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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 REVISED MOTION TO
`SEAL UNDER 37 C.F.R. §§ 42.14 AND 42.54
`
`
`
`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. ................................................................................3
`RELIEF REQUESTED ........................................................................5
`
`V.
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`
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`- i -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`
`I.
`
`INTRODUCTION
`Pursuant to the Board’s Order of October 7, 2021 (Paper 57), Patent Owner
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`Broadband iTV, Inc. (“Patent Owner”), submits this Revised Motion to Seal to
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`request that the confidential, unredacted versions of the Patent Owner’s Response
`
`(Paper 35), Petitioner’s Reply (Paper 45), and Patent Owner’s Sur-Reply (Paper
`
`48), and Exhibits 1053-1055, 1068, and 2036 (collectively, “the confidential
`
`documents”) 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
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`Owner’s sensitive, non-public information that a business would not make public.
`
`Patent Owner therefore requests that the Board seal the confidential documents
`
`under the Board’s Default Protective Order, previously entered in this case. Paper
`
`57, 8.
`
`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 Revised 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,
`
`- 1 -
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`
`
`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`November 2019 (“TPG”), 19. The Board identifies confidential information in a
`
`manner “consistent with Federal Rule of Civil Procedure 26(c)(1)(G), which
`
`provides for protective orders for … confidential research, development, or
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`commercial information.” TPG, 19.
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`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 Patent
`
`Owner’s Response, Petitioner’s Reply, Patent Owner’s Sur-Reply, and Exhibits
`
`1053-1055, 1068, and 2036 is confidential and thus has not been published or
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`otherwise made public. 2 Patent Owner certifies that, to the best of its knowledge,
`
`the information sought to be sealed has not been published or otherwise made
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`public.
`
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`2 Upon reconsideration, Patent Owner no longer seeks to seal any portions of
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`Exhibits 2035, 2037, 2038, 2047, 2056–2061, 2064, 2065-2068, 2073–2092, 2094–
`
`2102, 2104–2109, 2117–2122, 2130, 2131, 2136, 2138–2141, 2143–2149, 2155,
`
`2156, 2159–2163, 2166, 2177, 2179, and 2181–2185.
`
`
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`- 2 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`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 confidential
`
`documents are not confidential, portions of these confidential documents discuss or
`
`reference information found in confidential technical documents for which the
`
`Board previously found good cause to seal. 3 Good cause similarly exists to seal
`
`and keep this information confidential because it includes details of sealed,
`
`confidential technical documents that would be 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 information confidential.
`
`Public disclosure of the confidential documents would significantly harm
`
`
`3 On October 7, 2021, the Board granted Patent Owner’s Motions to Seal
`
`with respect to Exhibits 2050–2054, 2063, 2070, 2093, 2123–2127, 2129, 2132–
`
`2135, 2137, 2142, 2150, 2151, 2154, 2157, 2158, 2164, 2165, and 2178. Paper 57,
`
`5, 7-8.
`
`
`
`- 3 -
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`
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`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
`
`ORDER MATERIAL,” because redacted copies of the documents are being
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`publicly filed by Petitioner. 4 These public, redacted copies redact only portions
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`specifically discussing or referencing the previously sealed technical documents
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`(i.e., Exhibits 2050–2054, 2063, 2070, 2093, 2123–2127, 2129, 2132–2135, 2137,
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`2142, 2150, 2151, 2154, 2157, 2158, 2164, 2165, and 2178). In short, granting this
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`Motion to Seal would achieve “a balance between the public’s interest in
`
`maintaining a complete and understandable file history and the parties’ interest in
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`protecting truly sensitive information.” 77 Fed. Reg. at 48,760. Therefore, good
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`cause exists for granting this Motion to Seal.
`
`
`4 In its Order of October 7, 2021, the Board instructed: “If, upon
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`reconsideration, Patent Owner believes that any portions of the exhibits or papers
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`are not confidential information, Patent Owner should file with the revised motion
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`to seal a public redacted version of the respective exhibit or paper.” Paper 57, 7. In
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`accordance with this Order, Patent Owner and Petitioner are filing revised public,
`
`redacted versions of Patent Owner’s Response, Petitioner’s Reply, and Patent
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`Owner’s Sur-Reply, and Exhibits 1053-1055, 1068, and 2036 that only redact the
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`portions now sought to be sealed.
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`
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`- 4 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`
`V. RELIEF REQUESTED
`For the reasons stated above, Patent Owner requests that the Board seal and
`
`protect the confidential, unredacted versions of the Patent Owner’s Response
`
`(Paper 35), Petitioner’s Reply (Paper 45), and Patent Owner’s Sur-Reply (Paper
`
`48), and Exhibits 1053-1055, 1068, and 2036 under the Board’s Default Protective
`
`Order previously entered in this proceeding. See Paper 57, 8. Patent Owner further
`
`requests that the Board seal and protect the confidential information in these
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`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: October 14, 2021
`
`577 Airport Boulevard, Suite 250
`Burlingame, California 94010
`(650) 825-4300
`
`
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`- 5 -
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`
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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 true and correct copies of the
`
`
`
`foregoing PATENT OWNER BROADBAND ITV, INC.’S REVISED
`
`MOTION TO SEAL UNDER 37 C.F.R. §§ 42.14 AND 42.54, PATENT
`
`OWNER’S RESPONSE (REVISED PUBLIC), PATENT OWNER’S SUR-
`
`REPLY (REVISED PUBLIC), and Exhibit 2036 (REVISED PUBLIC), were
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`served electronically via e-mail on October 14, 2021, in their entireties on the
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`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
`
`
`Respectfully submitted,
`FEINBERG DAY KRAMER ALBERTI LIM
`TONKOVICH & BELLOLI LLP
`
` /
`
` Sal Lim /
`
`
`Sal Lim (Reg. No. 45,706)
`Attorney for Patent Owner
`
`Date: October 14, 2021
`577 Airport Boulevard, Suite 250
`Burlingame, California 94010
`(650) 825-4300
`
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`17442275_1.docx
`
`
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