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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`UNIFIED PATENTS, LLC
`Petitioner
`
`v.
`
`MEMORY WEB, LLC
`Patent Owner
`
`
`
`Case no. IPR2021-01413
`Patent 10,621,228
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`
`
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`PETITIONER’S UNOPPOSED MOTION TO SEAL PATENT OWNER’S
`SUR-REPLY (PAPER 35)
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`
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`IPR2021-01413, U.S. 10,621,228
`Petitioner’s Unopposed Motion to Seal
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`Petitioner Unified Patents, LLC (“Petitioner”) files this Motion to Seal the
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`Patent Owner’s Sur-Reply (Paper 35) (“Sur-Reply”) filed October 11, 2022.
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`Concurrent with this Motion, Petitioner submits a redacted copy of the Sur-Reply as
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`Exhibit 1039. Petitioner requests that the redacted portions of the Sur-Reply be
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`sealed under 37 C.F.R. § 42.54. Good cause exists because these portions contain
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`sensitive, non-public information.
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`The redacted portions of the Sur-Reply discuss confidential materials and
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`information contained in Exhibits 1023, 1024, 1025, 2028, 2033, 2036, and the
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`Patent Owner’s Response (Paper 23) (POR). Petitioner previously filed a motion for
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`entry of a Protective Order in this proceeding and to seal Exhibits 1023-1025 and
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`1029. Paper 10. Petitioner also filed a second Motion to Seal regarding confidential
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`information in the POR and Exhibits 2028, 2030, 2032, 2033, 2034, and 2036. Paper
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`24. The Board granted Petitioner’s first and second Motions to Seal. Paper 26.
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`Petitioner has also filed Motions to Seal regarding confidential information in
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`the Patent Owner’s Preliminary Sur-Reply (Paper 13) and Petitioner’s Reply (Paper
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`29). See Papers 27, 31. The Board has yet to rule on these Motions.
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`Patent Owner did not oppose entry of the Protective Order or any of the
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`Motions to Seal. Counsel for Patent Owner has executed the Protective Order.
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`
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`Petitioner certifies that it has conferred with Patent Owner through counsel,
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`and Patent Owner does not oppose this Motion to Seal.
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`1
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`
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`IPR2021-01413, U.S. 10,621,228
`Petitioner’s Unopposed Motion to Seal
`
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`I. MOTION TO SEAL
`In an inter partes review, it is the default rule that all filings are publicly
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`available. 35 U.S.C. § 326(a)(1) and 37 C.F.R. § 42.14. Where a paper contains
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`confidential information, a petitioner may file “a motion to seal with a proposed
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`protective order as to the confidential information.” 37 C.F.R. § 42.55; see also 35
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`U.S.C. § 326(a)(1). A motion to seal and to enter a protective order will only be
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`granted if the movant demonstrates a showing of “good cause.” 37 C.F.R.
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`§ 42.54(a). The Board has established a four-pronged test that must be met for a
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`motion to seal to be granted:
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`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.
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`Argentum Pharm. LLC v. Alcon Research, Ltd., IPR2017-01053, Paper 27 at 4
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`(PTAB Jan. 19, 2018) (informative) (citing to inter alia 37 C.F.R. § 42.54(a)). This
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`Motion to Seal satisfies the four-pronged test in Argentum.
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`First, the redacted portions of the Sur-Reply contain non-public, highly
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`confidential proprietary business information (“Information”)—information about
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`Unified’s members and information regarding Unified’s business operations—that
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`2
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`
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`IPR2021-01413, U.S. 10,621,228
`Petitioner’s Unopposed Motion to Seal
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`Petitioner maintains as confidential trade secrets and that is found in Exhibits 1023,
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`1024, 1025, 2028, 2033, 2036, and the POR, which the Board previously found
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`properly sealed. Paper 26. This Information includes confidential, sensitive
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`commercial information, including closely held information related to Unified’s core
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`business. Unified guards such information closely to protect its members as well as
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`its own business from copying by others. Unified has not made, and does not intend
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`to make, this information publicly available and such information is subject to
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`confidentiality obligations to third parties not involved in this proceeding.
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`
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`Second, several potential harms would occur if this Information were to be
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`disclosed. For example, disclosure of this Information to the public would expose
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`Unified’s business model and confidential business activities. Additionally, Unified
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`has a contractual obligation with third parties not involved in this proceeding to
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`maintain the confidentiality of the Information. Without an assurance that the
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`Information will be protected, Unified’s members wishing to remain confidential
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`may be adversely affected. Disclosure of this Information to the public will not only
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`harm Unified, as discussed above, but would also harm third parties not involved in
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`this proceeding. Further, the public interest will not be harmed by sealing of the
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`confidential business Information.
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`
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`Third, Patent Owner asserts that certain entities are real parties-in-interest to
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`this proceeding. See Paper 23, 1, 14-26; Paper 35, 23-27. The Sur-Reply relies on
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`3
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`
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`IPR2021-01413, U.S. 10,621,228
`Petitioner’s Unopposed Motion to Seal
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`confidential information in Exhibits 1023, 1024, 1025, 2028, 2033, 2036, and the
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`POR, which the Board previously found should be sealed. Id.; Paper 26. This
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`confidential information is relevant to this dispute.
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`
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`Fourth, on balance, the interest in maintaining confidentiality outweighs the
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`public interest in having an entirely open record and the redacted portions of the
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`Reply should be sealed. Petitioner respectfully requests that the Board grant this
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`motion to seal.
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`II. GOOD CAUSE EXISTS FOR SEALING THE SUR-REPLY
`In deciding whether to seal documents, the Board must find “good cause,” and
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`must “strike 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.” Garmin v. Cuozzo, IPR2012-00001, Paper 36 (April 5, 2013).
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`The redacted portions of the Sur-Reply rely on and discuss confidential
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`aspects of Exhibits 1023, 1024, 1025, 2028, 2033, 2036, and the POR, which the
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`Board previously found should be sealed. Paper 26. The redacted version of the Sur-
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`Reply is being filed concurrently as Exhibit 1039.
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`Here, the balance overwhelmingly favors protecting Unified’s highly
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`confidential Information. The Information Unified seeks to protect has nothing to do
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`with patentability, the scope of U.S. Patent No. 10,621,228 (the “’228 patent”), or
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`any matter generally impacting the public interest in evaluating the ’228 patent.
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`4
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`
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`IPR2021-01413, U.S. 10,621,228
`Petitioner’s Unopposed Motion to Seal
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`Rather, the limited material sought to be protected involve Unified’s status as the
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`real party-in-interest. The material relates to certain business dealings between
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`Unified and non-parties to this proceeding. That material is not known to the public.
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`The public interest is well-served in keeping the Information included within
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`the redacted portions of the Sur-Reply confidential. This Information was provided
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`with the expectation that it would remain confidential. The Board should seal this
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`Information so that information can be exchanged in trial proceedings without the
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`fear of incidental public exposure of confidential business information.
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`The redacted portions of the Sur-Reply relate to Unified’s core business and
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`the business dealings between Unified and at least some of its members. The
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`redacted portions of the Sur-Reply contain highly confidential and extremely
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`sensitive commercial information related to Unified’s core business. Unified guards
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`such information closely as core business and contractual information, to protect its
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`members as well as its own business. Unified has not made, and does not intend to
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`make, this information publicly available. Patent Owner has not contested the
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`sensitivity of this information or the fact that it is core to Unified’s business, and
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`filed the Sur-Reply as available to the Parties and Board only.
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`Unified’s business strategies and dealings with its members constitute highly
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`confidential business information, as well as trade secrets. The redacted portions of
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`the Sur-Reply contain information about how Unified runs its business and its
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`5
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`
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`IPR2021-01413, U.S. 10,621,228
`Petitioner’s Unopposed Motion to Seal
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`contractual relationship with its members. Several potential harms would occur if
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`this highly confidential business information were to be disclosed. For example,
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`disclosure of this information to the public would provide Unified’s competitors and
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`would-be business rivals with a roadmap of how to replicate Unified’s unique,
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`valuable business model. It would reveal contractual business information between
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`two parties produced voluntarily under a joint protective order. Thus, the public
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`interest will not be harmed by the sealing of the confidential business information.
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`III. NON-CONFIDENTIAL VERSIONS SUBMITTED
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`As required by the TPG, the Default Protective Order, and the agreed-upon
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`Protective Order, a non-confidential redacted version of the Sur-Reply has been filed
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`as Exhibit 1039. The redactions are minimal and limited in nature and scope to the
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`confidential data.
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`The undersigned counsel for Petitioner certifies the information sought to be
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`sealed by this Motion to Seal has not been published or otherwise made public.
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`IV. REQUEST FOR CONFERENCE CALL WITH THE BOARD
`Should the Board not be inclined to grant the present Motion to Seal, the
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`Parties hereby request a conference call with the Board to discuss any concerns prior
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`to the Board issuing a decision on the Motion.
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`V. CONCLUSION
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`6
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`
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`IPR2021-01413, U.S. 10,621,228
`Petitioner’s Unopposed Motion to Seal
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`For the foregoing reasons, Petitioner respectfully requests that the Board seal
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`and protect Petitioner’s confidential information in the unredacted version of the
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`Sur-Reply. Petitioner further requests that the Board seal and protect the confidential
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`information in this document until such time as it receives and rules on this Motion.
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`
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`Dated: October 13, 2022
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`
`
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`Respectfully submitted,
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`/Ellyar Y. Barazesh/
`Ellyar Y. Barazesh
`Reg. No. 74,096
`
`COUNSEL FOR PETITIONER
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`
`
`7
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`
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`IPR2021-01413, U.S. 10,621,228
`Petitioner’s Unopposed Motion to Seal
`
`CERTIFICATION OF SERVICE
`The undersigned hereby certifies that copies of the foregoing UNOPPOSED
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`MOTION TO SEAL and EXHIBIT 1039 were served on October 13, 2022, via
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`electronic mail, as agreed to by counsel, upon the following counsel for Patent
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`Owner:
`
`Jennifer Hayes
`Nixon Peabody LLP
`300 South Grand Avenue, Suite 4100
`Los Angeles, CA 90071-3151
`jenhayes@nixonpeabody.com
`
`George Dandalides
`Nixon Peabody LLP
`70 West Madison, Suite 5200
`Chicago, IL 60602-4224
`gdandalides@nixonpeabody.com
`
`Matthew A. Werber
`Nixon Peabody LLP
`70 West Madison, Suite 5200
`Chicago, IL 60602-4224
`mwerber@nixonpeabody.com
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`Dated: October 13, 2022
`
`/Ashley Cheung/
`Ashley Cheung
`Paralegal
`Unified Patents, LLC
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