`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`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
`____________
`
`
`
`
`PETITIONER’S UNOPPOSED MOTION TO SEAL
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`
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`WA 14196593.1
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`
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`Case No. IPR2019-00500
`Patent No. 9,737,154
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`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Petitioner respectfully submits this
`
`Unopposed Motion to Seal certain confidential exhibits concurrently filed with
`
`Petitioner’s Reply (“Motion”) in accordance with the parties pending Joint
`
`Stipulation for Entry of the Stipulated Protective Order (Paper 39) and the Proposed
`
`Stipulated Protective Order (Ex. 2024).
`
`I.
`
`Good Cause Exists
`
`Petitioner moves to seal three categories of documents containing information
`
`designated by Petitioner as confidential
`
`(collectively,
`
`the “Confidential
`
`Documents”):
`
`1.
`
`A Patent Owner expert witness deposition transcript, Exhibit 1055,
`
`which quotes certain Petitioner sales data designated as Highly Confidential-
`
`Outside Counsel Only as governed by the provisions of the modified District
`
`Court Protective Order (“DCPO”) enforceable by the District Court;
`
`2.
`
`A declaration of an economic expert who analyzes and cites to
`
`Petitioner’s financial data and sales data, Exhibit 1056, which have been
`
`designated as Highly Confidential – Outside Counsel Only.
`
`3.
`
`A client declaration, Exhibit 1057, which refers to Petitioner’s data
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`designated as Highly Confidential – Outside Counsel Only; and
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`2
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`Case No. IPR2019-00500
`Patent No. 9,737,154
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`4.
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`Petitioner-produced document in this IPR proceeding, Exhibit 1060,
`
`which is designated as Highly Confidential – Outside Counsel Only and
`
`contains financial information of Dires, LLC.
`
`The disclosure of these Confidential Documents to the public would harm
`
`Petitioner in that it would provide competitors, including Patent Owner, as to
`
`consumer products, or the public with proprietary and competitively sensitive
`
`information. Patent Owner does not currently dispute that the documents contain
`
`confidential information and that good cause exits to seal such documents, and
`
`request that the Board grant this Motion so that the documents remain protected
`
`under both the DCPO and the Stipulated Protective Order in this proceeding.
`
`This Motion involves both documents being filed fully under seal and those
`
`being filed under seal with a redacted version being filed publicly. First, pursuant
`
`to the Stipulated Protective Order § 10(A)(i), Petitioner moves to seal the following
`
`Confidential Document that contains only confidential information and must be
`
`entirely sealed: Exhibit 1060. Accordingly, Petitioner is filing a fully sealed version
`
`of such document. The parties request that the Board maintain this exhibit under
`
`seal.
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`Second, pursuant to the Stipulated Protective Order § 10(A)(ii), Petitioner
`
`moves to seal the following Confidential Documents that contain both confidential
`
`3
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`WA 14196593.1
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`Case No. IPR2019-00500
`Patent No. 9,737,154
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`information and non-confidential information, and thus must be filed with the
`
`confidential portions redacted: Exhibits 1055, 1056, and 1057. Accordingly,
`
`Petitioner is filing a redacted version of such documents publicly and a non-redacted
`
`version of such documents under seal. The parties request that the Board maintain
`
`these exhibits as under seal with redactions for the public version.
`
`The following table includes reasons Petitioner has provided to Patent Owner
`
`for the confidentiality designations for each of the Confidential Documents at issue
`
`in this Motion:
`
`Exhibit No.
`
`Description
`
`Reason For Confidentiality
`
`1055
`
`January 8, 2020
`Deposition Transcript of
`Carl Degen
`
`1056
`
`Declaration of Matthew
`Lynde in Support of
`Petitioner’s Reply
`
`In the deposition, Mr. Degen was
`asked questions regarding portions of
`his declaration that have already been
`the subject of a motion to seal as they
`reference highly confidential non-
`public financial information of
`Petitioner. This information has been
`designed by Petitioner as Highly
`Confidential – Outside Counsel Only.
`Portions of Mr. Lynde’s declaration
`cites to highly confidential non-public
`financial information of Petitioner and
`portions of Mr. Degen’s Declaration
`and Deposition where Petitioner’s
`Financial Information is discussed.
`This information has been designed by
`Petitioner as Highly Confidential –
`Outside Counsel Only.
`
`4
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`Case No. IPR2019-00500
`Patent No. 9,737,154
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`1057
`
`Declaration of Craig
`Miller, Jr. in Support of
`Petitioner’s Reply
`
`1060
`
`Exhibit to Miller
`Declaration – Dires, LLC
`Advertising expenditure
`
`Portions of Mr. Miller’s declaration
`cites to highly confidential non-public
`financial information of Petitioner and
`portions of Mr. Degen’s Declaration
`and Deposition where Petitioner’s
`Financial Information is discussed.
`This information has been designed by
`Petitioner as Highly Confidential –
`Outside Counsel Only.
`The entire exhibit sets forth Dires’s
`non-public financial expenditures
`related to advertising costs and which
`is highly confidential non-public
`information. This information has
`been designed by Petitioner as Highly
`Confidential – Outside Counsel Only.
`
`II. Certification of Non-Public Status
`
`Petitioner certifies counsel for Patent Owner that the information sought to be
`
`sealed as not been published or otherwise been made available to the public. Patent
`
`Owner has also certified to undersigned counsel for Petitioner that Patent Owner has
`
`also not published or otherwise made the information available to the public.
`
`III. Certification of Conference Between the Parties Pursuant to 37 C.F.R. §
`42.54(a).
`
`The undersigned counsel for Petitioner certifies that they have in good faith
`
`met and conferred with counsel for Patent Owner and agreed that, due to the
`
`protections afforded by the modified DCPO and the pending Stipulated Protective
`
`Order, the Confidential Documents should be filed under seal.
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`5
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`Patent No. 9,737,154
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`In the event the Board determines the Confidential Documents are not
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`confidential and must be filed publicly, the parties have a dispute regarding which
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`party, if either, must file a motion to expunge the exhibits at issue in order to adhere
`
`to the modified DCPO. As such, if the Board denies this Motion, the parties are
`
`prepared to meet and confer in an effort to determine whether the Confidential
`
`Documents can be filed publicly in these proceedings or whether a motion to
`
`expunge is appropriate.
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`IV. Conclusion
`
`In light of the good cause identified herein, Petitioner respectfully requests
`
`that the Board grant its unopposed Motion to Seal.
`
`Date: January 22, 2020
`
`
`
`
`
`
`
`
`
`
`
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`
`
`
`
`
`
`Respectfully Submitted,
`SPENCER FANE LLP
`
`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
`
`6
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`Case No. IPR2019-00500
`Patent No. 9,737,154
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`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned hereby certifies that a copy
`
`of the foregoing PETITIONER’S UNOPPOSED MOTION TO SEAL is served in
`
`its entirety on January 22, 2020, 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.moore@pillsburylaw.com
`
`PILLSBURY WINTHORP SHAW PITTMAN LLP
`501 West Broadway, Suite 1100
`San Diego, CA 92101
`
`Luke Toft
`ltoft@foxrothschild.com
`
`Andew 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
`kecia.reynolds@pillsburylaw.com
`
`PILLSBURY WINTHORP SHAW PITTMAN LLP
`1200 Seventeenth Street, NW
`Washington, DC 20036
`
`7
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`WA 14196593.1
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`Case No. IPR2019-00500
`Patent No. 9,737,154
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`Date: January 22, 2020
`
`
`
`
`
`
` /s/Kyle L. Elliott .
`Kyle L. Elliott (Reg. No. 39,485)
`.
`Attorney for Petitioner
`American National Manufacturing, Inc.
`
`8
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`WA 14196593.1
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