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`Filed on behalf of Supercell Oy
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`By:
`JENNIFER R. BUSH, Reg. No 50,784
`MICHAEL J. SACKSTEDER
`BRIAN HOFFMAN, Reg. No. 39,713
`KEVIN X. MCGANN, Reg. No. 48,793
`GREGORY HOPEWELL, Reg. No. 66,012
`GEOFFREY MILLER
`ERIC ZHOU, Reg. No. 68,842
`FENWICK & WEST LLP
`801 California Street
`Mountain View, CA 94041
`Telephone: 650.988.8500
`Facsimile: 650.938.5200
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`SUPERCELL OY,
`Petitioner
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`v.
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`GREE, INC.,
`Patent Owner.
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`Inter Partes Review No.
`Patent 10,076,708 B2
`_____________
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`PETITIONER’S MOTION TO SEAL EXHIBIT 1034
`AND FOR ENTRY OF PROTECTIVE ORDER
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`Patent No. 10,076,708 – Petitioner’s Motion to Seal and for Entry of Protective Order
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`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Petitioner Supercell Oy
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`respectfully requests that Exhibit 1034, filed concurrently herewith, be filed under
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`seal. Petitioner also respectfully requests that the Board enter the protective order
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`attached as Appendix A to this Motion, which is the model protective order
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`contained within the Office Patent Trial Practice Guide, 77 Fed. Reg. 48756,
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`48769-770 (Aug. 14, 2012).
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`The exhibit at issue was served on Petitioner by Patent Owner GREE, Inc.
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`(“GREE”) on February 18, 2020 2019 in the ongoing litigation between the parties
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`in the action GREE, Inc. v. Supercell Oy, Case No. 2:19-cv-00310-JRG-RSP
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`(E.D. Texas) (the “Civil Action”). GREE designated that document as
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`“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER.”
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`I.
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`REASONS FOR RELIEF AND STATEMENT OF FACTS
`A. Good Cause Exists for Sealing Exhibit 1034
`The Office Patent Trial Practice Guide provides that “the rules aim to strike a
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`balance between the public’s interest in maintaining a complete and understandable
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`file history and the parties’ interest in protecting truly sensitive information.”
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`77 Fed. Reg. 48756, 48760 (Aug. 14, 2012). Petitioner submits that this Motion to
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`Seal protects GREE’s truly sensitive information, while not significantly impacting
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`the public’s interest in maintaining a complete and understandable file history and
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`also protects a sensitive District Court Litigation document served by GREE, Inc.
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`Patent No. 10,076,708 – Petitioner’s Motion to Seal and for Entry of Protective Order
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`Furthermore, Patent Owner GREE is already in possession of Exhibit 1034, and
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`created the document in the course of the Civil Action.
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`B.
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`Exhibit 1034 Includes Confidential Information and Public
`Disclosure Would Result in Concrete Harm
`Exhibit 1034 is GREE, Inc.’s Paragraph 1 and 3 Initial and Additional
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`Disclosures, served on Supercell on February 18, 2020, and designated by GREE
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`as “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER.”
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`II. CERTIFICATION OF NON-PUBLICATION
`Petitioner certifies that to the best of its knowledge, Exhibit 1034 has never
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`been published or otherwise made public. The Patent Owner and Petitioner made
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`efforts to maintain the confidentiality of this information in the Civil Action. In the
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`Civil Action, the information Petitioner seeks to seal was produced pursuant to a
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`Protective Order agreed upon by the Parties and was designated “CONFIDENTIAL
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`– OUTSIDE COUNSEL ONLY” pursuant to that Protective Order.
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`III. CONCLUSION
`For the reasons set forth above, Petitioner respectfully requests the Board
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`grant its motion to seal, and enter the proposed Protective Order.
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`Dated: August 28, 2020
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`Respectfully submitted,
`FENWICK & WEST LLP
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`/Jennifer R. Bush /
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`Reg. No. 50,784
`Attorneys for Petitioner Supercell Oy
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`Patent No. 10,076,708 – Petitioner’s Motion to Seal and for Entry of Protective Order
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`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6, the undersigned certifies that on August 28, 2020, a
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`copy of the foregoing Petitioner’s Motion to Seal Exhibit 1034 and For Entry of
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`Protective Order was served on Patent Owner’s correspondence address of record
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`in its entirety by Federal Express – Priority Delivery upon the following:
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`Oliff PLC
`P.O. Box 320850
`Alexandria, VA 22320-4850
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`Dated: August 28, 2020
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`FENWICK & WEST LLP
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`/Jennifer R. Bush/
`Jennifer R. Bush
`Reg. No. 50,784
`Attorneys for Petitioner Supercell Oy
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`Fenwick & West LLP
`801 California Street
`Mountain View, CA 94041
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`SUPERCELL OY,
`Petitioner
`
`v.
`
`GREE, INC.,
`Patent Owner.
`
`
`Inter Partes Review No.
`Patent 10,076,708 B2
`_____________
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`[PROPOSED] DEFAULT PROTECTIVE ORDER
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`This protective order governs the treatment and filing of confidential
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`information, including documents and testimony.
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`1.
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`Confidential information shall be clearly marked “PROTECTIVE
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`ORDER MATERIAL.”
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`2.
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`Access to confidential information is limited to the following
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`individuals who have executed the acknowledgment appended to this order:
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`(A) Parties. Persons who are owners of a patent involved in the
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`proceeding and other persons who are named parties to the proceeding.
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`(B) Party Representatives. Representatives of record for a party in
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`the proceeding.
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`(C) Experts. Retained experts of a party in the proceeding who
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`further certify in the Acknowledgement that they are not a competitor to any party,
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`or a consultant for, or employed by, such a competitor with respect to the subject
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`matter of the proceeding.
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`(D)
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`In-house counsel. In-house counsel of a party.
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`(E)
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`Support Personnel. Administrative assistants, clerical staff,
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`court reporters and other support personnel of the foregoing persons who are
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`reasonably necessary to assist those persons in the proceeding shall not be required
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`to sign an Acknowledgement, but shall be informed of the terms and requirements
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`of the Protective Order by the person they are supporting who receives confidential
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`information.
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`(F) The Office. Employees and representatives of the United States
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`Patent and Trademark Office who have a need for access to the confidential
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`information shall have such access without the requirement to sign an
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`Acknowledgement. Such employees and representatives shall include the Director,
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`members of the Board and their clerical staff, other support personnel, court
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`reporters, and other persons acting on behalf of the Office.
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`3.
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`Employees (e.g., corporate officers), consultants, or other persons
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`performing work for a party, other than those persons identified above in
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`(d)(2)(A)–(E), shall be extended access to confidential information only upon
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`agreement of the parties or by order of the Board upon a motion brought by the
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`party seeking to disclose confidential information to that person and after signing
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`the Acknowledgment. The party opposing disclosure to that person shall have the
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`burden of proving that such person should be restricted from access to confidential
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`information.
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`4.
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`Persons receiving confidential information shall use reasonable efforts
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`to maintain the confidentiality of the information, including:
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`(A) Maintaining such information in a secure location to which
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`persons not authorized to receive the information shall not have access;
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`(B) Otherwise using reasonable efforts to maintain the confidentiality
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`of the information, which efforts shall be no less rigorous than those the recipient
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`uses to maintain the confidentiality of information not received from the disclosing
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`party;
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`(C) Ensuring that support personnel of the recipient who have
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`access to the confidential information understand and abide by the obligation to
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`maintain the confidentiality of information received that is designated as
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`confidential; and
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`(D) Limiting the copying of confidential information to a
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`reasonable number of copies needed for conduct of the proceeding and maintaining
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`a record of the locations of such copies.
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`5.
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`Persons receiving confidential information shall use the following
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`procedures to maintain the confidentiality of the information:
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`(A) Documents and Information Filed With the Board.
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`i.
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`A party may file documents or information with the
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`Board along with a Motion to Seal. The Motion to Seal should provide a
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`non-confidential description of the nature of the confidential information that is
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`under seal, and set forth the reasons why the information is confidential and should
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`not be made available to the public. A party may challenge the confidentiality of
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`the information by opposing the Motion to Seal. The documents or information
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`shall remain under seal unless the Board determines that some or all of it does not
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`qualify for confidential treatment.
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`ii. Where confidentiality is alleged as to some but not all of
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`the information submitted to the Board, the submitting party shall file confidential
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`and non-confidential versions of its submission, together with a Motion to Seal the
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`confidential version setting forth the reasons why the information redacted from
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`the non-confidential version is confidential and should not be made available to the
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`public. A party may challenge the confidentiality of the information by opposing
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`the Motion to Seal. The non-confidential version of the submission shall clearly
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`indicate the locations of information that has been redacted. The confidential
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`version of the submission shall be filed under seal. The redacted information shall
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`remain under seal unless the Board determines that some or all of the redacted
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`information does not qualify for confidential treatment.
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`(B) Documents and Information Exchanged Among the Parties.
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`Documents (including deposition transcripts) and other information designated as
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`confidential that are disclosed to another party during discovery or other
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`proceedings before the Board shall be clearly marked as “PROTECTIVE ORDER
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`MATERIAL” and shall be produced in a manner that maintains its confidentiality.
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`6. Within 60 days after the final disposition of this action, including the
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`exhaustion of all appeals and motions, each party receiving confidential
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`information must return, or certify the destruction of, all copies of the confidential
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`information to the producing party.
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`7.
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`The form attached as Exhibit may be used to acknowledge a
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`Protective Order and gain access to information covered by the Protective Order.
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`EXHIBIT A
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`SUPERCELL OY,
`Petitioner
`v.
`GREE, INC.,
`Patent Owner
`Case No. IPR
`
`Patent 10,076,708 B2
`_____________
`STANDARD ACKNOWLEDGMENT FOR ACCESS
`TO PROTECTIVE ORDER MATERIAL
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`I,
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`, affirm that I have read the Protective
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`Order; that I will abide by its terms; that I will use the confidential information
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`only in connection with this proceeding and for no other purpose; that I will only
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`allow access to support staff who are reasonably necessary to assist me in this
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`proceeding; that prior to any disclosure to such support staff I informed or will
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`inform them of the requirements of the Protective Order; that I am personally
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`responsible for the requirements of the terms of the Protective Order and I agree to
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`submit to the jurisdiction of the Patent Office and the United States District Court
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`for the Eastern District of Texas for purposes of enforcing the terms of the
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`Protective Order and providing remedies for its breach.
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