UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`YITA LLC,
`Petitioner,
`
`v.
`
`MACNEIL IP LLC,
`Patent Owner.
`____________
`
`Case IPR2020-01139
`Patent No. 8,382,186
`____________
`
`PATENT OWNER’S UNOPPOSED MOTION TO SEAL
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`YITA LLC,
`Petitioner,
`
`v.
`
`MACNEIL IP LLC,
`Patent Owner.
`____________
`
`Case IPR2020-01139
`Patent No. 8,382,186
`____________
`
`PATENT OWNER’S UNOPPOSED MOTION TO SEAL
`
`
`
`On July 28, 2021, the Board granted Patent Owner MacNeil IP LLC’s
`
`(“Patent Owner”) motion to submit supplemental information, and authorized the
`
`filing of Exhibits 2114, 2115, 2126-2129, and 2132-2137 in this proceeding. See
`
`Paper 53 at 13. Exhibit 2126 is the Corrected Declaration of Ryan Granger, which
`
`is identical to Exhibit 2042 (already of record) except for the signature page. As
`
`detailed in Patent Owner’s recent motion to seal (Paper 51), the Declaration of Ryan
`
`Granger contains Patent Owner’s confidential business information, including
`
`confidential sales and gross revenue information. Patent Owner has filed
`
`confidential and redacted versions of Exhibit 2126 concurrently with this motion.
`
`Patent Owner moves to seal the confidential version of Exhibit 2126 pursuant to
`
`the Board’s Default Protective Order entered in this proceeding. Paper 48. Patent
`
`Owner has met and conferred with Petitioner, and Petitioner does not oppose this
`
`motion.
`
`Patent Owner addresses the Argentum standard below and respectfully
`
`requests that the Board find good cause to maintain Exhibit 2126 under seal. As
`
`noted above, Patent Owner recently filed a motion to seal its Patent Owner
`
`Response and Exhibit 2042, the Declaration of Ryan Granger. Paper 51. The
`
`present motion seeks to seal information in Exhibit 2126 that is identical to the
`
`information Patent Owner seeks to seal in Exhibit 2042.
`
`1
`
`
`
`The designated information, which is held in confidence and not
`I.
`shared with the public, should be protected under the default protective order.
`Patent Owner’s commercial information, including the number of floor trays
`
`sold and annual gross revenue, is confidential to Patent Owner, a private company.
`
`EX2140. Patent Owner compiled this information from Patent Owner’s internal
`
`sales, marketing, and financial documentation. Compare EX2126, ¶73, with
`
`Permobil Inc. v. Pride Mobility Prod. Corp., IPR2013-00411, Paper 40 at 2
`
`(P.T.A.B. July 2, 2014) (recognizing confidentiality of non-public “company . . .
`
`marketing data”); IPR2013-00411, Paper 25 at 2 (P.T.A.B. May 20, 2014)
`
`(identifying this information as “internal company procedures on market data” and
`
`“company-confidential marketing information”). That Patent Owner does not
`
`attach documents from which the information was derived is irrelevant. The
`
`redacted information in Exhibit 2126 is confidential regardless of the document in
`
`which the information appears. Patent Owner does not publish this information,
`
`and it cannot be derived from public sources. EX2126, ¶¶79-80 (explaining Patent
`
`Owner’s tray sales to OEMs, who sell the trays under Patent Owner’s marks or
`
`under their own marks). On behalf of Patent Owner, undersigned counsel certifies
`
`the confidential information sought to be sealed has not, to their knowledge, been
`
`published or otherwise made public.
`
`2
`
`
`
`The Board has consistently sealed product sales and internal financial
`
`documents. Quest USA Corp. v. PopSockets LLC, IPR2018-00497, Paper 59 at 87-
`
`90 (P.T.A.B. Aug. 12, 2019) (sealing “sales data by year from 2014 to 2018”); Endo
`
`Pharm, Inc. v. Depomed, Inc., IPR2014-00656, Paper 59 at 2 (P.T.A.B. June 3,
`
`2015) (sealing “product sales”); Cisco Sys., Inc. v. Crossroads Sys., Inc., IPR2014-
`
`01544, Paper 50 at 29 (P.T.A.B. Jan. 29, 2016) (sealing “confidential sales and
`
`licensing information”). The Board’s default protective order permits for protection
`
`of sensitive commercial information. Consolidated Trial Practice Guide, 19 (Nov.
`
`2019) (defining “confidential information” to match Fed. R. Civ. P. 26(c)(1)(G),
`
`including “other . . . commercial information”); Arista Networks, Inc. v. Cisco Sys.,
`
`Inc., IPR2016-00309, Paper 51 at 2-3 (P.T.A.B. May 8, 2017) (accepting movant’s
`
`“representations” regarding “highly sensitive financial” information). And
`
`petitioner’s real party in interest similarly designated annual gross revenue as
`
`ATTORNEY EYES ONLY in the parties’ parallel district court proceedings.
`
`Patent Owner would be harmed by public disclosure.
`II.
`Public disclosure of this information would harm Patent Owner’s competitive
`
`position in the automotive accessory market. Patent Owner would be harmed by
`
`competitor insight into Patent Owner’s pricing and marketing decisions. For
`
`example, Patent Owner’s historical price per floor tray set can be determined from
`
`the redacted information. EX2126, ¶73. Patent Owner would be harmed by insight
`3
`
`
`
`into Patent Owner’s market share and the relevant market size, motivating copying
`
`and infringement of Patent Owner’s intellectual property, such as that leading to this
`
`proceeding. Public disclosure would also reveal Patent Owner’s corporate valuation
`
`and financial resources, causing competitive harm in negotiations relating to mergers
`
`& acquisitions, supplier agreements, and other commercial matters. See Athena
`
`Automation Ltd. v. Husky Injection Molding Sys, Ltd., IPR2013-00167, Paper 32 at
`
`2-3 (sealing information relating to the movant's “valuation”).
`
`III. Patent Owner genuinely relies on the designated information.
`
`Patent Owner relies on the redacted information to establish commercial
`
`success of products embodying the claimed invention. Sales demonstrating market
`
`share of those products are probative evidence in establishing commercial success.
`
`Cisco Systems, Inc. v. Crossroad Systems, Inc., IPR2014-01463, Paper 49 at 35
`
`(P.T.A.B. Mar. 16, 2016) (“An important component of the commercial success
`
`inquiry is determining market share . . . .”); Fox Factory, Inc. v. SRAM, LLC,
`
`IPR2016-01876, Paper 59 at 35-36 (P.T.A.B. Apr. 2, 2018). Patent Owner’s
`
`genuine reliance on the information sought to be sealed only compounds the harm
`
`from public disclosure, which would force Patent Owner to abandon significant
`
`evidence of non-obviousness or expose sensitive business information.
`
`4
`
`
`
`IV.
`
`Patent Owner has performed only limited redactions.
`
`Cognizant of the public interest in a complete and understandable record,
`
`Patent Owner seeks to redact only limited information: (1) the annual quantity of
`
`floor trays sold from 2004 to 2020, and (2) corresponding gross revenue. In Exhibit
`
`2126, Patent Owner redacted only the actual numbers specifying annual quantity of
`
`floor trays sold and corresponding gross revenue, not table headings that explain
`
`what those numbers mean. EX2126, ¶73.
`
`The designated information can be sealed while maintaining a
`V.
`complete and understandable public record.
`The public record is understandable even absent these limited redactions.
`
`The public can understand that Patent Owner argues commercial success as
`
`objective evidence of non-obviousness and that Exhibit 2126 provides evidence of
`
`that commercial success. EX2126, ¶¶73-76. The public can understand that annual
`
`floor tray sales from 2004 to 2020 evidence Patent Owner’s commercial success,
`
`that sales have risen over time, and that Patent Owner links the tray sales to specific
`
`revenue numbers. EX2126, ¶73. The public can understand the merits of Patent
`
`Owner’s commercial success argument and the evidence supporting that argument
`
`without the redacted information.
`
`5
`
`
`
`VI. CONCLUSION
`
`For the foregoing reasons, Patent Owner respectfully requests that the Board
`
`grant this unopposed motion to seal.
`
`Dated August 4, 2021
`
`
`
`Respectfully submitted,
`
`/David G. Wille/
`David G. Wille (Reg. No. 38,363)
`BAKER BOTTS L.L.P.
`(214) 953-6595
`2001 Ross Ave., Suite 900
`Dallas, TX 75201-2980
`Attorneys for Patent Owner, MacNeil IP
`LLC
`
`6
`
`
`
`CERTIFICATE OF SERVICE
`
`In accordance with 37 C.F.R. § 42.6(e), the undersigned certifies that on the
`
`4th day of August, 2021, a complete and entire copy of this PATENT OWNER’S
`
`UNOPPOSED MOTION TO SEAL and related documents were served on
`
`Petitioner via electronic mail at the following addresses:
`
`Mark P. Walters (Reg. No. 46,050)
`walters@LoweGrahamJones.com
`
`Ralph W. Powers III, Reg. No. 63,504
`tpowers-PTAB@sternekessler.com
`
`Jason A. Fitzsimmons, Reg. No. 65,367
`jfitzsimmons-PTAB@sternekessler.com
`
`Stephen A. Merrill, Reg. No. 72,955
`smerrill-PTAB@sternekessler.com
`
`John J. Bamert, Reg. No. 74,859
`bamert@LoweGrahamJones.com
`
`PTAB@sternekessler.com
`
`August 4, 2021
`Date
`
`
`
`/David G. Wille/
`David G. Wille (Reg. No. 38,363)
`BAKER BOTTS L.L.P.
`(214) 953-6595
`2001 Ross Ave., Suite 900
`Dallas, TX 75201-2980
`
`Attorneys for Patent Owner, MacNeil IP
`LLC
`
`7
`
`
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