Paper 25
`
`Trials@uspto.gov
`Tel: 571-272-7822 Entered: December 21, 2021
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`APPLE INC.,
`Petitioner,
`v.
`KOSS CORPORATION,
`Patent Owner.
`____________
`
`IPR2021-00600
`Patent 10,298,451 B1
`____________
`
`
`
`Before PATRICK R. SCANLON, DAVID C. McKONE,
`and NORMAN H. BEAMER, Administrative Patent Judges.
`
`BEAMER, Administrative Patent Judge.
`
`
`
`
`ORDER
`Granting Petitioner’s Motion to Seal Under Default
`Protective Order
`35 U.S.C. § 316; 37 C.F.R. §§ 42.14, 42.54
`
`
`
`Trials@uspto.gov
`Tel: 571-272-7822 Entered: December 21, 2021
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`APPLE INC.,
`Petitioner,
`v.
`KOSS CORPORATION,
`Patent Owner.
`____________
`
`IPR2021-00600
`Patent 10,298,451 B1
`____________
`
`
`
`Before PATRICK R. SCANLON, DAVID C. McKONE,
`and NORMAN H. BEAMER, Administrative Patent Judges.
`
`BEAMER, Administrative Patent Judge.
`
`
`
`
`ORDER
`Granting Petitioner’s Motion to Seal Under Default
`Protective Order
`35 U.S.C. § 316; 37 C.F.R. §§ 42.14, 42.54
`
`
`
`IPR2021-00600
`
`Patent 10,298,451 B1
`
`INTRODUCTION
`I.
`On September 9, 2021, we authorized Koss Corporation (“Patent
`Owner”) to file a motion for additional discovery (“Motion”), pursuant to 37
`CFR § 42.51(b)(2)(i). See Ex. 3001. Apple Inc. (“Petitioner”)1 was
`authorized to file an Opposition and Patent Owner was authorized to file a
`reply. Id. Patent Owner filed the Motion (“Mot.,” Paper 12), Petitioner filed
`its Opposition (“Opp.,” Paper 13), and Patent Owner filed its Reply (“Reply,”
`Paper 16).
`The Motion sought “[s]ales revenue and quantity of units sold, by
`calendar quarter, for the Apple HomePods and HomePod Minis since the
`commercial introduction of those products.” Mot. 1 (citing Ex. 2014, 22).
`In a November 24, 2021, Order (Paper 19), we granted Patent Owner’s
`motion for additional discovery, but also ordered “that within seven (7) days
`of the date of this order, Patent Owner and Petitioner shall meet and confer
`regarding a stipulation that would avoid the need for the requested additional
`discovery.”
`The parties were subsequently granted an extension of the meet and
`confer deadline, and on December 15, 2021, Petitioner filed an Unopposed
`Motion To Seal (“Mot. Seal,” Paper 23), indicating that the parties had met
`and conferred, and requesting authorization to file under seal “certain filings
`in this case, including the Joint Agreement Regarding Additional Discovery
`filed concurrently herewith” (“Agreement,” Paper 24), under the Board’s
`
`
`1 The Petition challenges US Patent No. 10,298,451 B1, issued May 21, 2019
`(’451 patent, Ex. 1001).
`2 Patent Owner’s Request for Additional Discovery.
`2
`
`
`
`
`IPR2021-00600
`
`Patent 10,298,451 B1
`Default Protective Order.3 Mot. Seal 2. Petitioner represents that Patent
`Owner does not oppose the motion. Id.
`
`THE “GOOD CAUSE” STANDARD
`II.
`In an inter partes review, the moving party bears the burden of showing
`that the relief requested should be granted. 37 C.F.R. § 42.20(c). A party
`moving to seal must show “good cause” for the relief requested. 37 C.F.R.
`§ 42.54(a).
`The “good cause” standard for granting a motion to seal reflects the
`strong public policy for making all information in an inter partes review open
`to the public. 37 C.F.R. § 42.54; see Argentum Pharms. LLC v. Alcon
`Research, Ltd., Case IPR2017-01053 (PTAB Jan. 19, 2018) (Paper 27)
`(informative), slip op at 3. Unlike in district court, where a party routinely
`will determine whether a document is produced under the terms of a district
`court protective order, in an inter partes review, “the default rule is that all
`papers . . . are open and available for access by the public.” Garmin Int’l v.
`Cuozzo Speed Techs., LLC, Case IPR2012-00001 (PTAB Mar. 14, 2013)
`(Paper 34), slip op at 2. Thus, to demonstrate “good cause,” the moving party
`must demonstrate that:
`(1) the information sought to be sealed is truly confidential, (2) a
`concrete harm would result upon public disclosure, (3) there exists
`a genuine need to rely in the trial on the specific information
`sought to be sealed, and (4), on balance, an interest in maintaining
`confidentiality outweighs the strong public interest in having an
`open record.
`Argentum, slip op at 3–4; see also Corning Optical Communications RF, LLC,
`v. PPC Broadband, Inc., Case IPR2014-00440 (PTAB April 6, 2015) (Paper
`
`
`3 Consolidated Trial Practice Guide at 107–22 (App. B, Protective Order
`Guidelines and Default Protective Order), available at https://www.uspto.gov/
`TrialPracticeGuideConsolidated.
`
`
`3
`
`
`
`IPR2021-00600
`
`Patent 10,298,451 B1
`46), slip op. at 2 (requiring a demonstration that information is not
`“excessively redacted”).
`
`III. PETITIONER’S MOTION TO SEAL
`The Motion requests that “certain filings in this case, including [the
`Agreement]” be filed under seal. Motion Seal 2. Petitioner states “[p]ublic
`disclosure of the [Agreement] has the potential to significantly harm
`Petitioners’ competitive position because it would allow competitors to access
`highly sensitive information regarding litigation strategy and Petitioners’
`financial data.” Id.
`After consideration of the Motion To Seal and the applicable record, we
`are persuaded that Petitioner has demonstrated good cause to seal the
`Agreement. Petitioner’s request that the Agreement be sealed is granted. We
`take no action on any other filings in this case, which would be subject to
`separate requests for authorization to file under seal.
`
`IV. THE JOINTLY PROPOSED PROTECTIVE ORDER
`As discussed, Petitioner requests that the default Protective Order
`govern the materials in this proceeding as set forth in the Practice Guide.
`Mot. Seal 2. As stated in the Scheduling Order entered in this proceeding,
`“[t]he Board encourages the parties to adopt the Board’s default protective
`order if they conclude that a protective order is necessary.” Paper 10, 2.
`Accordingly, the Default Protective Order will govern the treatment and filing
`of confidential information in the instant proceeding, and the subject
`Agreement will be sealed pursuant to that order.
`
`V. NOTICE OF POSSIBLE DISCLOSURE
`The parties are reminded that confidential information that is subject to
`a protective order ordinarily becomes public 45 days after final judgment in a
`trial. Trial Practice Guide, 77 Fed. Reg. at 48,761. The parties are reminded
`
`
`
`4
`
`
`
`IPR2021-00600
`
`Patent 10,298,451 B1
`that a movant to seal in this proceeding shall assume the risk that its
`confidential information will become public if relied upon in a final written
`decision. There is an expectation that information will be made public where
`the existence of the information is identified in a final written decision
`following a trial. Id. After final judgment in a trial, a party may file a motion
`to expunge confidential information from the record prior to the information
`becoming public. See 37 C.F.R. § 42.56.
`
`VI. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that Petitioner’s Motion to Seal the Joint Agreement
`Regarding Additional Discovery (Paper 24), is granted; and
`FURTHER ORDERED that the Board’s Default Protective Order shall
`govern the treatment and filing of confidential information in the instant
`proceeding unless otherwise modified by the Board.
`
`
`
`
`
`
`
`
`
`5
`
`
`
`IPR2021-00600
`
`Patent 10,298,451 B1
`
`PETITIONER:
`W. Karl Renner
`Roberto Devoto
`Ryan Chowdhury
`FISH & RICHARDSON P.C.
`axf-ptab@fr.com
`devoto@fr.com
`rchowdhury@fr.com
`
`
`
`PATENT OWNER:
`Mark G. Knedeisen
`Laurén Shuttleworth Murray
`Brian P. Bozzo
`K&L GATES LLP
`mark.knedeisen@klgates.com
`lauren.murray@klgates.com
`brian.bozzo@klgates.com
`
`
`
`
`6
`
`
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