`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`ZTE (USA) INC.,
`
`PETITIONER,
`
`V.
`
`BELL NORTHERN RESEARCH, LLC,
`
`PATENT OWNER.
`___________________
`Case No. IPR2019-01365
`U.S. Patent No. 7,039,435
`___________________
`PATENT OWNER’S UNOPPOSED MOTION FOR ENTRY OF A
`MODIFIED PROTECTIVE ORDER
`
`
`
`
`I.
`
`INTRODUCTION
`Patent Owner Bell Northern Research, LLC respectfully submits this
`
`Unopposed Motion for Entry of a Modified Protective Order.
`
`Patent Owner requests that the Board enter the Modified Protective Order
`
`attached hereto as Addendum A. A redline version showing differences between
`
`the Default Protective Order and the proposed Modified Protective Order is
`
`attached hereto as Addendum B.
`
`II. REQUESTED RELIEF
`Based on Patent Owner’s intent to submit to the Board certain third-party
`
`license agreements, and subject to any order entered by the Board granting a
`
`motion for additional discovery, good cause exists to enter the attached Modified
`
`Protective Order (Addendum A) to protect the third-party confidential business
`
`information that Patent Owner intends to submit.
`
`The Modified Protective Order differs from the Default Protective Order in
`
`three ways. First, the Modified Protective Order requires confidential information
`
`requiring additional confidentially restrictions to be clearly marked as
`
`“PROTECTIVE ORDER MATERIAL – ATTORNEYS EYES ONLY.” Secondly,
`
`the Modified Protective Order details who may access the PROTECTIVE ORDER
`
`MATERIAL-ATTORNEYS EYES ONLY information. Lastly, the Modified
`
`Protective Order details, for persons receiving PROTECTIVE ORDER
`
`
`
`1
`
`
`
`MATERIAL-ATTORNEYS EYES ONLY information, the procedures necessary
`
`to maintain the confidentiality of the information.
`
`Accordingly, these modifications to the Default Protective Order are
`
`justified due to the need to protect third-party confidential business information.
`
`III. CONCLUSION
`For the foregoing reasons, Patent Owner respectfully requests that the Board
`
`accept and enter the Modified Protective Order submitted herewith as Addendum
`
`Respectfully Submitted,
`
`/Steven W. Hartsell/
`Steven W. Hartsell (Reg. No. 58,788)
`SKIERMONT DERBY LLP
`1601 Elm St., Ste. 4400
`Dallas, Texas 75201
`P: 214-978-6600/F: 214-978-6601
`Lead Counsel for Patent Owner
`
`Alexander E. Gasser (Reg. No. 48,760)
`SKIERMONT DERBY LLP
`1601 Elm St., Ste. 4400
`Dallas, Texas 75201
`P: 214-978-6600/F: 214-978-6621
`Back-Up Counsel for Patent Owner
`
`A.
`
`Dated: April 14, 2020
`
`
`
`
`
`
`
`
`
`2
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that I caused to be served on the counsel for Petitioners a
`
`true and correct copy of the foregoing Unopposed Motion for Entry of a Modified
`
`Protective Order, by electronic means on April 14, 2020 at the following addresses
`
`Respectfully Submitted,
`
`/Steven W. Hartsell/
`Steven W. Hartsell
`Counsel for Patent Owner
`
`of record:
`
`Amol A. Parikh
`Charles M. McMahon
`Thomas M. DaMario
`Jiaxiao Zhang
`ZTEBNR-PTAB@mwe.com
`
`Dated: April 14, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ADDENDUM A
`
`ADDENDUM A
`
`
`
`MODIFIED PROTECTIVE ORDER
`
`The following Modified Protective Order will govern the filing and
`
`treatment of confidential information in the proceeding:
`
`Standing Protective Order
`
`This protective order governs the treatment and filing of confidential
`
`information, including documents and testimony.
`
`1.
`
`Confidential information shall be clearly marked “PROTECTIVE
`
`ORDER MATERIAL.”
`
`2.
`
`Access to confidential information is limited to the following
`
`individuals who have executed the acknowledgment appended to this order:
`
`(A) Parties. Persons who are owners of a patent involved in the
`
`proceeding and other persons who are named parties to the
`
`proceeding.
`
`(B) Party Representatives. Representatives of record for a party in
`
`the proceeding.
`
`(C) Experts. Retained experts of a party in the proceeding who
`
`further certify in the Acknowledgement that they are not a competitor
`
`to any party, or a consultant for, or employed by, such a competitor
`
`with respect to the subject matter of the proceeding.
`
`(D)
`
` In-house counsel. In-house counsel of a party.
`
`
`
`(E) Support Personnel. Administrative assistants, clerical staff,
`
`court reporters and other support personnel of the foregoing persons
`
`who are reasonably necessary to assist those persons in the proceeding
`
`shall not be required to sign an Acknowledgement, but shall be
`
`informed of the terms and requirements of the Protective Order by the
`
`person they are supporting who receives confidential information.
`
`(F) The Office. Employees and representatives of the United States
`
`Patent and Trademark Office who have a need for access to the
`
`confidential information shall have such access without the
`
`requirement to sign an Acknowledgement. Such employees and
`
`representatives shall include the Director, members of the Board and
`
`their clerical staff, other support personnel, court reporters, and other
`
`persons acting on behalf of the Office.
`
`3.
`
`Employees (e.g., corporate officers), consultants, or other persons
`
`performing work for a party, other than those persons identified above in
`
`(d)(2)(A)-(E), shall be extended access to confidential information only upon
`
`agreement of the parties or by order of the Board upon a motion brought by the
`
`party seeking to disclose confidential information to that person and after signing
`
`the Acknowledgment. The party opposing disclosure to that person shall have the
`
`
`
`burden of proving that such person should be restricted from access to confidential
`
`information.
`
`4.
`
`Persons receiving confidential information shall use reasonable efforts
`
`to maintain the confidentiality of the information, including:
`
`(A) Maintaining such information in a secure location to which
`
`persons not authorized to receive the information shall not have
`
`access;
`
`(B) Otherwise using reasonable efforts to maintain the
`
`confidentiality of the information, which efforts shall be no less
`
`rigorous than those the recipient uses to maintain the confidentiality of
`
`information not received from the disclosing party;
`
`(C) Ensuring that support personnel of the recipient who have
`
`access to the confidential information understand and abide by the
`
`obligation to maintain the confidentiality of information received that
`
`is designated as confidential; and
`
`(D) Limiting the copying of confidential information to a
`
`reasonable number of copies needed for conduct of the proceeding
`
`and maintaining a record of the locations of such copies.
`
`5.
`
`Persons receiving confidential information shall use the following
`
`procedures to maintain the confidentiality of the information:
`
`
`
`(A) Documents and Information Filed With the Board.
`
`(i) A party may file documents or information with the
`
`Board along with a Motion to Seal. The Motion to Seal
`
`should provide a non-confidential description of the nature
`
`of the confidential information that is under seal, and set
`
`forth the reasons why the information is confidential and
`
`should not be made available to the public. A party may
`
`challenge the confidentiality of the information by opposing
`
`the Motion to Seal. The documents or information shall
`
`remain under seal unless the determines that some or all of it
`
`does not qualify for confidential treatment.
`
`(ii) Where confidentiality is alleged as to some but not all of
`
`the information submitted to the Board, the submitting party
`
`shall file confidential and non-confidential versions of its
`
`submission, together with a Motion to Seal the confidential
`
`version setting forth the reasons why the information
`
`redacted from the non-confidential version is confidential
`
`and should not be made available to the public. A party may
`
`challenge the confidentiality of the information by opposing
`
`the Motion to Seal. The non-confidential version of the
`
`
`
`submission shall clearly indicate the locations of information
`
`that has been redacted. The confidential version of the
`
`submission shall be filed under seal. The redacted
`
`information shall remain under seal unless the Board
`
`determines that some or all of the redacted information does
`
`not qualify for confidential treatment.
`
`(B) Documents and Information Exchanged Among the Parties.
`
`Documents (including deposition transcripts) and other information
`
`designated as confidential that are disclosed to another party during
`
`discovery or other proceedings before the Board shall be clearly
`
`marked as “PROTECTIVE ORDER MATERIAL” and shall be
`
`produced in a manner that maintains its confidentiality.
`
`6.
`
`Confidential information requiring additional confidentiality
`
`restrictions shall be clearly marked “PROTECTIVE ORDER MATERIAL –
`
`ATTORNEYS EYES ONLY.”
`
`7.
`
`Access to PROTECTIVE ORDER MATERIAL – ATTORNEYS
`
`EYES ONLY information is limited to the following individuals who have
`
`executed the acknowledgement appended to this order:
`
`(A) Outside Counsel for the Parties. Outside counsel of record for a
`
`party in the proceeding.
`
`
`
`(B) Experts. Retained experts of a party in the proceeding who
`
`further certify in the Acknowledgement that they are not a competitor
`
`to any party, or a consultant for, or employed by, such a competitor
`
`with respect to the subject matter of the proceeding.
`
`(C) The Office. Employees and representatives of the Office who
`
`have a need for access to the confidential information shall have such
`
`access without the requirement to sign an Acknowledgment. Such
`
`employees and representatives shall include the Director, members of
`
`the Board and their clerical staff, other support personnel, court
`
`reporters, and other persons acting on behalf of the Office.
`
`(D) Support Personnel. Administrative assistants, clerical staff,
`
`court reporters and other support personnel of the foregoing persons
`
`who are reasonably necessary to assist those persons in the proceeding
`
`shall not be required to sign an Acknowledgement, but shall be
`
`informed of the terms and requirements of the Protective Order by the
`
`person they are supporting who receives confidential information.
`
`8.
`
`Persons receiving PROTECTIVE ORDER MATERIAL –
`
`ATTORNEYS EYES ONLY information shall use reasonable efforts to maintain
`
`the confidentiality of the information, including:
`
`
`
`(A) Maintaining such information in a secure location to which
`
`persons not authorized to receive the information shall not have
`
`access;
`
`(B) Otherwise using reasonable efforts to maintain the
`
`confidentiality of the information, which efforts shall be no less
`
`rigorous than those the recipient uses to maintain the confidentiality of
`
`information not received from the disclosing party;
`
`(C) Ensuring that support personnel of the recipient who have
`
`access to the confidential information understand and abide by the
`
`obligation to maintain the confidentiality of information received that
`
`is designated as confidential; and
`
`(D) Limiting the copying of confidential information to a
`
`reasonable number of copies needed for conduct of the proceeding
`
`and maintaining a record of the locations of such copies.
`
`9.
`
`Persons receiving PROTECTIVE ORDER MATERIAL –
`
`ATTORNEYS EYES ONLY information shall use the following procedures to
`
`maintain the confidentiality of the information:
`
`(A) Documents and Information Filed With the Board.
`
`i. A party may file documents or information with the Board
`
`under seal, together with a non-confidential description of
`
`
`
`the nature of the confidential information that is under seal
`
`and the reasons why the information is confidential and
`
`should not be made available to the public. The submission
`
`shall be treated as confidential and remain under seal,
`
`unless, upon motion of a party and after a hearing on the
`
`issue, or sua sponte, the Board determines that the
`
`documents or information do not qualify for confidential
`
`treatment.
`
`ii. Where confidentiality is alleged as to some but not all of the
`
`information submitted to the Board, the submitting party
`
`shall file confidential and non- confidential versions of its
`
`submission, together with a Motion to Seal the confidential
`
`version setting forth the reasons why the information
`
`redacted from the non-confidential version is confidential
`
`and should not be made available to the public. The non-
`
`confidential version of the submission shall clearly indicate
`
`the locations of information that has been redacted. The
`
`confidential version of the submission shall be filed under
`
`seal. The redacted information shall remain under seal
`
`unless, upon motion of a party and after a hearing on the
`
`
`
`issue, or sua sponte, the Board determines that some or all of
`
`the redacted information does not qualify for confidential
`
`treatment.
`
`10. Within 60 days after the final disposition of this action, including the
`
`exhaustion of all appeals and motions, each party receiving confidential
`
`information must return, or certify the destruction of, all copies of the confidential
`
`information to the producing party.
`
`11. Acknowledgement of Modified Protective Order. The following form
`
`will be used to acknowledge this protective order and gain access to information
`
`covered by the protective order:
`
`
`
`
`
`
`
`[CAPTION]
`
`Acknowledgment for Access to Protective Order Material
`
`I, __________________________________________, affirm that I have read the
`
`Modified Protective Order; that I will abide by its terms; that I will use the
`
`confidential information only in connection with this proceeding and for no other
`
`purpose; that I will only allow access to support staff who are reasonably necessary
`
`to assist me in this proceeding; that prior to any disclosure to such support staff I
`
`informed or will inform them of the requirements of the Modified Protective
`
`Order; that I am personally responsible for the requirements of the terms of the
`
`Modified Protective Order and I agree to submit to the jurisdiction of the Office
`
`and the United States District Court for the Eastern District of Virginia for
`
`purposes of enforcing the terms of the Modified Protective Order and providing
`
`remedies for its breach.
`
`
`
`[Signature]
`
`
`
`
`
`
`
`
`
`
`
`
`
`ADDENDUM B
`
`ADDENDUM B
`
`
`
`MODIFIED PROTECTIVE ORDER
`
`The following Modified Protective Order will govern the filing and
`
`treatment of confidential information in the proceeding:
`
`Standing Protective Order
`
`This protective order governs the treatment and filing of confidential
`
`information, including documents and testimony.
`
`1.
`
`Confidential information shall be clearly marked “PROTECTIVE
`
`ORDER MATERIAL.”
`
`2.
`
`Access to confidential information is limited to the following
`
`individuals who have executed the acknowledgment appended to this order:
`
`(A) Parties. Persons who are owners of a patent involved in the
`
`proceeding and other persons who are named parties to the
`
`proceeding.
`
`(B) Party Representatives. Representatives of record for a party in
`
`the proceeding.
`
`(C) Experts. Retained experts of a party in the proceeding who
`
`further certify in the Acknowledgement that they are not a competitor
`
`to any party, or a consultant for, or employed by, such a competitor
`
`with respect to the subject matter of the proceeding.
`
`(D)
`
` In-house counsel. In-house counsel of a party.
`
`
`
`(E) Support Personnel. Administrative assistants, clerical staff,
`
`court reporters and other support personnel of the foregoing persons
`
`who are reasonably necessary to assist those persons in the proceeding
`
`shall not be required to sign an Acknowledgement, but shall be
`
`informed of the terms and requirements of the Protective Order by the
`
`person they are supporting who receives confidential information.
`
`(F) The Office. Employees and representatives of the United States
`
`Patent and Trademark Office who have a need for access to the
`
`confidential information shall have such access without the
`
`requirement to sign an Acknowledgement. Such employees and
`
`representatives shall include the Director, members of the Board and
`
`their clerical staff, other support personnel, court reporters, and other
`
`persons acting on behalf of the Office.
`
`3.
`
`Employees (e.g., corporate officers), consultants, or other persons
`
`performing work for a party, other than those persons identified above in
`
`(d)(2)(A)-(E), shall be extended access to confidential information only upon
`
`agreement of the parties or by order of the Board upon a motion brought by the
`
`party seeking to disclose confidential information to that person and after signing
`
`the Acknowledgment. The party opposing disclosure to that person shall have the
`
`
`
`burden of proving that such person should be restricted from access to confidential
`
`information.
`
`4.
`
`Persons receiving confidential information shall use reasonable efforts
`
`to maintain the confidentiality of the information, including:
`
`(A) Maintaining such information in a secure location to which
`
`persons not authorized to receive the information shall not have
`
`access;
`
`(B) Otherwise using reasonable efforts to maintain the
`
`confidentiality of the information, which efforts shall be no less
`
`rigorous than those the recipient uses to maintain the confidentiality of
`
`information not received from the disclosing party;
`
`(C) Ensuring that support personnel of the recipient who have
`
`access to the confidential information understand and abide by the
`
`obligation to maintain the confidentiality of information received that
`
`is designated as confidential; and
`
`(D) Limiting the copying of confidential information to a
`
`reasonable number of copies needed for conduct of the proceeding
`
`and maintaining a record of the locations of such copies.
`
`5.
`
`Persons receiving confidential information shall use the following
`
`procedures to maintain the confidentiality of the information:
`
`
`
`(A) Documents and Information Filed With the Board.
`
`(i) A party may file documents or information with the
`
`Board along with a Motion to Seal. The Motion to Seal
`
`should provide a non-confidential description of the nature
`
`of the confidential information that is under seal, and set
`
`forth the reasons why the information is confidential and
`
`should not be made available to the public. A party may
`
`challenge the confidentiality of the information by opposing
`
`the Motion to Seal. The documents or information shall
`
`remain under seal unless the determines that some or all of it
`
`does not qualify for confidential treatment.
`
`(ii) Where confidentiality is alleged as to some but not all of
`
`the information submitted to the Board, the submitting party
`
`shall file confidential and non-confidential versions of its
`
`submission, together with a Motion to Seal the confidential
`
`version setting forth the reasons why the information
`
`redacted from the non-confidential version is confidential
`
`and should not be made available to the public. A party may
`
`challenge the confidentiality of the information by opposing
`
`the Motion to Seal. The non-confidential version of the
`
`
`
`submission shall clearly indicate the locations of information
`
`that has been redacted. The confidential version of the
`
`submission shall be filed under seal. The redacted
`
`information shall remain under seal unless the Board
`
`determines that some or all of the redacted information does
`
`not qualify for confidential treatment.
`
`(B) Documents and Information Exchanged Among the Parties.
`
`Documents (including deposition transcripts) and other information
`
`designated as confidential that are disclosed to another party during
`
`discovery or other proceedings before the Board shall be clearly
`
`marked as “PROTECTIVE ORDER MATERIAL” and shall be
`
`produced in a manner that maintains its confidentiality.
`
`6.
`
`Confidential information requiring additional confidentiality
`
`restrictions shall be clearly marked “PROTECTIVE ORDER MATERIAL –
`
`ATTORNEYS EYES ONLY.”
`
`7.
`
`Access to PROTECTIVE ORDER MATERIAL – ATTORNEYS
`
`EYES ONLY information is limited to the following individuals who have
`
`executed the acknowledgement appended to this order:
`
`(A) Outside Counsel for the Parties. Outside counsel of record for a
`
`party in the proceeding.
`
`
`
`(B) Experts. Retained experts of a party in the proceeding who
`
`further certify in the Acknowledgement that they are not a competitor
`
`to any party, or a consultant for, or employed by, such a competitor
`
`with respect to the subject matter of the proceeding.
`
`(C) The Office. Employees and representatives of the Office who
`
`have a need for access to the confidential information shall have such
`
`access without the requirement to sign an Acknowledgment. Such
`
`employees and representatives shall include the Director, members of
`
`the Board and their clerical staff, other support personnel, court
`
`reporters, and other persons acting on behalf of the Office.
`
`(D) Support Personnel. Administrative assistants, clerical staff,
`
`court reporters and other support personnel of the foregoing persons
`
`who are reasonably necessary to assist those persons in the proceeding
`
`shall not be required to sign an Acknowledgement, but shall be
`
`informed of the terms and requirements of the Protective Order by the
`
`person they are supporting who receives confidential information.
`
`8.
`
`Persons receiving PROTECTIVE ORDER MATERIAL –
`
`ATTORNEYS EYES ONLY information shall use reasonable efforts to maintain
`
`the confidentiality of the information, including:
`
`
`
`(A) Maintaining such information in a secure location to which
`
`persons not authorized to receive the information shall not have
`
`access;
`
`(B) Otherwise using reasonable efforts to maintain the
`
`confidentiality of the information, which efforts shall be no less
`
`rigorous than those the recipient uses to maintain the confidentiality of
`
`information not received from the disclosing party;
`
`(C) Ensuring that support personnel of the recipient who have
`
`access to the confidential information understand and abide by the
`
`obligation to maintain the confidentiality of information received that
`
`is designated as confidential; and
`
`(D) Limiting the copying of confidential information to a
`
`reasonable number of copies needed for conduct of the proceeding
`
`and maintaining a record of the locations of such copies.
`
`9.
`
`Persons receiving PROTECTIVE ORDER MATERIAL –
`
`ATTORNEYS EYES ONLY information shall use the following procedures to
`
`maintain the confidentiality of the information:
`
`(A) Documents and Information Filed With the Board.
`
`i. A party may file documents or information with the Board
`
`under seal, together with a non-confidential description of
`
`
`
`the nature of the confidential information that is under seal
`
`and the reasons why the information is confidential and
`
`should not be made available to the public. The submission
`
`shall be treated as confidential and remain under seal,
`
`unless, upon motion of a party and after a hearing on the
`
`issue, or sua sponte, the Board determines that the
`
`documents or information do not qualify for confidential
`
`treatment.
`
`ii. Where confidentiality is alleged as to some but not all of the
`
`information submitted to the Board, the submitting party
`
`shall file confidential and non- confidential versions of its
`
`submission, together with a Motion to Seal the confidential
`
`version setting forth the reasons why the information
`
`redacted from the non-confidential version is confidential
`
`and should not be made available to the public. The non-
`
`confidential version of the submission shall clearly indicate
`
`the locations of information that has been redacted. The
`
`confidential version of the submission shall be filed under
`
`seal. The redacted information shall remain under seal
`
`unless, upon motion of a party and after a hearing on the
`
`
`
`issue, or sua sponte, the Board determines that some or all of
`
`the redacted information does not qualify for confidential
`
`treatment.
`
`6.10. Within 60 days after the final disposition of this action, including the
`
`exhaustion of all appeals and motions, each party receiving confidential
`
`information must return, or certify the destruction of, all copies of the confidential
`
`information to the producing party.
`
`7.11. Standard Acknowledgement of Modified Protective Order. The
`
`following form may will be used to acknowledge thea protective order and gain
`
`access to information covered by the protective order:
`
`
`
`
`
`
`
`[CAPTION]
`
`Standard Acknowledgment for Access to Protective Order Material
`
`I, __________________________________________, affirm that I have read the
`
`Modified Protective Order; that I will abide by its terms; that I will use the
`
`confidential information only in connection with this proceeding and for no other
`
`purpose; that I will only allow access to support staff who are reasonably necessary
`
`to assist me in this proceeding; that prior to any disclosure to such support staff I
`
`informed or will inform them of the requirements of the Modified Protective
`
`Order; that I am personally responsible for the requirements of the terms of the
`
`Modified Protective Order and I agree to submit to the jurisdiction of the Office
`
`and the United States District Court for the Eastern District of Virginia for
`
`purposes of enforcing the terms of the Modified Protective Order and providing
`
`remedies for its breach.
`
`
`
`[Signature]
`
`
`
`
`
`