`Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`Paper 89
`Date: January 9, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`GOOGLE LLC, ZTE (USA), INC.,
`SAMSUNG ELECTRONICS CO., LTD.,
`LG ELECTRONICS INC., HUAWEI DEVICE USA, INC.,
`HUAWEI DEVICE CO. LTD., HUAWEI TECHNOLOGIES CO. LTD.,
`HUAWEI DEVICE (DONGGUAN) CO. LTD.,
`HUAWEI INVESTMENT & HOLDING CO. LTD.,
`HUAWEI TECH. INVESTMENT CO. LTD., and
`HUAWEI DEVICE (HONG KONG) CO. LTD.,
`Petitioner,
`
`v.
`
`CYWEE GROUP LTD.,
`Patent Owner.
`____________
`
`IPR2018-01257
`Patent 8,552,978 B2
`____________
`
`
`Before PATRICK M. BOUCHER, KAMRAN JIVANI, and
`CHRISTOPHER L. OGDEN, Administrative Patent Judges.
`
`
`BOUCHER, Administrative Patent Judge.
`
`
`DECISION
`Motions to Seal
`37 C.F.R. § 42.14
`
`
`
`
`
`
`
`IPR2018-01257
`Patent 8,552,978 B2
`
`
`On September 5, 2019, we granted the parties’ joint motion for entry
`of a protective order in this proceeding, filed as an attachment to Paper 56.
`Paper 68. In accordance with that protective order, Patent Owner has filed
`three Motions to Seal documents in this proceeding, none of which has been
`opposed by Petitioner. Papers 47 (“First Motion to Seal”), 63 (“Third
`Motion to Seal), 67 (“Fourth Motion to Seal”). Petitioner has filed two
`Motions to Seal documents, one of which has been opposed by Patent
`Owner in part, with Petitioner filing a reply to Patent Owner’s opposition.
`Papers 53 (“Second Motion to Seal”), 79 (“Fifth Motion to Seal”), 80
`(opposition to Fifth Motion to Seal), 85 (reply to opposition to Fifth Motion
`to Seal). We address each of the motions as follows, in accordance with the
`standard for granting a motion to seal, which is good cause. 37 C.F.R.
`§ 42.54(a).
`
`
`I. FIRST AND THIRD MOTIONS TO SEAL
`In the First Motion to Seal, Patent Owner moves to seal Exhibit 2031,
`a filed named Attitude.cpp, “which contains CyWee’s sensor fusion code for
`the JIL phone.” Paper 47; Ex. 2020 ¶ 11. Patent Owner asserts that the
`exhibit “contains valuable and sensitive commercial information of Patent
`Owner that is not available to the public,” and that “[t]he same document is
`subject to the Protective Order entered in the related district court action.”
`Paper 47, 1. Petitioner does not oppose this Motion, and we conclude, in
`light of the sensitivity of the information, that good cause exists to grant the
`First Motion to Seal.
`In the Third Motion to Seal, Patent Owner moves to seal Exhibit
`2034, which “is substantively identical to Exhibit 2031 but contains line
`
`2
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`IPR2018-01257
`Patent 8,552,978 B2
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`numbers for ease of readability.” Paper 63, 1. Patent Owner also moves to
`seal Exhibit 1043, which is a deposition transcript of Dr. Joseph LaViola.
`Id. According to Patent Owner, Exhibit 1043 “contains valuable and
`sensitive commercial information of Patent Owner that is not available to the
`public, namely, testimony regarding the source code filed as Exhibits 2031
`and 2034.” Id. at 1–2. Petitioner has filed a redacted version of the
`transcript as Exhibit 1048. Petitioner does not oppose this Motion, and we
`conclude, in light of the sensitivity of the information in Exhibit 2034 and
`the portions of Exhibit 1043 that are redacted in Exhibit 1048, that good
`cause exists to grant the Third Motion to Seal.
`
`
`II. SECOND AND FOURTH MOTIONS TO SEAL
`On August 9, 2019, Petitioner filed an opposition under seal to Patent
`Owner’s First Motion to Terminate (moving to terminate based on real-
`party-in-interest and privity issues). Paper 51. Petitioner concurrently filed
`a redacted, publicly available version of that opposition. Paper 52. The
`redaction in that version is of footnote 1, which Petitioner moves to seal in
`the Second Motion to Seal as “contain[ing] sensitive internal business
`information pertaining to the existence or non-existence of certain legal
`arrangements and/or business relationships.” Paper 53, 3. In doing so,
`Petitioner “certifies that the full extent of this information has not been
`published or otherwise been made public.” Id. Petitioner additionally
`contends that “the information would be valuable to competitors and
`harmful to Google if made public.” Id. at 4. Patent Owner does not oppose
`the Motion, and we conclude, in the context of the limited nature of the
`redaction, that good cause exists to grant Petitioner’s Motion.
`
`3
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`IPR2018-01257
`Patent 8,552,978 B2
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`
`On August 30, 2019, Patent Owner filed a reply under seal to
`Petitioner’s opposition. Paper 65. Patent Owner concurrently filed a
`redacted, publicly available version of that reply. Paper 66. In addition,
`Patent Owner filed supporting documents as Exhibits 2045 and 2047, which
`are respectively a transcript of the deposition of Collin W. Park and
`correspondence between attorneys for Petitioner and Patent Owner. Patent
`Owner moves, in the Fourth Motion to Seal, to seal its unredacted reply, as
`well as Exhibits 2045 and 2047. Paper 67.
`In doing so, Patent Owner does not address the standard for granting a
`motion to seal. See generally id. Nevertheless, we have reviewed the
`information redacted from the publicly available version of the reply, and
`conclude that good cause exists to grant Patent Owner’s Motion with respect
`to the reply. We also conclude that good cause exists to seal Exhibit 2047.
`With respect to Exhibit 2045, we do not find sufficient cause to seal the
`entire deposition transcript, but we note that Petitioner has filed a redacted
`version of that exhibit as Exhibit 1049, with limited and appropriate
`redaction. Under such circumstances, we grant the entirety of the Fourth
`Motion to Seal.
`
`
`III. FIFTH MOTION TO SEAL
` On November 7, 2019, Patent Owner filed a Supplemental
`Submission of Information (Paper 76), as well as Exhibits 2049–2056, under
`seal. Patent Owner concurrently filed a redacted, publicly available version
`of the Supplemental Submission of Information. Paper 77. Exhibits 2049–
`2055 have been filed in the Board’s E2E system with designations that
`identify them only by Bates numbers.
`
`4
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`IPR2018-01257
`Patent 8,552,978 B2
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`
`In the Fifth Motion to Seal, Petitioner moves to seal “the entire
`content of the exhibits 2049-2056,” as well as the redacted portions of Patent
`Owner’s Supplemental Submission of Information. Paper 79, 2. Petitioner
`explains that “[t]he confidential information that Google moves to seal
`consists of non-public commercial agreements with a third party obtained
`from that party, pursuant to an order for additional discovery and under a
`protective order, in IPR2019-00143.” Id. at 3. Specifically, Patent Owner
`asserts that “the agreeme[nt]s in Exhibits 2049-2056 are confidential
`commercial agreements between parties, and the redacted portions of the
`CyWee submission refer to, interpret, or quote content from the
`agreements.” Id. In addition, according to Patent Owner, “[f]urther
`redactions in CyWee’s submission of citations to Exhibit 2014 are necessary
`to prevent cross-referencing.” Id. With respect to Exhibit 2056, Petitioner
`contends its sealing is “intended to preserve confidential material relating to
`agreements between defendants in litigation,” and “certifies that the full
`extent of this information has not been published or otherwise been made
`public.” Id. at 3–4.
`Patent Owner opposes sealing the titles and dates of Exhibits 2049–
`2055, which it contends “disclose nothing more than the fact that Google
`and ZTE have business relationships, which appears to be a matter of public
`knowledge.” Paper 80, 3 (citing Daniel Van Bloom, ZTE May Lose Android
`Licensing from Google, Report Says, CNET (Apr. 17, 2018, 6:30 PM),
`https://www.cnet.com/news/zte-may-lose-android-licensing-from-google-
`report-says). Patent Owner otherwise “has no objection to the treatment of
`the substance of the documents as Highly Confidential Protective Order
`Material.” Id. Petitioner contests Patent Owner’s characterization by
`
`5
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`IPR2018-01257
`Patent 8,552,978 B2
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`contending that “the title and date of the agreement disclose more than the
`fact that Google and ZTE have had business relationships.” Paper 85, 2. In
`particular, Petitioner asserts that “disclosure of the titles and dates of
`agreements would allow third-parties to infer the timing and the nature of
`[the] agreements,” thereby allowing third parties “to analyze a pattern of
`transactions [and possibly] influenc[ing] bargaining for similar agreements
`between other parties or agreements with service providers or customers
`relevant to the transactions between Google and ZTE.” Id. at 2–3.
`Petitioner provides sufficient reason for maintaining confidentiality of
`Exhibits 2049–2056, as well as the titles and dates of Exhibits 2049–2055
`and other confidential information in Paper 76, as redacted in Paper 77, such
`that we find the Fifth Motion to Seal supported by good cause.
`
`
`IV. FINAL WRITTEN DECISION
`The Final Written Decision, entered concurrently today under seal
`without redactions, may refer to information that is the subject of the
`Motions to Seal. The parties may identify, no later than January 31, 2020,
`which portions of the Final Written Decision, if any, should be redacted for a
`public version. To that end, the parties may make such an identification by
`jointly submitting via email a single PDF document containing all proposed
`redactions. The parties shall not file their proposed redactions on the docket
`of this proceeding.
`If the parties agree that the Final Written Decision may be made
`publicly available without any redactions, the parties may notify the Board
`via email stating this within the same time frame. In the absence of a
`communication from the parties about any alleged confidentiality in the
`
`6
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`IPR2018-01257
`Patent 8,552,978 B2
`
`Final Written Decision by January 31, 2020, the Board will make the Order
`publicly available as originally entered.
`
`It is
`ORDERED that each of the First, Second, Third, Fourth, and Fifth
`Motions to Seal are granted in their entirety;
`FURTHER ORDERED that Papers 51, 65 and 76, and Exhibits 1043,
`2031, 2034, 2045, 2047, and 2049–2056 remain sealed; and
`FURTHER ORDERED that the parties may submit, by January 31,
`2020, a proposed redacted copy of the Final Written Decision identifying
`those parts, if any, that should remain under seal.
`
`
`
`
`
`
`7
`
`
`
`IPR2018-01257
`Patent 8,552,978 B2
`
`For Petitioner:
`
`Matthew A. Smith
`Andrew S. Baluch
`SMITH BALUCH LLP
`smith@smithbaluch.com
`baluch@smithbaluch.com
`
`James Sobieraj
`Jon Beaupre
`Yeuzhong Feng
`Andres Shoffstall
`BRINKS GILSON & LIONE
`jsobieraj@brinksgilson.com
`jbeaupre@brinksgilson.com
`yfen@brinksgilson.com
`ashoffstall@brinksgilson.com
`
`Naveen Modi
`Chetan Bansal
`PAUL HASTINGS LLP
`naveenmodi@paulhastings.com
`chetanbansal@paulhastings.com
`
`Collin Park
`Andrew Devkar
`Jeremy Peterson
`Adam Brooke
`MORGAN LEWIS & BOCKIUS LLP
`Collin.park@morganlewis.com
`Andrew.devkar@morganlewis.com
`jpeterson@morganlewis.com
`adam.brooke@morganlewis.com
`
`
`
`
`
`
`
`8
`
`
`
`IPR2018-01257
`Patent 8,552,978 B2
`
`Kristopher Reed
`Benjamin Klein
`Norris Booth
`KILPATRICK TOWNSEND
`kreed@kilpatricktownsend.com
`bkleinman@kilpatricktownsend.com
`nboothe@kilpatricktownsend.com
`
`
`For Patent Owner:
`
`Jay P. Kesan
`DIMURO GINSBERG PC-DGKEYIP GROUP
`jkesan@dimuro.com
`
`Ari Rafilson
`SHORE CHAN DEPUMPO LLP
`arafilson@shorechan.com
`
`
`
`
`9
`
`
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