Filed on behalf of Petitioner by:
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`Michael N. Rader, Reg. No. 52,146
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`Adam R. Wichman, Reg. No. 43.988
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`Gregory S. Nieberg Reg. No. 57,063
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`WOLF, GREENFIELD & SACKS, P.C.
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`600 Atlantic Avenue
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`Boston, MA 02210
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`(617) 646-8000 Phone
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`(617) 646-8646 Fax
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`Paper No. __
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`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 No. IPR2022-00135
`Patent No. 10,257,319
`_____________
`
`PETITIONER’S PARTIAL OPPOSITION TO PATENT OWNER’S
`NOVEMBER 23, 2022 MOTION TO SEAL (PAPER 26)
`
`
`
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`
`
`Michael N. Rader, Reg. No. 52,146
`
`Adam R. Wichman, Reg. No. 43.988
`
`Gregory S. Nieberg Reg. No. 57,063
`
`WOLF, GREENFIELD & SACKS, P.C.
`
`600 Atlantic Avenue
`
`Boston, MA 02210
`
`(617) 646-8000 Phone
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`(617) 646-8646 Fax
`
`Paper No. __
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`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 No. IPR2022-00135
`Patent No. 10,257,319
`_____________
`
`PETITIONER’S PARTIAL OPPOSITION TO PATENT OWNER’S
`NOVEMBER 23, 2022 MOTION TO SEAL (PAPER 26)
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`TABLE OF CONTENTS
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`PROCEDURAL HISTORY .............................................................................. 1
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`I.
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`II. CONFIDENTIALITY STANDARD ................................................................ 3
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`III. THE REDACTED INFORMATION IS NOT SENSITIVE
`AND HAS PREVIOUSLY BEEN DISCLOSED ............................................. 4
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`A. Page 46, Lines 13-17 ................................................................................... 4
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`B. Page 62, Line 5 – Page 63, Line 14 ............................................................. 5
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`C. Page 77, Line 24 – Page 78, Line 25;
`Page 93, Line 5 – Page 95, Line 18; and
`Page 96, Line 9 – Page 97, Line 18 ............................................................. 6
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`IV. CONCLUSORY ALLEGATIONS OF HARM ARE INSUFFICIENT ........... 8
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`V. CONCLUSION .................................................................................................. 9
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`- i -
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`
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`CASES
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`TABLE OF AUTHORITIES
`
`Apple, Inc. v. Corephotonics Ltd.,
`IPR2020 00905, Paper 30 (June 21, 2021) .........................................................4, 6
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`Argentum Pharmaceuticals LLC v. Alcon Research, Ltd.,
`IPR2017-01053, Paper 27, 3 (Jan. 19, 2018) .....................................................1, 8
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`Netflix Inc. v. DivX, LLC,
`IPR2020-00052, Paper 33 (Apr. 30, 2020) ............................................................ 4
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`Western Digital Corp. v. Kuster,
`IPR2020-01391, Paper 28 (Aug. 19, 2021) ............................................................ 8
`
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`- ii -
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`
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`The portion of Patent Owner’s (“PO”) November 23, 2022 Motion to Seal
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`(Paper 26) that seeks redaction of its expert Dr. Williams’ deposition transcript
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`(Ex. 1081) should be denied because it fails to provide a showing of “good cause”
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`sufficient to override the strong public policy in favor of making all information in
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`an IPR open to the public. Argentum Pharms. v. Alcon Research, IPR2017-01053,
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`Paper 27, 3 (Jan. 19, 2018) (informative).
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`“Good cause” requires (1) a “sufficient explanation as to why” the
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`information sought to be sealed (or redacted) is, in fact, confidential, (2) a
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`demonstration that it is not “excessively redacted,” and (3) a showing that the
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`strong public interest in an open record is outweighed by “concrete harm” that a
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`party would suffer from disclosure. Id., 3-4.
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`As the Board explained in the Scheduling Order in this matter, “The Board
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`has a strong interest in the public availability of trial proceedings. Redactions to
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`documents filed in this proceeding should be limited to the minimum amount
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`necessary to protect confidential information.” Paper 13, 3.
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`I.
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`PROCEDURAL HISTORY
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`Concurrent with its Patent Owner Response (“POR”), PO filed a motion that
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`sought (1) entry of a stipulated protective order and (2) to seal Exhibits 2018 and
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`2021-2024 in their entirety, and to redact Exhibits 2020 and 2044 and the POR.
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`Paper 18.
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`- 1 -
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`Petitioner did not oppose the motion PO filed as Paper 18. The Board has
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`not yet acted on that motion.
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`At the deposition of PO’s expert Dr. Williams, PO’s counsel designated the
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`transcript (Ex. 1081) under the Protective Order. Ex. 1081, 100:5-9.
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`On November 16, 2022, Petitioner provisionally filed under seal Dr.
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`Williams’ deposition transcript (Ex. 1081) and Petitioner’s Reply (Paper 23),
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`which cited Ex. 1081. PO filed a provisional motion to seal. Paper 24.
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`Shortly thereafter, the parties met and conferred, and PO indicated that the
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`Reply could be filed publicly. The Board subsequently made the Reply (Paper 23)
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`available to the public.
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`Following the meet-and-confer, PO designated portions of Dr. Williams’
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`transcript for redaction, as shown in the redacted Exhibit 1081 filed by Petitioner
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`with PO’s authorization on November 18, 2022.
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`Finally, on November 23, 2022, PO filed a motion to seal a source-code
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`related exhibit (Ex. 2051) and the unredacted version of Exhibit 1081. Paper 26.
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`Petitioner does not oppose sealing Exhibit 2051, but does oppose the remainder of
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`the motion because the redactions to Exhibit 1081 are not appropriate.
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`- 2 -
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`
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`II. CONFIDENTIALITY STANDARD
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`PO argues that the redacted content in Ex. 1081 should be sealed because it
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`is “Highly Confidential – Outside Attorney’s Eyes Only” under the protective
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`order agreed-to by the parties (Ex. 2046). Compared to the Board’s default
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`protective order, at PO’s request that stipulated protective order adds new
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`confidentiality levels with more burdensome restrictions. The stipulated protective
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`order defines “Highly Confidential – Outside Attorney’s Eyes Only” material as
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`“Confidential material that is so sensitive that its dissemination requires even
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`further limitation, including but not limited to, for example, unpublished technical
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`information, trade secret information, financial information, or computer source
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`code[.]” Ex. 2046, ¶4.
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`PO’s arguments for sealing portions of Ex. 1081 fail even the
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`less-demanding test of confidentiality included in the Board’s default protective
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`order, let alone the heightened test for the “Highly Confidential – Outside
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`Attorneys Eyes Only” designation that PO’s motion seeks under the stipulated
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`protective order.
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`- 3 -
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`III. THE REDACTED INFORMATION IS NOT SENSITIVE
`AND HAS PREVIOUSLY BEEN DISCLOSED
`A.
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`Page 46, Lines 13-17
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`PO asserts that the above-referenced testimony describes “highly sensitive,
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`technical details of Bright Data’s source code files.” Paper 26, 6. But, in fact, it
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`merely identifies the programming language in which PO’s software is written. It
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`discloses nothing whatsoever about any allegedly confidential or trade secret
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`functionality of the software, and thus is not properly subject to redaction from
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`public view. Apple v. Corephotonics, IPR2020 00905, Paper 30, 6 (June 21, 2021)
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`(“Corephotonics”) (denying motion to seal email identifying software used by
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`patent owner: “Although the email string provides additional information, such as
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`the name of the commercially available simulation software used to generate the
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`black box model, Patent Owner has failed to explain why disclosing Patent
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`Owner’s use of that particular software outweighs the public interest in a more
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`complete and understandable record.”).
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`Further, it would be facially absurd to suggest that PO enjoys a competitive
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`advantage from its programming language being kept secret. Searching “most
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`common computer languages” in Google shows it is one of the most popular and
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`ubiquitous programming languages in use today. It is inappropriate to seal
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`information that “members of the public already can infer with reasonable
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`confidence.” Netflix v. DivX, IPR2020-00052, Paper 33, 7 (Apr. 30, 2020).
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`- 4 -
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`B.
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`Page 62, Line 5 – Page 63, Line 141
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`This testimony covers information PO has already publicly disclosed:2
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` Ex. 2020, 2 (“The Practicing Products comprise proxy client
`devices…which have, for example, downloaded Bright Data’s SDK, each
`of which has its own identifier such as a residential IP address. Through
`the execution of Bright Data’s software, including the SDK installed on
`the proxy client devices, these proxy client devices perform the claimed
`method steps of the ’510 Patent, including the sending of its identifier to
`Bright Data’s second server (e.g. Super Proxy)…”).
` Ex. 2020, 15 (“a proxy client device of Bright Data’s Practicing
`Products may periodically send a message that comprises a status of the
`client device in response to a request for the status of the client device.
`Further, the proxy client device and the second server of Bright Data’s
`Practicing Products periodically communicate, including by exchanging
`‘keep alive’ messages.”).
` Ex. 1081, 61:2-5 (“What we’ve been discussing is Bright Data’s system,
`which uses residential IP addresses for the client devices.”).
`
`
`1 A sentence fragment on Page 63, lines 7-8 is the only reference to content in any
`confidential document. Petitioner offered to redact it, but the meet-and-confer
`failed. The information in the fragment is not actually confidential, as shown here.
`2 PO baldly alleges “These specific details have not been publicly disclosed”
`(Paper 26, 7), but fails to address the nearly-identical prior disclosures quoted
`herein, despite knowing Petitioner contends that Exhibits 2020 and 2044 disclose
`the redacted information. Paper 26, 8.
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`- 5 -
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`Such information should not be sealed. Corephotonics, 4 (denying motion
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`to seal information that “Patent Owner has already publicly disclosed”).
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`Additionally, with regard to Page 62, lines 20-21 and Page 63, lines 8-14,
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`pure speculation by a witness cannot possibly be confidential to PO.
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`C.
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`Page 77, Line 24 – Page 78, Line 25;
`Page 93, Line 5 – Page 95, Line 18; and
`Page 96, Line 9 – Page 97, Line 18
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`This testimony covers information PO has already publicly disclosed:
`
` Ex. 2020, 2 (“The Practicing Products comprise proxy client devices with
`residential IP addresses. A customer can send HTTP requests to the
`second server, e.g., Super Proxy, the second server can send HTTP
`requests to the proxy client device, which can send HTTP requests to
`the web server, which is an HTTP web server. The web server responds
`to HTTP requests by sending the requested content to the proxy client
`device, which sends the requested content back to the customer via the
`second server.”).
` Ex. 2020, 2 (“Through the execution of Bright Data’s software, including
`the SDK installed on the proxy client devices, these proxy client devices
`perform the claimed method steps of the ’510 Patent, including the
`sending of its identifier to Bright Data’s second server (e.g. Super Proxy),
`the receiving of requests for content from Bright Data’s second server
`(e.g., Super Proxy), the sending of the requests to a first server that is a
`web server, the receiving of the corresponding requested content from
`the first server, and the sending of that content to Bright Data’s second
`server (e.g., Super Proxy) to go on to the customer.”).
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`- 6 -
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` Ex. 2020, 8 (“The target web server sends the requested content to the
`proxy client device. The proxy client device sends the requested content
`back to the customer client device through the Super Proxy.”).
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` Ex. 2044, 57-58 (“A customer sends an HTTP request for content
`identified by a URL to a Super Proxy. The Super Proxy sends the
`request for content to a proxy client device (Peer SDK) that in turn,
`sends the request for content identified by a URL to a web server using
`the IP address of the proxy client device as the Source IP
`Address…The proxy client device obtains the requested content directly
`from the web server. The proxy client device sends the requested
`content back to the customer via the Super Proxy through the
`established connection.”).
` Ex. 2020, 21 (“For example, the proxy client device may store, operate,
`or use an Android operating system.”).
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` Ex. 1081, 97:19-23 (“Q. What operating system do the super proxy
`servers run? A. I have not been given that information, but I seriously
`doubt if they are running…Android.”).
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`Additionally, with respect to Page 96, line 9 – Page 97, line 2, a formulaic
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`recitation of claim limitations that a device allegedly does not perform cannot
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`possibly be confidential to PO.
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`With respect to Page 97, lines 9-15, the unredacted portion of the appendix
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`states: “A proxy client device of the Practicing Products establishes a Transmission
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`Control Protocol (TCP) connection with a second server, e.g., the Super Proxy.”
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`Ex. 2020, 7.
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`- 7 -
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`With respect to Page 97, lines 15-18, the programming language should not
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`be redacted for the reasons already stated.
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`IV. CONCLUSORY ALLEGATIONS OF HARM ARE INSUFFICIENT
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`PO bears the burden of demonstrating that redactions are appropriate, one
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`component of which is to demonstrate “concrete harm” that would result from
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`public disclosure. Argentum, 4. PO’s motion provides only a generic statement
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`that public disclosure would cause it to be “significantly harmed,” but without any
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`explanation of what that harm would be. Taking the identity of the programming
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`language as an example, PO fails to explain how disclosing which of the world’s
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`most common programming languages PO chose to use would create a technical
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`vulnerability, or advantage competitors, or cause any other type of harm.
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`Western Digital v. Sandisk, IPR2020-01391, Paper 28, 3 (Aug. 19, 2021) (denying
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`motion to seal where “there is no showing that the notebook pages at issue would
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`‘cause significant harm’ to Patent Owner.”). More broadly, given that PO’s prior
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`public disclosures are virtually identical to the testimony it now seeks to redact,
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`and given that PO knows Petitioner contends Exhibits 2020 and 2044 disclose the
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`redacted information, PO’s motion should have explained what, if any, information
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`it contends appears in the testimony that was not previously disclosed in those
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`public filings. Instead, PO simply asserts, without any analysis, that all of the
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`redacted information has “not been publicly disclosed.”
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`- 8 -
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`PO has not met, and cannot meet, its burden to demonstrate “concrete harm”
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`if the redacted information is made available to the public.
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`V. CONCLUSION
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`The portion of Paper 26, PO’s November 23, 2022 Motion to Seal, that
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`seeks to redact portions of Dr. Williams’ deposition transcript (Ex. 1081), should
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`be denied.
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`
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`Date: November 23, 2022
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`Respectfully submitted,
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`The Data Company Technologies Inc.
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`/Michael N. Rader/
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`Michael N. Rader, Reg. No. 52,146
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`- 9 -
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`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6 (E)(4)
`I certify that on November 23, 2022, I will cause a copy of the foregoing
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`document, including any exhibits filed therewith, to be served via electronic mail,
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`as previously consented to by Patent Owner, upon the following:
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`Thomas M. Dunham
`Elizabeth A. O’Brien
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`tomd@cherianllp.com
`elizabetho@cherianllp.com
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`/MacAulay Rush/
`MacAulay Rush
`Paralegal
`WOLF, GREENFIELD & SACKS, P.C.
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`Date: November 23, 2022
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