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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________________
`
`DISH NETWORK L.L.C., AT&T SERVICES, INC.,
`and DIRECTV, LLC,1
`Petitioner
`
`v.
`
`BROADBAND iTV, INC.,
`Patent Owner
`______________________
`
`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`______________________
`
`
`
`PATENT OWNER BROADBAND ITV, INC.’S MOTION UNDER 37 C.F.R.
`§§ 42.14 AND 42.54 TO SEAL THE PETITIONER’S REPLY (PAPER 45)
`AND EXHIBITS 1053-1055 AND 1068
`
`
`
`Mail Stop “Patent Board”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`1 AT&T Services, Inc. and DIRECTV, LLC filed a motion for joinder and a
`petition in Case IPR2021-00556, which were granted, and, therefore, have been
`joined as petitioners in this proceeding.
`
`
`
`
`
`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`TABLE OF CONTENTS
`
`I.
`INTRODUCTION ...............................................................................1
`II. GOVERNING RULES AND PTAB GUIDANCE ...................................1
`III.
`IDENTIFICATION OF CONFIDENTIAL INFORMATION AND
`CERTIFICATION THAT THE CONFIDENTIAL INFORMATION
`SOUGHT TO BE PROTECTED HAS NOT BEEN MADE PUBLICLY
`AVAILABLE. .....................................................................................2
`IV. GOOD CAUSE EXISTS FOR SEALING THE CONFIDENTIAL
`INFORMATION. ................................................................................2
`RELIEF REQUESTED ........................................................................3
`
`V.
`
`
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`- i -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`
`I.
`
`INTRODUCTION
`Patent Owner Broadband iTV, Inc. (“Patent Owner”), requests that the
`
`confidential, unredacted versions of the Petitioner’s Reply (Paper 45) and Exhibits
`
`1053-1055 and 1068 (collectively, “the confidential documents”), which were filed
`
`by Petitioner DISH Network LLC (“Petitioner”), be sealed under 37 C.F.R. §§
`
`42.14 and 42.54. Good cause to seal the confidential documents exists because the
`
`confidential documents contain Patent Owner’s sensitive, non-public information
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`that a business would not make public. Patent Owner therefore submits this Motion
`
`to Seal the confidential documents under the Board’s Default Protective Order,
`
`previously requested to be entered in this case. See Paper 37.
`
`Pursuant to 37 C.F.R. § 42.54(a), Patent Owner’s counsel conferred in good
`
`faith with Petitioner’s counsel in an attempt to resolve any dispute about this
`
`Motion. Petitioner does not oppose this Motion.
`
`II. GOVERNING RULES AND PTAB GUIDANCE
`In determining whether to grant a Motion to Seal, the Board must find “good
`
`cause,” 37 C.F.R. § 42.54(a), and “strike a balance between the public’s interest in
`
`maintaining a complete and understandable file history and the parties’ interest in
`
`protecting truly sensitive information,” Consolidated Trial Practice Guide,
`
`November 2019 (“TPG”), 19. The Board identifies confidential information in a
`
`manner “consistent with Federal Rule of Civil Procedure 26(c)(1)(G), which
`
`- 1 -
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`
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`provides for protective orders for … confidential research, development, or
`
`commercial information.” TPG, 19.
`
`Based on the procedure provided in the TPG, Patent Owner seeks to prevent
`
`the disclosure of sensitive information that is contained in the confidential
`
`documents.
`
`III.
`
`IDENTIFICATION OF CONFIDENTIAL INFORMATION AND
`CERTIFICATION THAT THE CONFIDENTIAL INFORMATION
`SOUGHT TO BE PROTECTED HAS NOT BEEN MADE PUBLICLY
`AVAILABLE.
`Certain information in the confidential, unredacted versions of the
`
`Petitioner’s Reply and Exhibits 1053-1055 and 1068 is confidential and thus has
`
`not been published or otherwise made public. Patent Owner certifies that, to the
`
`best of its knowledge, the information sought to be sealed has not been published
`
`or otherwise made public.
`
`IV. GOOD CAUSE EXISTS FOR SEALING THE CONFIDENTIAL
`INFORMATION.
`The Board routinely seals technical documents, as well as papers and
`
`testimony referencing information found therein. See, e.g., Samsung Electronics
`
`Co., Ltd. v. NVIDIA Corp., IPR2015-01070, Paper 33 (P.T.A.B. Mar. 24, 2016);
`
`Riverbed Technology, Inc. v. Silver Peak Systems, Inc., IPR2014-00245, Paper 26
`
`(P.T.A.B. Nov. 19, 2014); Caterpillar Inc. v. Wirtgen America Inc., IPR2017-
`
`02185, Paper 42 (May 3, 2019). Here, while some portions of the Petitioner’s
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`
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`- 2 -
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`
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`Reply and Exhibits 1053-1055 and 1068 are not confidential, portions of these
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`documents reference information found in confidential technical documents
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`describing, for example, products under development. Good cause exists to seal
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`and keep this information confidential because it includes details which would be
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`valuable to Patent Owner’s competitors and harmful to Patent Owner and possibly
`
`third parties if made public. Accordingly, the Board should seal and keep this
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`information confidential.
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`Public disclosure of the confidential documents would significantly harm
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`Patent Owner’s competitive and strategic position. The public interest also will not
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`be harmed by granting this Motion to Seal the documents as “PROTECTIVE
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`ORDER MATERIAL,” because redacted copies of the documents (incorporating
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`redactions provided by counsel for Patent Owner) are being publicly filed by
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`Petitioner. In short, granting this Motion to Seal would achieve “a balance between
`
`the public’s interest in maintaining a complete and understandable file history and
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`the parties’ interest in protecting truly sensitive information.” 77 Fed. Reg. at
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`48,760. Therefore, good cause exists for granting this Motion to Seal.
`
`V. RELIEF REQUESTED
`For the reasons stated above, Patent Owner requests that the Board seal and
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`protect the confidential, unredacted versions of the Petitioner’s Reply (Paper 45)
`
`and Exhibits 1053-1055 and 1068 under the Board’s Default Protective Order
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`
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`- 3 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`previously requested to be entered in this proceeding. See Paper 37. Patent Owner
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`further requests that the Board seal and protect the confidential information in
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`these documents until such time as it receives and rules on this Motion.
`
`Respectfully submitted,
`FEINBERG DAY KRAMER ALBERTI LIM
`TONKOVICH & BELLOLI LLP
`
` /
`
` Sal Lim /
`
`
`Sal Lim (Reg. No. 45,706)
`Attorney for Patent Owner
`
`Date: September 23, 2021
`
`577 Airport Boulevard, Suite 250
`Burlingame, California 94010
`(650) 825-4300
`
`
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`- 4 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that a true and correct copy of the
`
`
`
`foregoing PATENT OWNER BROADBAND ITV, INC.’S MOTION UNDER
`
`37 C.F.R. §§ 42.14 AND 42.54 TO SEAL THE PETITIONER’S REPLY
`
`(PAPER 45) AND EXHIBITS 1053-1055 AND 1068 was served electronically
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`via e-mail on September 23, 2021, in its entirety on the following counsel of record
`
`for Petitioner:
`
`
`
`Counsel for DISH Network L.L.C.:
`Alyssa Caridis (Lead Counsel)
`K. Patrick Herman (Back-up Counsel)
`Clement Roberts (Back-up Counsel)
`Will Melehani (Back-up Counsel)
`ORRICK, HERRINGTON, & SUTCLIFFE, LLP
`A8CPTABDocket@orrick.com
`P52PTABDocket@orrick.com
`croberts@orrick.com
`wmelehani@orrick.com
`
`Counsel for AT&T Services, Inc. and
`DIRECTV, LLC:
`Roger Fulghum (Lead Counsel)
`Jeffrey S. Becker (Back-up Counsel)
`Morgan G. Mayne (Back-up Counsel)
`BAKER BOTTS L.L.P.
`roger.fulghum@bakerbotts.com
`jeff.becker@bakerbotts.com
`morgan.mayne@bakerbotts.com
`
`Date: September 23, 2021
`
`577 Airport Boulevard, Suite 250
`Burlingame, California 94010
`(650) 825-4300
`
`
`
`
`
`
`
`
`Respectfully submitted,
`FEINBERG DAY KRAMER ALBERTI LIM
`TONKOVICH & BELLOLI LLP
`
` /
`
` Sal Lim /
`
`
`Sal Lim (Reg. No. 45,706)
`Attorney for Patent Owner
`
`
`
`
`
`
`
`
`
`17347068.docx
`
`
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