`Tel: 571-272-7822
`
`Paper: 96
`Entered: September 8, 2020
`
`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.
`
`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`
`
`
`Before SCOTT A. DANIELS, FRANCES L. IPPOLITO, and
`ALYSSA A. FINAMORE, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`
`DECISION
`Denying-in-Part Parties’ Requests to File Motion to Expunge
`37 C.F.R. §§ 42.5, 42.56
`
`
`
`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`
`The parties emailed the Board on September 1, 2020, requesting
`guidance on expungement of confidential information from the records of
`the above captioned proceedings pursuant to 37 C.F.R. § 42.56.
`The Board notes that a Request for Rehearing was filed in each of
`IPR2019-00497 and IPR2019-00500. Paper 109. Because we have not yet
`ruled on the Rehearing Requests in these proceedings, the time period for
`appealing the Final Written Decisions to the U.S. Court of Appeals for the
`Federal Circuit has not yet commenced to run. See 37 C.F.R. § 90.3(b)(1)
`(setting the time for appeal at sixty-three days after action on a request for
`rehearing). Consequently, as to these two proceedings, the panel views the
`parties’ email as a Request to File a Motion to Expunge, and determines the
`request to be premature.
`Once the Board enters its decisions on the Rehearing Requests in each
`of IPR2019-00497 and IPR2019-00500, either party may either file a motion
`to expunge or file a motion to preserve the record pending appeal, if an
`appeal is filed.1 Until a decision is made on such motions the Board will
`maintain the confidentiality of the documents filed under seal in each of
`these proceedings.
`In IPR2019-00514 the time period to file an appeal has not yet
`expired. See 37 C.F.R. § 90.3(a)(1) (setting the time for appeal at sixty-three
`days after the date of the final Board decision.). Depending on the intent of
`the parties going forward, the parties may file either a motion to expunge if
`no appeal to the Federal Circuit will occur, or a motion to preserve the
`
`
`1 Any motion that is not a joint motion should include a statement regarding
`whether the other party opposes the motion.
`
`2
`
`
`
`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`record pending appeal, if an appeal is anticipated. Again, until a decision is
`made on such a motion, the Board will maintain the confidentiality of the
`documents filed under seal in the proceeding.
`Accordingly, it is
`ORDERED that the parties’ Request to File a Motion to Expunge in
`IPR2019-00497 and IPR2019-00500 are denied without prejudice;
`FURTHER ORDERED that in IPR2019-00497 and IPR2019-00500
`the parties may file a motion to expunge or a motion to preserve the record
`pending appeal after we enter our decisions on Petitioner’s Requests for
`Rehearing;
`FURTHER ORDERED that in IPR2019-00514 the parties are
`authorized to file either a motion to expunge or a motion to preserve the
`record pending appeal if an appeal is anticipated; and
`FURTHER ORDERED that the Board will maintain the
`confidentiality of the documents filed under seal in each proceeding until
`further notice.
`
`
`
`
`
`3
`
`
`
`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`For PETITIONER:
`
`Kyle Elliott
`Kevin Tuttle
`Jaspal Hare
`SPENCER FANE LLP
`kelliott@spencerfane.com
`ktuttle@spencerfane.com
`jaspal428@gmail.com
`
`For PATENT OWNER:
`
`Kecia Reynolds
`PILLSBURY WINTHROP SHAW PITTMAN LLP
`kecia.reynolds@pillsburylaw.com
`
`Steven Moore
`ZHONG LUN
`stevemoore@zhonglu.com
`
`Luke Toft
`FOX ROTHSCHILD LLP
`ltoft@foxrothschild.com
`
`
`4
`
`
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