UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`MYLAN PHARMACEUTICALS INC., CELLTRION, INC., and
`APOTEX, INC.
`Petitioners
`
`v.
`
`REGENERON PHARMACEUTICALS, INC.,
`Patent Owner
`
`
`
`
`
`
`
`Case IPR2021-008801
`Patent 9,669,069 B2
`
`PETITIONER’S MOTION TO SEAL
`
`37 C.F.R. §§ 42.14 AND 42.54
`
`
`1 IPR2022-00257 and IPR2022-00301 have been joined with this proceeding.
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`MYLAN PHARMACEUTICALS INC., CELLTRION, INC., and
`APOTEX, INC.
`Petitioners
`
`v.
`
`REGENERON PHARMACEUTICALS, INC.,
`Patent Owner
`
`
`
`
`
`
`
`Case IPR2021-008801
`Patent 9,669,069 B2
`
`PETITIONER’S MOTION TO SEAL
`
`37 C.F.R. §§ 42.14 AND 42.54
`
`
`1 IPR2022-00257 and IPR2022-00301 have been joined with this proceeding.
`
`
`
`Petitioner Mylan Pharmaceuticals Inc. (“Petitioner” or “Mylan”) moves to
`
`seal portions of Petitioner’s Reply to Patent Owners’ Response (“Petitioner’s
`
`Reply”) and portions of Exhibits 1114, 1108, and 1111. These exhibits and
`
`documents were filed concurrently with Petitioner’s Reply. Patent Owner indicated
`
`that it did not oppose this Motion.
`
`I.
`
`DOCUMENTS TO BE SEALED AND REASONS FOR SEALING.
`
`A. Good Cause Exists for Sealing Confidential Information.
`
`The Board may seal documents for good cause. See 37 C.F.R. § 42.54(a);
`
`Garmin v. Cuozzo, IPR2012-00001, Paper 36, 8-9 (2013). “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.” Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48760
`
`(2012). The public’s interest in having access to confidential business information
`
`that is only indirectly related to patentability is “minimal.” Garmin v. Cuozzo,
`
`IPR2012-00001, Paper 36, 8-9 (2013) (granting a motion to seal an agreement
`
`relating to the “commercializ[ation]” of the patent-at-issue).
`
`The information that Petitioner seeks to seal has been designated
`
`PROTECTIVE ORDER MATERIAL by Patent Owner and Petitioner is obligated
`
`to maintain the confidentiality of such information. See Paper 34, Addendum A,
`
`Default Protective Order at 4. Further, it is Petitioner’s understanding that the
`
`
`
`2
`
`
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`information Petitioner seeks to seal constitutes or reflects either Regeneron’s
`
`confidential research and development information, Regeneron’s confidential
`
`commercial and financial information, third-party confidential research and
`
`development information, or third-party confidential information. See Paper 37,
`
`Patent Owner’s Motion to Seal. To Petitioner’s knowledge, the information sought
`
`to be sealed has not been published or otherwise made public. According to Patent
`
`Owner, public disclosure of this confidential information would competitively
`
`harm Regeneron’s business prospects and put it at a competitive disadvantage
`
`relative to other similarly positioned companies in the same industry. Id. at 3-5.
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`Therefore, it is Petitioner’s understanding good cause exists to seal portions of
`
`Petitioner’s Reply and portions of Exhibits 1114, 1108, and 1111.
`
`B.
`
`Petitioner’s Reply.
`
`Petitioner seeks to seal the portions of Petitioner’s Reply that discuss Patent
`
`Owner’s confidential information, in Exhibits 2096 and 2259. Petitioner
`
`understands that Exhibit 2096, if publicly disclosed, would cause competitive harm
`
`to Regeneron, see Paper 37 at 4, and Exhibit 2259, if publicly disclosed, would
`
`cause competitive harm to ASRS, see IPR2021-00881, Paper 42 at 7. Therefore, it
`
`is Petitioner’s understanding good cause exists to seal portions of Petitioner’s
`
`Reply.
`
`
`
`3
`
`
`
`C.
`
`Exhibit 1114 (Albini Reply Declaration).
`
`Exhibit 1114 is a declaration from Petitioner’s expert witness, Dr. Thomas
`
`A. Albini. Portions of Exhibit 1114 describe and include Regeneron’s or third party
`
`confidential PROTECTIVE ORDER MATERIAL, which Petitioner is obligated to
`
`file under seal. Petitioner relies on such confidential information to rebut
`
`Regeneron’s arguments concerning anticipation and obviousness of the claims of
`
`the ’338 Patent. Portions of Exhibit 1114 describe exhibits filed by Regeneron
`
`under seal in related IPR2021-00881. See, e.g., Ex.1114, ¶39 (discussing Ex.2259,
`
`filed under seal in related IPR2021-00881).
`
`Petitioner understands that Exhibit 2259, if publicly disclosed, would cause
`
`competitive harm to ASRS. See IPR2021-00881, Paper 42 at 7. Therefore, it is
`
`Petitioner’s understanding good cause exists to seal portions of Exhibit 1114.
`
`D.
`
`Exhibits 1108 and 1111 (IPR Deposition Transcripts).
`
`Exhibits 1108 and 1111 are cross-examination deposition transcripts of
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`Patent Owner’s witnesses taken in this IPR proceeding. Petitioner seeks to seal
`
`portions of Exhibit 1108 (Alexander M. Klibanov Dep. Tr.) and Exhibit 1111
`
`(Lucian Del Priore Dep. Tr.). Each of Exhibits 1108 and 1111 describe and include
`
`Regeneron’s confidential PROTECTIVE ORDER MATERIAL, which Petitioner
`
`is obligated to file under seal. See e.g. Ex.1108 at 50-54 (discussing confidential
`
`sections of Ex.2049 (Expert Declaration of Dr. Alexander M. Klibanov, Ph.D.));
`
`
`
`4
`
`
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`Ex.1111 at 59-60 (discussing confidential sections of Ex.2048 (Expert Declaration
`
`of Dr. Lucian V. Del Priore, M.D., Ph.D.)).
`
`Petitioner understands that Exhibits 2048 and 2049, if publicly disclosed,
`
`would cause competitive harm to Regeneron. See Paper 37 at 4-5. Therefore, it is
`
`Petitioner’s understanding good cause exists to seal portions of Exhibits 1108 and
`
`1111.
`
`*
`
`*
`
`*
`
`Petitioner respectfully requests that the Board grant its motion to seal
`
`portions of Petitioner’s Reply, and portions of Exhibits 1114, 1108, and 1111, and
`
`there exists good cause for them to be maintained under seal.
`
`II.
`
`PROTECTIVE ORDER
`
`Pursuant to 37 CFR §§ 42.54 and 42.55(a), Patent Owner filed a motion for
`
`entry of the Board’s default protective order. See Paper 34. Petitioner did not
`
`oppose Patent Owner’s motion.
`
`III. CERTIFICATION
`
`Pursuant to 37 CFR § 42.54, Petitioner certifies that it has conferred with
`
`Patent Owner regarding this motion to seal. Patent Owner has indicated that it
`
`will not oppose Petitioner’s motion.
`
`
`
`
`
`5
`
`
`
`Dated: May 27, 2022
`
`Respectfully Submitted,
`
`
`
`
`
`
`
`RAKOCZY MOLINO MAZZOCHI SIWIK
`LLP
`
`/Paul J. Molino/
`Paul J. Molino
`Registration No. 45,350
`6 West Hubbard Street
`Chicago, IL 60654
`Telephone:
`(312) 222-6300
`Facsimile:
`(312) 843-6260
`paul@rmmslegal.com
`
`Counsel for Petitioner
`
`6
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a true and correct copy of the
`
`foregoing Petitioner’s Motion to Seal was served on May 27, 2022, via electronic
`
`mail by agreement of the parties, to the following counsel for record of Patent
`
`Owners:
`
`Deborah E. Fishman (Reg. No. 48,621)
`David A. Caine (Reg. No. 52,683)
`Arnold & Porter Kaye Scholer LLP
`3000 El Camino Real
`Five Palo Alto Square, Suite 500
`Palo Alto, California 94306-3807
`Telephone: 650.319.4519
`Telephone: 650.319.4710
`Facsimile: 650.319.4573
`Deborah.Fishman@arnoldporter.com
`David.Caine@arnoldporter.com
`RegeneronEyleaIPRs@arnoldporter.com
`
`Alice S. Ho (Lim. Rec. No. L1162)
`Victoria Reines
`Jeremy Cobb
`Arnold & Porter Kaye Scholer LLP
`601 Massachusetts Ave., N.W.
`Washington D.C. 20001
`Tel: 202.942.5000
`Fax: 202.942.5999
`Alice.Ho@arnoldporter.com
`Victoria.Reines@arnoldporter.com
`Jeremy.Cobb@arnoldporter.com
`
`
`
`
`
`Daniel Reisner
`Matthew M. Wilk
`Arnold & Porter Kaye Scholer LLP
`250 West 55th Street
`New York, New York 10019-9710
`Telephone: 212.836.8000
`Fax: 212.836.8689
`Daniel.Reisner@arnoldporter.com
`Matthew.Wilk@arnoldporter.com
`
`Dated: May 27, 2022
`
`Respectfully Submitted,
`
`
`
`
`
`RAKOCZY MOLINO MAZZOCHI
`SIWIK LLP
`
` /Paul J. Molino/
`
`
`
`
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