Protective Order
`
`This protective order governs the treatment and filing of confidential information,
`
`including documents and testimony.
`
`1.
`
`Confidential information shall be clearly marked “CONFIDENTIAL
`
`BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER” or
`
`“CONFIDENTIAL BUSINESS INFORMATION.”
`
`2.
`
`Confidential information is information which concerns or relates to
`
`the trade secrets, processes, operations, style of work, or apparatus, or to the
`
`production, sales, shipments, purchases, transfers, identification of customers,
`
`inventories, amount or source of any income, profits, losses, or expenditures of
`
`any person, firm, partnership, corporation, or other organization, or other
`
`information of commercial value, the disclosure of which is likely to have the
`
`effect of either (i) impairing the PTAB's ability to obtain such information as is
`
`necessary to perform its statutory functions; or (ii) causing substantial harm to
`
`the competitive position of the person, firm, partnership, corporation, or other
`
`organization from which the information was obtained, unless the PTAB is
`
`required by law to disclose such information.
`
`3.
`
`Access to confidential information is limited to the following
`
`individuals who have executed the acknowledgment appended to this order:
`
`- 1 -
`
`APPLE 1035
`Apple v. Masimo
`IPR2022-01291
`
`
`
`This protective order governs the treatment and filing of confidential information,
`
`including documents and testimony.
`
`1.
`
`Confidential information shall be clearly marked “CONFIDENTIAL
`
`BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER” or
`
`“CONFIDENTIAL BUSINESS INFORMATION.”
`
`2.
`
`Confidential information is information which concerns or relates to
`
`the trade secrets, processes, operations, style of work, or apparatus, or to the
`
`production, sales, shipments, purchases, transfers, identification of customers,
`
`inventories, amount or source of any income, profits, losses, or expenditures of
`
`any person, firm, partnership, corporation, or other organization, or other
`
`information of commercial value, the disclosure of which is likely to have the
`
`effect of either (i) impairing the PTAB's ability to obtain such information as is
`
`necessary to perform its statutory functions; or (ii) causing substantial harm to
`
`the competitive position of the person, firm, partnership, corporation, or other
`
`organization from which the information was obtained, unless the PTAB is
`
`required by law to disclose such information.
`
`3.
`
`Access to confidential information is limited to the following
`
`individuals who have executed the acknowledgment appended to this order:
`
`- 1 -
`
`APPLE 1035
`Apple v. Masimo
`IPR2022-01291
`
`
`
`
`
`
`
`
`
`
`
`A. Outside Counsel. Outside counsel of record for a party in the
`
`proceeding.
`
`B.
`
`Experts. Retained experts of a party in the proceeding who further
`
`certify in the Acknowledgement that they are not a competitor to any
`
`party, or a consultant for, or employed by, such a competitor with
`
`respect to the subject matter of the proceeding.
`
`No less than 10 days prior to the initial disclosure to an expert of any confidential
`
`information, the party proposing to use such expert shall submit in writing the
`
`name of such expert and his or her educational and detailed employment history to
`
`the supplier. If the producing party objects to the disclosure of such confidential
`
`business information to such expert as inconsistent with the language or intent of
`
`this order or on other grounds, it shall notify the other party in writing of its
`
`objection and the grounds therefore prior to the initial disclosure. If the dispute is
`
`not resolved on an informal basis within ten days of receipt of such notice of
`
`objections, the party seeking access to the confidential information shall arrange
`
`for a conference call with the PTAB to resolve the dispute. Absent an order from
`
`the PTAB, the expert shall not have access to the confidential information.
`
`C.
`
`Support Personnel. Administrative assistants, clerical staff, court
`
`reporters and other support personnel of the foregoing persons who
`
`are reasonably necessary to assist those persons in the proceeding
`
`- 2 -
`
`
`
`
`
`
`
`
`
`shall not be required to sign an Acknowledgement, but shall be
`
`informed of the terms and requirements of the Protective Order by the
`
`person they are supporting who receives confidential information.
`
`D.
`
`The Office. Employees and representatives of the United States
`
`Patent and Trademark Office who have a need for access to the
`
`confidential
`
`information shall have such access without
`
`the
`
`requirement to sign an Acknowledgement. Such employees and
`
`representatives shall include the Director, members of the Board and
`
`their clerical staff, other support personnel, court reporters, and other
`
`4.
`
`A.
`
`persons acting on behalf of the Office.
`
`Development Bar.
`
`“Relevant Technology” means technology related to non-invasive
`
`monitoring of pulse oximetry, total hemoglobin, oxygen content,
`
`carboxyhemoglobin, and/or methemoglobin.
`
`B.
`
`REMOVED
`
`C. Unless otherwise permitted in writing between Supplying Party and
`
`Receiving Party, any expert retained on behalf of a party who is to be
`
`given access to any material from another party showing or
`
`describing the technical functionality of products produced by
`
`another party must agree in writing not to be involved in creating,
`
`- 3 -
`
`
`
`developing, or modifying, for commercial use (which, for the
`
`avoidance of doubt, does not include academic research which is not
`
`for industry), any Relevant Technology from the time of first receipt
`
`of such confidential material through one year after the date the
`
`expert formally withdraws from the Protective Order. For avoidance
`
`of doubt, during periods in which the individual person(s) has ceased
`
`to have possession of such material or any documents or notes
`
`reflecting such material, this section shall not apply.
`
`5.
`
`Persons receiving confidential information shall use reasonable
`
`efforts to maintain the confidentiality of the information, including:
`
`A. Maintaining such information in a secure location to which persons
`
`not authorized to receive the information shall not have access;
`
`B. Otherwise using reasonable efforts to maintain the confidentiality of
`
`the information, which efforts shall be no less rigorous than those the
`
`recipient uses to maintain the confidentiality of information not
`
`received from the disclosing party;
`
`C.
`
`Ensuring that support personnel of the recipient who have access to
`
`the confidential information understand and abide by the obligation
`
`to maintain the confidentiality of information received that is
`
`designated as confidential; and
`
`- 4 -
`
`
`
`D.
`
`Limiting the copying of confidential information to a reasonable
`
`number of copies needed for conduct of the proceeding and
`
`maintaining a record of the locations of such copies.
`
`6.
`
`Persons receiving confidential information shall use the following
`
`procedures to maintain the confidentiality of the information:
`
`
`
`A.
`
`(i)
`
`Documents and Information Filed With the Board.
`
`A party may file documents or information with the Board along with
`
`a Motion to Seal. The Motion to Seal should provide a non-confidential
`
`description of the nature of the confidential information that is under seal,
`
`and set forth the reasons why the information is confidential and should not
`
`be made available to the public. A party may challenge the confidentiality of
`
`the information by opposing the Motion to Seal. The documents or
`
`information shall remain under seal unless the Board determines that some
`
`or all of it does not qualify for confidential treatment.
`
`(ii) Where confidentiality is alleged as to some but not all of the
`
`information submitted to the Board, the submitting party shall file
`
`confidential and non-confidential versions of its submission, together with a
`
`Motion to Seal the confidential version setting forth the reasons why the
`
`information redacted from the non-confidential version is confidential and
`
`should not be made available to the public. A party may challenge the
`
`- 5 -
`
`
`
`confidentiality of the information by opposing the Motion to Seal. The non-
`
`confidential version of the submission shall clearly indicate the locations of
`
`information that has been redacted. The confidential version of the
`
`submission shall be filed under seal. The redacted information shall remain
`
`under seal unless the Board determines that some or all of the redacted
`
`information does not qualify for confidential treatment.
`
`B.
`
`Documents and Information Exchanged Among the Parties.
`
`Documents (including deposition transcripts) and other information
`
`designated as confidential that are disclosed to another party during
`
`discovery or other proceedings before the Board shall be clearly
`
`marked as “CONFIDENTIAL BUSINESS
`
`INFORMATION,
`
`SUBJECT TO PROTECTIVE ORDER” or “CONFIDENTIAL
`
`BUSINESS INFORMATION” and shall be produced in a manner
`
`that maintains its confidentiality.
`
`
`
`
`
`7. Within 60 days after the final disposition of this action, including
`
`the exhaustion of all appeals and motions, each party receiving confidential
`
`information must return, or certify the destruction of, all copies of the
`
`confidential information to the producing party.
`
`- 6 -
`
`
`
`8.
`
`Acknowledgement of Protective Order. Exhibit A may be used to
`
`
`
`acknowledge the protective order and gain access to information covered by the
`
`protective order.
`
`- 7 -
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Exhibit A
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MASIMO CORPORATION,
`Patent Owner.
`
`Case IPR2022-01291
`U.S. Patent 10,687,745
`
`Acknowledgment for Access to Protective Order Material
`, affirm that I have read
`
`I
`
`the Protective Order; that I will abide by its terms; that I will use the confidential
`
`information only in connection with this proceeding and for no other purpose; that
`
`I will only allow access to support staff who are reasonably necessary to assist me
`
`in this proceeding; that prior to any disclosure to such support staff I informed or
`
`will inform them of the requirements of the Protective Order; that I am personally
`
`responsible for the requirements of the terms of the Protective Order and I agree to
`
`submit to the jurisdiction of the Office and the United States District Court for the
`
`- 8 -
`
`
`
`Eastern District of Virginia for purposes of enforcing the terms of the Protective
`
`Order and providing remedies for its breach.
`
`[Signature]
`
`
`
`- 9 -
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
