IPR2019-00611
`U.S. Patent No. 8,831,557
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`APPLE INC.,
`
`SAMSUNG ELECTRONICS CO., LTD.,
`
`and
`
`SAMSUNG ELECTRONICS AMERICA, INC.
`
`Petitioners,
`
`v.
`
`FIRSTFACE CO., LTD,
`
`Patent Owner.
`
`____________
`
`Case IPR2019-00611
`
`U.S. Patent No. 8,831,557
`
`____________
`
`PETITIONER APPLE’S UNOPPOSED MOTION TO EXPUNGE
`CONFIDENTIAL INFORMATION UNDER SEAL
`
`
`U.S. Patent No. 8,831,557
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`APPLE INC.,
`
`SAMSUNG ELECTRONICS CO., LTD.,
`
`and
`
`SAMSUNG ELECTRONICS AMERICA, INC.
`
`Petitioners,
`
`v.
`
`FIRSTFACE CO., LTD,
`
`Patent Owner.
`
`____________
`
`Case IPR2019-00611
`
`U.S. Patent No. 8,831,557
`
`____________
`
`PETITIONER APPLE’S UNOPPOSED MOTION TO EXPUNGE
`CONFIDENTIAL INFORMATION UNDER SEAL
`
`
`
`IPR2019-00611
`U.S. Patent No. 8,831,557
`
`Pursuant to 37 C.F.R. § 42.56, and authorization received via email from the
`
`Patent Trial and Appeal Board (the “Board”) on September 11, 2020, Petitioner
`
`Apple Inc. (“Apple”) hereby moves for an order expunging protected documents
`
`filed under seal in IPR2019-00611, namely any under seal “Board Only” versions of
`
`the Declaration of Michael Hulse (Ex. 1004) and the Declaration of Yosh Moriarty
`
`(Ex. 1031). These documents include confidential and commercially sensitive
`
`business information of Apple. The Board’s decision denying institution in this
`
`proceeding does not cite or discuss Exhibits 1004 or 1031, and the record already
`
`contains publicly-available versions of Exhibits 1004 and 1031 that have not been
`
`excessively redacted. Accordingly, Apple hereby moves to expunge the confidential
`
`information currently under seal.
`
`If the Board is not inclined to grant this Motion, Apple respectfully requests
`
`a conference call with the Board to discuss the issues raised in this Motion before
`
`any information becomes irreversibly public.
`
`I. BACKGROUND
`
`Exhibits 1004 and 1031 were filed January 23, 2019 in publicly-available
`
`versions (redacted) and versions under seal (not-redacted; for “Board Only”
`
`viewing). Apple filed a motion to seal (Paper 7) the confidential “Board Only”
`
`versions of Exhibits 1004 and 1031 because these exhibits contain confidential and
`
`commercially sensitive business information of Apple. The Board granted Apple’s
`1
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`IPR2019-00611
`U.S. Patent No. 8,831,557
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`motion to seal (Paper 10), finding good cause exists for sealing the confidential
`
`information. In addition, the Board expunged duplicate copies of Exhibits 1004 and
`
`1031 filed as “Board Only.” Paper 10 at 6. The Board issued a decision denying
`
`institution of inter partes review in this proceeding (Paper 11), which does not cite
`
`or discuss Exhibits 1004 or 1031.
`
`II. CONFIDENTIAL DOCUMENTS SHOULD BE EXPUNGED
`
`Apple requests that any under seal “Board Only” versions of Exhibits 1004
`
`and 1031 in IPR2019-00611 be expunged from the record.
`
`“A party seeking to maintain the confidentiality of information … may file a
`
`motion to expunge the information from the record prior to the information
`
`becoming public.” PTAB Consolidated Trial Practice Guide, November 2019
`
`(“Practice Guide”) at 22; 37 CFR § 42.56. “There is an expectation that information
`
`will be made public where the existence of the information is referred to in a decision
`
`to grant or deny a request to institute a review or is identified in a final written
`
`decision following a trial.” Id. Conversely, where a decision does not rely (or only
`
`minimally relies) on the confidential information, the Board has granted motions to
`
`expunge, finding that there is limited public interest in the confidential information
`
`and the record is minimally affected. See, e.g., Unverferth Mfg. Co. v. J&M Mfg.
`
`Co., IPR2015-00758, Paper 29 at 2 (P.T.A.B. Sept. 30, 2015) (granting motion to
`
`expunge because the decision did not rely upon the exhibit at issue and “the file and
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`IPR2019-00611
`U.S. Patent No. 8,831,557
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`decision remain understandable in the absence of” the exhibit). “The rule
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`encourages parties to redact sensitive information, where possible, rather than
`
`seeking to seal entire documents.” Practice Guide at 22.
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`In this proceeding, the Board previously found that good cause exists to seal
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`the versions of Exhibits 1004 and 1031 filed as “Board Only” in view of the
`
`confidential nature of the information contained in the exhibits. Paper 10 at 5. The
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`Board’s subsequent decision denying institution does not refer to Apple’s
`
`confidential information, and indeed does not refer to any version of Exhibits 1004
`
`and 1031 (including the publicly-available redacted versions). In addition, the
`
`record contains publicly-available versions of Exhibits 1004 and 1031 that have not
`
`been excessively redacted. Paper 10 at 5 (“We also note that the redacted portions
`
`of the materials appear to be tailored narrowly to only confidential information.”).
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`Accordingly, the public’s interest in having access to Apple’s confidential
`
`information is very minimal, and such information should be expunged for good
`
`cause.
`
`Apple respectfully submits that good cause exists here and thus requests that
`
`the Board expunge any under seal “Board Only” versions of Exhibits 1004 and 1031
`
`due to the confidential and commercially sensitive nature of the information in those
`
`documents. Apple has conferred with Petitioners Samsung Electronics Co., Ltd.,
`
`and Samsung Electronics America, Inc. and Patent Owner Firstface Co., Ltd., who
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`IPR2019-00611
`U.S. Patent No. 8,831,557
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`have indicated that they do not oppose this Motion.
`
`III. CONCLUSION
`
`For the reasons set forth above, Petitioner Apple respectfully requests that its
`
`Unopposed Motion to Expunge Confidential Information Under Seal be granted.
`
`
`
`Dated: September 15, 2020
`
`
`
`
`
`
`
`By: /Gabrielle E. Higgins/
`Gabrielle E. Higgins
`Reg. No. 38,916
`Christopher M. Bonny
`Reg. No. 63,307
`ROPES & GRAY LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303-2284
`Phone: 650-617-4000
`Fax: 617-235-9492
` gabrielle.higgins@ropesgray.com
`christopher.bonny@ropesgray.com
`
`Attorneys for Petitioners APPLE INC.,
`SAMSUNG ELECTRONICS CO., LTD.,
`and SAMSUNG ELECTRONICS
`AMERICA, INC
`
`
`
`4
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`IPR2019-00611
`U.S. Patent No. 8,831,557
`
`CERTIFICATE OF SERVICE
`The undersigned certifies that a copy of the foregoing PETITIONER
`
`APPLE’S UNOPPOSED MOTION TO EXPUNGE CONFIDENTIAL
`
`INFORMATION UNDER SEAL was served by filing this document through the
`
`Patent Trial and Appeal Board End to End (PTAB E2E) as well as providing a
`
`courtesy copy via electronic mail to the following attorneys of record for the Patent
`
`Owner listed below:
`
`Barry J. Bumgardner
`barry@nbafirm.com
`
`Matthew C. Juren
`matthew@nbafirm.com
`
`Thomas C. Cecil
`tom@nbafirm.com
`
`NELSON BUMGARDNER ALBRITTON P.C.
`3131 W. 7th Street, Suite 300
`Fort Worth, Texas 76107
`Telephone: (817) 377-3494
`
`Counsel for Patent Owner FIRSTFACE CO., LTD.
`
`
`
`
`
`
`
`Dated: September 15, 2020
`
`
`ROPES & GRAY LLP
`
`By: /Crena Pacheco/
`Name: Crena Pacheco
`
`
`
`
`
`
`
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`
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