`PATENT NO. 9,189,787
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`
`
`SAMSUNG ELECTRONICS AMERICA, INC. and
`SAMSUNG ELECTRONICS CO., LTD,
`
`Petitioner,
`
`v.
`
`RFCYBER CORP.,
`
`Patent Owner.
`
`
`Patent No. 9,189,787
`Filing Date: May 28, 2013
`Issue Date: November 17, 2015
`
`Inventor: Liang Seng Koh, Futon Cho, Hsin Pan, and Fuliang Cho
`Title: METHOD AND APPARATUS FOR
`CONDUCTING E-COMMENCE AND M-COMMENCE
`
`
`__________________________________________________________________
`
`PATENT OWNER’S COMBINED MOTION TO SEAL AND MOTION FOR
`PROTECTIVE ORDER PURSUANT TO 37 C.F.R. §§ 42.14 and 42.54
`
`Case No. IPR2021-00980
`__________________________________________________________________
`
`
`
`
`
`Patent Owner RFCyber Corp. hereby moves to file under seal Exhibit 2007,
`
`IPR2021-00980
`PATENT NO. 9,189,787
`
`and to enter a Protective Order (attached as Exhibit 2009) that modifies the
`
`Board’s Default Protective Order to add an “Attorneys’ Eyes Only” provision.
`
`Patent Owner submits that good cause exists to seal Exhibit 2007 and to afford it
`
`Attorneys’ Eyes Only protection. Petitioner does not oppose this Motion to Seal
`
`and but takes no position on the motion for protective order with an Attorney’s
`
`Eyes Only provision.
`
`Exhibit 2007 is Patent Owner’s Supplemental Interrogatory Response to
`
`Petitioner’s Interrogatory No. 1 in the co-pending district court litigation. The
`
`Interrogatory Response sets forth in detail the events and documents surrounding
`
`Patent Owner’s conception of the claimed technology in December 2004, and
`
`Patent Owner’s diligent reduction to practice of that technology through July 2005.
`
`“[A] movant to seal must demonstrate adequately 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 Pharms. LLC v. Alcon Research, Ltd., IPR2017-01053, Paper No. 27 at
`
`4 (P.T.A.B. Jan. 19, 2018).
`
`
`
`
`The information sought to be sealed is truly confidential. The Exhibit
`
`IPR2021-00980
`PATENT NO. 9,189,787
`
`contains detailed descriptions and excerpts from Patent Owner’s highly
`
`confidential technical specifications showing the internal trade secret design of
`
`Patent Owner’s products. The Exhibit further contains descriptions of the contents
`
`of trade secret source code files, as well as detailed listings of source code file
`
`organization and file names. The file names themselves provide details of the
`
`underlying code structure. It is well-established that source code is among the
`
`most valuable and confidential assets of any company. “[D]istrict courts regularly
`
`provide for additional restrictions on discovery to account for the unique
`
`characteristics of source code.” Drone Techs., Inc. v. Parrot S.A., 838 F.3d 1283,
`
`1300 n.13 (Fed. Cir. 2016). See also id. (noting that source code “is often a
`
`company’s most sensitive and most valuable property”). Accordingly, the exhibit
`
`is truly confidential.
`
`Concrete harm would occur if the Exhibit were publicly disclosed. As
`
`discussed above, RFCyber’s code was used in products and is an asset of the
`
`company. Disclosure of the exhibit would provide a roadmap for a competitor to
`
`create their own version of RFCyber’s products, reducing the value of RFCyber’s
`
`assets and destroying a large portion of the company’s value.
`
`Patent Owner has a genuine need to rely on the information sought to be
`
`sealed. As discussed in Patent Owner’s Preliminary Response, the exhibit provides
`
`
`
`
`a high-level summary of the evidence supporting Patent Owner’s conception and
`
`IPR2021-00980
`PATENT NO. 9,189,787
`
`reduction to practice, which proves that the invention pre-dates Petitioner’s
`
`primary prior art reference. The evidence in the Exhibit will be critical to Patent
`
`Owner’s defense of its patent if trial is instituted.
`
`Finally, the interest in maintaining confidentiality outweighs the strong
`
`public interest in having an open record. Patent Owner does not seek to seal any
`
`portion of its Preliminary Response, only one exhibit on which it relies. The
`
`public will have access to nearly the entire record and will be able to fully
`
`understand the Board’s eventual decision. Accordingly, the interest in keeping the
`
`confidential material sealed outweighs the public interest in having access to that
`
`material.
`
`Good cause therefore exists to seal Exhibit 2007.
`
`The Board should also enter the proposed Protective Order (Exhibit 2009).
`
`The proposed Protective Order tracks the Board’s default protective order (as set
`
`forth in the Consolidated Trial Practice Guide at pp. 117-21), with the addition of a
`
`provision to designate highly confidential technical information as “Attorneys’
`
`Eyes Only.” A comparison of the proposed Protective Order to the default
`
`protective order is attached as Exhibit 2010. As noted above, District Courts often
`
`impose additional protections, such as “Attorneys’ Eyes Only” provisions, on
`
`
`
`
`source code related materials and other highly confidential information.1 The Trial
`
`IPR2021-00980
`PATENT NO. 9,189,787
`
`Practice Guide also notes that additional tiers of confidential information, such as
`
`“Attorneys’ Eyes Only,” may be provided. Trial Practice Guide at p. 115. The
`
`proposed protective order limits the Attorneys’ Eyes Only tier to information that
`
`describes trade secrets or the confidential structure, design, source code, or
`
`operation of products and systems. The Attorneys’ Eyes Only provision will not
`
`burden the parties, as counsel of record and experts will have access to the
`
`information, and there is no need for the parties’ in-house counsel to access the
`
`same.
`
`Good cause exists for sealing Exhibit 2007 and entering the proposed
`
`protective order. The Board should therefore grant RFCyber’s Motion to Seal and
`
`enter the Proposed Protective Order.
`
`
`
`Dated: September 16, 2021
`
`
`
`
`
`/Vincent J. Rubino, III /
`Vincent J. Rubino, III (Reg. No. 68,594)
`
`
`1 Patent Owner expects, if trial is instituted, that more restrictive measures, such as
`
`in-person inspection provisions, will be necessary to protect the actual source code
`
`itself.
`
`
`
`
`
`CERTIFICATE OF CONFERENCE
`I hereby certify that Patent Owner reached out to Petitioner via email on
`
`IPR2021-00980
`PATENT NO. 9,189,787
`
`September 15, 2021 advising that Patent Owner intended to file this motion to file
`
`excerpts from Patent Owner’s Interrogatory Responses under seal and to enter the
`
`proposed protective order and requesting that Petitioner advise if Petitioner
`
`consented to the motion by 2 p.m. on September 16, 2021. Patent Owner
`
`identified the exact pages of the Responses that would be included in the sealed
`
`exhibit, and provided a copy of the proposed protective order in response to
`
`Petitioner’s request on September 16, 2021 at 11:22 a.m.
`
`Petitioner responded that it does not oppose the Motion to Seal, but takes no
`
`position on the motion for protective order with an Attorney’s Eyes Only
`
`provision.
`
`Dated: September 16, 2021
`
`
`
`/Vincent J. Rubino, III /
`Vincent J. Rubino, III (Reg. No. 68,594)
`Lead Counsel for Patent Owner
`Fabricant LLP
`411 Theodore Fremd Avenue,
`Suite 206 South
`Rye, New York 10580
`Telephone: 212-257-5797
`Facsimile: 212-257-5796
`Email: vrubino@fabricantllp.com
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`A copy of PATENT OWNER’S COMBINED MOTION TO SEAL AND
`
`IPR2021-00980
`PATENT NO. 9,189,787
`
`MOTION FOR PROTECTIVE ORDER PURSUANT TO 37 C.F.R. §§ 42.14 and
`
`42.54 (and Exhibits 2009-2010) has been served on Petitioner’s counsel of record as
`
`follows:
`
`Heath J. Briggs
`Email: BriggsH@gtlaw.com
`Leaf Olson
`Email: OlsonL@gtlaw.com
`Greenberg Traurig, LLP
`1144 15th St. Suite 3300
`Denver, CO 80202
`
`Andrew R. Sommer
`Email: SommerA@gtlaw.com
`Greenberg Traurig, LLP
`1750 Tysons Boulevard
`McLean, VA 22102
`
`Jeffrey R. Colin
`Email: ColinJ@gtlaw.com
`Allan A. Kassenoff
`Email: KassenoffA@gtlaw.com
`Greenberg Traurig, LLP
`200 Park Avenue
`New York, NY 10166
`
`
`
`
`Attorneys for Samsung America, Inc. and
`Samsung Electronics Electronics Co., Ltd.
`
`
`September 16, 2021
`
`
`
`By:
`
`/Vincent J. Rubino, III /
`Vincent J. Rubino, III (Reg. No. 68,594)
`
`
`
`1
`
`
`
`
`
`
`
`
`
`IPR2021-00980
`PATENT NO. 9,189,787
`
`FABRICANT LLP
`411 Theodore Fremd Avenue
`Suite 206 South
`Rye, New York 10580
`Tel. 212-257-5797
`
`2
`
`