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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE INC.,
`Petitioner
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`v.
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`MASIMO CORPORATION,
`Patent Owner.
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`Case IPR2022-01299
`Patent No. 7,761,127
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`PETITIONER’S UNOPPOSED MOTION TO SEAL
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`Case No. IPR2022-01299
`Attorney Docket No. 50095-0046IP1
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`INTRODUCTION
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`Pursuant to Protective Order (EX-2094) and 37 C.F.R. § 42.14, Petitioner
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`Apple Inc. (“Apple”) submits this Motion to Seal (“Motion”) concurrent with the
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`filing of Petitioner’s Reply to the Patent Owner’s Response (“Reply”). Through
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`this Motion, Apple respectfully requests that certain confidential business
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`information (“CBI”) in the Reply and other information cited in the Reply be
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`sealed.
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`As detailed further below, the documents and information that Apple moves
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`to seal include Masimo’s CBI covering, among other things, technical and
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`commercial data related to Masimo’s Rainbow® sensor products and Rad-57
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`monitor.
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`Apple specifically moves to seal portions of the Reply, portions of Exhibit
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`1055, and the entirety of Exhibit 1056, as each contains Masimo CBI as described
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`in the sections below. Public versions of the Reply and Exhibits 1055-1056 with
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`confidential portions redacted, are being filed with the Reply and this Motion. The
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`parties have conferred by email and Masimo does not oppose.
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` THE DOCUMENTS REQUESTED TO BE SEALED CONTAIN
`CONFIDENTIAL BUSINESS INFORMATION
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`In an inter partes review (“IPR”), the party moving to seal information must
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`demonstrate “good cause.” 37 C.F.R. § 42.20(c). The Board has explained that “a
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`Case No. IPR2022-01299
`Attorney Docket No. 50095-0046IP1
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`movant to seal must demonstrate adequately that (1) the information sought to be
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`sealed is truly confidential, (2) a concrete harm would result upon public disclosure,
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`(3) there exists a genuine need to rely in the trial on the specific information sought
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`to be sealed, and (4), on balance, an interest in maintaining confidentiality outweighs
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`the strong public interest in having an open record.” Argentum Pharmaceuticals
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`LLC v. Alcon Research, Ltd., IPR2017-01053, Paper 27 at 4 (PTAB Jan. 19, 2018)
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`(informative).
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`Identification of Documents and Information that Apple
`Moves to Seal
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`Apple moves to seal the following information:
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`First, Apple moves to seal the entirety of the transcript of Mr. Diab’s
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`testimony (APPLE-1056). The transcript includes questioning and witness
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`testimony pertaining to technical and development details for Masimo’s Rainbow®
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`sensors and Rad-57® monitors.
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`Second, Apple moves to seal identified portions of the Supplemental
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`Declaration of Dr. Brian Anthony (APPLE-1055) that address Masimo CBI. These
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`portions of Dr. Anthony’s Supplemental Declaration reference testimony from Mr.
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`Diab’s deposition transcript and other confidential exhibits that Masimo submitted
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`with its Patent Owner’s Response related to the development, design, and alleged
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`sales of Masimo’s Rainbow ® sensors and Rad-57® monitors.
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`Case No. IPR2022-01299
`Attorney Docket No. 50095-0046IP1
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`Third, Apple moves to seal identified portions of Petitioner’s Reply to Patent
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`Owner’s Response in this proceeding. These portions of the Reply reference
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`testimony from Mr. Diab’s deposition transcript and other confidential exhibits that
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`Masimo submitted with its Patent Owner’s Response related to the development,
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`design, and alleged sales of Masimo’s Rainbow ® sensors and Rad-57® monitors.
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` Masimo Represents that the Information Sought to be Sealed
`is Truly Confidential
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`The Reply and Exhibits 1055-1056 include quotations, references,
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`discussion, and analysis of information contained in confidential exhibits
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`submitted with Masimo’s Patent Owner’s Response. Masimo represents that the
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`information discussed and analyzed in the Reply and Exhibits 1055-1056 are truly
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`confidential. Paper 36, 5.
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` Masimo Represents it Would Suffer Concrete Harm Upon
`Public Disclosure of the Information Sought to be Sealed
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`The Reply and Exhibits 1055-1056 include quotations, references,
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`discussion, and analysis of information contained in confidential exhibits
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`submitted with Masimo’s Patent Owner’s Response. Masimo represents in its
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`motion to seal those exhibits that “‘concrete harm’ to Masimo would result if the
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`documents were accessible to Apple or the public” and that “[t]he confidential
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`information includes engineering drawings and technical specifications that reveal
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`significant confidential information about the development, design, structure, and
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`Attorney Docket No. 50095-0046IP1
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`functionality of Masimo’s rainbow® sensors.” Paper 36, 5-6.
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`in Maintaining
`its Interest
`that
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`Confidentiality Outweighs the Strong Public Interest in
`Having an Open Record
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`The Reply and Exhibits 1055-1056 include quotations, references,
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`discussion, and analysis of information contained in confidential exhibits
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`submitted with Masimo’s Patent Owner’s Response. Masimo represents in its
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`motion to seal that “the prejudicial effect that disclosure would have on Masimo
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`far outweighs the public’s interest in accessing this information for the purposes of
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`understanding the file history and the Board’s patentability decisions.” Paper 36,
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`7.
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`Apple is concurrently filing public, redacted versions of the Reply and
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`Exhibit 1055. The public will have full access to the nature of the information and
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`the conclusions reached using the information as portions of Apple’s Reply and
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`Exhibit 1055 remains unsealed.
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` CONCLUSION
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`For these reasons, Apple respectfully requests that the Board seal and protect
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`the Reply and Exhibits 1055-1056. Apple further respectfully requests that the
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`Board seal and protect the confidential information in these exhibits until such time
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`as it receives and rules on this Motion.
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`Case No. IPR2022-01299
`Attorney Docket No. 50095-0046IP1
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`/Nicholas W. Stephens/
` Nicholas Stephens, Reg. No. 74,320
` Fish & Richardson P.C.
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`60 South Sixth Street
` Minneapolis, MN 55402
` T: 202-783-5070
` F: 877-769-7945
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`Attorney for Petitioner
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`Dated: August 31, 2023
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`5
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`Case No. IPR2022-01299
`Attorney Docket No. 50095-0046IP1
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR §§ 42.6(e)(1) and 42.6(e)(4)(iii), the undersigned
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`certifies that on August 31, 2023, a complete and entire copy of this Petitioner’s
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`Unopposed Motion to Seal was provided via email to the Patent Owner by serving
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`the email correspondence addresses of record as follows:
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`Irfan A. Lateef (Reg. No. 51,922)
`Ted M. Cannon (Reg. No. 55,036)
`Jarom D. Kesler (Reg. No. 57,046)
`Jacob L. Peterson (Reg. No. 65,096)
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`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, Fourteenth Floor
`Irvine, CA 92614
`Tel.: (949) 760-0404
`Fax: (949) 760-9502
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`E-mail: AppleIPR127-1@knobbe.com
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`/Crena Pacheco/
`Crena Pacheco
`Fish & Richardson P.C.
`60 South Sixth Street
`Minneapolis, MN 55402
`pacheco@fr.com
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