UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_________________________
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________________
`
` THE DATA COMPANY TECHNOLOGIES INC.,
`
`Petitioner
`
`v.
`
`BRIGHT DATA LTD.,
`
`Patent Owner
`
`_________________________
`
`Case IPR2022-00135
`
`Patent No. 10,257,319
`
`_________________________
`
`PATENT OWNER’S PROVISIONAL MOTION TO SEAL
`
`
`
`
`
`
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`_________________________
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________________
`
` THE DATA COMPANY TECHNOLOGIES INC.,
`
`Petitioner
`
`v.
`
`BRIGHT DATA LTD.,
`
`Patent Owner
`
`_________________________
`
`Case IPR2022-00135
`
`Patent No. 10,257,319
`
`_________________________
`
`PATENT OWNER’S PROVISIONAL MOTION TO SEAL
`
`
`
`
`
`
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`IPR2022-00135 of Patent No. 10,257,319
`
`TABLE OF CONTENTS
`
`I. RELIEF REQUESTED .................................................................................. 1
`
`II. LEGAL STANDARD ..................................................................................... 2
`
`III. SEALING OF EXHIBIT 2051 ....................................................................... 3
`
`A. EXHIBIT 2051 (EMAIL REGARDING THE SOURCE CODE
`APPENDIX TO THE EXPERT DECLARATION) ................................. 3
`
`IV. PROVISIONAL SEALING OF PETITIONER’S REPLY AND ANY OF
`PETITIONER’S REPLY EXHIBITS MARKED UNDER THE JOINT
`PROTECTIVE ORDER ................................................................................. 5
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`IPR2022-00135 of Patent No. 10,257,319
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`PATENT OWNER’S LIST OF EXHIBITS
`
`
`EX. 2001 Declaration of Dr. V. Thomas Rhyne
`
`EX. 2002 U.S. Patent No. 10,469,614
`
`EX. 2003 U.S. Patent No. 10,491,712
`
`EX. 2004 U.S. Patent No. 10,491,713
`
`EX. 2005 U.S. Patent No. 11,050,852
`
`EX. 2006 U.S. Patent No. 8,972,602 (“Mithyantha”)
`
`EX. 2007 Order (Dkt. 303) in the case of Bright Data Ltd. f/k/a Luminati
`Networks Ltd. v. Teso LT, UAB a/k/a UAB Teso LT, et al., Case No.
`2:19-cv-00395 (E.D. Tex. Feb. 12, 2021)
`
`Patent Owner’s Sur-Reply (Dkt. 47) in the case of Bright Data Ltd.
`f/k/a Luminati Networks Ltd. v. Teso LT, UAB a/k/a UAB Teso LT,
`et al., Case No. 2:19-cv-00395 (E.D. Tex. May 5, 2020)
`
`Patent Owner’s Reply (Dkt. 145) in the case of Bright Data Ltd.
`f/k/a Luminati Networks Ltd. v. Teso LT, UAB a/k/a UAB Teso LT,
`et al., Case No. 2:19-cv-00395 (E.D. Tex. Oct. 20, 2020)
`
`EX. 2010 Deposition Transcript of Dave Levin, dated July 22, 2022
`
`EX. 2011 U.S. Patent No. 8,560,604
`
`EX. 2012 U.S. Patent No. 10,069,936
`
`Claim Construction Order (Dkt. 146) in the case of Bright Data
`Ltd. v. NetNut Ltd., Case No. 2:21-cv-00225 (E.D. Tex. May 10,
`2022)
`
`
`EX. 2008
`
`EX. 2009
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`EX. 2013
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`
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`ii
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`IPR2022-00135 of Patent No. 10,257,319
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`EX. 2014
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`EX. 2018
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`EX. 2019
`
`Bright Data, “Residential Proxy Network”, accessed at
`https://brightdata.com/proxy-types/residential-proxies on July 29,
`2022
`
`EX. 2015 Definition “Consumer”, Cambridge English Dictionary; accessed at
`https://dictionary.cambridge.org/us/dictionary/english/consumer on
`June 10, 2022
`
`EX. 2016 Definition “Consumer”, Collins English Dictionary; accessed at
`https://www.collinsdictionary.com/us/dictionary/english/consumer
`on June 10, 2022
`
`EX. 2017 Network Fundamentals Study Guide, published February 17, 2015;
`accessed at https://www.webopedia.com/reference/network-
`fundamentals-studyguide/#topologies on June 14, 2022
`
`Bright Data, Network Diagram – HIGHLY CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY
`
`EMK Capital, “EMK acquires Luminati”, published August 10,
`2017; accessed at https://www.emkcapital.com/emk-acquires-
`luminati-worlds-largest-ip-proxy-network-brings-transparency-
`internet/ on July 29, 2022
`
`EX. 2020 Appendix to Declaration of Dr. Tim A. Williams - HIGHLY
`CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY –
`SOURCE CODE
`
`Source Code File 1 of 4 - HIGHLY CONFIDENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY – SOURCE CODE
`
`Source Code File 2 of 4 - HIGHLY CONFIDENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY – SOURCE CODE
`
`Source Code File 3 of 4 - HIGHLY CONFIDENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY – SOURCE CODE
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`Source Code File 4 of 4 - HIGHLY CONFIDENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY – SOURCE CODE
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`EX. 2021
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`EX. 2022
`
`EX. 2023
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`EX. 2024
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`iii
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`IPR2022-00135 of Patent No. 10,257,319
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`EX. 2025
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`EX. 2026
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`EX. 2027
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`EX. 2028
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`EX. 2029
`
`
`Frost & Sullivan Report, “Global IP Proxy Networks Market,”
`published July 2019
`
`Excerpts from Trial Transcript, Day 1 in the case of Bright Data
`Ltd. f/k/a Luminati Networks Ltd. v. Teso LT, UAB a/k/a UAB Teso
`LT, et al., Case No. 2:19-cv-00395 (E.D. Tex. Nov. 1, 2021)
`
`Excerpts from Trial Transcript, Day 3 in the case of Bright Data
`Ltd. f/k/a Luminati Networks Ltd. v. Teso LT, UAB a/k/a UAB Teso
`LT, et al., Case No. 2:19-cv-00395 (E.D. Tex. Nov. 3, 2021)
`
`Jury Verdict (Dkt. 516) in the case of Bright Data Ltd. f/k/a
`Luminati Networks Ltd. v. Teso LT, UAB a/k/a UAB Teso LT, et al.,
`Case No. 2:19-cv-00395 (E.D. Tex. Nov. 5, 2021)
`
`Bright Data, “Proxy Services”, accessed at
`https://brightdata.com/proxy-types on July 29, 2022
`
`EX. 2030 Oxylabs, “Legal Timeline Between Oxylabs and Luminati (now
`Bright Data)”, accessed at https://oxylabs.io/legal-timeline on
`August 4, 2022
`
`Earthweb, “16 Best Residential Proxies to Buy in 2022”, last
`updated May 19, 2022; accessed at
`https://earthweb.com/residential-proxies/ on May 19, 2022
`
`SmartProxy, “What is the difference between residential and
`datacenter proxies?”, published June 3, 2021; accessed at
`https://smartproxy.com/blog/what-is-the-difference-between-
`proxy-servers-and-data-centers on May 19, 2022
`
`EX. 2033 Microleaves, “Backconnect Residential Proxies”, accessed at
`https://web.archive.org/web/20170913105635/https://microleaves.c
`om/services/backconnect-proxies?promotion=dNPa on May 20,
`2022
`
`
`EX. 2031
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`EX. 2032
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`iv
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`IPR2022-00135 of Patent No. 10,257,319
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`EX. 2036
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`EX. 2037
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`EX. 2038
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`EX. 2035
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`EX. 2034 Oxylabs, “Residential Proxies,” accessed at
`https://web.archive.org/web/20200701171337/https://oxylabs.io/pr
`oducts/residential-proxy-pool on May 20, 2022
`
`Bright Data, “When should I use the residential network?”,
`accessed at https://help.brightdata.com/hc/en-
`us/articles/4413156951825-When-should-I-use-the-residential-
`network- on August 2, 2022
`
`Bright Data, “Cost effectiveness of residential IPs”, accessed at
`https://help.brightdata.com/hc/en-us/articles/4413161607441-Cost-
`effectiveness-of-residential-IPs on August 2, 2022
`
`Bright Data, “Using the system”, accessed at
`https://help.brightdata.com/hc/en-us/articles/4413167165969-
`Using-the-system on August 2, 2022
`
`Bright Data, “Which ports and protocols are supported by Bright
`Data?”, accessed at https://help.brightdata.com/hc/en-
`us/articles/4413222000017-Which-ports-and-protocols-are-
`supported-by-Bright-Data- on August 2, 2022
`
`Bright Data, “How do I integrate Bright Data as my proxy
`network?”, accessed at https://help.brightdata.com/hc/en-
`us/articles/4413213552273-How-do-I-integrate-Bright-Data-as-my-
`proxy-network- on August 2, 2022
`
`Bright Data, “How do I integrate Bright Data into a web browser
`automation tool?”, accessed at https://help.brightdata.com/hc/en-
`us/articles/4413213588369-How-do-I-integrate-Bright-Data-into-a-
`web-browser-automation-tool- on August 2, 2022
`
`Bright Data, “What is Bright Data Proxy Browser Extension?”,
`accessed at https://help.brightdata.com/hc/en-
`us/articles/4413213983633-What-is-Bright-Data-Proxy-Browser-
`Extension- on August 2, 2022
`
`
`EX. 2039
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`EX. 2040
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`EX. 2041
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`v
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`IPR2022-00135 of Patent No. 10,257,319
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`EX. 2043
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`EX. 2045
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`EX. 2046
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`EX. 2047
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`EX. 2048
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`EX. 2042 Wikipedia, “Domain Name System”, accessed at
`https://en.wikipedia.org/wiki/Domain_Name_System on August 2,
`2022
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`Bright Data, “Using BrightData in Android settings”, accessed at
`https://help.brightdata.com/hc/en-us/articles/4413168253969-
`Using-BrightData-in-Android-settings on August 2, 2022
`
`EX. 2044 Declaration of Dr. Tim A. Williams - HIGHLY CONFIDENTIAL
`– OUTSIDE ATTORNEYS’ EYES ONLY
`
`Excerpts from Tanenbaum, A., et al., “Computer Networks – Fifth
`Edition”, copyright 2011, ISBN 0-13-212695-8
`
`Joint Protective Order
`
`Redlined version of the Joint Protective Order (compared to
`Default Protective Order)
`
`Executed Acknowledgements from Dr. Tim A. Williams, by lead
`counsel for Patent Owner, and by first back-up counsel for Patent
`Owner
`
`
`EX. 2049 Nimble, “Nimble, Your Effortless Web Data Gathering Solution”,
`accessed at https://www.nimbleway.com/ on August 5, 2022
`
`EX. 2050 Nimble, “Privacy Policy”, accessed at
`https://www.nimbleway.com/privacy-policy/ on August 5, 2022
`
`Email between the parties regarding the source code appendix to
`the expert declaration – HIGHLY CONFIDENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY – SOURCE CODE
`
`
`EX. 2051
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`vi
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`I.
`
`RELIEF REQUESTED
`
`IPR2022-00135 of Patent No. 10,257,319
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`Patent Owner previously filed a Motion (Paper 18) to seal EXS. 2018, 2020,
`
`2021-2024, and 2044, as well as the Patent Owner Response (Paper 16), and to
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`enter the Joint Protective Order (EX. 2046). Petitioner did not oppose that Motion.
`
`Pursuant to 37 C.F.R. § 42.54, with this Motion, Patent Owner respectfully
`
`requests the following:
`
`First, Patent Owner respectfully requests that the Board grant this Motion to
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`Seal Exhibit 2051, which contains highly confidential material as designated on the
`
`exhibit.
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`Second, to the extent that Petitioner’s Reply is marked under the Joint
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`Protective Order and references any highly confidential material in EXS. 2018,
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`2020-2024, 2044, 2051, and/or the Patent Owner Response (Paper 16), Patent
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`Owner respectfully requests that the Board grant this Provisional Motion to Seal
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`Petitioner’s Reply. 1
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`Third, to the extent that any of Petitioner’s exhibits submitted with
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`Petitioner’s Reply are marked under the Joint Protective Order and reference any
`
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`1 Petitioner’s Reply was filed on November 16, 2022. Patent Owner respectfully
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`submits that consideration of this Provisional Motion is in the interests of justice.
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`See also 37 C.F.R. § 42.5(c)(3).
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`
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`1
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`IPR2022-00135 of Patent No. 10,257,319
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`highly confidential material in EXS. 2018, 2020-2024, 2044, 2051, and/or the
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`Patent Owner Response (Paper 16), Patent Owner respectfully requests that the
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`Board grant this Provisional Motion to Seal those exhibits.2
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`Petitioner does not oppose this Motion.
`
`
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`II. LEGAL STANDARD
`
`The Board may, for good cause, issue an order to protect a party or person
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`from disclosing confidential information, including, but not limited to, “[r]equiring
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`that a trade secret or other confidential research, development, or commercial
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`information not be revealed or be revealed only in a specified way.” 37 C.F.R. §
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`42.54(a)(7).
`
`A party may file a motion to seal where the motion to seal contains a
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`proposed protective order and a certification that the moving party has in good
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`faith conferred or attempted to confer with other affected parties. 37 C.F.R. §
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`42.54(a). Generally, “a movant to seal must demonstrate adequately that (1) the
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`information sought to be sealed is truly confidential, (2) a concrete harm would
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`result upon public disclosure, (3) there exists a genuine need to rely in the trial on
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`the specific information sought to be sealed, and (4), on balance, an interest in
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`maintaining confidentiality outweighs the strong public interest in having an open
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`2 See supra, note 1.
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`2
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`IPR2022-00135 of Patent No. 10,257,319
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`record.” Corning Optical Commc’ns RF, LLC v. PPC Broadband, Inc., Case
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`IPR2014-00736, Paper 38, at 2-3 (PTAB Apr. 14, 2015).
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`III. SEALING OF EXHIBIT 2051
`
`A. EXHIBIT 2051 (EMAIL REGARDING THE SOURCE CODE
`APPENDIX TO THE EXPERT DECLARATION)
`
`Confidentiality: Exhibit 2051 is an email making two corrections to
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`particular source code citations and explanations in Exhibit 2020. These
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`corrections were identified by Dr. Williams while preparing for his deposition and
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`promptly communicated to Petitioner’s counsel on November 2, 2022.
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`As discussed in the previous Motion, Exhibit 2020 is an appendix to the
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`expert declaration aligning claims of the challenged patent with particular source
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`code citations and explanations. See, e.g., Paper 18 at 4-5. Patent Owner’s source
`
`code has not been publicly disclosed and Patent Owner has taken steps to guard
`
`against its disclosure in, for example, pending district court litigations. E.g., Bright
`
`Data Ltd. v. Teso LT, UAB, et al., No. 2:19-cv-395 (E.D. Tex.)(“Teso Litigation”),
`
`Bright Data Ltd. v. Code200, UAB, et al., No. 2:19-cv-396 (E.D. Tex.)(“Code200
`
`Litigation”), Bright Data Ltd. v. Tefincom SA, No. 2:19-cv-414 (E.D.
`
`Tex.)(“Tefincom Litigation”).
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`
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`3
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`IPR2022-00135 of Patent No. 10,257,319
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`Like Exhibit 2020, Exhibit 2051 is designated as “HIGHLY
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`CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” and further
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`designated as “SOURCE CODE” subject to the restrictions on printing, transport,
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`and transmission in the Joint Protective Order (EX. 2046).
`
`Consequences of disclosure: Patent Owner would be significantly harmed by
`
`disclosure of Exhibit 2051 insofar as its competitors would be able to access
`
`sensitive technical details regarding Patent Owner’s source code.
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`Importance: Exhibit 2051 is referenced in the deposition transcript and
`
`Exhibit 2020 is referenced in the expert declaration (EX. 2044) and the Patent
`
`Owner Response (Paper 16). Patent Owner relies on Exhibit 2020 as an appendix
`
`to the expert declaration, to provide explanation of Patent Owner’s source code
`
`(EXS. 2021-2024) and to establish nexus as it relates, in particular, to secondary
`
`considerations of non-obviousness.
`
`Balance of interests: To serve the Public’s interest, Patent Owner has
`
`concurrently filed a redacted, public version of Exhibit 2051. The public version
`
`redacts information that refers to or incorporates highly sensitive material from
`
`Exhibits 2020-2024. Petitioner does not oppose the redactions. The harm to Patent
`
`Owner, if Exhibit 2051 were disclosed in its entirety, and Patent Owner’s need to
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`rely on Exhibits 2020 and 2051, favors sealing Exhibit 2051.
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`Accordingly, good cause exists to seal Exhibit 2051.
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`4
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`IPR2022-00135 of Patent No. 10,257,319
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`IV. PROVISIONAL SEALING OF PETITIONER’S REPLY AND ANY
`OF PETITIONER’S REPLY EXHIBITS MARKED UNDER THE
`JOINT PROTECTIVE ORDER
`
`To the extent that Petitioner’s Reply, or any of Petitioner’s reply exhibits,
`
`are marked under the Joint Protective Order and reference highly confidential
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`material in EXS. 2018, 2020-2024, 2044, 2051, and/or the Patent Owner Response
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`(Paper 16), Patent Owner respectfully requests that those papers and exhibits be
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`provisionally sealed to preserve the confidentiality under the producing party
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`designations pending a November 17, 2022 meet and confer on redactions.
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`Patent Owner certifies that it has in good faith conferred with Petitioner and
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`the parties have no disputes regarding the Joint Protective Order (EX. 2046), the
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`previous Motion (Paper 18), or this Provisional Motion.
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`To serve the Public’s interest, the parties have agreed to conduct a meet &
`
`confer on November 17, 2022 to discuss proposed redactions to Petitioner’s Reply
`
`and any of Petitioner’s reply exhibits marked under the Joint Protective Order.
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`Petitioner has agreed to promptly file redacted, public versions of Petitioner’s
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`Reply and any of Petitioner’s reply exhibits marked under the Joint Protective
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`Order. Patent Owner will promptly file an updated, non-provisional version of this
`
`Motion specifying the bases for sealing each paper/exhibit.
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`5
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`Date: November 17, 2022
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`IPR2022-00135 of Patent No. 10,257,319
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`Respectfully submitted,
`
`
`
`
`
`By: /s/ Thomas M. Dunham
`Thomas M. Dunham
`Reg. No. 39,965
`
`Cherian LLP
`1901 L Street NW, Suite 700
`Washington, D.C. 20036
`(202) 838-1567
`
`ATTORNEY FOR PATENT OWNER,
`BRIGHT DATA LTD.
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`6
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`IPR2022-00135 of Patent No. 10,257,319
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`CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITS
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`This Motion is within the 15 page-limit, in compliance with 37 C.F.R. §
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`42.24(a)(1)(v).
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`
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`Date: November 17, 2022
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`Respectfully submitted,
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`By: /s/ Thomas M. Dunham
`Thomas M. Dunham
`Reg. No. 39,965
`
`Cherian LLP
`1901 L Street NW, Suite 700
`Washington, D.C. 20036
`(202) 838-1567
`
`ATTORNEY FOR PATENT OWNER,
`BRIGHT DATA LTD.
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`7
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`IPR2022-00135 of Patent No. 10,257,319
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned hereby certifies that
`
`PATENT OWNER’S PROVISIONAL MOTION TO SEAL and all exhibits
`
`thereto were served on the undersigned date via email, as authorized by Petitioner,
`
`at the following email addresses:
`
`MRader-PTAB@wolfgreenfield.com
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`AWichman-PTAB@wolfgreenfield.com
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`GNieberg-PTAB@wolfgreenfield.com
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`Marie.McKiernan@wolfgreenfield.com
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`Date: November 17, 2022
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`Respectfully submitted,
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`By: /s/ Thomas M. Dunham
`Thomas M. Dunham
`Reg. No. 39,965
`
`Cherian LLP
`1901 L Street NW, Suite 700
`Washington, D.C. 20036
`(202) 838-1567
`
`ATTORNEY FOR PATENT OWNER,
`BRIGHT DATA LTD.
`
`8
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`
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