`571-272-7822
`
`
`
`
`
`
`Paper 53
`Entered: February 1, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GOOGLE LLC,
`Petitioner,
`
`v.
`
`NEONODE SMARTPHONE LLC,
`Patent Owner.
`
`IPR2021-01041
`Patent 8,095,879 B2
`
`
`
`
`
`
`
`
`
`Before KARA L. SZPONDOWSKI, CHRISTOPHER L. OGDEN, and
`SCOTT B. HOWARD, Administrative Patent Judges.
`
`OGDEN, Administrative Patent Judge.
`
`ORDER
`Maintaining Sealed Documents Pending Appeal
`37 C.F.R. § 42.56
`
`
`
`IPR2021-01041
`Patent 8,095,879 B2
`
`
`Patent Owner Neonode Smartphone LLC (“Neonode”) sent an email
`on January 26, 2023 requesting an order similar to that in related proceeding
`Samsung Electronics Co. v. Neonode Smartphone LLC, IPR2021-00144,
`Paper 60 (PTAB Jan. 19, 2023), which preserves the record pending any
`appeal.1 Ex. 3001. Neonode indicates that Petitioner Google LLC does not
`oppose this request. Id.
`The Board also entered an order in related case Samsung Electronics
`Co. v. Neonode Smartphone LLC, IPR2021-00145, Paper 75 (PTAB Sept.
`23, 2022), which involved similar documents. For the reasons provided in
`that order, the sealed documents in this case should likewise be preserved
`pending any appeal. See id. Although the Final Written Decision in this
`proceeding does not cite the information under seal, these documents may be
`relevant to any appeal, and it would be inappropriate for the Board to
`expunge the documents at this time.
`Thus, we hereby extend the time period for filing a motion to expunge
`to 45 days after the conclusion of any appeal or remand proceedings, or—
`should no appeal be filed from the Final Written Decision in this case—45
`days after the deadline for filing a notice of appeal. In the meantime, the
`
`
` 1
`
` Ordinarily, “[c]onfidential information that is subject to a protective order
`would . . . become public 45 days after denial of a petition to institute a trial
`or 45 days after final judgment in a trial,” particularly “where the existence
`of the information is . . . identified in a final written decision.” PTAB
`Consolidated Trial Practice Guide 21–22 (Nov. 2019), https://go.usa.gov/
`xpvPF. But a party may file a motion to expunge the confidential
`information under 37 C.F.R. § 42.56. Id. at 22. This rule “balances the needs
`of the parties to submit confidential information with the public interest in
`maintaining a complete and understandable file history for public notice
`purposes.” Id.
`
`
`
`2
`
`
`
`IPR2021-01041
`Patent 8,095,879 B2
`
`record for this proceeding will be preserved in its entirety, and the
`confidential information will remain under seal.
`
`Accordingly, it is
`ORDERED that either party may file a motion to expunge any
`material in the record no later than (1) 45 days after the final disposition of
`any appeal or remand proceedings from any such appeal, or (2) 45 days after
`the deadline for filing a notice of appeal, whichever is later; and
`FURTHER ORDERED that all information subject to the Protective
`Order in this proceeding (Paper 51; Ex. 2059) will remain under seal until
`further notice.
`
`
`
`
`
`3
`
`
`
`IPR2021-01041
`Patent 8,095,879 B2
`
`For PETITIONER:
`Erika Arner
`Kevin Rodkey
`Yi Yu
`Wei Yuan
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`erika.arner@finnegan.com
`kevin.rodkey@finnegan.com
`yi.yu@finnegan.com
`wei.yuan@finnegan.com
`
`
`For PATENT OWNER:
`Parham Hendifar
`Kenneth Weatherwax
`Nathan Lowenstein
`LOWENSTEIN & WEATHERWAX LLP
`hendifar@lowensteinweatherwax.com
`weatherwax@lowensteinweatherwax.com
`lowenstein@lowensteinweatherwax.com
`
`Philip Graves
`GRAVES & SHAW LLP
`pgraves@gravesshaw.com
`
`
`
`
`
`
`4
`
`
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