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`IN THE 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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`JUNIPER NETWORKS, INC. & PALO ALTO NETWORKS, INC.,
`Petitioner,
`
`v.
`
`PACKET INTELLIGENCE LLC,
`Patent Owner.
`
`____________
`
`Case IPR2020-00337
`U.S. Patent No. 6,771,646
`
`____________
`
`
`PETITIONER’S UNOPPOSED MOTION FOR ENTRY OF A MODIFIED
`PROTECTIVE ORDER
`
`
`
`
`Petitioner Juniper Networks, Inc. and Packet Intelligence LLC submit this
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`
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`unopposed motion for entry of a modified protective order. The parties have met
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`and conferred, and Patent Owner Packet Intelligence LLC does not oppose this
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`motion. Pursuant to the Board’s instructions in its July 13, 2020 Order, Juniper
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`submits this unopposed motion with its motion to disqualify Dr. Almeroth.
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`Petitioner requests that the Board enter the modified protective order
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`(attached herewith in clean form as Attachment B). Also attached as Attachment A
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`is a “redline” version showing differences between Attachment B and the default
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`protective order. The modified protective order is the same as the default protective
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`order, but includes an added designation of “PROTECTIVE ORDER MATERIAL
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`— ATTORNEY’S EYES ONLY” for documents, materials, testimony, or
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`information that the designating party believes, in good faith, constitutes or
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`contains:
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`• Expert witness draft reports or disclosures or communications between a
`party’s attorney and expert witness subject to Fed. R. Civ. P. 26(b)(4)(B)-
`(C), or
`• Trade secrets or other non-public, highly sensitive confidential research,
`development, technical, business, and/or financial information that has
`not become public.
`
`The modified protective order also specifies which individuals may have access to
`
`such ATTORNEY’S EYES ONLY information. By including a confidentiality
`
`
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`2
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`designation regarding draft expert reports and communications between a party’s
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`counsel and experts, Petitioner does not suggest any such categories of materials
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`are discoverable in connection with any petition, IPR that may be instituted, or
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`pending litigation.
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`These additions to the default protective order are designed to limit access to
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`certain materials to only outside counsel, expert declarants, and the Board. The
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`Board has previously entered similar protective orders, which limit viewing certain
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`confidential information to outside counsel.1
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`Petitioner submits that the additional limitations in the modified protective
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`order are necessary. In particular, Juniper’s motion to disqualify Dr. Almeroth
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`includes exhibits that contain highly confidential, competitively-sensitive
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`information relating to products developed by Juniper. And those exhibits contain
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`communications and draft expert declarations exchanged between Juniper’s
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`litigation counsel and Dr. Almeroth when Juniper retained Dr. Almeroth as an
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`expert witness in connection with prior litigation and IPR proceedings against
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`Petitioner Palo Alto Networks.
`
`Due to the sensitive nature of the exhibits to Juniper’s disqualification
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`motion and the minimal additions to the Board’s default protective order,
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`
`1 Laird Techs., Inc. v. GrafTech Int’l Hldgs., Inc., IPR2014-00023, Paper 30 at 2
`(P.T.A.B. Aug. 8, 2014).
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`3
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`Petitioner respectfully requests that the Board grant this motion and enter the
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`unopposed, modified protective order.
`
`Date: July 21, 2020
`
`Respectfully Submitted,
`
`
`
` /Joseph F. Edell/
`Joseph F. Edell (Reg. No. 67,625)
`FISCH SIGLER LLP
`5301 Wisconsin Avenue NW
`Fourth Floor
`Washington, DC 20015
`Phone: +1.202.362.3524
`Email: Joe.Edell.IPR@fischllp.com
`
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`4
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`ATTACHMENT A
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`ATTACHMENT A
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`Default Protective Order
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`This protective order governs the treatment and filing of confidential information,
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`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
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`who 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 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
`
`
`
`
`2
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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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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`(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.
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`3. The parties also have the right to further designate confidential
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`information or portions of confidential information as “PROTECTIVE ORDER
`
`MATERIAL - ATTORNEY'S EYES ONLY.” The “PROTECTIVE ORDER
`
`MATERIAL - ATTORNEY'S EYES ONLY” designation shall be limited to such
`
`documents, materials, testimony, or information that the designating party believes,
`
`in good faith, constitutes or contains:
`
`(A) Expert witness draft reports or disclosures or communications between a
`
`party’s attorney and expert witness subject to Fed. R. Civ. P. 26(b)(4)(B)-
`
`(C), or
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`(B) Trade secrets or other non-public, highly sensitive confidential research,
`
`development, technical, business, and/or financial information that has not
`
`
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`3
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`become public, the disclosure of which is likely to cause harm to the
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`competitive position of the disclosing party.
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`4. Access to confidential information marked “PROTECTIVE ORDER
`
`MATERIAL – ATTORNEY’S EYES ONLY” is limited to the individuals
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`identified in Sections 2(C), 2(E), and 2(F), and the following individuals who have
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`executed the acknowledgment appended to this order: Outside Counsel who appear
`
`in the mandatory notices as counsel for a party, as well as partners, associates,
`
`employees, and staff of such counsel to whom it is reasonably necessary to
`
`disclose the information for this proceeding, including supporting personnel
`
`employed by the attorneys, such as paralegals, legal translators, legal secretaries,
`
`legal clerks, and commercial copy vendors.
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`53. Employees (e.g., corporate officers), consultants, or other persons
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`performing work for a party, other than those persons identified above in Sections
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`2 or 4(d)(2)(A)–(E), shall be extended access to confidential information only upon
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`agreement of the parties or by order of the Board upon a motion brought by the
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`party seeking to disclose confidential information to that person and after signing
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`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
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`information.
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`4
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`64. Persons receiving confidential information and/or confidential
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`
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`information marked “PROTECTIVE ORDER MATERIAL — ATTORNEY’S
`
`EYES ONLY” shall use reasonable efforts to maintain the confidentiality of the
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`information, including:
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`(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.
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`75. Persons receiving confidential information and/or confidential
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`information marked “PROTECTIVE ORDER MATERIAL — ATTORNEY’S
`
`
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`5
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`EYES ONLY” shall use the following procedures to maintain the confidentiality of
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`the information:
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`(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 Board 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
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`from the non-confidential version is confidential and should not be made
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`available to the public. A party may challenge the confidentiality of the
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`information by opposing the Motion to Seal. The non-confidential version of
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`the submission shall clearly indicate the locations of information that has
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`been redacted. The confidential version of the submission shall be filed
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`
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`6
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`under seal. The redacted information shall remain under seal unless the
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`Board determines that some or all 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 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.
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`86. Within 60 days after the final disposition of this action, including the
`
`exhaustion of all appeals and motions, each party receiving confidential
`
`information and/or confidential information marked “PROTECTIVE ORDER
`
`MATERIAL — ATTORNEY’S EYES ONLY” must return, or certify the
`
`destruction of, all copies of the confidential information to the producing party.
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`9.(k) Standard Acknowledgement of Protective Order. The following form
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`may be used to acknowledge a protective order and gain access to information
`
`covered by the protective order:
`
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`7
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`JUNIPER NETWORKS, INC. & PALO ALTO NETWORKS, INC.
`Petitioner,
`
`v.
`
`PACKET INTELLIGENCE LLC,
`Patent Owner.
`
`____________
`
`Case IPR2020-00337
`U.S. Patent No. 6,771,646
`
`____________
`
`
`STANDARD ACKNOWLEDGEMENT FOR ACCESS
`TO PROTECTIVE ORDER MATERIAL
`
`
`
`
`8
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`I __________________________________________, affirm that I have
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`
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`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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`
`
`[Signature]
`
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`9
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`ATTACHMENT B
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`ATTACHMENT B
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`Protective Order
`
`IPR2020-00337
`U.S. Patent No. 6,771,646
`
`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
`2
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`
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`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. The parties also have the right to further designate confidential
`
`information or portions of confidential information as “PROTECTIVE ORDER
`
`MATERIAL - ATTORNEY'S EYES ONLY.” The “PROTECTIVE ORDER
`
`MATERIAL - ATTORNEY'S EYES ONLY” designation shall be limited to such
`
`documents, materials, testimony, or information that the designating party believes,
`
`in good faith, constitutes or contains:
`
`(A) Expert witness draft reports or disclosures or communications between a
`
`party’s attorney and expert witness subject to Fed. R. Civ. P. 26(b)(4)(B)-
`
`(C), or
`
`(B) Trade secrets or other non-public, highly sensitive confidential research,
`
`development, technical, business, and/or financial information that has not
`
`
`
`
`3
`
`
`
`IPR2020-00337
`U.S. Patent No. 6,771,646
`
`become public, the disclosure of which is likely to cause harm to the
`
`competitive position of the disclosing party.
`
`4. Access to confidential information marked “PROTECTIVE ORDER
`
`MATERIAL – ATTORNEY’S EYES ONLY” is limited to the individuals
`
`identified in Sections 2(C), 2(E), and 2(F), and the following individuals who have
`
`executed the acknowledgment appended to this order: Outside Counsel who appear
`
`in the mandatory notices as counsel for a party, as well as partners, associates,
`
`employees, and staff of such counsel to whom it is reasonably necessary to
`
`disclose the information for this proceeding, including supporting personnel
`
`employed by the attorneys, such as paralegals, legal translators, legal secretaries,
`
`legal clerks, and commercial copy vendors.
`
`5. Employees (e.g., corporate officers), consultants, or other persons
`
`performing work for a party, other than those persons identified above in Sections 2
`
`or 4, 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
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`6. Persons receiving confidential information and/or confidential
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`IPR2020-00337
`U.S. Patent No. 6,771,646
`
`
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`information marked “PROTECTIVE ORDER MATERIAL — ATTORNEY’S
`
`EYES ONLY” 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.
`
`7. Persons receiving confidential information and/or confidential
`
`information marked “PROTECTIVE ORDER MATERIAL — ATTORNEY’S
`
`
`
`
`5
`
`
`
`
`EYES ONLY” shall use the following procedures to maintain the confidentiality of
`
`IPR2020-00337
`U.S. Patent No. 6,771,646
`
`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 Board 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
`
`
`
`
`6
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`IPR2020-00337
`U.S. Patent No. 6,771,646
`
`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.
`
`8. Within 60 days after the final disposition of this action, including the
`
`exhaustion of all appeals and motions, each party receiving confidential
`
`information and/or confidential information marked “PROTECTIVE ORDER
`
`MATERIAL — ATTORNEY’S EYES ONLY” must return, or certify the
`
`destruction of, all copies of the confidential information to the producing party.
`
`9. Standard Acknowledgement of Protective Order. The following form may
`
`be used to acknowledge a protective order and gain access to information covered
`
`by the protective order:
`
`
`
`
`
`
`
`
`
`
`7
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`JUNIPER NETWORKS, INC. & PALO ALTO NETWORKS, INC.
`Petitioner,
`
`v.
`
`PACKET INTELLIGENCE LLC,
`Patent Owner.
`
`____________
`
`Case IPR2020-00337
`U.S. Patent No. 6,771,646
`
`____________
`
`
`STANDARD ACKNOWLEDGEMENT FOR ACCESS
`TO PROTECTIVE ORDER MATERIAL
`
`
`
`
`8
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`
`
`
`
`
`
`
`
`
`I __________________________________________, affirm that I have
`
`IPR2020-00337
`U.S. Patent No. 6,771,646
`
`
`
`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.
`
`
`
`[Signature]
`
`
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`9
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`IPR2020-00337
`U.S. Patent No. 6,771,646
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`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a copy of the foregoing PETITIONER’S
`
`UNOPPOSED MOTION FOR ENTRY OF A MODIFIED PROTECTIVE
`
`ORDER was served via electronic mail to the following attorneys of record for
`
`the Patent Owner listed below:
`
`
`R. Allan Bullwinkel – Lead Counsel
`Reg. No. 77,630
`Heim Payne & Chorush, LLP
`1111 Bagby Street, Suite 2100
`Houston, TX 77002
`Telephone: 713-221-2000
`Facsimile: 713-211-2021
`abullwinkel@hpcllp.com
`
`Michael F. Heim – Back-up Counsel
`Reg. No. 32,702
`Heim Payne & Chorush, LLP
`1111 Bagby Street, Suite 2100
`Houston, TX 77002
`Telephone: 713-221-2000
`Facsimile: 713-211-2021
`mheim@hpcllp.com
`
`
`
`
`Respectfully submitted,
`
`
` /Joseph F. Edell/
`Joseph F. Edell (Reg. No. 67,625)
`FISCH SIGLER LLP
`5301 Wisconsin Ave NW
`Fourth Floor
`Washington, DC 20015
`202.362.3524
`Email: Joe.Edell.IPR@fischllp.com
`
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`Dated: July 21, 2020
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