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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`______________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`______________________
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`WEBER, INC.
`Petitioner
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`v.
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`PROVISUR TECHNOLOGIES, INC.
`Patent Owner
`______________________
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`Case IPR2020-01557
`U.S. Patent No. 10,639,812
`______________________
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`
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`PETITIONER WEBER, INC.’S MOTION UNDER
`37 C.F.R. §§ 42.14 AND 42.54 TO SEAL EXHIBITS EX1022-EX1038,
`EX1041-EX1048, EX1050, EX1060 (INCLUDING ITS CONFIDENTIAL
`APPENDIX R), EX1061, EX1074, EX1077-EX1082, AND EX1085-EX1086
`
`
`
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`
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`Mail Stop “Patent Board”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`
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`Case IPR2020-01557
`U.S. Patent No. 10,639,812
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`I.
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`INTRODUCTION
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`Petitioner Weber, Inc. requests that the confidential versions Exhibits
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`EX1022-EX1038, EX1041-EX1048, EX1050, EX1060 (including its confidential
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`Appendix R), EX1061, EX1074, EX1077-EX1082, and EX1085-EX1086 be
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`sealed under 37 C.F.R. § 42.54. Good cause to seal these documents exits because
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`public versions of Exhibits EX1022-EX1038, EX1041-EX1048, EX1050, EX1060
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`(including its confidential Appendix R), EX1061, EX1074, EX1077-EX1082, and
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`EX1085-EX1086 were filed and the redacted information in these confidential
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`versions of these Exhibits, and the corresponding Appendices, is sensitive, non-
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`public pricing, customer, and sales information that a business would not make
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`public. Additionally, these documents contain non-public third-party business
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`information which Weber also seeks to protect. Petitioner submits this Motion to
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`Seal the confidential versions of Exhibits EX1022-EX1038, EX1041-EX1048,
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`EX1050, EX1060 (including its confidential Appendix R), EX1061, EX1074,
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`EX1077-EX1082, and EX1085-EX1086.
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`II. GOVERNING RULES AND PTAB GUIDANCE
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`Under 35 U.S.C. § 316(a)(1), the default rule is that all papers filed in an
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`inter partes review are open and available for access by the public, but a party may
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`file a concurrent motion to seal and the information at issue is sealed pending the
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`outcome of the motion.
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`
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`Similarly, 37 C.F.R. § 42.14 provides:
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`Case IPR2020-01557
`U.S. Patent No. 10,639,812
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`The record of a proceeding, including documents and
`things, shall be made available to the public, except as
`otherwise ordered. A party intending a document or thing
`to be sealed shall file a motion to seal concurrent with the
`filing of the document or thing to be sealed. The
`document or thing shall be provisionally sealed on
`receipt of the motion and remain so pending the outcome
`of the decision on the motion.
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`It is, however, only “confidential information” that is protected from disclosure.
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`35 U.S.C. § 316(a)(7). (“The Director shall prescribe regulations -- . . . providing
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`for protective orders governing the exchange and submission of confidential
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`information”). In that regard, the Office Trial Practice Guide, 77 Fed. Reg. 48756,
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`48760 (Aug. 14, 2012) provides:
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`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.
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`* * *
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`Confidential Information: The rules identify confidential
`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
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`Case IPR2020-01557
`U.S. Patent No. 10,639,812
`research, development, or commercial
`information.
`§ 42.54.
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`III.
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`Identification of Confidential Information
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`The confidential information consists of sensitive customer, sales, and/or
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`pricing information and non-public third-party business information. This
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`information is contained in EX1022-EX1038, EX1041-EX1048, EX1050,
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`EX1074, EX1077-EX1082, EX1085-EX1086, paragraphs 10 and 11 of EX1061,
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`and paragraph 46 of EX1060, including Appendix R (R-000001 – R-1613 and R-
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`001993 – R-002251). Weber certifies that Weber has not published or otherwise
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`made this information public.
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`IV. GOOD CAUSE EXISTS FOR SEALING THE CONFIDENTIAL
`INFORMATION
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`The Board routinely seals confidential sales, customer, purchaser,
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`distributor, and pricing information. See, e.g., Prong, Inc. v. Yeoshua Sorias,
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`IPR2015-01317, Paper 32; Cisco Systems, Inc. v. Crossroads Systems, Inc.,
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`IPR2014-01463, Paper 49. Here, the confidential versions of EX1022-EX1038,
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`EX1041-EX1048, EX1050, EX1060 (including its confidential Appendix
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`R),EX1061, EX1074, EX1077-EX1082 and the sales records and invoices
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`provided in the corresponding Appendix contain this same type of information,
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`namely customer, sales, and pricing information. For example, these contain
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`specific customer names and locations, dates of sales, dates of manufacturing,
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`Case IPR2020-01557
`U.S. Patent No. 10,639,812
`shipments, and pricing information. Good cause exists to seal and keep this
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`information confidential because it includes details about Weber customers and
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`sales, which would be valuable to Weber’s competitors and harmful to Weber and
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`possibly third parties if made public. Accordingly, as in Prong and Cisco, the
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`Board should seal and keep this information confidential.
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`Public disclosure of the confidential versions of EX1022-EX1038, EX1041-
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`EX1048, EX1050, EX1060 (including its confidential Appendix R), EX1061,
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`EX1074, EX1077-EX1082, and EX1085-EX1086 would significantly harm
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`Weber’s competitive and strategic position in the marketplace. And the public
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`interest will not be harmed by granting this Motion to Seal the documents as
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`“PROTECTIVE ORDER MATERIAL.” In short, granting this Motion to Seal
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`would achieve “a balance between the public’s interest in maintaining a complete
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`and understandable file history and the parties’ interest in protecting truly sensitive
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`information.” Trial Practice Guide, 77 Fed. Reg. at 48,760. Therefore, good cause
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`exists for granting this motion to seal.
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`V. RELIEF REQUESTED
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`For the reasons stated above, Weber requests that the Board seal and protect
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`Weber’s confidential information contained in the confidential versions of Exhibits
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`EX1022-EX1038, EX1041-EX1048, EX1050, EX1060 (including its confidential
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`Appendix R), EX1061, EX1074, EX1077-EX1082, and EX1085-EX1086. Weber
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`Case IPR2020-01557
`U.S. Patent No. 10,639,812
`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.
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`Respectfully Submitted,
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`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`/R. Wilson Powers III/
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`Ralph W. Powers III (Reg. No. 63,504)
`Attorney for Weber, Inc.
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`Date: October 5, 2021
`1100 New York Avenue, N.W.
`Washington, D.C. 20005
`(202) 371-2600
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`Case IPR2020-01557
`U.S. Patent No. 10,639,812
`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
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`The undersigned hereby certifies that a true and correct copy of the
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`foregoing PETITIONER WEBER, INC.’S MOTION UNDER 37 C.F.R. §§
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`42.14 AND 42.54 TO SEAL EXHIBITS EX1022-EX1038, EX1041-EX1048,
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`EX1050, EX1060 (INCLUDING ITS CONFIDENTIAL APPENDIX R),
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`EX1061, EX1074, EX1077-EX1082, AND EX1085-EX1086 was served via e-
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`mail on October 5, 2021 in its entirety on the following:
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`Michael G. Babbitt (Lead Counsel)
`Sara T. Horton (Back-up Counsel)
`Ren-How H. Harn (Back-up Counsel)
`Tara L. Thieme (Back-up Counsel)
`WILLKIE FARR & GALLAGHER LLP
`MBabbitt@willkie.com
`SHorton@willkie.com
`RHarn@willkie.com
`TThieme@willkie.com
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`Respectfully Submitted,
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`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`
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`/R. Wilson Powers III/
`
`Ralph W. Powers III (Reg. No. 63,504)
`Attorney for Weber, Inc.
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`Date: October 5, 2021
`1100 New York Avenue, N.W.
`Washington, D.C. 20005
`(202) 371-2600
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