`571-272-7822
`
`
`
`
`
`
`
`Paper 34
`Date: November 2, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SAMSUNG ELECTRONICS CO. LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC. and APPLE, INC.,
`Petitioner,
`
`v.
`
`NEONODE SMARTPHONE LLC,
`Patent Owner.
`
`IPR2021-00145
`Patent 8,812,993 B2
`
`
`
`
`
`
`
`
`
`Before MICHELLE N. ANKENBRAND, KARA L. SZPONDOWSKI, and
`CHRISTOPHER L. OGDEN, Administrative Patent Judges.
`
`OGDEN, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`IPR2021-00145
`Patent 8,812,993 B2
`
`
`With our authorization, Petitioners Samsung Electronics Co. Ltd. and
`Samsung Electronics America, Inc. (collectively, “Samsung”) filed a Motion
`to Seal and for Entry of Protective Order. Paper 31. This Motion includes a
`Proposed Protective Order that differs from the Board’s default protective
`order. Id. at 9–10, App’x A. Samsung’s Proposed Protective Order is not a
`joint filing with either Patent Owner Neonode Smartphone LLC
`(“Neonode”) or joint Petitioner Apple, Inc. See id. at 1. Neonode filed a
`Response opposing Samsung’s motion. Paper 32. Although Neonode
`opposes both the sealing of documents and entry of the protective order,
`Neonode does not address why it opposes Samsung’s Proposed Protective
`Order, or suggest an alternative protective order. See generally id.
`The Scheduling Order for this proceeding states that “[i]f either party
`files a motion to seal before entry of a protective order, the parties must
`jointly file a proposed protective order as an exhibit with the motion.” Paper
`25, 2–3 (emphasis added). Also, if the proposed protective order differs from
`the default protective order, the parties must also jointly submit “a marked-
`up comparison of the proposed and default protective orders showing the
`differences between the two and explain why good cause exists to deviate
`from the default protective order.” Id. at 3. The parties have not done this.
`Thus, we order the parties to meet and confer, in good faith, with the
`goal of agreeing to a joint proposed protective order. If the parties agree to a
`joint submission, Samsung must file the proposed protective order (or
`indicate agreement with the Board’s default protective order) as a joint
`submission with the assent of all parties by November 19, 2021. This
`submission must also include any other supporting material that the
`Scheduling Order requires, such as a marked-up comparison between the
`
`
`
`2
`
`
`
`IPR2021-00145
`Patent 8,812,993 B2
`
`proposed and default protective orders and a joint explanation why good
`cause exists to deviate from the default protective order. See Paper 25, 2–3;
`see also Patent Trial and Appeal Board Consolidated Trial Practice Guide
`115 (Nov. 2019), https://go.usa.gov/xpvPF (“The Board will presumptively
`accept agreed-to changes that provide additional categories of confidentiality
`as long as they are reasonable and adequately define what types of materials
`are to be included in the additional categories”).
`Alternatively, if the parties cannot agree on a proposed protective
`order, Samsung must, by November 19, 2021, request a conference call with
`the Board and the parties to discuss the reasons why the parties have been
`unable to reach agreement on a proposed protective order.
`
`Accordingly, it is
`ORDERED that, by November 19, 2021, the parties must meet and
`confer, in good faith, with the goal of agreeing to a joint proposed protective
`order;
`FURTHER ORDERED that, Samsung must submit any agreed joint
`proposed protective order by November 19, 2021, and must include any
`other material that the Scheduling Order requires, such as a marked-up
`comparison between the proposed and default protective orders and a joint
`explanation why good cause exists to deviate from the default protective
`order, as explained above;
`FURTHER ORDERED that, if the parties fail to reach agreement on a
`joint proposed protective order, Samsung must, by November 19, 2021,
`request a conference call with the Board and the parties to discuss the
`reasons why the parties have been unable to reach agreement; and
`
`
`
`3
`
`
`
`IPR2021-00145
`Patent 8,812,993 B2
`
`
`FURTHER ORDERED that the Board will address Samsung’s Motion
`to Seal (Paper 31) at a later time.
`
`
`
`
`
`
`
`4
`
`
`
`IPR2021-00145
`Patent 8,812,993 B2
`
`For PETITIONER:
`Walter Renner
`David Holt
`FISH & RICHARDSON P.C.
`axf-ptab@fr.com
`holt2@fr.com
`
`Tiffany Miller
`James Heintz
`DLA PIPER LLP
`tiffany.miller@dlapiper.com
`jim.heintz@dlapiper.com
`
`
`For PATENT OWNER:
`Robert Asher
`Bruce Sunstein
`Timothy M. Murphy
`SUNSTEIN LLP
`rasher@sunsteinlaw.com
`bsunstein@sunsteinlaw.com
`tmurphy@sunsteinlaw.com
`
`Philip J. Graves
`HAGENS BERMAN SOBOL SHAPIRO LLP
`philipg@hbsslaw.com
`
`
`
`
`5
`
`
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