`571.272.7822
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` Paper No. 15
` Entered: January 2, 2019
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MYLAN PHARMACEUTICALS, INC.,
`Petitioner,
`
`v.
`
`BAYER INTELLECTUAL PROPERTY GMBH,
`Patent Owner.
`____________
`
`Case IPR2018-01143
`Patent 9,539,218 B2
`____________
`
`
`Before JACQUELINE WRIGHT BONILLA, Acting Deputy Chief
`Administrative Patent Judge, RAMA G. ELLURU and
`TINA E. HULSE, Administrative Patent Judges.
`
`HULSE, Administrative Patent Judge.
`
`
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`
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`DECISION
`Granting Petitioner’s Renewed Motion to Seal
`37 C.F.R. § 42.54
`
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`
`IPR2018-01143
`Patent 9,539,218 B2
`
`
` INTRODUCTION
`On October 22, 2018, Mylan Pharmaceuticals Inc. (“Petitioner”) filed
`a Motion to Seal Exhibits 1066–1068. Paper 9. In that Motion, Petitioner
`requested entry of a Stipulated Protective Order. Id. at 1. On November 30,
`2018, we granted Petitioner’s motion for entry of the Stipulated Protective
`Order, but denied without prejudice the motion to seal the exhibits because
`Petitioner did not sufficiently explain how the redacted claim construction
`arguments in Exhibits 1066–1068 could cause Petitioner “business-related
`competitive harm.” Paper 12, 1.
`In response to our decision, Petitioner refiled Exhibits 1066–1068
`with fewer redactions and a public redacted version of the Surreply (Paper
`10). Petitioner also filed a renewed motion to seal the redacted portions of
`Exhibits 1066–1068 and Paper 11. Paper 14 (“Ren. Mot.”). Bayer
`Intellectual Property GmbH (“Patent Owner”) did not file an opposition to
`the Renewed Motion.
`For the reasons set forth below, we grant Petitioner’s Renewed
`Motion.
`
` ANALYSIS
`The standard for granting a motion to seal is “for good cause.”
`37 C.F.R. § 42.54. Petitioner, as the moving party, has the burden of proof
`in showing entitlement to the requested relief. 37 C.F.R. § 42.20(c). The
`Board has a strong interest in the public availability of the proceedings.
`Accordingly, our 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.” Office Patent Trial
`Practice Guide, 77 Fed. Reg. 48,756, 48,760 (Aug. 14, 2012).
`
`1
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`
`
`IPR2018-01143
`Patent 9,539,218 B2
`Petitioner renews its request to seal the redacted portions of Exhibits
`1066–1068 (“the Exhibits”) and the Surreply because the unredacted
`versions of the Exhibits were submitted under seal in the copending district
`court case and are governed by the protective order in that case. Ren. Mot.
`1–2. Petitioner contends that the redacted portions contain confidential
`litigation positions that would cause Petitioner irreparable competitive harm
`if disclosed to Petitioner’s competitors. Id. at 2.
`Although we remain skeptical that such claim construction arguments
`amount to business confidential information, we are cognizant that the
`information is sealed in the district court case and governed by the protective
`order in that case. Moreover, we did not rely on the redacted information in
`our Decision Denying Institution, thereby minimizing the public’s interest in
`the redacted information. See Paper 13.
`Accordingly, we determine Petitioner has established good cause to
`seal the redacted portions of the Exhibits and the Surreply pursuant to the
`Stipulated Protective Order until the documents are made public or
`expunged from the record. See 37 C.F.R. § 42.56.
` CONCLUSION
`For the foregoing reasons, we conclude that Petitioner has established
`good cause to seal the redacted portions of Exhibits 1066–1068 and the
`Surreply.
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`2
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`IPR2018-01143
`Patent 9,539,218 B2
`
` ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that Petitioner’s Renewed Motion to Seal Exhibits 1066–
`1068 and Paper 11 is granted; and
`FURTHER ORDERED that the confidential versions of Exhibits
`1066–1068 and the Surreply shall remain under seal pursuant to the
`Stipulated Protective Order until the documents are made public or
`expunged from the record.
`
`
`For PETITIONER:
`
`Steven Parmelee
`Michael Rosato
`Jad Mills
`WILSON SONSINI GOODRICH & ROSATI
`sparmelee@wsgr.com
`mrosato@wsgr.com
`jmills@wsgr.com
`
`For PATENT OWNER:
`
`Dov Grossman
`Ben Picozzi
`WILLIAMS & CONNOLLY LLP
`dgrossman@wc.com
`bpicozzi@wc.com
`
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