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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`AMERICAN NATIONAL MANUFACTURING INC.,
`Petitioner,
`v.
`SLEEP NUMBER CORPORATION
`f/k/a SELECT COMFORT CORPORATION,
`Patent Owner.
`____________
`Case No. IPR2019-00500
`Patent No. 9,737,154
`____________
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`
`JOINT MOTION TO EXPUNGE CONFIDENTIAL INFORMATION
`UNDER 37 C.F.R. § 42.56
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`Case No. IPR2019-00500
`Patent No. 9,737,154
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`I.
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`THE RELIEF REQUESTED
`Pursuant to 37 C.F.R. § 42.56, and authorization received from the Board’s
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`email of January 26, 2023, Petitioner American National Manufacturing, Inc.
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`(“Petitioner”) and Patent Owner Sleep Number Corporation (“Patent Owner”)
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`(collectively “the Parties”)1 jointly move for an order expunging from the record in
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`this inter partes review (“IPR”) the following confidential documents filed under
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`seal (collectively, the “Identified Documents”)2:
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`Sealed Exhibits 1034, 1060, 2050, 2051, 2053, 2054, and 2057;
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`Unredacted Exhibits 1033, 1039, 1051, 1055, 1056, 1057, 2026, 2030, Supp.
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`2030, 2055, and 2056;
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`Sealed Papers 105, 107, and 108; and
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`The unredacted version of Patent Owner’s Response (Paper 46).
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`1 The Parties are also associated with IPR2019-00497 and -00514 (“Related
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`IPRs”), and a stayed case in the Central District of California (“District Court
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`Proceeding”).
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`2 Several of the Identified Documents are also being addressed in a similar pending
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`motion to expunge filed on October 22, 2022 in related IPR2019-00514, although
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`the exhibit numbers may vary. See IPR2019-00514, Paper 102.
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`2
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`KC 19793771.2
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`Case No. IPR2019-00500
`Patent No. 9,737,154
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`This information is confidential information under the Parties’ Joint
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`Stipulated Protective Order and the District Court’s Modified Protective Order
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`(“District Court Order”) (see Paper 39 as Ex. 2024 (original) and Paper 106
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`(revised)). On balance, the confidential nature and treatment of the documents and
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`information used in this IPR pursuant to the District Court Order, and the minimal
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`impact expungement would have on the public’s understanding of the file history of
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`this IPR, weigh in favor of granting this motion to expunge.
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`The Parties respectfully request a conference call with the Board to discuss
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`these issues before any information becomes irreversibly public. If the Board deems
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`expungement of any of the confidential information would harm the public’s
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`interest, the Parties request any such information remain under seal.
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`II. ARGUMENT IN SUPPORT OF THE RELIEF REQUESTED
`Parties may submit evidence consisting of confidential information in IPRs
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`under a protective order, and at the end of the proceeding “[c]onfidential information
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`that is subject to a protective order ordinarily would become public 45 days after
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`final judgment in a trial.” See CTPG at 21-22. Public policy supports access to the
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`information submitted in IPRs, but “confidential information” is protected from
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`disclosure. 35 U.S.C. § 316(a)(7). Accordingly, “[a] party seeking to maintain the
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`confidentiality of information…may file a motion to expunge the information from
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`KC 19793771.2
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`Case No. IPR2019-00500
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`the record prior to the information becoming public.” CTPG at 22; see also 37 C.F.R.
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`§ 42.56. A decision to expunge should balance “the needs of the parties to submit
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`confidential information with the public interest in maintaining a complete and
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`understandable file history.” CTPG at 22.
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`A.
`Procedural History
`This IPR includes confidential information exchanged among the Parties
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`pursuant to a protective order, or submitted as evidence under the protective order.
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`Petitioner is a private company, and most of this confidential information belongs to
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`Petitioner. The Parties filed a Joint Stipulation for Entry of a Stipulated Protective
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`Order (“Stipulated PO”) along with a proposed stipulated protective order. Paper 39;
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`Ex. 2024 (proposed Stipulated PO). The Stipulated PO modifies the Board’s default
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`protective order to account for aspects of the District Court’s Order governing the
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`Parties, and the use of confidential information from the District Court Proceeding
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`in this IPR. Paper 39.
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`On October 23, 2019, Patent Owner filed a discovery motion (Paper 47) and
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`a Corrected Unopposed Motion to Seal (Paper 443) in this IPR, and in the Related
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`IPRs, and thereafter Petitioner filed an Opposition (Paper 49) in this IPR, and in the
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`3 An Unopposed Motion to Seal (Paper 43) was filed first.
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`4
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`KC 19793771.2
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`Related IPRs. The motion was to Seal Exhibits 2050, 2051, 2053-2057, 2026 (which
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`refers to Exhibits 2050, 2051, 2053, and 2054), and 2030 (which refers to Exhibit
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`2057), and Patent Owner’s Response (under seal) (Paper 46). Paper 44. Redacted
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`versions of Exhibits 2026, 2030, 2055, 2056, and Paper 46 (as Paper 45) were filed.
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`Exhibits 2050, 2051, 2053, 2054, and 2057 were filed under seal only. The
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`Opposition included a declaration (Ex. 1033) referring to Petitioner’s product sales
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`information (Ex. 1034). Paper 49. Exhibit 1033 was filed under seal and as a redacted
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`version, and Exhibit 1034 was filed under seal only.
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`On December 13, 2019, Petitioner filed a deposition transcript (Exhibit 1039)
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`as a redacted version and under seal pursuant to 37 CFR §42.53(f)(7).
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`The Board’s January 6, 2020, Order denied the discovery motion (Paper 47).
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`Paper 67 (“Discovery Order”). The Discovery Order refers “only to documents filed
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`in IPR2019-00497,” and did not directly cite to Exhibits 1033-1035. Id. at 2.
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`On January 22, 2020, Petitioner filed an Unopposed Motion to Seal Exhibits
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`1055, 1056, 1057, and 1060. Paper 70. Redacted versions of Exhibits 1055, 1056,
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`and 1057 were filed. Exhibit 1060 was filed under seal only.
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`On May 6, 2020, Patent Owner filed an unopposed Motion to Seal
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`Supplemental Exhibit 2030 (which refers to Exhibit 2057). Paper 98. A redacted
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`version of Supplemental Exhibit 2030 was filed.
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`KC 19793771.2
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`Case No. IPR2019-00500
`Patent No. 9,737,154
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`On July 23, 2020, the Board issued a Final Written Decision (“FWD”) under
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`seal conditionally granting the Parties’ Motions to Seal as to the exhibits referred to
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`therein, and the unopposed motion for entry of the Stipulated PO (Exhibit 2024) with
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`required modifications. Paper 105 at 134-136; see also the public FWD, Paper 114
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`at 134-35. The Board determined the Parties were discrete in their designation of
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`confidential material, and found good cause to seal Exhibits 1055-57, 1060, 2026,
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`2030, 2030 Supp., 2050-51, and 2053-57.
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`On August 11, 2020, the Parties submitted a Revised Joint Stipulated
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`Protective Order addressing the required modifications. Paper 106.
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`On August 13, 2020, the Parties submitted, under seal, both a proposed public
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`version of the FWD (Paper 107) and a strike through comparison of the sealed and
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`proposed public version of the FWD (Paper 108).
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`On September 8, 2020, the Board issued an order denying the Parties’ request
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`for leave to file a motion to expunge, without prejudice, maintaining the
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`confidentiality of the documents filed under seal until further notice, and inviting the
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`Parties to file “a motion to preserve the record pending appeal.” Paper 110 at 2-3.
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`The Parties filed a Joint Motion to Preserve the Record Pending Appeal. Paper 116.
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`B. Good Cause Exists for Expungement of Confidential Information
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`Good cause exists for expungement of the Identified Documents because they
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`contain the Parties’ truly sensitive confidential information, and the information is
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`not necessary for understanding the record. Good cause is shown by demonstrating
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`that “any information sought to be expunged constitutes confidential information,
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`and that [a party’s] interest in expunging it outweighs the public’s interest in
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`maintaining a complete and understandable history of [the] inter partes review.”
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`Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., IPR2013-00453, Paper 98
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`at 2 (PTAB Apr. 15, 2015). Further, when a party submits an opposing party’s
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`confidential information, it is prudent to “guard against peripheral disclosure of a
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`party’s confidential information because arguments were advanced by an opposing
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`party that ultimately proved unimportant to the merits of the proceeding.” Id. at 4.
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`The Board found the Identified Documents contain confidential information,
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`and good cause was shown supporting a conditional grant of the Parties’ unopposed
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`motions to seal the Identified Documents pursuant to the filing of an amended
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`Stipulated Protective Order. Paper 114 at 134-36 (referencing Papers 434 and 98
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`(Patent Owner’s Unopposed Motions to Seal); and Paper 70 (Petitioner’s Unopposed
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`4 Paper 44 is a correction of the first filed Unopposed Motion to Seal (Paper 43).
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`KC 19793771.2
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`Motion to Seal)). On balance, expungement of the Identified Documents is
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`warranted.
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`1.
`Exhibit 1033
`Unredacted Exhibit 1033 should be expunged. The redacted information
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`refers to Petitioner’s highly confidential, non-public unit sales of a product in the
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`context of Mr. Miller’s consulting agreement with Patent Owner. Paper 49, and Ex.
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`1033 ¶4. Petitioner filed this exhibit under seal pursuant to the Stipulated PO. Paper
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`49. The Discovery Order and the FWD do not cite to, or otherwise rely on the
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`redacted information of this exhibit. See Paper 67; and Paper 114 at 127. Petitioner’s
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`interest in protecting its information outweighs the public’s interest in maintaining
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`the unredacted version in the file history because of the harm from a competitor
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`using the information to undercut Petitioner’s prices and compete for customers.
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`2.
`Exhibit 1034
`Sealed Exhibit 1034 should be expunged. This exhibit is a highly confidential,
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`non-public business record of Petitioner’s unit sales of Nautilus products. Paper 49.
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`The Discovery Order and the FWD do not cite to, or otherwise rely on Exhibit 1034.
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`See Paper 67; and Paper 114 at 127. Petitioner’s interest in protecting its information
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`outweighs the public’s interest in maintaining the information in the file history
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`because of the harm from a competitor using the information to undercut Petitioner
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`and compete for customers.
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`3.
`Exhibit 1039
`Unredacted Exhibit 1039 should be expunged. Petitioner filed this exhibit
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`pursuant to Board rules, and under seal pursuant to the Stipulated PO. The
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`confidential information refers to the Parties’ confidential source code. Ex. 1039,
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`pp. 30-36. The FWD does not refer to this material. The Parties’ interest in protecting
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`their information outweighs the public’s interest in maintaining the unredacted
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`version in the file history because of the harm from a competitor analyzing the non-
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`public details of the Parties’ software.
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`4.
`Exhibit 1051
` Unredacted Exhibit 1051 should be expunged. This exhibit is a deposition
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`transcript, and it was filed in IPR2019-00514 as Exhibit 1068. The deponent is asked
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`questions regarding an exhibit containing confidential research and development
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`information that Patent Owner designated as Highly Confidential – Outside Counsel
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`Only under the District Court Protective Order, thus Petitioner designated it as such
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`under the Stipulated PO. IPR2019-00514, Paper 68 at 2 and 6. The Board determined
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`the information is confidential information and good cause was shown to grant the
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`Motion to Seal in IPR201-00514. IPR2019-00514, Paper 94 at 60. The Board should
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`find the same for Exhibit 1051. The FWD does not rely on the confidential portions
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`of Exhibit 1051. The Parties’ interest in protecting this sensitive information
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`outweighs the public’s interest in maintaining the unredacted version in the file
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`history because of the harm to Patent Owner from public disclosure of the
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`information.
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`5.
`Exhibit 1055
`Unredacted Exhibit 1055 should be expunged. This exhibit is a deposition
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`transcript where the deponent is asked questions regarding portions of his
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`declaration that have already been the subject of a motion to seal as they reference
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`highly confidential, non-public financial information of Petitioner under the
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`Stipulated PO. Paper 70 at 2 and 4. The Board found good cause to seal. Paper 114
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`at 135. The FWD does not rely on this exhibit. Petitioner’s interest in protecting its
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`information outweighs the public’s interest in maintaining the unredacted version in
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`the file history because of the harm from a competitor using the information to
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`undercut Petitioner’s business practices and compete with Petitioner.
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`6.
`Exhibit 1056
`Unredacted Exhibit 1056 should be expunged. This exhibit is a declaration
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`citing to highly confidential, non-public customer and financial information of
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`Petitioner, and portions of a declaration and the deposition where the information is
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`discussed. Petitioner filed it under the Stipulated PO. Paper 70 at 2 and 4. The Board
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`found good cause to seal. Paper 114 at 135. The FWD relies on Exhibit 1056 for the
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`limited conclusion that the weight of the confidential information shows an increase
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`of sales in support of a conclusion of nexus. Id. at 91 and 128. Although the FWD
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`refers to Exhibit 1056 when assessing commercial success, the Board found that
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`commercial success is given minimal probative weigh due to other grounds. Id. at
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`94 and 128. Petitioner’s interest in protecting the details of its sensitive information
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`outweighs the public’s interest in maintaining the unredacted version in the file
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`history because of the harm from a competitor using the information to undercut
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`Petitioner’s prices and compete for customers.
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`7.
`Exhibit 1057
`Unredacted Exhibit 1057 should be expunged. This exhibit is a declaration
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`citing to highly confidential, non-public financial information of Petitioner produced
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`under the Stipulated PO. Paper 70 at 2 and 5. The Board found good cause to seal.
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`Paper 114 at 135. The FWD does not substantially rely on the confidential portions
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`of this exhibit. See Id. at 91, 96, 127-128. Petitioner’s interest in protecting this
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`sensitive information outweighs the public’s interest in maintaining the unredacted
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`version in the file history of this IPR because of the harm from a competitor using
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`the non-public financial information to undercut Petitioner’s prices and compete for
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`customers.
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`8.
`Exhibit 1060
`Sealed Exhibit 1060 should be expunged. The entire exhibit sets forth third-
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`party-in-interest Dires’ highly confidential, non-public financial expenditures
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`related to advertising costs, and was produced under the Stipulated PO. Paper 70 at
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`3 and 5. The Board found good cause to seal. Paper 114 at 135. The FWD does not
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`substantively rely on this exhibit. Id. at 127-128. Petitioner’s interest in protecting
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`its sensitive information outweighs the public’s interest in maintaining the unsealed
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`version in the file history because of the harm from a competitor using its
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`information to undercut Petitioner’s prices and compete for customers.
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`9.
`Exhibit 2026
`Unredacted Exhibit 2026 should be expunged. This exhibit cites to highly
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`confidential, non-public product planning and business strategy information of
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`Petitioner produced under the Stipulated PO. Paper 44 at 2-3. The Board found good
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`cause to seal. Paper 114 at 135. The FWD does not rely on the confidential portions
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`of this exhibit. Petitioner’s interest in protecting its sensitive information outweighs
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`the public’s interest in maintaining the unredacted version in the file history because
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`KC 19793771.2
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`of the harm from a competitor using the information to undercut Petitioner to
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`compete for customers, and to counteract Petitioner’s strategies.
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`10. Exhibit 2030
`Unredacted Exhibit 2030 should be expunged. This exhibit cites to highly
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`confidential, non-public financial information Petitioner produced under the
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`Stipulated PO. Paper 44 at 1-2, and 4. The Board found good cause to seal. Paper
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`114 at 135. Although the FWD cites to confidential information cited by Exhibit
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`2030, Petitioner’s interest in protecting its sensitive information outweighs the
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`public’s interest in maintaining the unredacted version in the file history because of
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`the harm from a competitor using its information to undercut Petitioner’s prices and
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`compete for customers. The reasoning behind the Board’s conclusion that a nexus
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`was shown is otherwise understandable from the FWD, and the Board’s ultimate
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`conclusions regarding the little probative weight of Patent Owner’s evidence of
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`secondary considerations rested with the evidence related to commercial success,
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`copying, industry praise, and unexpected results. Id. 114 at 103.
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`11. Supplemental Exhibit 2030
`Unredacted Supplemental Exhibit 2030 should be expunged. This exhibit was
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`filed with Patent Owner’s Opposition to Petitioner’s Motion to Exclude. Paper 96.
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`This exhibit cites to highly confidential, non-public financial information Petitioner
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`KC 19793771.2
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`produced under the Stipulated PO. Paper 98 at 1-2. The Board found good cause to
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`seal. Paper 114 at 135. The FWD does not rely on this exhibit. Petitioner’s interest
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`in protecting its sensitive information outweighs the public’s interest in maintaining
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`the unredacted version in the file history of for the same reasons as for Exhibit 2030.
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`12. Exhibits 2050 and 2051
`Sealed Exhibits 2050-2051 should be expunged. These exhibits disclose
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`Petitioner’s highly confidential, non-public product feature and product planning
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`information as well as comparisons drawn by and for the customer, and was
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`produced under the Stipulated PO. Paper 44 at 1 and 3. The Board found good cause
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`to seal. Paper 114 at 135. The FWD does not specifically rely upon these exhibits.
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`Petitioner’s interest in protecting its information outweighs the public’s interest in
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`maintaining the unsealed version in the file history because of the harm from a
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`competitor analyzing the non-public details of Petitioner’s business strategies to
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`counteract Petitioner’s strategies or compete for customers.
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`13. Exhibits 2053 and 2054
`Sealed Exhibits 2053-2054 should be expunged. These exhibits disclose
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`Petitioner’s highly confidential, non-public product planning and business strategy
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`information that Petitioner produced under the Stipulated PO. Paper 44 at 1 and 3-
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`4. The Board found good cause to seal. Paper 114 at 135. Although various details
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`KC 19793771.2
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`of the confidential information of these exhibits are redacted from the public version
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`of the FWD, the Board’s discussion of the conclusions drawn from this exhibit
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`provides the public with an understanding of the Board’s reasoning as to its
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`conclusions regarding industry praise. Id. at 98-100. Petitioner’s interest in
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`protecting the details of its information outweighs the public’s interest in
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`maintaining the information in the file history because of the harm from a competitor
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`analyzing the information to counteract Petitioner’s strategies, or to compete for
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`customers.
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`14. Exhibits 2055, 2056, and 2057
`Sealed Exhibits 2055, 2056, and 2057 should be expunged. Exhibits 2055 and
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`2056 disclose Petitioner’s highly confidential, non-public business strategy and
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`customer identity information, and Exhibit 2057 discloses Petitioner’s highly
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`confidential, non-public financial information, and they were produced under the
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`Stipulated PO. Paper 44 at 1 and 4. The Board found good cause to seal. Paper 114
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`at 135. Although no details of the confidential information of these exhibits are
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`included in the FWD, the Board’s discussion of the conclusions drawn from these
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`exhibits provides the public with an understanding of the Board’s reasoning as to its
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`conclusions regarding nexus. Id. at 89. Petitioner’s interest in protecting the details
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`of its information outweighs the public’s interest in maintaining the information in
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`the file history because of the harm from a competitor analyzing the information and
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`using the information to undercut Petitioner’s prices and compete for customers.
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`15. Paper 46
`Unredacted Patent Owner’s Response (Paper 46) should be expunged. This
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`paper quotes or refers to the highly confidential, non-public information contained
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`in exhibits submitted under the Stipulated PO. Paper 44 at 3-4. The FWD found the
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`unredacted information in the sealed exhibits of Paper 46 were confidential
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`information, and found good cause to seal such exhibits. Paper 114 at 135. The
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`Response cites to redacted information in support of Patent Owner’s arguments
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`regarding industry praise, in particular Exhibit 2054. Paper 46 at 99-100. The Board
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`does not rely on the details of the information, and the Board’s discussion of the
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`conclusions drawn from the information provides the public with an understanding
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`of the Board’s reasoning as to its conclusions regarding industry praise. Paper 114
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`at 99-100. Petitioner’s interest in protecting its information outweighs the public’s
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`interest in maintaining the unredacted version in the file history for the same reasons
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`as explained above for Exhibits 2026, 2030, 2051, 2053, 2054, and 2057.
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`16. Papers 105, 107 and 108
`Sealed Papers 105 and 108 should be expunged. These papers cite to all of the
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`Parties’ highly confidential, non-public information discussed above in the Party-
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`KC 19793771.2
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`filed papers, exhibits, and evidence, and the Board found good cause to seal such
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`information. Paper 114 at 135. The Board’s discussion of the conclusions drawn
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`from the sealed information found in the public FWD (Paper 114) provides the
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`public with an understanding of the Board’s reasoning as to its conclusions
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`associated therewith. On balance, the Parties’ interest in protecting the details of
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`their confidential information outweighs the public’s interest in maintaining the
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`information in the file history in unredacted form because of the harm to the Parties
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`as explained above. Accordingly, sealed Papers 105 and 108 should be expunged,
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`and the sealed proposed FWD (Paper 107) should be expunged as the public FWD
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`(Paper 114) is available.
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`III. CONCLUSION
`For the reasons set forth above, the Parties respectfully request that this Joint
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`Motion to Expunge Confidential Information be granted, and that the Board expunge
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`the Identified Documents from the file history of IPR2019-00500.
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`Date: February 7, 2023
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`Respectfully Submitted,
`SPENCER FANE LLP
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`By /s/Kyle L. Elliott .
`Kyle L. Elliott, Reg. No. 39,485
`Kevin S. Tuttle, Reg. No. 52,307
`Brian T. Bear (pro hac vice)
`Mark A. Thornhill (pending pro hac vice)
`Spencer Fane LLP
`1000 Walnut Street, Suite 1400
`Kansas City, Missouri 64106-2140
`Telephone: (816) 474-8100
`
`Jaspal S. Hare, Reg. No. 66,988
`jhare@spencerfane.com
`Spencer Fane LLP
`5700 Granite Pkwy, Suite 650
`Plano, TX 75024
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`Date: February 7, 2023
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`By /s/Elizabeth A. Patton
`Luke Toft, Reg. No. 75,311
`Andrew Hansen (pro hac vice)
`Archana Nath (pro hac vice)
`Elizabeth A. Patton (pro hac vice)
`FOX ROTHSCHILD, LLP
`222 South Ninth Street, Suite 2000
`Minneapolis, MN 55402
`Telephone: (612)607-7000
`Facsimile: (612)607-7100
`ltoft@foxrothschild.com
`ahansen@foxrothschild.com
`anath@foxrothschild.com
`epatton@foxrothschild.com
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`Steven A. Moore, Reg. No. 55,462
`MOORE IP LAW PC
`4321 Balboa Avenue, Suite 404
`San Diego, CA 92117
`Telephone: (760) 807-8651
`steve@mooreiplaw.net
`
`Kecia J. Reynolds, Reg. No. 47,021
`PAUL HASTINGS LLP
`2050 M Street, N.W.
`Washington, DC 20036
`Telephone: (202) 551-1740
`Facsimile: (202) 551-1705
`keciareynolds@paulhastings.com
`Attorneys for Patent Owner
`Sleep Number Corporation
`
`19
`
`
`
`KC 19793771.2
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`
`
`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned hereby certifies that a copy
`the
`foregoing
`JOINT MOTION TO EXPUNGE CONFIDENTIAL
`of
`INFORMATION UNDER 37 C.F.R. § 42.56 is served in its entirety on February 7,
`2023, by electronic mail, as authorized by Patent Owner’s Updated Mandatory
`Notices, directed to the attorneys of record for Patent Owner at the following
`correspondence address of record:
`Steven A. Moore
`steve@mooreiplaw.net
`MOORE IP LAW PC
`4321 Balboa Avenue, Suite 404
`San Diego, CA 92117
`Luke Toft
`ltoft@foxrothschild.com
`Andrew Hansen (pro hac vice)
`ahansen@foxrothschild.com
`Archana Nath (pro hac vice)
`anath@foxrothschild.com
`Elizabeth A. Patton (pro hac vice)
`epatton@foxrothschild.com
`FOX ROTHSCHILD LLP
`222 South Ninth Street, Suite 2000
`Minneapolis, MN 55402
`
` Kecia J. Reynolds
`keciareynolds@paulhastings.com
`PAUL HASTINGS LLP
`2050 M Street, N.W.
`Washington, DC 20036
`
`
`
`
`20
`
`
`
`KC 19793771.2
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`Date: February 7, 2023
`
`
`
`
`
`
` /s/Kyle L. Elliott .
`Kyle L. Elliott (Reg. No. 39,485)
`.
`Attorney for Petitioner
`American National Manufacturing, Inc.
`
`21
`
`
`
`KC 19793771.2
`
`
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