UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MEDTRONIC, INC., AND MEDTRONIC VASCULAR, INC.
`Petitioners,
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`v.
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`TELEFLEX INNOVATIONS S.A.R.L.
`Patent Owner.
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`Case IPR2020-00136
`Patent RE 45,776
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`PATENT OWNER’S UNOPPOSED MOTION TO FILE UNDER SEAL
`PURSUANT TO 37 C.F.R. §§ 42.14 AND 42.54
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`1
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MEDTRONIC, INC., AND MEDTRONIC VASCULAR, INC.
`Petitioners,
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`v.
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`TELEFLEX INNOVATIONS S.A.R.L.
`Patent Owner.
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`
`
`Case IPR2020-00136
`Patent RE 45,776
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`
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`PATENT OWNER’S UNOPPOSED MOTION TO FILE UNDER SEAL
`PURSUANT TO 37 C.F.R. §§ 42.14 AND 42.54
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`1
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`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Patent Owner respectfully
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`submits this Patent Owner’s Unopposed Motion to File Under Seal, requesting that
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`the following documents remain under seal: portions of Patent Owner’s
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`Preliminary Response and certain exhibits filed with the Preliminary Response
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`which are identified as Exhibits 2043 and 2058. These documents are being filed
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`concurrently with this motion.
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`Patent Owner has conferred with the Petitioner, and the Petitioner does not
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`oppose this motion to seal.
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`Further, Patent Owner and Petitioner have conferred and agreed to the
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`attached stipulated Joint Protective Order. A copy of the stipulated Joint Protective
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`Order is attached as Appendix A. Patent Owner respectfully requests that the
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`Board enter the attached stipulated Joint Protective order in the above captioned
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`case.
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`I.
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`Good Cause
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`For good cause, the Board may “issue an order to protect a party or person
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`from disclosing confidential information.” 37 C.F.R. § 42.54. The rules “identify
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`confidential information in a manner consistent with Federal Rule of Civil
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`Procedure 26(c)(1)(G), which provides for protective orders for trade secret or
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`other confidential research, development, or commercial information.” Office
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`Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012).
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`2
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`Each of the categories of documents listed below meet this standard and for
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`the reasons explained there is good cause for why those documents should remain
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`under seal.
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`A.
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`Patent Owner’s Preliminary Response
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`Patent Owner has filed an under seal and a public, redacted version of its
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`Preliminary Response. Those portions of the under seal version of the Preliminary
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`Response corresponding to the redacted portions of the public version of the
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`Preliminary Response contain confidential commercial information that should
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`remain under seal.
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`The redacted portions in the Introduction of the Preliminary Response and
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`the first paragraph of section VII.F.1 and first redacted sentence of the second
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`paragraph of that section, discuss business development information that
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`Medtronic considers confidential.
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`The remaining redacted portions of the Preliminary Response discuss
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`revenue numbers for Patent Owner’s GuideLiner products and market share
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`estimates. All of this information fits squarely within the kinds of information that
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`the Trial Practice guide considers to be “confidential information,” such as
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`“confidential research, development, or commercial information.” 77 Fed. Reg.
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`48756, 48760.
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`3
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`There is good cause for keeping the redacted information contained in Patent
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`Owner’s Preliminary Response under seal. Publicly revealing business
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`development information, Patent Owner’s revenue numbers, and market share
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`estimates could put Patent Owner (and possibly a competitor) at a competitive
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`disadvantage in the marketplace. Additionally, Petitioners do not oppose this
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`information remaining under seal.
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`B.
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`Exhibit 2043: Declaration of Amy Welch
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`Exhibit 2043, filed under seal, is the Declaration of Amy Welch in Support
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`of Plaintiffs’ Motion for Preliminary Injunction (“Welch Declaration”) that was
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`filed under seal in the related district court case Vascular Solutions LLC v.
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`Medtronic, Inc., 19-cv-01760-PJS-TNL (D. Minn.). Patent Owner has also filed
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`Exhibit 2044, which is the public, redacted version of the same Welch Declaration
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`filed in the district court. Those portions of the under-seal version of the Welch
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`Declaration corresponding to the redacted portions of the public version of the
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`Welch Declaration contain confidential research, development, and/or commercial
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`information that should remain under seal. For example, the redacted portions
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`discuss confidential information, including financial information like worldwide
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`sales, profit, and pricing information related to Patent Owner’s GuideLiner
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`products, commercial strategy information related to the sale of GuideLiner
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`products, market share estimates, information related to Patent Owner’s accounts
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`4
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`and relationship with customers, licensing strategy, contract negotiations, and
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`compensation for Patent Owner’s sales representatives. All of this information fits
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`squarely within the kinds of information that the Trial Practice guide considers to
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`be confidential commercial information. 77 Fed. Reg. 48756, 48760.
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`There is good cause for keeping the redacted information contained in
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`Exhibit 2043 under seal. Publicly revealing the commercially sensitive
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`information noted above would put Patent Owner at a competitive disadvantage in
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`the marketplace. Additionally, Petitioners do not oppose this information
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`remaining under seal.
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`C. Exhibit 2058: Confidential Presentation
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`Exhibit 2058, filed under seal, is a Vascular Solutions PowerPoint. This
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`presentation reflects commercially sensitive discussions with a competitor, and
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`includes commercially sensitive financial information regarding Patent Owner’s
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`business. This information fits squarely within the kinds of information that the
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`Trial Practice guide considers to be “confidential information,” such as
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`“confidential . . . commercial information.” 77 Fed. Reg. 48756, 48760.
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`There is good cause for keeping Exhibit 2058 under seal. Publicly revealing
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`the commercially sensitive discussions and Patent Owner’s commercially sensitive
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`financial information could put Patent Owner (and possibly a competitor) at a
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`5
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`competitive disadvantage in the marketplace. Additionally, Petitioners do not
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`oppose this information remaining under seal.
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`II.
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`Stipulated Joint Protective Order
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`Attached hereto as Appendix A is a stipulated Joint Protective Order that has
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`been agreed to by Petitioners and Patent Owner. Patent Owner respectfully
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`requests that the Board enter this Joint Protective order in the above captioned
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`case.
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`Attached hereto as Appendix B is a redline comparing the stipulated Joint
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`Protective Order to the Board’s Default Protective Order. The parties have
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`modified the Default Protective Order, including to align it with the protective
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`order entered in the district court case, Vascular Solutions LLC v. Medtronic, Inc.,
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`19-cv-01760-PJS-TNL (D. Minn.), Dkt. 229. For example, the parties have
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`modified the Default Protective Order: to make clear who may have access to
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`confidential information, including the particular in-house counsel for each party;
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`how the parties should designate confidential testimony; to make clear that
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`materials filed or produced in the above captioned matter should be produced in
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`the litigation Vascular Solutions LLC et al. v. Medtronic Inc. et al., No. 19-cv-
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`01760-PJS-TNL, and; to make clear that the parties agree to abide by this
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`stipulated Joint Protective Order pending a decision by the Board.
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`6
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`III. Certification of Conference
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`Pursuant to 37 C.F.R. §§ 42.54(a), Patent Owner certifies that it has in good
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`faith conferred with Petitioners’ counsel. Petitioners’ counsel does not oppose this
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`motion to seal.
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`Patent Owner also certifies that it has in good faith conferred with
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`Petitioners’ counsel on the stipulated Joint Protective Order, and that both
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`Petitioners and Patent Owner agree to abide by this Protective Order pending a
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`decision by the Board on the motion for entry thereof.
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`IV. Request for Conference Call with the Board
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`Should the Board not be inclined to grant the present Unopposed Motion to
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`File Under Seal, Patent Owner hereby requests a conference call with the Board to
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`discuss any concerns prior to the Board issuing a decision on the Motion.
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`V. Conclusion
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`Patent Owner respectfully requests that the Board grant this Unopposed
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`Motion to File Under Seal, and keep the following documents under seal: portions
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`of Patent Owner’s Preliminary Response, and Exhibits 2043 and 2058.
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`Patent Owner also requests that the Board enter the stipulated Joint
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`Protective Order attached as Appendix A.
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`7
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`Dated: April 8, 2020.
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`Respectfully submitted,
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`
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`/ J. Derek Vandenburgh /
`J. Derek Vandenburgh (Lead Counsel)
`Registration No. 32,179
`Carlson, Caspers, Vandenburgh
` & Lindquist, P.A.
`225 South Sixth Street, Suite 4200
`Minneapolis, MN 55402
`Telephone: (612) 436-9600
`Facsimile: (612) 436-9650
`Email:
`DVandenburgh@carlsoncaspers.com
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`Lead Counsel for Patent Owner
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`8
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`CERTIFICATION OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e) and the agreement of the parties, the
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`undersigned certifies that on April 8, 2020, a true and correct copy of the foregoing
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`PATENT OWNER’S UNOPPOSED MOTION TO FILE UNDER SEAL
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`PURSUANT TO 37 C.F.R. §§ 42.14 AND 42.54 was served via electronic mail
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`upon the following:
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`Cyrus A. Morton (Reg. No. 44,954)
`Sharon Roberg-Perez (Reg. No. 69,600)
`Christopher A. Pinahs (Reg. No. 76,375)
`Robins Kaplan LLP
`800 LaSalle Avenue, Suite 2800
`Minneapolis, MN 55401
`Phone: 349-8500
`Fax: 612-339-4181
`Email: Cmorton@robinskaplan.com
`Email: Sroberg-perez@robinskaplan.com
`Email: Cpinahs@robinskaplan.com
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`/J. Derek Vandenburgh/
`J. Derek Vandenburgh (Lead Counsel)
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`9
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`MEDTRONIC, INC., AND MEDTRONIC VASCULAR, INC.
`Petitioners,
`
`v.
`
`TELEFLEX INNOVATIONS S.A.R.L.
`Patent Owner.
`
`
`
`
`Case IPR2020-00136
`Patent RE 45,776
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`JOINT PROTECTIVE ORDER
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`Appendix A
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`This Protective order governs the treatment and filing of confidential information,
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`including documents and testimony.
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`1. Confidential information shall be clearly marked “PROTECTIVE
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`ORDER MATERIAL.”
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`2. Access to confidential information is limited to the following individuals
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`who have executed the acknowledgment appended to this order:
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`(A) Party Representatives. Outside counsel for a party in the above-
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`captioned proceeding.
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`(B) Experts. Retained experts of a party in the proceeding who further
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`certify in the Acknowledgement that they are not a competitor to any party,
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`or a consultant for, or employed by, such a competitor with respect to the
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`subject matter of the proceeding.
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`(C) In-house counsel. Each party may designate up to 2 in-house counsel
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`who are involved in this inter partes review, provided such in-house counsel
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`has signed the Acknowledgement attached hereto as Exhibit A, their duties
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`require them to assist outside counsel in this inter partes review, they do not
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`have competitive decision making responsibilities or opportunity, and they
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`are not involved in the prosecution or the supervision of the prosecution of
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`any patents for any party. Petitioners designate: Chad Hanson and Matt
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`Anderson. Patent Owner designates: Howard Cyr.
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`Appendix A
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`(D) Support Personnel. Administrative assistants, clerical staff, court
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`reporters and other support personnel of the foregoing persons who are
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`reasonably necessary to assist those persons in the proceeding shall not be
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`required to sign an Acknowledgement, but shall be informed of the terms
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`and requirements of the Protective Order by the person they are supporting
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`who receives confidential information.
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`(E) The Office. Employees and representatives of the United States Patent
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`and Trademark Office who have a need for access to the confidential
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`information shall have such access without the requirement to sign an
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`Acknowledgement. Such employees and representatives shall include the
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`Director, members of the Board and their clerical staff, other support
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`personnel, court reporters, and other persons acting on behalf of the Office.
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`3. Persons receiving confidential information shall use reasonable efforts to
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`maintain the confidentiality of the information, including:
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`(A) Maintaining such information in a secure location to which persons not
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`authorized to receive the information shall not have access;
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`(B) Otherwise using reasonable efforts to maintain the confidentiality of the
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`Appendix A
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`information, which efforts shall be no less rigorous than those the recipient
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`uses to maintain the confidentiality of information not received from the
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`disclosing party;
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`(C) Ensuring that support personnel of the recipient who have access to the
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`confidential information understand and abide by the obligation to maintain
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`the confidentiality of information received that is designated as confidential;
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`and
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`(D) Limiting the copying of confidential information to a reasonable number
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`of copies needed for conduct of the proceeding and maintaining a record of
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`the locations of such copies.
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`4. Persons receiving confidential information shall use the following
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`procedures to maintain the confidentiality of the information:
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`(A) Documents and Information Filed With the Board.
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`(i) A party may file documents or information with the Board along with a
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`Motion to Seal. The Motion to Seal should provide a non-confidential
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`description of the nature of the confidential information that is under seal,
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`and set forth the reasons why the information is confidential and should not
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`be made available to the public. A party may challenge the confidentiality of
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`the information by opposing the Motion to Seal. The submission shall be
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`Appendix A
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`treated as confidential and remain under seal, unless the Board determines
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`that the documents or information do not to qualify for confidential
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`treatment. The information shall remain under seal unless, upon motion of a
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`party and after a hearing on the issue, or sua sponte, the Board determines
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`that some or all of the information does not qualify for confidential
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`treatment.
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`(ii) Where confidentiality is alleged as to some but not all of the information
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`submitted to the Board, the submitting party shall file confidential and
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`non-confidential versions of its submission, together with a Motion to Seal
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`the confidential version setting forth the reasons why the information
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`redacted from the non-confidential version is confidential and should not be
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`made available to the public. A party may challenge the confidentiality of
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`the information by opposing the Motion to Seal. The non-confidential
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`version of the submission shall clearly indicate the locations of information
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`that has been redacted. The confidential version of the submission shall be
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`filed under seal. The redacted information shall remain under seal unless,
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`upon motion of a party and after a hearing on the issue, or sua sponte, the
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`Board determines that some or all of the redacted information does not
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`qualify for confidential treatment.
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`(B) Documents and Information Exchanged Among the Parties. Documents
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`Appendix A
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`(including deposition transcripts) and other information designated as
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`confidential that are disclosed to another party during discovery or other
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`proceedings before the Board shall be clearly marked as “PROTECTIVE
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`ORDER MATERIAL” and shall be produced in a manner that maintains its
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`confidentiality.
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`5. Confidential Testimony. Any person providing testimony in the
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`proceeding may, on the record during the testimony, preliminarily designate the
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`entirety of the person’s testimony and all transcriptions thereof as confidential,
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`pending further review. Within ten days of the receipt of the transcript of the
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`testimony, that person, or that person’s representative, shall advise the opposing
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`party of those portions of the testimony to which a claim of confidentiality is to be
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`maintained, and the reasons in support of that claim. Such portions shall be treated
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`as confidential and maintained under seal in any filings to the Board unless, upon
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`motion of a party and after a hearing on the issue, or sua sponte, the Board
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`determines that some or all of the redacted information does not qualify for
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`confidential treatment.
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`6. Within 60 days after the final disposition of this action, including the
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`Appendix A
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`exhaustion of all appeals and motions, each party receiving confidential
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`information must certify the destruction of, all copies of the confidential
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`information to the producing party.
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`7. Each party will produce all materials produced or filed during the course
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`of the above-captioned proceeding in the litigation captioned as Vascular Solutions
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`LLC et al. v. Medtronic Inc. et al., No. 19-cv-01760-PJS-TNL with litigation Bates
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`stamps within 14 days after filing or serving such information in the above-
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`captioned proceeding.
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`8. The Parties agree to abide by this Protective Order pending a decision by
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`the Board on the Parties’ motion for entry thereof.
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`9. Standard Acknowledgement of Protective Order. The following form will
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`be used to acknowledge a protective order and gain access to information covered
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`by the protective order:
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`Appendix A
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MEDTRONIC, INC., AND MEDTRONIC VASCULAR, INC.
`Petitioners,
`
`v.
`
`TELEFLEX INNOVATIONS S.A.R.L.
`Patent Owner.
`
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`
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`Case Nos. IPR2020-00126, -00127, -00128,
`-00129, -00130, -00131, -00132, -00133,
`-00134, -00135, -00136, -00137, -00138
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`Standard Acknowledgment for Access to Protective Order Material
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`I __________________________________________, affirm that I have
`read the 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 Protective Order; that I am
`personally responsible for the requirements of the terms of the 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
`Protective Order and providing remedies for its breach.
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`_______________________________________ Date: ______________
`[Signature]
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`Appendix A
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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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`MEDTRONIC, INC., AND MEDTRONIC VASCULAR, INC.
`Petitioners,
`
`v.
`
`TELEFLEX INNOVATIONS S.A.R.L.
`Patent Owner.
`
`
`
`
`Case IPR2020-00136
`Patent RE 45,776
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`JOINT PROTECTIVE ORDER
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`This protective order governs the treatment and filing of confidential information,
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`including documents and testimony.
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`1. Confidential information shall be clearly marked “PROTECTIVE ORDER
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`MATERIAL.”
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`2. Access to confidential information is limited to the following individuals who
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`have executed the acknowledgment appended to this order:
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`(A) Parties. Persons who are owners of a patent involved in the proceeding and
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`other persons who are named parties to the proceeding.
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`(AB) Party Representatives. Representatives of recordOutside counsel for a party
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`in the above-captioned proceeding.
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`(BC) Experts. Retained experts of a party in the proceeding who further certify in
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`the Acknowledgement that they are not a competitor to any party, or a consultant
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`for, or employed by, such a competitor with respect to the subject matter of the
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`proceeding.
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`(CD) In-house counsel. Each party may designate up to 2 in-house counsel who are
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`involved in this inter partes review, provided such in-house counsel has signed the
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`Acknowledgement attached hereto as Exhibit A, their duties require them to assist
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`outside counsel in this inter partes review, they do not have competitive decision
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`making responsibilities or opportunity, and they are not involved in the prosecution
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`or the supervision of the prosecution of any patents for any party. Petitioners
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`designate: Chad Hanson and Matt Anderson. Patent Owner designates: Howard
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`Cyr. In-house counsel of a party.
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`(DE) Support Personnel. Administrative assistants, clerical staff, court reporters
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`and other support personnel of the foregoing persons who are reasonably necessary
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`to assist those persons in the proceeding shall not be required to sign an
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`Acknowledgement, but shall be informed of the terms and requirements of the
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`Protective Order by the person they are supporting who receives confidential
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`information.
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`(EF) The Office. Employees and representatives of the United States Patent and
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`Trademark Office who have a need for access to the confidential information shall
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`have such access without the requirement to sign an Acknowledgement. Such
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`employees and representatives shall include the Director, members of the Board
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`and their clerical staff, other support personnel, court reporters, and other persons
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`acting on behalf of the Office.
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`3. Employees (e.g., corporate officers), consultants, or other persons performing
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`work for a party, other than those persons identified above in (d)(2)(A)–(E), shall
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`be extended access to confidential information only upon agreement of the parties
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`or by order of the Board upon a motion brought by the party seeking to disclose
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`confidential information to that person and after signing the Acknowledgment. The
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`party opposing disclosure to that person shall have the burden of proving that such
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`person should be restricted from access to confidential information.
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`34. Persons receiving confidential information shall use reasonable efforts to
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`maintain the confidentiality of the information, including:
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`(A) Maintaining such information in a secure location to which persons not
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`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;
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`(C) Ensuring that support personnel of the recipient who have access to the
`
`confidential information understand and abide by the obligation to maintain the
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`confidentiality of information received that is designated as confidential; and
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`(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.
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`45. Persons receiving confidential information shall use the following procedures
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`to maintain the confidentiality of the information:
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`
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`(A) Documents and Information Filed With the Board.
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`(i) A party may file documents or information with the Board along with a Motion
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`to Seal. The Motion to Seal should provide a non-confidential description of the
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`nature of the confidential information that is under seal, and set forth the reasons
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`why the information is confidential and should not be made available to the
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`public. A party may challenge the confidentiality of the information by opposing
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`the Motion to Seal. The submission shall be treated as confidential and remain
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`under seal, unless the Board determines that the documents or information do not
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`to qualify for confidential treatment. The information The documents or
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`information shall remain under seal unless, upon motion of a party and after a
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`hearing on the issue, or sua sponte, the Board determines that some or all of the
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`information it does not qualify for confidential treatment.
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`(ii) Where confidentiality is alleged as to some but not all of the information
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`submitted to the Board, the submitting party shall file confidential and
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`non-confidential versions of its submission, together with a Motion to Seal the
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`confidential version setting forth the reasons why the information redacted from
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`the non-confidential version is confidential and should not be made available to
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`the public. A party may challenge the confidentiality of the information by
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`opposing the Motion to Seal. The non-confidential version of the submission
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`shall clearly indicate the locations of information that has been redacted. The
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`confidential version of the submission shall be filed under seal. The redacted
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`information shall remain under seal unless, upon motion of a party and after a
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`hearing on the issue, or sua sponte, the Board determines that some or all
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`of the redacted information does not qualify for confidential treatment.
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`(B) Documents and Information Exchanged Among the Parties. Documents
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`(including deposition transcripts) and other information designated as confidential
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`that are disclosed to another party during discovery or other proceedings before
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`the Board shall be clearly marked as “PROTECTIVE ORDER MATERIAL” and
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`shall be produced in a manner that maintains its confidentiality.
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`5. Confidential Testimony. Any person providing testimony in the proceeding may,
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`on the record during the testimony, preliminarily designate the entirety of the
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`person’s testimony and all transcriptions thereof as confidential, pending further
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`review. Within ten days of the receipt of the transcript of the testimony, that
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`person, or that person’s representative, shall advise the opposing party of those
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`portions of the testimony to which a claim of confidentiality is to be maintained,
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`and the reasons in support of that claim. Such portions shall be treated as
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`confidential and maintained under seal in any filings to the Board unless, upon
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`motion of a party and after a hearing on the issue, or sua sponte, the Board
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`determines that some or all of the redacted information does not qualify for
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`confidential treatment.
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`6. Within 60 days after the final disposition of this action, including the
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`exhaustion of all appeals and motions, each party receiving confidential
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`information must return, or certify the destruction of, all copies of the confidential
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`information to the producing party.
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`7. Each party will produce all materials produced or filed during the course of the
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`above-captioned proceeding in the litigation captioned as Vascular Solutions LLC
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`et al. v. Medtronic Inc. et al., No. 19-cv-01760-PJS-TNL with litigation Bates
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`stamps within 14 days after filing or serving such information in the above-
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`captioned proceeding.
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`8. The Parties agree to abide by this Protective Order pending a decision by the
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`Board on the Parties’ motion for entry thereof.
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`9.(k) Standard Acknowledgement of Protective Order. The following form may
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`will be used to acknowledge a protective order and gain access to information
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`covered by the protective order:
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MEDTRONIC, INC., AND MEDTRONIC VASCULAR, INC.
`Petitioners,
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`v.
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`TELEFLEX INNOVATIONS S.A.R.L.
`Patent Owner.
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`
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`Case Nos. IPR2020-00126, -00127, -00128,
`-00129, -00130, -00131, -00132, -00133,
`-00134, -00135, -00136, -00137, -00138
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`[CAPTION]
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`Standard Acknowledgment for Access to Protective Order Material
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`I __________________________________________, affirm that I have
`read the 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 Protective Order; that I am
`personally responsible for the requirements of the terms of the 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
`Protective Order and providing remedies for its breach.
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`_______________________________________ Date: ______________
`[Signature]
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`
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