Reply to POPR;
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` Paper 30 – Sur-Reply to POPR;
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` Paper 38 – Patent Owner Response (POR);
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`1
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`IPR2018-00952
`U.S. 9,253,239
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` Paper 45 – Sur-Reply to POR; and
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` Paper 60 – Final Written Decision.
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`II. Applicable Legal Standards
`37 CFR § 42.56 provides that following “denial of a petition to institute a
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`trial or after final judgment in a trial, a party may file a motion to expunge
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`confidential information from the record.” Similarly, the Trial Practice Guide
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`states that “[t]here is an expectation that information will be made public where the
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`existence of the information is referred to in a decision to grant or deny a request to
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`institute a review or is identified in a final written decision following a trial.” Trial
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`Practice Guide, 77 Fed. Reg. at 48,761. However, the Trial Practice Guide also
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`states that a party “seeking to maintain the confidentiality of information . . . may
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`file a motion to expunge the information from the record prior to the information
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`becoming public.” A party seeking expungement from the record must show good
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`cause by demonstrating “that any information sought to be expunged constitutes
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`confidential information, and that Petitioner’s interest in expunging it outweighs
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`the public’s interest in maintaining a complete and understandable history of this
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`inter partes review.” Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc.,
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`IPR2013-00453, Paper 97 at 2 (P.T.A.B. Apr. 15, 2015).
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`III. Good Cause Exists For Expunging the Confidential Papers and
`Documents
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`2
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`In this proceeding, the Board has granted Petitioner’s Motion to Seal the
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`IPR2018-00952
`U.S. 9,253,239
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`confidential information contained in Exhibits 2008 and 2009. See Final Written
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`Decision, Paper 60, at 76. The Board further denied without prejudice Petitioner’s
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`Motions to Seal Exhibit 2013, Exhibit 2004, Paper 19 (POPR), Paper 25 (Reply to
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`POPR), Paper 30 (Sur-Reply to POPR), Paper 38 (POR), and Paper 45 (Sur-Reply
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`to POR). See i.d., at 76-78. However, the Board authorized Petitioner to file a
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`Renewed Motion to Seal related to these documents as well as the Final Written
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`Decision. See Order, Paper 62. The Board has not yet acted on Petitioner’s
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`Renewed Motion to Seal (Paper 70).
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`Redacted versions of the remaining documents containing confidential
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`information have been filed in this proceeding. The following table summarizes the
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`confidential documents (left column), with the corresponding redacted versions
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`(right column):
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`Sealed Document
`Exhibit 2008 - Petitioner’s Member
`Agreement
`Exhibit 2009 - Petitioner’s
`Subscription Form
`Exhibit 2013 - Petitioner’s Voluntary
`Interrogatory Responses of Kevin Jakel
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`Exhibit 2004 – Deposition Transcript
`of Kevin Jakel
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`Redacted Version of Document
`None - exhibit contains only
`confidential information1
`None - exhibit contains only
`confidential information
`Exhibit 1032 – Petitioner’s Voluntery
`Interrogatory Responses of Kevin Jakel
`(Redacted)
`Exhibit 1033 – Deposition Transcript
`of Kevin Jakel (Redacted)
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`1 Exhibits 2008 and 2009 were sealed in their entireties. See Paper 60.
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`3
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`Paper 19 –POPR
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`Paper 25 – Reply to POPR
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`Paper 30 – Sur-Reply to POPR
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`Paper 38 –POR
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`Paper 45 – Sur-Reply to POR
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`Paper 60 – Final Written Decision
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`IPR2018-00952
`U.S. 9,253,239
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`Paper 63 – Petitioner’s Redacted
`Version of POPR
`Paper 64 – Petitioner’s Redacted
`Version of Reply to POPR
`Paper 65 – Petitioner’s Redacted
`Version of Sur-Reply to POPR
`Paper 66 – Petitioner’s Redacted
`Version of POR
`Paper 67 – Petitioner’s Redacted
`Version of Sur-Reply to POR
`Paper 68 – Petitioner’s Redacted
`Version of Final Written Decision
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`As set forth in the Motions to Seal (Papers 18, 24, 33, 53, and 70), the
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`confidential documents contain Petitioner’s confidential and highly sensitive
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`information, disclosure of which would adversely harm Petitioner. The information
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`reflected in the documents is confidential, sensitive commercial information,
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`including closely held information, related to Petitioner’s core business,
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`membership terms, and business strategy and constitutes highly confidential
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`business information, as well as trade secrets. Disclosure of Petitioner’s highly
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`confidential business information would provide Petitioner’s competitors and
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`would-be business rivals with a roadmap for replicating Petitioner’s unique,
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`valuable business model and would reveal contractual business information
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`between two parties produced voluntarily under a joint protective order. Were
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`confidential information produced voluntarily under a joint protective order to be
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`disclosed publicly, a producing party would have little incentive to engage in
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`voluntary discovery of confidential information in proceedings before the Board.
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`IPR2018-00952
`U.S. 9,253,239
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`Additionally, Petitioner is contractually obligated to third parties to maintain the
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`confidentiality of Petitioner’s highly confidential business information.
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`Pursuant to the Board’s findings and Orders in this case (Papers 60 and 62),
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`redacted versions of these confidential documents have been filed publicly in the
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`present proceeding.2 These redacted versions “maintain the essence” of non-
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`confidential material contained within each of the papers and documents and thus
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`allow the public to “maintain[] a complete and understandable history” of the
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`present proceeding. Atlanta Gas Light, Paper 97 at 2, 3. Accordingly, the public
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`interest would be served by maintaining the confidentiality of this information.
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`As to the Final Written Decision (Paper 60, redacted version Paper 68),
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`redactions of confidential information are minimal and do not inhibit the public’s
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`ability to completely understand the file history of this proceeding. Thus, the
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`redacted version of the Final Written Decision (Paper 68) “strik[es] an appropriate
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`balance between the public policy for an open record and the legitimate need to
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`protect confidential information from disclosure.” Atlanta Gas Light, Paper 97 at 4
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`(citing RPX Corp. v. VirnetX Inc., IPR2014-00171, Paper 62 at 4–5) (P.T.A.B.
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`2 As noted above, the only exceptions are Exhibits 2008 and 2009, which the Board
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`ordered to be sealed in the entirety. See supra at 3, fn. 1.
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`5
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`Sept. 9, 2014)). The redactions in the Final Written Decision address real party-in-
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`IPR2018-00952
`U.S. 9,253,239
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`interest issues and do not bear on the unpatentability of the claims. Indeed, the
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`Board has previously relied on sealed confidential information in a final written
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`decision without publicly disclosing that confidential information. See, e.g., Petrol.
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`Geo-Services Inc. v. WesternGeco LLC, IPR2014-01477, Paper 71 at 62-68
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`(P.T.A.B. Jul. 11, 2016) (final written decision redacting confidential information
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`and finding no privity between Petitioner and third-party defendant in litigation).
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`Accordingly, good cause exists to expunge the confidential papers and
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`documents, as well as the confidential version of the Final Written Decision (Paper
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`60).
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`IV. Conclusion
`For the above reasons, Petitioner respectfully requests that the Board protect
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`Petitioner’s highly confidential business information and expunge the confidential
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`documents pursuant to 37 C.F.R. § 42.56.
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`V. Request for Conference Call with the Board
`Should the Board not be inclined to grant the present Motion to Expunge,
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`Petitioner hereby request a conference call with the Board to discuss any concerns
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`prior to the Board issuing a decision on the Motion.
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`6
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`IPR2018-00952
`U.S. 9,253,239
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`Respectfully Submitted,
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` /Alyssa J. Holtslander/
`Alyssa J. Holtslander
`Reg. No. 64,026
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`Dated: February 17, 2020
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`IPR2018-00952
`U.S. 9,253,239
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`CERTIFICATE OF SERVICE
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`I hereby certify that on February 17, 2020 a copy of the foregoing MOTION
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`TO EXPUNGE CONFIDENTIAL INFORMATION was served via electronic
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`mail, as agreed to by counsel, upon the following counsel for Patent Owner:
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`Chris J. Coulson
`Bunsow De Mory LLP
`101 Brambach Rd.
`Scarsdale, NY 10583
`Email: ccoulson@bdiplaw.com
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`Michael N. Zachary
`Bunsow De Mory LLP
`701 El Camino Real Redwood City, CA 94063
`Email: mzachary@bdiplaw.com
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`Michael E. Shanahan
`Email: mshanahan@generalpatent.com
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`/Ashley F. Cheung/
`Ashley F. Cheung
`Paralegal
`Unified Patents, LLC
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