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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MYLAN PHARMACEUTICALS INC., CELLTRION, INC., and
`APOTEX, INC.
`Petitioners
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`v.
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`REGENERON PHARMACEUTICALS, INC.,
`Patent Owner
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`Case IPR2021-008811
`Patent 9,254,338 B2
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`PETITIONER’S MOTION TO SEAL
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`37 C.F.R. §§ 42.14 AND 42.54
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`1 IPR2022-00258 and IPR2022-00298 have been joined with this proceeding.
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`Petitioner Mylan Pharmaceuticals Inc. (“Petitioner” or “Mylan”) moves to
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`seal portions of Petitioner’s Reply to Patent Owners’ Response (“Petitioner’s
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`Reply”) and portions of Exhibits 1137, 1108, 1111, and 1151. These exhibits and
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`documents were filed concurrently with Petitioner’s Reply. Patent Owner indicated
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`that it did not oppose this Motion.
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`I.
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`DOCUMENTS TO BE SEALED AND REASONS FOR SEALING.
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`A. Good Cause Exists for Sealing Confidential Information.
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`The Board may seal documents for good cause. See 37 C.F.R. § 42.54(a);
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`Garmin v. Cuozzo, IPR2012-00001, Paper 36, 8-9 (2013). “The rules aim to strike
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`a balance between the public’s interest in maintaining a complete and
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`understandable file history and the parties’ interest in protecting truly sensitive
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`information.” Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48760
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`(2012). The public’s interest in having access to confidential business information
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`that is only indirectly related to patentability is “minimal.” Garmin v. Cuozzo,
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`IPR2012-00001, Paper 36, 8-9 (2013) (granting a motion to seal an agreement
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`relating to the “commercializ[ation]” of the patent-at-issue).
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`The information that Petitioner seeks to seal has been designated
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`PROTECTIVE ORDER MATERIAL by Patent Owner and Petitioner is obligated
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`to maintain the confidentiality of such information. See Paper 34, Addendum A,
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`Default Protective Order at 4. Further, it is Petitioner’s understanding that the
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`information Petitioner seeks to seal constitutes or reflects either Regeneron’s
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`confidential research and development information, Regeneron’s confidential
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`commercial and financial information, third-party confidential research and
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`development information, or third-party confidential information. See Paper 42,
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`Patent Owner’s Motion to Seal. To Petitioner’s knowledge, the information sought
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`to be sealed has not been published or otherwise made public. According to Patent
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`Owner, public disclosure of this confidential information would competitively
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`harm Regeneron’s business prospects and put it at a competitive disadvantage
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`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
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`Petitioner’s Reply and portions of Exhibits 1137, 1108, 1111, and 1151.
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`B.
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`Petitioner’s Reply.
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`Petitioner seeks to seal the portions of Petitioner’s Reply that discuss Patent
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`Owner’s confidential
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`information, designated as PROTECTIVE ORDER
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`MATERIAL, in the Exhibits that Petitioner currently seeks to seal. For the same
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`reasons discussed below, it is Petitioner’s understanding there is good cause to seal
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`the portions of the Reply that include confidential information appearing in at least
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`Exhibits 1137, 1108, 1111, and 1151.
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`3
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`C.
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`Exhibit 1137 (Hofmann Reply Declaration).
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`Exhibit 1137 is a declaration from Petitioner’s expert witness, Ivan T.
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`Hofmann. Portions of Exhibit 1137 describe and include Regeneron’s confidential
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`PROTECTIVE ORDER MATERIAL, which Petitioner is obligated to file under
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`seal. Petitioner relies on such confidential information to rebut Regeneron’s
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`arguments concerning obviousness of the claims of the ’338 Patent. Portions of
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`Exhibit 1137 describe exhibits filed by Regeneron under seal. See, e.g., Ex.1137,
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`¶70 (discussing Ex.2176, filed under seal).
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`Petitioner understands that Exhibit 2176, if publicly disclosed, would cause
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`competitive harm to Patent Owner. See Paper 42 at 6. Therefore, it is Petitioner’s
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`understanding good cause exists to seal portions of Exhibit 1137.
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`D.
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`Exhibits 1108, 1111, and 1151 (IPR Deposition Transcripts).
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`Exhibits 1108, 1111, 1151 are cross-examination deposition transcripts of
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`Patent Owner’s witnesses taken in this IPR proceeding. Petitioner seeks to seal
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`portions of Exhibit 1108 (Klibanov Dep. Tr.), Exhibit 1111 (Del Priore Dep. Tr.),
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`and Exhibit 1151 (Manning Dep. Tr.). Each of Exhibits 1108, 1111, and 1151
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`describe and
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`include Regeneron’s confidential PROTECTIVE ORDER
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`MATERIAL, which Petitioner is obligated to file under seal. See e.g. Ex.1108 at
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`50-54 (discussing confidential sections of Ex.2049 (Expert Declaration of Dr.
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`Alexander M. Klibanov, Ph.D.)); Ex.1111 at 59-60 (discussing confidential
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`sections of Ex.2048 (Expert Declaration of Dr. Lucian V. Del Priore, M.D.,
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`Ph.D.)); Ex.1151 at 18-19 (discussing confidential Ex.2138 (Regeneron,
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`“Physician ATU: Wave 2,” 2/2013, at 3)).
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`Petitioner understands that Exhibits 2049, 2048 and 2138, if publicly
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`disclosed, would cause competitive harm to Patent Owner. See Paper 42 at 7-9.
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`Therefore, it is Petitioner’s understanding good cause exists to seal portions of
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`Exhibits 1108, 1111, and 1151.
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`*
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`*
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`*
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`Petitioner respectfully requests that the Board grant its motion to seal
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`portions of Petitioner’s Reply, and portions of Exhibits 1137, 1108, 1111, and
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`1151, and there exists good cause for them to be maintained under seal.
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`II.
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`PROTECTIVE ORDER
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`Pursuant to 37 CFR §§ 42.54 and 42.55(a), Patent Owner filed a motion for
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`entry of the Board’s default protective order. See Paper 34. Petitioner did not
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`oppose Patent Owner’s motion.
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`III. CERTIFICATION
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`Pursuant to 37 CFR § 42.54, Petitioner certifies that it has conferred with
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`Patent Owner regarding this motion to seal. Patent Owner has indicated that it
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`will not oppose Petitioner’s motion.
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`Dated: May 27, 2022
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`Respectfully Submitted,
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`RAKOCZY MOLINO MAZZOCHI SIWIK
`LLP
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`/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
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`Counsel for Petitioner
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`6
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the
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`foregoing Petitioner’s Motion to Seal was served on May 27, 2022, via electronic
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`mail by agreement of the parties, to the following counsel for record of Patent
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`Owners:
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`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
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`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
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`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
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`Dated: May 27, 2022
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`Respectfully Submitted,
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`RAKOCZY MOLINO MAZZOCHI
`SIWIK LLP
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` /Paul J. Molino/
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