ProposedDefault 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.” “PROTECTIVE ORDER
`
`MATERIAL.”
`
`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.
`
`32. Access to confidential information is limited to the following individuals
`
`who have executed the acknowledgment appended to this order:
`
`MASIMO 2087
`Apple v. Masimo
`IPR2022-01299
`
`
`
`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.” “PROTECTIVE ORDER
`
`MATERIAL.”
`
`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.
`
`32. Access to confidential information is limited to the following individuals
`
`who have executed the acknowledgment appended to this order:
`
`MASIMO 2087
`Apple v. Masimo
`IPR2022-01299
`
`
`
`(A) Parties. Persons who are owners of a patent involved in the proceeding
`
`and other persons who are named parties to the proceeding.
`
`(A.B) Party RepresentativesOutside Counsel. Representatives Outside
`
`counsel of record for a party in the proceeding.
`
`(B.C) 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.
`
`(D) In-house counsel. In-house counsel of a party.
`
`MASIMO 2087
`Apple v. Masimo
`IPR2022-01299
`
`
`
`(C.E) 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 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.F) 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 persons acting on behalf of the Office.
`
`3. Employees (e.g., corporate officers), consultants, or other persons
`
`performing work for a party, other than those persons identified above in
`
`(d)(2)(A)–(E), shall be extended access to confidential information only upon
`
`agreement of the parties or by order of the Board upon a motion brought by the
`
`party seeking to disclose confidential information to that person and after signing
`
`the Acknowledgment. The party opposing disclosure to that person shall have the
`
`burden of proving that such person should be restricted from access to confidential
`
`information.
`
`MASIMO 2087
`Apple v. Masimo
`IPR2022-01299
`
`
`
`4. Prosecution and Development Bar.
`
`A.
`
`“Relevant Technology” means technology related to non-invasive
`
`monitoring of pulse oximetry, total hemoglobin, oxygen content,
`
`carboxyhemoglobin, and/or methemoglobin.
`
`B. Unless otherwise permitted in writing between the parties, any
`
`individual who personally receives from the other party, any material
`
`showing or describing the technical functionality of the other party’s
`
`products
`
`designated
`
`as
`
`CONFIDENTIAL
`
`BUSINESS
`
`INFORMATION SUBJECT TO PROTECTIVE ORDER or
`
`CONFIDENTIAL BUSINESS INFORMATION under this Protective
`
`Order shall not prepare, prosecute, supervise, advise, counsel, or assist
`
`in the preparation or prosecution of any patent application seeking a
`
`patent on behalf of the party receiving the material or its acquirer,
`
`successor, or predecessor in the Relevant Technology during the
`
`pendency of this proceeding and for two years after final termination
`
`of this proceeding or, alternatively, for two years after the time the
`
`individual person(s) formally withdraws from the proceeding. In
`
`addition, any such person is prohibited from having any involvement
`
`in the prosecution of any patent, patent application or re-examination
`
`in the Relevant Technology that was filed, or that claims priority from
`
`MASIMO 2087
`Apple v. Masimo
`IPR2022-01299
`
`
`
`any application that was filed, for up to one year following the final
`
`termination of this proceeding (including any appeals). To avoid any
`
`doubt, “prosecution” as used in this paragraph does not include
`
`representing or advising a Party before a domestic or foreign agency
`
`in connection with a reissue, ex parte reexamination, inter partes
`
`review, opposition, cancelation, or similar proceeding; though in
`
`connection with any such agency proceeding involving the patent-at-
`
`issue, outside counsel of a party receiving confidential information
`
`shall not: (i) participate in the preparation, prosecution, supervision,
`
`advice, counsel, or assistance of any amended claims; (ii) reveal a
`
`confidential information to any prosecuting reexamination counsel or
`
`agent; or (iii) use a the other party’s confidential information for any
`
`purpose prohibited by this Protective Order. The applicability of this
`
`provision is to be determined on an individual-by- individual basis
`
`such that an individual attorney who has not received confidential
`
`information is not restricted from undertaking any activities by virtue
`
`of this provision even if said individual attorney is employed by or
`
`works for the same firm or organization as an individual who has
`
`received such material.
`
`MASIMO 2087
`Apple v. Masimo
`IPR2022-01299
`
`
`
`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, 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.
`
`54. 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
`
`MASIMO 2087
`Apple v. Masimo
`IPR2022-01299
`
`
`
`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
`
`(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.
`
`65. Persons receiving confidential information shall use the following
`
`procedures to maintain the confidentiality of the information:
`
`(A.) Documents and Information Filed With the Board.
`
`(i) 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.
`
`MASIMO 2087
`Apple v. Masimo
`IPR2022-01299
`
`
`
`(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 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 “PROTECTIVE
`
`ORDER MATERIAL” and shall be produced in a manner that maintains its
`
`confidentiality.
`
`76. Within 60 days after the final disposition of this action, including the
`
`exhaustion of all appeals and motions, each party receiving confidential
`
`MASIMO 2087
`Apple v. Masimo
`IPR2022-01299
`
`
`
`information must return, or certify the destruction of, all copies of the confidential
`
`information to the producing party.
`
`87. Standard Acknowledgement of Protective Order. The following
`
`formExhibit A may be used to acknowledge thea protective order and gain access
`
`to information covered by the protective order:
`
`[CAPTION]
`
`
`
`
`
`MASIMO 2087
`Apple v. Masimo
`IPR2022-01299
`
`
`
`Exhibit A
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MASIMO CORPORATION,
`Patent Owner.
`
`
`
`
`
`
`
`Case IPR2022-01299
`U.S. Patent 7,761,127
`
`Standard Acknowledgment for Access to Protective Order Material
`
`I __________________________________________, affirm that I have
`
`read 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
`
`MASIMO 2087
`Apple v. Masimo
`IPR2022-01299
`
`
`
`Court for the Eastern District of Virginia for purposes of enforcing the terms of the
`
`Protective Order and providing remedies for its breach.
`
`[Signature]
`
`MASIMO 2087
`Apple v. Masimo
`IPR2022-01299
`
`
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