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. 9,240,009
`Filing Date: January 16, 2012
`Issue Date: January 19, 2016
`
`Inventors: Liang Seng Koh, Hsin Pan, and Xiangzhen Xie
`Title: MOBILE DEVICES FOR COMMERCE OVER UNSECURERD
`NETWORKS
`
`
`__________________________________________________________________
`
`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. IPR2021-00981
`__________________________________________________________________
`
`
`
`
`
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`
`
`SAMSUNG ELECTRONICS AMERICA, INC. and
`SAMSUNG ELECTRONICS CO., LTD.,
`
`Petitioner,
`
`v.
`
`RFCYBER CORP.,
`
`Patent Owner.
`
`
`Patent No. 9,240,009
`Filing Date: January 16, 2012
`Issue Date: January 19, 2016
`
`Inventors: Liang Seng Koh, Hsin Pan, and Xiangzhen Xie
`Title: MOBILE DEVICES FOR COMMERCE OVER UNSECURERD
`NETWORKS
`
`
`__________________________________________________________________
`
`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. IPR2021-00981
`__________________________________________________________________
`
`
`
`
`
`
`
`
`Patent Owner RFCyber Corp. hereby moves to file under seal Exhibit 2007,
`
`IPR2021-00981
`PATENT NO. 9,240,009
`
`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 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. Exhibit 2007
`
`contains detailed descriptions and excerpts from Patent Owner’s highly confidential
`
`
`
`
`technical specifications showing the internal trade secret design of Patent Owner’s
`
`IPR2021-00981
`PATENT NO. 9,240,009
`
`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
`
`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
`
`IPR2021-00981
`PATENT NO. 9,240,009
`
`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 Practice
`
`IPR2021-00981
`PATENT NO. 9,240,009
`
`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 21, 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
`
`IPR2021-00981
`PATENT NO. 9,240,009
`
`September 19, 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 2:00 p.m. on September 21, 2021.
`
`Petitioner has 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 21, 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
`
`IPR2021-00981
`PATENT NO. 9,240,009
`
`MOTION FOR PROTECTIVE ORDER PURSUANT TO 37 C.F.R. §§ 42.14 and
`
`42.54 (and Exhibits 2007, 2009-2010) have 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 Co., Ltd.
`
`
`September 21, 2021
`
`
`
`By:
`
`/Vincent J. Rubino, III /
`Vincent J. Rubino, III (Reg. No. 68,594)
`FABRICANT LLP
`
`
`
`1
`
`
`
`
`
`
`
`
`
`IPR2021-00981
`PATENT NO. 9,240,009
`
`411 Theodore Fremd Avenue
`Suite 206 South
`Rye, New York 10580
`Tel. 212-257-5797
`
`2
`
`
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