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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`AMERICAN NATIONAL MANUFACTURING INC.,
`Petitioner,
`
`v.
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`SLEEP NUMBER CORPORATION
`f/k/a SELECT COMFORT CORPORATION,
`Patent Owner.
`
`____________
`
`Case No. IPR2019-00514
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`Patent No. 5,904,172
`____________
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`
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`JOINT MOTION TO EXPUNGE CONFIDENTIAL INFORMATION
`UNDER 37 C.F.R. § 42.56
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`Case No. IPR2019-00514
`Patent No. 5,904,172
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`I.
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`THE RELIEF REQUESTED
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`Pursuant to 37 C.F.R. § 42.56, and authorization received from the Board
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`email of October 11, 2022, 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 the following
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`confidential documents filed under seal (collectively, the “Identified Documents”)
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`in this proceeding:
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`Sealed Exhibits 1049, 1075, 1077-1078, 2076, 2078, and 2084;
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`Unredacted Exhibits 1047, 1056, 1066-1069, 1071-1072, 2040, 2055, and
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`2055 Supp.; and
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`The unredacted version of Patent Owner’s Response (Paper 47).
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`The information the Parties seek to expunge from the record constitute
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`confidential information under the Parties’ Joint Stipulated Protective Order and the
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`1 Petitioner and Patent Owner are the same parties in IPR2019-00497 and
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`IPR2019-00500 (the “Related IPRs”). They are also parties to a district court case
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`pending but stayed in the Central District of California (“District Court
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`Proceeding”) and were previously parties to a USITC Investigation (“USITC
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`Proceeding”).
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`District Court’s Modified Protective Order (see Paper 40 (original) and Paper 95
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`(revised)), and in addition, were not relied on in the final written decision or were
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`included in a corresponding publicly available redacted version. The confidential
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`nature and treatment of the documents and information used in this inter partes
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`review pursuant to the District Court’s modified Protective 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 inter partes review, weigh in favor of granting this motion of expungement.
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`If the Board is not inclined to grant this Motion, the Parties respectfully
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`request a conference call with the Board to discuss the issues raised in this Motion
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`before any information becomes irreversibly public. Or, in the alternative, if the
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`Board deems expungement of any of the requested confidential information would
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`harm the public’s interest in maintaining a complete and understandable file history,
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`the Parties request that any such information remain under seal.
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`II. ARGUMENT IN SUPPORT OF THE RELIEF REQUESTED
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`Parties may submit evidence consisting of confidential information in Patent
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`Trial and Appeal Board proceedings under a protective order, and at the end of the
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`proceeding “[c]onfidential information that is subject to a protective order ordinarily
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`would become public 45 days after final judgment in a trial.” See Patent Trial and
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`Appeal Consolidated Trial Practice Guide (November 2019) (“CTPG”) at 21-22.
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`KC 15508086.4
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`Case No. IPR2019-00514
`Patent No. 5,904,172
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`Public policy supports public access to the information submitted in inter partes
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`review proceedings, but “confidential information” is protected from disclosure. 35
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`U.S.C. § 316(a)(7) (“The Director shall prescribe regulations … providing for
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`protective orders governing the exchange and submission of confidential
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`information.”). Accordingly, “[a] party seeking to maintain the confidentiality of
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`information…may file a motion to expunge the information from the record prior to
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`the information becoming public.” CTPG at 22; and see 37 C.F.R. § 42.56. A
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`decision to expunge should balance “the needs of the parties to submit confidential
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`information with the public interest in maintaining a complete and understandable
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`file history.” CTPG at 22.
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`A.
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`Procedural History
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`This inter partes review includes confidential information exchanged among
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`the Parties pursuant to a protective order, or submitted as evidence under a protective
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`order. On October 14, 2019, the parties filed a Joint Stipulation for Entry of a
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`Stipulated Protective Order (“Stipulated PO”) along with a proposed stipulated
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`protective order. Paper 40 (stipulation); Ex. 2034 (proposed Stipulated PO). The
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`Stipulated PO modifies the Board’s default protective order to account for particular
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`aspects of the District Court’s Modified Protective Order governing the Parties, and
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`the use of confidential information from the District Court litigation in this inter
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`partes review. Paper 40; and see Ex. 2035 (redline of default protective order).
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`Patent Owner filed a Motion for Additional Discovery in this inter partes
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`review on October 23, 2019 (Paper 43), and in the Related IPRs. In response,
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`Petitioner filed an Opposition (“Opp.”) on October 30, 2019 (Paper 45) in this inter
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`partes review, and in the Related IPRs. Petitioner’s Opposition included three
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`exhibits: a Declaration of Craig S. Miller (Ex. 1047; “Miller Dec.”) referring at
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`Paragraph 4 to an exhibit of Nautilus product sales information (Ex. 1049; “Nautilus
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`Sales”) and a declaration of Kyle L. Elliott (Ex. 1050; “Elliott Dec.”). These three
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`exhibits were submitted in the proceeding pursuant to the Stipulated PO. However,
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`Petitioner’s Opposition filed in this inter partes review was inadvertently filed
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`without updating the exhibit numbers from the exhibit numbers used in the Related
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`IPRs. The three exhibits filed in this inter partes review correspond to the filings in
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`the Related IPRs as shown below:
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`Document
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`IPR2019-00497 IPR2019-00500
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`IPR2019-00514
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`Opp.
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`Paper 49
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`Paper 49
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`Paper 45
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`Miller Dec.
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`Ex. 1033
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`Ex. 1033
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`Ex. 1047 (cited as Ex. 1033
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`in Paper 45)
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`Nautilus Sales Ex. 1034
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`Ex. 1034
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`Ex. 1049 (cited as Ex. 1034
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`in Paper 45)
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`Elliott Dec.
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`Ex. 1035
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`Ex. 1035
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`Ex. 1050 (cited as Ex. 1035
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`in Paper 45)
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`
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`Exhibit 1047 was filed both under seal and as a redacted version, and Exhibit
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`1049 was filed under seal only.
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`On October 30, 2019, Patent Owner filed an Unopposed Motion to Seal
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`Exhibits 2076, 2078, 2084, 2040 (which refers to Exhibits 2076 and 2078), 2055
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`(which refers to Exhibit 2078), and Patent Owner’s Response (under seal) (Paper
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`47). Paper 49. A redacted version of Exhibits 2040, and 2055, and Paper 47 were
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`filed. Exhibits 2076, 2078, 2084 were filed under seal only.
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`On December 13, 2019, Petitioner filed the transcript of the December 6, 2019
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`deposition of George Edwards (Exhibit 1056) as a redacted version and under seal
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`pursuant to 37 CFR §42.53(f)(7).
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`On January 6, 2020, the Board issued an Order, denying Patent Owner’s
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`second motion for additional discovery (Paper 43). Paper 67. The Order refers “only
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`to documents filed in IPR2019-00497.” Id. at 2. The Order did not directly cite to
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`Exhibits 1033-1035 (filed as Exhibits 1047, and 1049-1050 in this inter partes
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`review).
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`On January 29, 2020, Petitioner filed an Unopposed Motion to Seal Exhibits
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`1066, 1067, 1068, 1069, 1071, 1072, 1075, 1077, and 1078. Paper 68. Redacted
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`versions of Exhibits 1066, 1067, 1068, 1069, 1071, and 1072 were filed. Exhibits
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`1075, 1077, and 1078 were 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 2055 (which refers to Exhibit 2078). Paper 86. A redacted
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`version of Supplemental Exhibit 2055 was filed.
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`On August 4, 2020, the Board issued a Final Written Decision (“FWD”)
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`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 a Protective Order (Exhibit 2034)
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`with required modifications. Paper 94 at 58-60. On August 11, 2020, the Parties
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`submitted a Revised Joint Stipulated Protective Order addressing the required
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`modifications. Paper 95.
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`On September 8, 2020, the Board issued an order with respect to this
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`proceeding denying the Parties request for leave to file a motion to expunge, without
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`prejudice, maintaining the confidentiality of the documents filed under seal until
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`further notice, and inviting the Parties to file “a motion to preserve the record
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`pending appeal.” Paper 96 at 2-3. On September 15, 2020, the Parties filed a Joint
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`Motion to Preserve the Record Pending Appeal. Paper 97.
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`An appeal of IPR2019-00514 was filed, and a Decision issued July 25, 2022.
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`American National Manufacturing Inc., v. Sleep Number Corporation, No. 2021-
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`1030, 2021-1032, 2022 WL 2914747 (Fed. Cir. July 25, 2022). No requests for
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`rehearing were filed, and a Mandate issued September 15, 2022. American National
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`Manufacturing Inc., v. Sleep Number Corporation, No. 2021-1030, 2021-1032, ECF
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`No. 71 (Fed. Cir. Sep. 15, 2022).
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`On September 28, 2022, the Parties requested a conference call with the Board
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`seeking authorization to file a joint motion to expunge confidential information from
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`the record in IPR2019-00514. On October 11, 2022, the Board granted the Parties
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`authorization to file this Motion.
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`B. Good Cause Exists for Expungement of Confidential Information
`Filed as Evidence in this Proceeding
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`Good cause exists for expungement of the Identified Documents filed in this
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`inter partes review because they contain the Parties’ confidential information and
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`the information is not necessary for understanding the record. Good cause is shown
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`by demonstrating that “any information sought to be expunged constitutes
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`confidential information, and that Petitioner’s interest in expunging it outweighs the
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`public’s interest in maintaining a complete and understandable history of this inter
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`partes review.” Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., IPR2013-
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`00453, Paper 97 at 2 (PTAB Apr. 15, 2015).
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`The Board found Identified Documents contain confidential information, and
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`good cause was shown supporting a conditional grant of the Parties’ unopposed
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`motions to seal pursuant to the filing of an amended Stipulated Protective Order.
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`Paper 94 at 58-60 (referencing Paper 49 (Patent Owner’s Unopposed Motions to
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`Seal; and Paper 68 (Petitioner’s Unopposed Motion to Seal)). Expungement of the
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`Identified Documents is warranted.
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`1.
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`Exhibit 1047 (cited as Exhibit 1033 in Paper 45)
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`The unredacted version of Exhibit 1047 should be expunged because the
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`unredacted information constitutes non-public confidential financial and sales
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`information, the Board does not rely on the unredacted information, and the
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`unredacted information is not required for a complete understanding of the record.
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`Exhibit 1047 is a declaration of Craig Miller. In support of its Opposition to
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`Patent Owner’s Motion for Additional Discovery, Petitioner filed an unredacted
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`version of Exhibit 1047 under the designation of Highly Confidential – Outside
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`Counsel Only, and a redacted version. Paper 45. The redacted information in ¶4 of
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`the Miller declaration refers to unit sales of a product in the context of Mr. Miller’s
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`consulting agreement with Sleep Number. Ex. 1047 ¶4. Petitioner referred to ¶4 in
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`its motion when addressing the focus of Mr. Miller’s consulting work for Patent
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`Owner. Paper 45 at 4. The Board’s January 6, 2020 Order denying Patent Owner’s
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`additional discovery does not cite to, or otherwise rely on the redacted information
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`in ¶4 of Exhibit 1047, or page 4 of Petitioner’s opposition citing thereto. See Paper
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`67. Petitioner’s interest in protecting this sensitive commercial information
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`outweighs the public’s interest in maintaining the unredacted version in the file
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`history of this inter partes review. Because the redacted information is confidential
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`information not relied on by the Board, and redacted Exhibit 1047 shall remain part
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`of the file history, unredacted Exhibit 1047 should be expunged from the file history
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`of this inter partes review.
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`2.
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`Exhibit 1049 (cited as Exhibit 1034 in Exhibit 1047)
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`Exhibit 1049 filed under seal should be expunged because the information
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`constitutes confidential information, the Board does not rely on the information, and
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`the information is not required for a complete understanding of the record.
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`Exhibit 1049 is a business record of Petitioner sales of Nautilus products. In
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`support of its Opposition to Patent Owner’s Motion for Additional Discovery,
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`Petitioner filed Exhibit 1049 under seal only, with the designation of Highly
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`Confidential – Outside Counsel Only. Paper 45. The redacted information in ¶4 of
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`the Miller declaration refers to unit sales of a product (Ex. 1049) in the context of
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`Mr. Miller’s consulting agreement with Sleep Number. Ex. 1047 ¶4. Petitioner
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`referred to ¶4 in its motion when addressing the focus of Mr. Miller’s consulting
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`work for Patent Owner. Paper 45 at 4.
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`The Board’s January 6, 2020 Order denying Patent Owner’s additional
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`discovery does not cite to, or otherwise rely on the redacted information in ¶4 of
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`Exhibit 1047, Exhibit 1049, or page 4 of Petitioner’s opposition citing thereto. See
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`Paper 67. Thus the Board’s Order does not rely on this confidential information, and
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`the information is not required for a complete understanding of the record.
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`Petitioner’s interest in protecting this sensitive commercial information
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`outweighs the public’s interest in maintaining the information in the file history of
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`this inter partes review. Because the information in Exhibit 1049 is confidential
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`information not relied on by the Board, Exhibit 1049 should be expunged from the
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`file history of this inter partes review.
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`3.
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`Exhibit 1056
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`The unredacted version of Exhibit 1056 should be expunged because the
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`unredacted information constitutes confidential information, the Board does not rely
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`on the redacted information, and the redacted information is not required for a
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`complete understanding of the record.
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`Exhibit 1056 is the transcript of the December 6, 2019 deposition of Patent
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`Owner’s expert George Edwards. Petitioner filed the transcript pursuant to 37 CFR
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`§42.53(f)(7). On December 13, 2019, Petitioner filed an unredacted version of
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`Exhibit 1056 under seal, with the designation of Attorneys Eyes Only, and a redacted
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`version. The redacted information on pages 419-442 of the transcript refers to a
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`discussion of the Parties’ source code. Ex. 1056, pp. 30-36. Petitioner does not refer
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`to Exhibit 1056. The FWD does not cite Ex. 1056.
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`The Parties’ interest in protecting this sensitive commercial information
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`outweighs the public’s interest in maintaining the unredacted version in the file
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`history of this inter partes review. Because the redacted information is confidential
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`information not relied on by the Board, and redacted Exhibit 1056 shall remain part
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`of the file history, unredacted Exhibit 1056 should be expunged from the file history
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`of this inter partes review.
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`4.
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`Exhibit 1066
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`The unredacted version of Exhibit 1066 should be expunged because the
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`unredacted information constitutes confidential information, the Board does not rely
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`on the unredacted information, and the unredacted information is not required for a
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`complete understanding of the record.
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`Exhibit 1066 is the transcript of the January 8, 2020 deposition of Patent
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`Owner’s declarant Dr. William Messner. Petitioner’s Unopposed Motion to Seal
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`states Dr. Messner is asked questions regarding an exhibit that has been designated
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`by Patent Owner as Highly-Confidential – Outside Counsel Only in the District
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`Court Proceeding and the USITC Proceeding, thus Petitioner designated the
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`testimony as Highly Confidential – Outside Counsel Only under the Stipulated PO.
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`Paper 68 at 2 and 5. Petitioner filed redacted and unredacted versions of Exhibit
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`1066. The redacted testimony appears on pages 105-113, and 193-194 of the
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`transcript. Ex. 1066, pp. 28-30, and 50. The Board has determined the redacted
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`information in Exhibit 1066 is confidential information and that good cause was
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`shown to grant Petitioner’s Unopposed Motion to Seal. Paper 94 at 60.
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`The FWD does not rely upon the confidential portions of Exhibit 1066. The
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`Board cited to Exhibit 1066 in the FWD (Paper 94 at 28 and 36) when referring to
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`Patent Owner’s Sur-Reply (Paper 78), but none of the citations are to the confidential
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`information. Paper 94 at 28, 36 (citing Paper 78 at 3, 5-6, and 13).
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`Patent Owner’s interest in protecting this sensitive information outweighs the
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`public’s interest in maintaining the unredacted version in the file history of this inter
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`partes review. Because the redacted information is confidential information not
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`relied on by the Board, and redacted Exhibit 1066 shall remain part of the file history,
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`unredacted Exhibit 1066 should be expunged from the file history of this inter partes
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`review.
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`5.
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`Exhibit 1067
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`The unredacted version of Exhibit 1067 should be expunged because the
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`unredacted information constitutes confidential information, the Board does not rely
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`on the unredacted information, and the unredacted information is not required for a
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`complete understanding of the record.
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`Exhibit 1067 is the transcript of the January 8, 2020 deposition of Patent
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`Owner’s declarant Carl Degen. Petitioner’s Unopposed Motion to Seal states Mr.
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`Degen is asked questions regarding portions of his declaration that have already been
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`the subject of a motion to seal as they reference highly confidential non-public
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`financial information of Petitioner, thus Petitioner designated the testimony as
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`Highly Confidential – Outside Counsel Only under the Stipulated PO. Paper 68 at 2
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`and 6. Petitioner filed redacted and unredacted versions of Exhibit 1067. The
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`redacted testimony appears on pages 110, and 142-147 of the transcript. Ex. 1067 at
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`29, and 37-38. The Board has determined the redacted information in Exhibit 1067
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`is confidential information and that good cause was shown to grant Petitioner’s
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`Unopposed Motion to Seal. Paper 94 at 60. The FWD does not rely on Exhibit 1067.
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`Petitioner’s interest in protecting this sensitive information outweighs the
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`public’s interest in maintaining the unredacted version in the file history of this inter
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`partes review. Because the redacted information is confidential information not
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`relied on by the Board, and redacted Exhibit 1067 shall remain part of the file history,
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`unredacted Exhibit 1067 should be expunged from the file history of this inter partes
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`review.
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`6.
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`Exhibit 1068
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` The unredacted version of Exhibit 1068 should be expunged because the
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`unredacted information constitutes confidential information, the Board does not rely
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`on the unredacted information, and the unredacted information is not required for a
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`complete understanding of the record.
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`Exhibit 1068 is the transcript of the January 9, 2020 deposition of Patent
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`Owner’s declarant Paul Mahoney. Petitioner’s Unopposed Motion to Seal states Mr.
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`Mahoney is asked questions regarding an exhibit that Patent Owner designated as
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`Highly Confidential – Outside Counsel Only under the District Court Protective
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`Order, thus Petitioner designated the testimony as Highly Confidential – Outside
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`Counsel Only under the Stipulated PO. Paper 68 at 2 and 6. Petitioner filed redacted
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`and unredacted versions of Exhibit 1068. The redacted testimony appears on pages
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`145-148 of the transcript. Ex. 1068 at 38. The Board has determined the redacted
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`information in Exhibit 1068 is confidential information and that good cause was
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`shown to grant Petitioner’s Unopposed Motion to Seal. Paper 94 at 60.
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`The FWD does not rely upon the confidential portions of Exhibit 1068. The
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`Board cited to this exhibit in the FWD in reference to Patent Owner’s Sur-reply
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`(Paper 78) (Paper 94 at 28), and Patent Owner’s Motion to Exclude (Paper 82) (Paper
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`94 at 57), but none of the citations are to the confidential information.
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`Patent Owner’s interest in protecting this sensitive information outweighs the
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`public’s interest in maintaining the unredacted version in the file history of this inter
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`partes review. Because the redacted information is confidential information not
`
`relied on by the Board, and redacted Exhibit 1068 shall remain part of the file history,
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`unredacted Exhibit 1068 should be expunged from the file history of this inter partes
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`review.
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`7.
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`Exhibit 1069
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`The unredacted version of Exhibit 1069 should be expunged because the
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`unredacted information constitutes confidential information, the Board does not rely
`
`on the unredacted information, and the unredacted information is not required for a
`
`complete understanding of the record.
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`Exhibit 1069 is a Declaration of Dr. Robert Giachetti in support of Petitioner’s
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`Reply. Petitioner’s Unopposed Motion to Seal states this declaration analyzes and
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`references an exhibit designed as Highly-Confidential – Outside Counsel Only in
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`the District Court Proceeding and the USITC Proceeding, thus Petitioner designated
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`the testimony as Highly Confidential – Outside Counsel Only under the Stipulated
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`PO. Paper 68 at 3. Petitioner filed redacted and unredacted versions of Exhibit 1069.
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`The redacted testimony appears in paragraphs 5, 13, and 25-26 of the declaration.
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`Ex. 1069, pp. 4, 7, and 13-14. The Board has determined the redacted information
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`in Exhibit 1066 is confidential information and that good cause was shown to grant
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`Petitioner’s Unopposed Motion to Seal. Paper 94 at 60.
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`The FWD does not rely upon the confidential portions of Exhibit 1069. The
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`Board cited to Exhibit 1069 in the FWD (Paper 94 at 28) when addressing the
`
`construction of the term “substantially fluidly sealed,” but none of the citations are
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`to the confidential information. Paper 94 at 28 (citing Ex. 1069 ¶19).
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`The Parties’ interest in protecting this sensitive information outweighs the
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`public’s interest in maintaining the unredacted version in the file history of this inter
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`partes review. Because the redacted information is confidential information not
`
`relied on by the Board, and redacted Exhibit 1069 shall remain part of the file history,
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`unredacted Exhibit 1069 should be expunged from the file history of this inter partes
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`review.
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`8.
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`Exhibit 1071
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`The unredacted version of Exhibit 1071 should be expunged because the
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`unredacted information constitutes confidential information, the Board does not rely
`
`on the unredacted information, and the unredacted information is not required for a
`
`complete understanding of the record.
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`Exhibit 1071 is a Declaration of Matthew Lynde in support of Petitioner’s
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`Reply. Petitioner’s Unopposed Motion to Seal states this declaration cites to highly
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`confidential non-public financial information of Petitioner, and portions of Mr.
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`Degen’s declaration and deposition where Petitioner’s financial information is
`
`discussed. Thus, Petitioner designated the testimony as Highly Confidential –
`
`Outside Counsel Only under the Stipulated PO. Paper 68 at 3 and 6. Petitioner filed
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`redacted and unredacted versions of Exhibit 1071. The redacted testimony appears
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`in paragraphs 36, 41, 49, 50, 51, 53, and 60, and footnotes 24, 27, and 32 of the
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`Case No. IPR2019-00514
`Patent No. 5,904,172
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`declaration. Ex. 1071, pp. 23, 29, 35-37, 39, 42, 44, and 46. The Board has
`
`determined the redacted information in Exhibit 1071 is confidential information and
`
`that good cause was shown to grant Petitioner’s Unopposed Motion to Seal. Paper
`
`94 at 60.
`
`The FWD does not rely upon the confidential portions of Exhibit 1071.
`
`Petitioner’s interest in protecting this sensitive information outweighs the public’s
`
`interest in maintaining the unredacted version in the file history of this inter partes
`
`review. Because the redacted information is confidential information not relied on
`
`by the Board, and redacted Exhibit 1071 shall remain part of the file history,
`
`unredacted Exhibit 1071 should be expunged from the file history of this inter partes
`
`review.
`
`9.
`
`Exhibit 1072
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`The unredacted version of Exhibit 1072 should be expunged because the
`
`unredacted information constitutes confidential information, the Board does not rely
`
`on the unredacted information, and the unredacted information is not required for a
`
`complete understanding of the record.
`
`Exhibit 1072 is a Declaration of Craig Miller, Jr. in support of Petitioner’s
`
`Reply. Petitioner’s Unopposed Motion to Seal states this declaration cites to highly
`
`confidential non-public financial information of Petitioner, and portions of Mr.
`
`19
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`
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`KC 15508086.4
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`
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`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`Degen’s declaration and deposition where Petitioner’s financial information is
`
`discussed. Thus, Petitioner designated the testimony as Highly Confidential –
`
`Outside Counsel Only under the Stipulated PO. Paper 68 at 3 and 6. Petitioner filed
`
`redacted and unredacted versions of Exhibit 1072. The redacted testimony appears
`
`in paragraphs 5, 12, 14, and 16-17 of the declaration. Ex. 1072, pp. 4-5, 7, and 8-11.
`
`The Board has determined the redacted information in Exhibit 1072 is confidential
`
`information and that good cause was shown to grant Petitioner’s Unopposed Motion
`
`to Seal. Paper 94 at 60.
`
`The FWD does not rely upon the confidential portions of Exhibit 1072.
`
`Petitioner’s interest in protecting this sensitive information outweighs the public’s
`
`interest in maintaining the unredacted version in the file history of this inter partes
`
`review. Because the redacted information is confidential information not relied on
`
`by the Board, and redacted Exhibit 1072 shall remain part of the file history,
`
`unredacted Exhibit 1072 should be expunged from the file history of this inter partes
`
`review.
`
`10. Exhibit 1075
`
`Exhibit 1075 filed under seal should be expunged because the information
`
`constitutes confidential information, the Board does not rely on the information, and
`
`the information is not required for a complete understanding of the record.
`
`20
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`
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`KC 15508086.4
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`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`Exhibit 1075 is advertising expenditures of Dires, LLC. Exhibit 1075 was
`
`cited in the Miller declaration in paragraphs 12, and 17, and the information from
`
`Exhibit 1075 was redacted. Ex. 1072, pp. 7, and 10-11. Petitioner’s Unopposed
`
`Motion to Seal states the entire exhibit sets forth Dires’s non-public financial
`
`expenditures related to advertising costs. Thus, Petitioner designated the testimony
`
`as Highly Confidential – Outside Counsel Only under the Stipulated PO. Paper 68
`
`at 3 and 7. Petitioner filed Exhibit 1075 under seal only. The Board has determined
`
`the information in Exhibit 1075 is confidential information and that good cause was
`
`shown to grant Petitioner’s Unopposed Motion to Seal. Paper 94 at 60.
`
`The FWD does not rely upon Exhibit 1075. Petitioner’s interest in protecting
`
`this sensitive information outweighs the public’s interest in maintaining the unsealed
`
`version in the file history of this inter partes review. Because the information in
`
`Exhibit 1075 is confidential information not relied on by the Board, Exhibit 1075
`
`should be expunged from the file history of this inter partes review.
`
`11. Exhibit 1077
`
`Exhibit 1077 filed under seal should be expunged because the information
`
`constitutes confidential information, the Board does not rely on the information, and
`
`the information is not required for a complete understanding of the record.
`
`21
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`
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`KC 15508086.4
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`
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`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`Exhibit 1077 is a deposition transcript from USITC Investigation No. 337-
`
`TA-971 involving Petitioner and Patent Owner. Petitioner’s Unopposed Motion to
`
`Seal states the entire exhibit was deemed Confidential Business Information by
`
`agreement of the Parties. Thus, the Parties designated the testimony as Highly
`
`Confidential – Outside Counsel Only under the Stipulated PO. Paper 68 at 3-4, and
`
`7. Petitioner filed Exhibit 1077 under seal only. The Board has determined the
`
`information in Exhibit 1077 is confidential information and that good cause was
`
`shown to grant Petitioner’s Unopposed Motion to Seal. Paper 94 at 60.
`
`The FWD does not rely upon Exhibit 1077. The Parties’ interest in protecting
`
`this sensitive information outweighs the public’s interest in maintaining the unsealed
`
`version in the file history of this inter partes review. Because the information in
`
`Exhibit 1077 is confidential information not relied on by the Board, Exhibit 1077
`
`should be expunged from the file history of this inter partes review.
`
`12. Exhibit 1078
`
`Exhibit 1078 filed under seal should be expunged because the information
`
`constitutes confidential information, the Board does not rely on the information, and
`
`the information is not required for a complete understanding of the record.
`
`Exhibit 1078 is an exhibit to the deposition transcript from USITC
`
`Investigation No. 337-TA-971 involving Petitioner and Patent Owner. Petitioner’s
`
`22
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`
`
`KC 15508086.4
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`Unopposed Motion to Seal states the entire exhibit was deemed Confidential
`
`Business Information by agreement of the Parties. Thus, the Parties designated the
`
`testimony as Highly Confidential – Outside Counsel Only under the Stipulated PO.
`
`Paper 68 at 4 and 7. Petitioner filed Exhibit 1078 under seal only. The Board has
`
`determined the information in Exhibit 1078 is confidential information and that good
`
`cause was shown to grant Petitioner’s Unopposed Motion to Seal. Paper 94 at 60.
`
`The FWD does not rely upon Exhibit 1078. The Parties’ interest in protecting
`
`this sensitive information outweighs the public’s interest in maintaining the unsealed
`
`version in the file history of this inter partes review. Because the information in
`
`Exhibit 1078 is confidential information not relied on by the Board, Exhibit 1078
`
`should be expunged from the file history of this inter partes review.
`
`13. Exhibit 2040
`
`The unredacted version of Exhibit 2040 should be expunged because the
`
`unredacted information constitutes confidential information, the Board does not rely
`
`on the redacted information, and the redacted information is not required for a
`
`complete understanding of the record.
`
`Exhibit 2040 is a declaration of Dr. Messner in support of Patent Owner’s
`
`Response. Patent Owner’s Unopposed Motion to Seal states this declaration cites to
`
`information Petitioner produced and designated as Highly Confidential – Outside
`
`23
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`
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`KC 15508086.4
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`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`Counsel Only in the underlying District Court Proceeding, specifically Exhibits
`
`2076 and 2084, and thus designated as Highly Confidential – Outside Counsel Only
`
`under the Stipulated PO. Paper 49 at 1 and 4. Patent Owner filed redacted and
`
`unredacted versions of Exhibit 2040. The redacted testimony appears in paragraphs
`
`33, 214, and 216 of the declaration. Ex. 2040, pp. 17, 91, and 93. The redacted
`
`information in ¶33 cites to information in Exhibit 2084, and Exhibit 2084 was filed
`
`under seal. The Response cites to ¶33 as support for background statements
`
`regarding the litigation history. Paper 47 at 2. The redacted information in ¶214 cites
`
`to information in Exhibit
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