`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`LIQUIDIA TECHNOLOGIES, Inc.,
`Petitioner,
`
`v.
`
`UNITED THERAPEUTICS CORPORATION,
`Patent Owner.
`
`
`IPR2021-00406
`U.S. Patent No. 10,716,793
`
`
`
`
`
`PATENT OWNER’S MOTION TO FILE UNDER SEAL
`37 C.F.R. § 42.54
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`
`
`Pursuant to 37 C.F.R. § 42.54, United Therapeutics Corporation (“Patent
`
`Owner”) hereby submits this Motion to Seal Exhibits 2062-2064 (which also
`
`bear exhibit numbers 2049-2051 from prior IPR2017-01621 & 01622).
`
`I. Good Cause Exists for Sealing Certain Confidential Information
`The Office Patent Trial Practice Guide provides that “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.” 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012). These
`
`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 research, development, or commercial
`
`information.” Id. (citing 37 C.F.R. § 42.54).
`
`Good cause exists to support the sealing of the Exhibits 2062-2064, which
`
`were produced in a litigation (United Therapeutics Corp. v. Sandoz, Inc., Civ.
`
`No. 14-cv-05499) as confidential documents and remain under seal. These
`
`exhibits were also filed under a motion to seal in IPR2017-01621 & 01622
`
`(Paper Nos. 41 and 42, respectively), and the Board granted the motion to seal in
`
`those proceedings (Paper Nos. 49 and 50, respectively) where they were
`
`previously
`
`labeled Exhibits 2049-2051.
`
` Exhibits 2062-2064 describe
`
`information on protocols, procedures, and data submitted to and held in
`
`2
`
`
`
`
`
`
`
`
`
`
`
`confidence by the FDA in relation to the approval of Tyvaso®. Such information
`
`could be improperly used by competitors to gain unfair business and competitive
`
`advantage with customers in the marketplace, including using details of Patent
`
`Owner’s process for competitive commercial products.
`
`The Board has granted a Motion to Seal certain exhibits in their entireties
`
`for similar reasons in Purdue Pharma L.P. v. Depomed, Inc., IPR2014-00377,
`
`paper no. 62 at 4-6, (PTAB March 17, 2015), where “Patent Owner avers that the
`
`‘highly confidential nature of’ the information contained in those documents
`
`makes it ‘impossible to reasonably redact [them] for public disclosure.’” Id. at 4.
`
`As noted, the Board previously granted a motion to seal these same exhibits in
`
`their entireties in IPR2017-01621 & 01622.
`
`II. Certification of Non-Publication
`
`On behalf of Patent Owner, undersigned counsel certifies that, to the best
`
`of their knowledge, the information sought to be sealed by this Motion to Seal
`
`has not been published or otherwise made public. Efforts to maintain the
`
`confidentiality of this information have been undertaken by Patent Owner in
`
`the related proceedings noted above.
`
`III. Certification of Conference with Opposing Party Pursuant to
`37 C.F.R. § 42.54
`
`Patent Owner has conferred with Petitioner about both the PTAB’s Default
`
`3
`
`
`
`Protective Order and motion to seal relating to Patent Owner’s confidential
`
`information, and the Parties have agreed to be bound by the PTAB’s Default
`
`Protective Order. Per Appendix B of the Trial Practice Guide, the Default
`
`Protective Order is not being separately filed.
`
`IV. Protective Order
`The confidential information will be subject to the Default Protective Order
`
`from the Trial Practice Guide, to which the parties have agreed to be bound in this
`
`proceeding.
`
`V. Conclusion
`For the reasons stated above, Patent Owner respectfully requests that
`
`Exhibits 2062-2064 remain under seal.
`
`Date: Nov. 10, 2021
`
`
`
`Respectfully submitted,
`
`/Stephen B. Maebius/
`Stephen B. Maebius
`Registration No. 35,264
`Foley & Lardner LLP
`3000 K Street, N.W., Suite 600
`Washington, D.C. 20007
`
`
`Counsel for Patent Owner
`
`4
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing MOTION TO
`
`SEAL, is being served on Nov. 10, 2021 by filing this document through the PTAB
`
`E2E System as well as delivering copies via email to the following counsel for the
`
`Petitioner:
`
`zLiquidiaIPR@cooley.com
`ielrifi@cooley.com
`emilch@cooley.com
`dkannappan@cooley.com
`ssukduang@cooley.com
`
`/Stephen B. Maebius/
`Stephen B. Maebius
`Registration No. 35,264
`Counsel for Patent Owner
`
`
`4873-7890-4578.1
`
`5
`
`