Trials@uspto.gov
`571-272-7822
`
`
`Paper 63
`Date: October 26, 2021
`
`
`
`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.
`____________
`
`IPR2020-01267
`Patent 10,028,026 B2
`____________
`
`
`
`Before JEFFREY S. SMITH, JUSTIN T. ARBES, and
`DANIEL J. GALLIGAN, Administrative Patent Judges.
`
`ARBES, Administrative Patent Judge.
`
`ORDER
`Granting Patent Owner’s Revised Motion to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`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.
`
`
`571-272-7822
`
`
`Paper 63
`Date: October 26, 2021
`
`
`
`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.
`____________
`
`IPR2020-01267
`Patent 10,028,026 B2
`____________
`
`
`
`Before JEFFREY S. SMITH, JUSTIN T. ARBES, and
`DANIEL J. GALLIGAN, Administrative Patent Judges.
`
`ARBES, Administrative Patent Judge.
`
`ORDER
`Granting Patent Owner’s Revised Motion to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`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.
`
`
`
`IPR2020-01267
`Patent 10,028,026 B2
`
`
`Patent Owner filed motions to seal Exhibits 1053–1055, 1068,
`2035–2038, 2047, 2050–2061, 2063–2068, 2070, 2073–2102, 2104–2109,
`2117–2127, 2129–2151, 2154–2166, 2177–2179, and 2181–2185, as well as
`portions of Patent Owner’s Response, Petitioner’s Reply, and Patent
`Owner’s Sur-Reply referring to the exhibits filed under seal. Papers 37, 50,
`53. We granted the motions only as to Exhibits 2050–2054, 2063, 2070,
`2093, 2123–2127, 2129, 2132–2135, 2137, 2142, 2150, 2151, 2154, 2157,
`2158, 2164, 2165, and 2178 (collectively, “the technical documents”) and
`authorized Patent Owner to file a revised motion to seal any other exhibits
`and papers that it still believed should be maintained under seal. Paper 57.
`Patent Owner filed a revised motion to seal portions of Exhibits
`1053–1055, 1068, and 2036, and portions of the parties’ substantive papers.
`Paper 58 (“Mot.”). The parties filed revised redacted versions of the
`exhibits and Patent Owner’s Response (Paper 59), Petitioner’s Reply
`(Paper 61), and Patent Owner’s Sur-Reply (Paper 60).2 Patent Owner states
`that it does not seek to seal any other exhibits for which it originally filed a
`motion to seal. Mot. 2 n.2. Petitioner does not oppose the revised motion.
`Id. at 1.
`There is a strong public policy in favor of making information filed in
`an inter partes review open to the public, especially because the proceeding
`determines the patentability of claims in an issued patent and, therefore,
`affects the rights of the public. Under 35 U.S.C. § 316(a)(1) and 37 C.F.R.
`§ 42.14, the default rule is that all papers filed in an inter partes review are
`
`
`2 The parties labeled the revised redacted versions as “REVISED PUBLIC.”
`To ensure a clear record, the originally filed versions (labeled as “PUBLIC”)
`will be expunged.
`
`
`
`2
`
`
`
`IPR2020-01267
`Patent 10,028,026 B2
`
`open and available for access by the public; a party, however, may file a
`concurrent motion to seal and the information at issue is sealed pending the
`outcome of the motion. Only “confidential information” is protected from
`disclosure. 37 C.F.R. § 42.54. In that regard, the Patent Trial and Appeal
`Board Consolidated Trial Practice Guide (Nov. 2019), 19, available at
`https://www.uspto.gov/TrialPracticeGuideConsolidated (“Trial Practice
`Guide”), provides:
`The rules aim to 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.
`. . .
`identify confidential
`Confidential Information: The rules
`information in a manner consistent with Federal Rule of Civil
`Procedure 26(c)(1)(G), which provides for protective orders for
`trade secret or other confidential research, development, or
`commercial information. 37 C.F.R. § 42.54.
`The standard for granting a motion to seal is “for good cause.” 37 C.F.R.
`§ 42.54(a).
`“Good cause” for sealing is established by a “sufficient
`explanation as to why” the “information sought to be sealed is
`confidential information,” a demonstration that the information
`is not “excessively redacted,” and a showing that, on balance,
`the strong “public[] interest in maintaining a complete and
`understandable record” is outweighed by “the harm to a party,
`by disclosure of information” and “the need of either party to
`rely specifically on the information at issue.” Consequently,
`a movant to seal must demonstrate adequately that (1) the
`information sought
`to be sealed
`is
`truly confidential,
`(2) a concrete harm would result upon public disclosure,
`(3) there exists a genuine need to rely in the trial on the specific
`information sought to be sealed, and (4), on balance, an interest
`in maintaining confidentiality outweighs the strong public
`interest in having an open record.
`
`
`
`3
`
`
`
`IPR2020-01267
`Patent 10,028,026 B2
`
`Argentum Pharms. LLC v. Alcon Research, Ltd., IPR2017-01053, Paper 27
`at 3–4 (PTAB Jan. 19, 2018) (informative) (citations omitted). The filing
`party bears the burden of proof in showing entitlement to the relief requested
`in a motion to seal. 37 C.F.R. § 42.20(c).
`Patent Owner argues that the redacted portions of Exhibits
`1053–1055, 1068, and 2036, and the Response, Reply, and Sur-Reply
`“discuss or reference information found in [the technical documents] for
`which the Board previously found good cause to seal.” Mot. 3. According
`to Patent Owner, the information in the technical documents “would be
`valuable to Patent Owner’s competitors and harmful to Patent Owner and
`possibly third parties if made public” and “would significantly harm Patent
`Owner’s competitive and strategic position” if disclosed. Id. at 3–4. Patent
`Owner states that the revised redacted versions of the exhibits and papers
`“redact only portions specifically discussing or referencing the previously
`sealed technical documents.” Id. at 4. Upon reviewing the materials sought
`to be sealed, it appears that Patent Owner’s characterization is accurate and
`the redactions are narrowly tailored to only confidential information. Patent
`Owner has established good cause to seal the redacted portions of Exhibits
`1053–1055, 1068, and 2036, and the Response, Reply, and Sur-Reply.
`We again advise the parties that “[c]onfidential information that is
`subject to a protective order ordinarily would become public . . . 45 days
`after final judgment in a trial.” Trial Practice Guide at 21–22. “There is an
`expectation that information will be made public where the existence of the
`information . . . is identified in a final written decision following a trial.” Id.
`at 22. “A party seeking to maintain the confidentiality of information,
`
`
`
`4
`
`
`
`IPR2020-01267
`Patent 10,028,026 B2
`
`however, may file a motion to expunge the information from the record prior
`to the information becoming public.” Id.; see 37 C.F.R. § 42.56.
`In consideration of the foregoing, it is hereby:
`ORDERED that Patent Owner’s revised motion to seal (Paper 58) is
`granted, and the confidential versions of Exhibits 1053–1055, 1068, and
`2036, and Patent Owner’s Response, Petitioner’s Reply, and Patent Owner’s
`Sur-Reply shall remain under seal pursuant to the default protective order
`previously entered in this proceeding;
`FURTHER ORDERED that Exhibits 2035, 2037, 2038, 2047,
`2055–2061, 2064–2068, 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, which Patent Owner has not
`requested to be kept under seal, shall be changed from “Parties and Board
`Only” to “Public” in the Board’s electronic filing system; and
`FURTHER ORDERED that the originally filed versions of
`Exhibits 1053–1055, 1068, and 2036 labeled as “PUBLIC,” and the
`originally filed versions of the Response, Reply, and Sur-Reply labeled as
`“PUBLIC” (Papers 36, 49, and 54), shall be expunged from the record of
`this proceeding, as they have been replaced by the “REVISED PUBLIC”
`versions addressed herein.
`
`
`
`
`5
`
`
`
`IPR2020-01267
`Patent 10,028,026 B2
`
`FOR PETITIONER DISH NETWORK L.L.C.:
`
`Alyssa Caridis
`K. Patrick Herman
`Clement Roberts
`Will Melehani
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`a8cptabdocket@orrick.com
`p52ptabdocket@orrick.com
`
`FOR PETITIONERS AT&T SERVICES, INC. and DIRECTV, LLC:
`
`Robert Fulghum
`Jeffery S. Becker
`Morgan G. Mayne
`BAKER BOTTS L.L.P.
`roger.fulghum@bakerbotts.com
`jeff.becker@bakerbotts.com
`morgan.grissum@bakerbotts.com
`
`
`
`
`6
`
`
`
`IPR2020-01267
`Patent 10,028,026 B2
`
`FOR PATENT OWNER:
`
`Sal Lim
`David Alberti
`Hong Lin
`Russell Tonkovich
`FEINBERG DAY KRAMER ALBERTI LIM TONKOVICH
`& BELLOLI LLP
`slim@feinday.com
`dalberti@feinday.com
`hlin@feinday.com
`
`Michael D. Specht
`Jason A. Fitzsimmons
`Richard M. Bemben
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`mspecht-ptab@sternekessler.com
`jfitzsimmons-ptab@sternekessler.com
`rbemben-ptab@sternekessler.com
`
`Kevin Greenleaf
`DENTONS US LLP
`kevin.greenleaf@dentons.com
`
`
`
`
`
`
`7
`
`
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