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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 PATENT OWNER’S DEMONSTRATIVE
`EXHIBIT (EXHIBIT 2190) AND PETITIONER’S DEMONSTRATIVE
`EXHIBIT (PAPER 65)
`
`
`
`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 ........................................................................4
`
`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
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`confidential, unredacted versions of Patent Owner’s demonstrative exhibit for oral
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`hearing (Exhibit 2190, “Patent Owner’s demonstrative exhibit”) and Petitioner’s
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`demonstrative exhibit for oral hearing (Paper 65, “Petitioner’s demonstrative
`
`exhibit”) be sealed under 37 C.F.R. §§ 42.14 and 42.54. Good cause to seal these
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`exhibits exists because they contain Patent Owner’s sensitive, non-public
`
`information that a business would not make public. Patent Owner therefore
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`submits this Motion to Seal Patent Owner’s demonstrative exhibit and Petitioner’s
`
`demonstrative exhibit under the Board’s Default Protective Order, previously
`
`entered in this case. See 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 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
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`- 1 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`manner “consistent with Federal Rule of Civil Procedure 26(c)(1)(G), which
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`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 Patent Owner’s
`
`demonstrative exhibit and Petitioner’s demonstrative exhibit.
`
`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 demonstrative exhibit and Petitioner’s demonstrative exhibit is
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`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
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`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-
`
`
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`- 2 -
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`
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`02185, Paper 42 (May 3, 2019). Here, while some portions of Patent Owner’s
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`demonstrative exhibit and Petitioner’s demonstrative exhibit are not confidential,
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`portions of these exhibits reference information found in confidential technical
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`documents for which the Board previously found good cause to seal. 2 Good cause
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`similarly exists to seal and keep this information confidential because it includes
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`details of sealed, confidential technical documents that would be valuable to Patent
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`Owner’s competitors and harmful to Patent Owner and possibly third parties if
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`made public. Accordingly, the Board should seal and keep this information
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`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 Patent Owner’s demonstrative exhibit
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`and Petitioner’s demonstrative exhibit as “PROTECTIVE ORDER
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`2 On October 7, 2021, the Board granted Patent Owner’s Motions to Seal
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`with respect to Exhibits 2050–2054, 2063, 2070, 2093, 2123–2127, 2129, 2132–
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`2135, 2137, 2142, 2150, 2151, 2154, 2157, 2158, 2164, 2165, and 2178. Paper 57,
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`5, 7-8. On October 26, 2021, the Board further granted Patent Owner’s Revised
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`Motion to Seal Exhibits 1053-1055, 1068, and 2036, and Patent Owner’s
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`Response, Petitioner’s Reply, and Patent Owner’s Sur-Reply, which reference the
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`exhibits sealed on October 7.
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`
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`- 3 -
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`MATERIAL,” because redacted copies of the demonstrative exhibits are being
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`publicly filed by Patent Owner and Petitioner. These public, redacted copies redact
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`only portions specifically discussing or referencing the previously sealed material.
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`In short, granting this Motion to Seal would achieve “a balance between the
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`public’s interest in maintaining a complete and understandable file history and the
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`parties’ interest in protecting truly sensitive information.” 77 Fed. Reg. at 48,760.
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`Therefore, good cause exists for granting this Motion to Seal.
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`V. RELIEF REQUESTED
`For the reasons stated above, Patent Owner requests that the Board seal and
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`protect Patent Owner’s demonstrative exhibit and Petitioner’s demonstrative
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`exhibit under the Board’s Default Protective Order previously entered in this
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`proceeding. See Paper 57, 8. Patent Owner further requests that the Board seal and
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`protect the confidential information in Patent Owner’s demonstrative exhibit and
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`Petitioner’s demonstrative exhibit until such time as it receives and rules on this
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`Motion.
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`- 4 -
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`
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`Case IPR2020-01267
`U.S. Patent No. 10,028,026 B2
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Sal Lim/
`
`Sal Lim (Reg. No. 45,706)
`Attorney for Patent Owner
`
`Date: October 27, 2021
`
`1100 New York Avenue NW
`Washington, D.C. 20005
`(202) 371-2600
`
`
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`- 5 -
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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 PATENT OWNER’S
`
`DEMONSTRATIVE EXHIBIT (EXHIBIT 2190) AND PETITIONER’S
`
`DEMONSTRATIVE EXHIBIT (PAPER 65) was served electronically via e-
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`mail on October 27, 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
`
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Sal Lim/
`
`Sal Lim (Reg. No. 45,706)
`Attorney for Patent Owner
`
`
`
`
`
`
`
`
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`
`
`17523392_1.DOCX
`
`Date: October 27, 2021
`
`1100 New York Avenue NW
`Washington, D.C. 20005
`(202) 371-2600
`
`
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