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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________________
`
`ROKU, INC. and VIZIO, INC.,
`Petitioners,
`
`v.
`
`ANCORA TECHNOLOGIES, INC.,
`Patent Owner.
`______________________
`
`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`______________________
`
`
`
`
`PETITIONERS’ UNOPPOSED MOTION
`UNDER 37 C.F.R. §§ 42.14 AND 42.54 TO SEAL
`EXHIBIT 1056 AND PORTIONS OF
`PETITIONER’S UPDATED EXHIBIT LIST
`
`
`
`
`
`Mail Stop “Patent Board”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`
`
`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`
`I.
`II.
`III.
`
`TABLE OF CONTENTS
`
`INTRODUCTION ........................................................................................... 1
`GOVERNING RULES AND PTAB GUIDANCE ......................................... 1
`IDENTIFICATION OF CONFIDENTIAL INFORMATION ....................... 2
`A.
`The Confidential Exhibit ....................................................................... 3
`B.
`Petitioner’s Updated Exhibit List .......................................................... 3
`IV. GOOD CAUSE EXISTS FOR SEALING THE CONFIDENTIAL
`INFORMATION. ............................................................................................ 4
`RELIEF REQUESTED ................................................................................... 4
`
`V.
`
`
`
`
`
`- i -
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`
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`
`I.
`
`INTRODUCTION
`Roku, Inc. and Vizio, Inc. (“Petitioners”) request that confidential exhibit
`
`1056 (“the Confidential Exhibit”), as well as portions of Petitioners’ Updated
`
`Exhibit List, be sealed under 37 C.F.R. §§ 42.14 and 42.54.
`
`All of the confidential material submitted in this proceeding belongs to
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`Patent Owner. Good cause to seal exists because Patent Owner has represented to
`
`Petitioners that certain information in the Confidential Exhibits is sensitive, non-
`
`public information. Petitioners therefore submit this Motion to Seal under the
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`jointly proposed Protective Order in this case (EX2038).
`
`Pursuant to 37 C.F.R. § 42.54(a), Petitioners’ counsel conferred in good
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`faith with Patent Owner’s counsel in an attempt to resolve any dispute about this
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`Motion. Patent Owner does not oppose this motion.
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`II. GOVERNING RULES AND PTAB GUIDANCE
`While under 35 U.S.C. § 316(a)(1), papers filed in an inter partes review are
`
`generally open and available for access by the public, a party may file a concurrent
`
`Motion to Seal to protect public disclosure of certain confidential information,
`
`which has the effect of sealing the information at issue pending resolution of the
`
`motion. In determining whether to grant a Motion to Seal, the Board must find
`
`“good cause,” 37 C.F.R. § 42.54(a), and “strike a balance between the public’s
`
`interest in maintaining a complete and understandable file history and the parties’
`
`- 1 -
`
`
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`interest in protecting truly sensitive information,” Consolidated Trial Practice
`
`Guide, November 2019 (“TPG”), 19. The Board identifies confidential information
`
`in a manner “consistent with Federal Rule of Civil Procedure 26(c)(1)(G), which
`
`provides for protective orders for … confidential research, development, or
`
`commercial information.” TPG, 19.
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`Based on the procedure set forth in the TPG, Petitioners seek to prevent the
`
`disclosure of sensitive information that Patent Owner has represented is contained
`
`in the confidential documents.
`
`III.
`
`IDENTIFICATION OF CONFIDENTIAL INFORMATION
`The Confidential Exhibit at issue here (EX1056) is a demonstrative
`
`containing certain patent license agreement information that Patent Owner
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`produced in this proceeding in view of Petitioners’ granted Motion for Additional
`
`Discovery (Paper 25), as well as deposition testimony discussing such agreements
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`(EX1034). The confidential information also includes portions of the Petitioner’s
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`Updated Exhibit List Reply, which characterizes those Confidential Exhibits.
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`Patent Owner has represented to Petitioners that the agreements are confidential
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`and thus have not been published or otherwise made public. In particular, pursuant
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`to the Board’s June 17, 2022 Order (Paper 29), Patent Owner designated the
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`agreements and deposition testimony as “THIRD-PARTY CONFIDENTIAL –
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`PARTY ACCESS LIMITED” under the Protective Order in this proceeding
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`
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`- 2 -
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`(EX2038). Under the terms of the Protective Order, documents so designated must
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`be filed under seal. EX2038, ¶4(A)(i).
`
`A. The Confidential Exhibit
`Petitioners are not in a position to dispute Patent Owner’s designation of its
`
`own Confidential Exhibits and confidential information. Nor are Petitioners in a
`
`position to identify the specific information within the Confidential Exhibits that is
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`confidential, as such information belongs solely to Patent Owner, and Patent
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`Owner has not specifically identified such information for Petitioners.
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`Accordingly, Petitioners will not attempt to redact the Confidential Exhibits—
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`rather, Petitioners file the Confidential Exhibits in their entirety, and are not filing
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`public versions of the Confidential Exhibits.
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`B.
`Petitioner’s Updated Exhibit List
`Petitioners have, to the best of their ability, limited material in the Updated
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`Exhibit List to non-confidential information. They have redacted confidential
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`information characterizing the Confidential Exhibits. Pursuant to guidance in the
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`TPG, Petitioners have filed both confidential and non-confidential versions of the
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`Reply.
`
`*
`
`*
`
`*
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`To the best of Petitioners’ knowledge, and based on Patent Owner’s
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`representation that the Confidential Exhibits and the information contained therein
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`
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`- 3 -
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`
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`are indeed confidential, the information sought to be sealed has not been published
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`or otherwise made public.
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`IV. GOOD CAUSE EXISTS FOR SEALING THE CONFIDENTIAL
`INFORMATION.
`By designating the Confidential Exhibits as confidential under the Protective
`
`Order, Patent Owner has represented that public disclosure of the agreements and
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`information contained therein would significantly harm Patent Owner and
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`potentially violate confidentiality provisions associated with those Confidential
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`Exhibits. The public interest will not be harmed by granting this Motion to Seal the
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`documents as “PROTECTIVE ORDER MATERIAL.” To the contrary, at least
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`according to Patent Owner’s representations about the Confidential Exhibits,
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`granting this Motion to Seal would achieve “a balance between the public’s
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`interest in maintaining a complete and understandable file history and the parties’
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`interest in protecting truly sensitive information.” 77 Fed. Reg. 48,755, 48,760
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`(Aug. 14, 2012). Therefore, good cause exists for granting this motion to seal.
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`V. RELIEF REQUESTED
`For the reasons stated above, Petitioners request that the Board seal and
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`protect the Confidential Exhibit and portions of the Petitioner’s Updated Exhibit
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`List.
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`- 4 -
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`
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Jon E. Wright/
`
`Jon E. Wright (Reg. No. 50,720)
`Attorney for Petitioners
`
`Date: September 29, 2022
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20008
`(202) 371-2600
`
`
`
`- 5 -
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`
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`Case IPR2021-01406
`U.S. Patent No. 6,411,941
`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that a true and correct copy of the
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`
`
`foregoing PETITIONERS’ UNOPPOSED MOTION UNDER 37 C.F.R. §§
`
`42.14 AND 42.54 TO SEAL EXHIBIT 1056 AND PORTIONS OF
`
`PETITIONER’S UPDATED EXHIBIT LIST was served electronically via e-
`
`mail on September 29, 2022, in its entirety on the following counsel of record for
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`Patent Owner:
`
`
`David A. Gosse (Lead Counsel)
`Nicholas T. Peters (Back-up Counsel)
`Karen J. Wang (Back-up Counsel)
`FITCH, EVEN, TABIN & FLANNERY LLP
`dgosse@fitcheven.com
`ntpete@fitcheven.com
`kwang@fitcheven.com
`ancora-ipr@fitcheven.com
`
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Jon E. Wright/
`
`Jon E. Wright (Reg. No. 50,720)
`Attorney for Petitioners
`
`Date: September 29, 2022
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20008
`(202) 371-2600
`
`
`
`
`
`
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