`
`
`
`Paper No. ___
`Filed: October 22, 2018
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________________
`
`MYLAN PHARMACEUTICALS INC.,
`Petitioners,
` v.
`BAYER INTELLECTUAL PROPERTY GMBH,
`Patent Owner.
`_____________________________
`
`IPR2018-01143
`Patent No. 9,539,218
`_____________________________
`
`PETITIONER’S MOTION TO SEAL EXS. 1066-1068
`
`
`
`TABLE OF CONTENTS
`Page
`I.
`STATEMENT OF PRECISE RELIEF REQUESTED .................................. 1
`II. MOTION FOR ENTRY OF A STIPULATED PROTECTIVE
`ORDER ........................................................................................................... 1
`III. GOOD EXISTS FOR SEALING CONFIDENTIAL
`INFORMATION ............................................................................................ 1
`IV. CERTIFICATION OF CONFERENCE WITH OPPOSING
`PARTY PURSUANT TO 37 C.F.R. §42.54 .................................................. 2
`CONCLUSION ............................................................................................... 3
`V.
`- i -
`
`
`
`
`I.
`STATEMENT OF PRECISE RELIEF REQUESTED
`Pursuant to 37 C.F.R. §§ 42.14, 42.54, Petitioner Mylan Pharmaceuticals
`Inc. respectfully submits this motion for entry of a stipulated protective order and
`to seal unredacted versions of Exhibits 1066-1068. The unredacted versions of
`Exhibits 1066-1068 were submitted under seal in Case No. 17-cv-462 (RGA)
`pending in the United States District Court for the District of Delaware. They
`contain information that is confidential to Mylan. Redacted versions of these
`exhibits were filed publicly at the district court and are also filed publicly in this
`proceeding. Mylan is serving Patent Owner with both confidential and public
`versions of each document.
`II. MOTION FOR ENTRY OF A STIPULATED PROTECTIVE ORDER
`Mylan moves for entry of a Stipulated Protective Order (EX1070). EX1070
`is based on the Default Protective Order in Trial Practice Guide, 77 Fed. Reg.
`48756, 48771 (Aug. 14, 2012). A redlined version of the Default Protective Order
`is submitted in EX1071 to show the change relative to the Default Protective
`Order, which is located in Section 2(B). The change replaces the word
`“Representatives” with the phrase “Attorneys associated with the law firm.”
`III. GOOD EXISTS FOR SEALING CONFIDENTIAL INFORMATION
`The Board will seal documents upon a showing of “good cause.” Garmin v.
`Cuozzo, IPR2012-00001, Paper 36 at 3 (PTAB April 5, 2013). “The rules aim to
`strike a balance between the public’s interest in maintaining a complete and
`- 1 -
`
`
`
`
`
`understandable file history and the parties’ interest in protecting truly sensitive
`information.” The Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48760
`(Aug. 14, 2012).
`Here, Mylan seeks to file the unredacted version of Exhibits 1066-1068
`under seal because they contain non-public, business-sensitive information. The
`documents were filed under seal and are governed by the protective order in Case
`No. 17-cv-462 (RGA) pending in the United States District Court for the District
`of Delaware. Mylan’s competitors are not privy to the redacted portions of Exhibits
`1066-1068. Disclosure of this non-public briefing to Mylan’s competitors may
`subject Mylan to business-related competitive harm. Mylan has minimized any
`prejudice to the public’s interest in access to the record in these proceedings by
`filing its Reply brief without redaction (while preserving the confidentiality of the
`redacted information in the exhibits). The prospect of competitive harm to Mylan,
`coupled with the minimal public interest in accessing the underlying exhibits that
`were filed under seal at the district court, favors sealing the unredacted documents.
`IV. CERTIFICATION OF CONFERENCE WITH OPPOSING PARTY
`PURSUANT TO 37 C.F.R. §42.54
`Counsel for Mylan has conferred with counsel for Bayer regarding the
`confidentiality of Exhibits 1066-1068 and regarding the Stipulated Protective
`Order (EX1070). The parties agreed to change Section 2(B) of the Default
`Protective Order, resulting in the Stipulated Protective Order (EX1070).
`- 2 -
`
`
`
`
`
`V. CONCLUSION
`For the reasons provided above, Mylan requests that the Board enter the
`Stipulated Protective Order (EX1070) and seal the unredacted versions of Exhibits
`1066-1068.
`
`Respectfully submitted,
`
` Date: October 22, 2018
`/ Steven W. Parmelee /
`
`
`Steven W. Parmelee
`
` Reg. No. 31,990
`- 3 -
`
`
`
`CERTIFICATE OF SERVICE
`
`This is to certify that I caused to be served a true and correct copy of the
`foregoing Petitioner’s Motion to Seal Exhibits 1066-1068 on this 22nd day of
`October, 2018, on the Patent Owner at the correspondence address of the Patent
`Owner as follows:
`Dov P. Grossman
`Ben Picozzi
`WILLIAMS & CONNOLY LLP
`725 Twelfth St. NW
`Washington, DC 20005
`Email: dgrossman@wc.com
`Email: bpicozzi@wc.com
`
`
`
`/ Steven W. Parmelee /
`Dated: October 22, 2018
`
` Steven W. Parmelee,
`
`
` Reg. No. 31,990
`
`
`
`- 0 -
`
`
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