`
`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. IPR2019-00514
`
`Patent No. 5,904,172
`____________
`
`
`
`
`PETITIONER’S UNOPPOSED MOTION TO SEAL
`
`
`
`WA 14219274.2
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`
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`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`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 40) and the Proposed
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`Stipulated Protective Order (Ex. 2034).
`
`I.
`
`Good Cause Exists
`
`Petitioner moves to seal six categories of documents containing information
`
`designated by Petitioner as confidential
`
`(collectively,
`
`the “Confidential
`
`Documents”):
`
`1.
`
`Three Patent Owner expert witness deposition transcript, Exhibit 1066,
`
`1067, and 1068, two of which (Exhibit 1066 and 1068) contains an exchange
`
`with the witness regarding an exhibit which has been deemed “Highly
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`Confidential-Outside Counsel Only” by Patent Owner under the provisions of
`
`the modified District Court Protective Order (“DCPO”) enforceable by the
`
`District Court; and the third of which (Exhibit 1067) quotes certain Petitioner
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`sales data designated as Highly Confidential-Outside Counsel Only as
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`governed by the provisions of the modified District Court Protective Order
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`(“DCPO”) enforceable by the District Court;
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`2
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`WA 14219274.2
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`Case No. IPR2019-00514
`Patent No. 5,904,172
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`2.
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`Two expert declarations, Exhibit 1069 and 1071, one of which (Exhibit
`
`1069) analyzes and references an exhibit 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; and the
`
`other of which (Exhibit 1071) analyzes and cites to Petitioner’s financial data
`
`and sales data which have been designated as Highly Confidential – Outside
`
`Counsel Only;
`
`3.
`
`A client declaration, Exhibit 1072, which refers to Petitioner’s data
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`designated as Highly Confidential – Outside Counsel Only;
`
`4.
`
`Petitioner-produced document in this IPR proceeding, Exhibit 1075,
`
`which is designated as Highly Confidential – Outside Counsel Only and
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`contains financial information of Dires, LLC;
`
`5.
`
`An inventor deposition transcript, Exhibit 1077, from investigation
`
`number 337-TA-971 before
`
`the United States
`
`International Trade
`
`Commission which was deemed “Confidential Business Information” by the
`
`parties under the protective order enforceable by the United States
`
`International Trade Commission, and in turn, deemed “Highly Confidential-
`
`Outside Counsel Only” by the parties under the provisions of the modified
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`3
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`WA 14219274.2
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`Case No. IPR2019-00514
`Patent No. 5,904,172
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`District Court Protective Order (“DCPO”) enforceable by the District Court;
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`and
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`6.
`
`An exhibit to a confidential inventor deposition transcript, Exhibit
`
`1078, from investigation number 337-TA-971 before the United States
`
`International Trade Commission which was deemed “Confidential Business
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`Information” by the parties under the protective order enforceable by the
`
`United States International Trade Commission, and in turn, deemed “Highly
`
`Confidential-Outside Counsel Only” by the parties under the provisions of the
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`modified District Court Protective Order (“DCPO”) enforceable by the
`
`District Court.
`
`The disclosure of Petitioner’s 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
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`information. Patent Owner does not currently dispute that the documents contain
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`confidential information and that good cause exits to seal such documents, and
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`request that the Board grant this Motion so that the documents remain protected
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`under both the DCPO and the Stipulated Protective Order in this proceeding.
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`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
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`4
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`WA 14219274.2
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`
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`Case No. IPR2019-00514
`Patent No. 5,904,172
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`to the Stipulated Protective Order § 10(A)(i), Petitioner moves to seal the following
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`Confidential Document that contains only confidential information and must be
`
`entirely sealed: Exhibit 1075. Accordingly, Petitioner is filing a fully sealed version
`
`of such document. The parties request that the Board maintain this exhibit under
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`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
`
`information and non-confidential information, and thus must be filed with the
`
`confidential portions redacted: Exhibits 1066, 1067, 1068, 1069, 1071, and 1072.
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`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
`
`1066
`
`January 8, 2020
`Deposition Transcript of
`Dr. William Messner
`
`In deposition, Dr. Messner was asked
`questions regarding an exhibit that has
`been deemed by Patent Owner as
`Highly Confidential – Outside
`Counsel Only in the District Court
`Proceeding and ITC Proceeding.
`
`5
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`WA 14219274.2
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`Case No. IPR2019-00514
`Patent No. 5,904,172
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`1067
`
`January 8, 2020
`Deposition Transcript of
`Carl Degen
`
`1068
`
`January 9, 2020
`Deposition Transcript of
`Paul Mahoney
`
`1069
`
`Declaration of Robert
`Giachetti in Support of
`Petitioner’s Reply
`
`1071
`
`Declaration of Matthew
`Lynde in Support of
`Petitioner’s Reply
`
`1072
`
`Declaration of Craig
`Miller, Jr. in Support of
`Petitioner’s Reply
`
`In 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.
`In deposition, Mr. Mahoney was asked
`questions regarding an exhibit that has
`been deemed by Patent Owner as
`Highly Confidential – Outside
`Counsel Only in the District Court
`Proceeding.
`In deposition, Dr. Giachetti was asked
`questions regarding an exhibit that has
`been deemed by Patent Owner as
`Highly Confidential – Outside
`Counsel Only in the District Court
`Proceeding.
`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.
`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
`
`6
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`WA 14219274.2
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`Case No. IPR2019-00514
`Patent No. 5,904,172
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`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.
`The entire exhibit was deemed
`Confidential Business Information by
`agreement of the parties. This
`information has been designed by the
`parties as Highly Confidential –
`Outside Counsel Only in the District
`Court and ITC Proceedings.
`The annotated exhibit to the
`declaration was deemed Confidential
`Business Information by agreement of
`the parties. This information has been
`designed by the parties as Highly
`Confidential – Outside Counsel Only
`in the District Court and ITC
`Proceedings.
`
`1075
`
`Exhibit to Miller
`Declaration – Dires, LLC
`Advertising expenditure
`
`1077
`
`1078
`
`April 14, 2016
`Deposition Transcript of
`Eugene Duval – USITC
`Investigation No. 337-
`TA-971
`
`Exhibit 6, U.S. Patent No.
`5,652,484 (“Shafer”), to
`the April 14, 2016
`Deposition Transcript of
`Eugene Duval – USITC
`Investigation No. 337-
`TA-971
`
`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.
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`7
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`WA 14219274.2
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`Case No. IPR2019-00514
`Patent No. 5,904,172
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`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.
`
`In the event the Board determines the Confidential Documents are not
`
`confidential and must be filed publicly, the parties have a dispute regarding which
`
`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.
`
`IV. Conclusion
`
`In light of the good cause identified herein, Petitioner respectfully requests
`
`that the Board grant its unopposed Motion to Seal.
`
`8
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`WA 14219274.2
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`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`Date: January 29, 2020
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`
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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
`
`9
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`WA 14219274.2
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`
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`Case No. IPR2019-00514
`Patent No. 5,904,172
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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 29, 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
`
`10
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`WA 14219274.2
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`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`Date: January 29, 2020
`
`
`
`
`
`
` /s/Kyle L. Elliott .
`Kyle L. Elliott (Reg. No. 39,485)
`.
`Attorney for Petitioner
`American National Manufacturing, Inc.
`
`11
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`WA 14219274.2
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`
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