`
`Filed on behalf of:
`Patent Owner Masimo Corporation
`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)
`Jeremiah S. Helm, Ph.D. (admitted pro hac vice)
`
`
`
`Filed: November 22, 2022
`
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, Fourteenth Floor
`Irvine, CA 92614
`Tel.: (949) 760-0404
`Fax: (949) 760-9502
`E-mail:
`AppleIPR127-1@knobbe.com
`
`
`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
`
`
`
`
`
`
`PATENT OWNER RENEWED MOTION TO SEAL AND
`FOR ENTRY OF A PROTECTIVE ORDER
`
`
`
`Patent Owner Masimo Corporation (“Masimo”) submits this opposed
`
`Renewed Motion to Seal and for Entry of a Protective Order. Masimo’s POPR
`
`relies, in part, on objective evidence of non-obviousness. In particular, Masimo
`
`presents evidence demonstrating the commercial success and praise for the ’127
`
`patented product, Masimo’s rainbow® sensors. The POPR and supporting
`
`declarations include Masimo’s proprietary and highly sensitive information
`
`detailing the development, design, structure, functionality, and sales of that product.
`
`Thus, Masimo moves to seal confidential versions of its POPR and Exhibits 2002-
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`2004, 2006, 2007, 2009, 2010, 2012-2016, 2018-2021, 2027, 2028, 2031, 2032,
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`2033, 2051, 2057, 2058, 2081, and 2082. Masimo has filed public versions, with
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`confidential portions redacted, of its POPR and Exhibits 2002, 2051, and 2082.
`
`Masimo also proposes a modified version of the Default Protective Order to
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`include language from an ITC investigation protective order agreed upon by Apple
`
`and Masimo. The proposed protective order and a redline version showing changes
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`from the Default Protective Order are being filed as Exhibits 2086 and 2087.
`
`Masimo certifies that it accepts and agrees to the terms of the proposed protective
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`order.
`
`This IPR is part of multiple patent and trade secret lawsuits between the
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`parties, generally related to the Apple Watch and Masimo’s W1 watch:
`
` Masimo Corp. v. Apple Inc., Case No. 8:20-cv-00048 (C.D. Cal.);
`
`1
`
`
`
` Certain Light-Based Physiological Measurement Devices and
`
`Components Thereof, Inv. No. 337-TA-1276 (ITC) (“ITC Investigation”);
`
` Apple Inc. v. Masimo Corp., Case No. 1:22-cv-01377 (D. Del.); and
`
` Apple Inc. v. Masimo Corp., Case No. 1:22-cv-01378 (D. Del.).
`
`The Central District of California case has a protective order, including a prosecution
`
`bar. EX2088 ¶10. The ITC Investigation, which included the ’127 patent, also has
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`a protective order with a prosecution and development bar, and strong protection of
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`“Confidential Business Information” (“CBI”). EX2083, EX2084. A protective
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`order has not yet been entered in the District of Delaware cases Apple recently filed
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`on October 20, 2022.
`
`In the ITC Investigation, Masimo designated as CBI most of the objective
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`evidence it submitted with the POPR. With that designation, Apple’s outside ITC
`
`counsel, but not its in-house counsel, had access to this evidence under narrow and
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`agreed-upon limitations. Masimo seeks a protective order here with the same level
`
`of protection that the parties already agreed to in the ITC Investigation.
`
`I.
`
`DOCUMENTS REQUESTED TO BE SEALED
`Exhibit 2002 is the Declaration of named inventor Mohamed Diab. The
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`declaration tracks ITC Investigation testimony that Diab gave in deposition and at
`
`the evidentiary hearing. Paragraphs 19-27, 37-42, 47, 48, and 71-90 of Diab’s
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`declaration contains information pertaining to Masimo’s research, development, and
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`-2-
`
`
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`production work related to the subject matter of the ’127 patent and patented
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`products.
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`Exhibit 2003 is a collection of plots from computer simulations that Diab
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`performed while researching and developing the invention of the ’127 patent and
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`rainbow® products.
`
`Exhibits 2004 and 2017 are Masimo internal PowerPoint Presentations about
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`research and development of the ’127 invention and rainbow® products.
`
`Exhibits 2006, 2007, 2009, 2010, 2012, 2013, 2014, 2015, 2020, 2027, 2032,
`
`and 2033 are engineering drawings and technical specifications detailing the design,
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`structure, components, materials used, dimensions, and functionality of rainbow®
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`sensors. These documents have internal corporate confidentiality designations.
`
`Exhibit 2016 is an internal Masimo CAD drawing showing an expanded view
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`of, and additional detail related to, the substrate of some rainbow® products.
`
`Exhibit 2018 is a technical data sheet for adhesive used in rainbow® sensors.
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`Exhibits 2019 and 2021 are internally produced, non-public photographs of
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`internal parts and structure of rainbow® sensors that are not publicly viewable.
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`Exhibit 2028 is a collection of testing data plots showing results of internal
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`Masimo sensor characterization tests to verify that the rainbow® products work.
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`Exhibit 2031 is Diab’s confidential research folder containing an internal
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`Masimo technical report authored by the named inventors and having an internal
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`-3-
`
`
`
`corporate confidentiality designation. This exhibit contains information about
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`Masimo’s research and development of the ’127 invention and rainbow® products.
`
`Exhibit 2051 is a declaration of Masimo’s technical expert, Jack Goldberg.
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`Paragraphs 28-32 of Goldberg’s declaration include information from the
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`confidential testimony of Diab and Exhibit 2003. Exhibits 2057 and 2058 are
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`Goldberg’s claim charts detailing analysis comparing the rainbow® products to the
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`claims of the ’127 patent. The charts heavily rely on confidential exhibits.
`
`Exhibit 2081 is a declaration of Micah Young, Masimo’s CFO. Paragraph 9
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`summarizes confidential financial data in Exhibit 2082. Exhibit 2082 is a
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`spreadsheet showing confidential financial data from an internal Masimo database.
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`None of these exhibits or confidential information have been made public.
`
`II. GOOD CAUSE EXISTS TO SEAL
`Argentum Pharms. LLC v. Alcon Res., Ltd., IPR2017-01053, Paper 27 at 3–4
`
`(PTAB Jan. 19, 2018) (informative) sets forth four factors for showing that good
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`cause exists to seal confidential information. The four factors are satisfied here.
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`First, the information sought to be sealed is “truly confidential.” Masimo has
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`not publicly disclosed the information it requests to be sealed. Masimo produced
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`the information in the ITC Investigation as CBI under a protective order.
`
`Second, “concrete harm” to Masimo would result if the documents were
`
`accessible to Apple or the public. The confidential information includes engineering
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`-4-
`
`
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`drawings and technical specifications that reveal significant confidential information
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`about the development, design, structure, and functionality of Masimo’s rainbow®
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`sensors. The rainbow® sensors give Masimo a significant competitive advantage in
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`the market because they are the first and only medical sensors able to noninvasively
`
`measure carboxyhemoglobin and other parameters. EX2002 ¶15. Therefore, the
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`public disclosure or use (whether intentional or inadvertent) of Masimo’s
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`confidential information about the development, design, structure, and functionality
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`of the rainbow® sensors would provide Apple and the public at large direct insight
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`into Masimo’s closely held technological advancements and strategies. Disclosure
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`or use of that information outside this proceeding would substantially harm Masimo
`
`and its ability to compete in the market. It would enable Apple and other competitors
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`to interfere with Masimo’s commercialization of its rainbow® sensors or to develop
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`competing products to erode Masimo’s market share. To prevent such disclosure
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`and the resultant harm to commercial interests, the CBI documents submitted by
`
`Masimo are precisely the type of information to be protected pursuant to 37 C.F.R.
`
`§ 42.54(a)(7).
`
`Third, Masimo has a “genuine need” to rely on the documents. Masimo
`
`asserts that commercial success and industry praise of its rainbow® sensors are
`
`objective evidence of non-obviousness of the ’127 patent claims. The documents
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`show that the rainbow® sensors embody the claims and there is a nexus between the
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`-5-
`
`
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`objective evidence regarding the rainbow® sensors and the claims. Apple knew of
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`this information and arguments from the ITC Investigation but ignored them here.
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`Fourth, the prejudicial effect that disclosure would have on Masimo far
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`outweighs the public’s interest in accessing this information for the purposes of
`
`understanding the file history and the Board’s patentability decisions. Masimo has
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`made sufficient information available to the public to understand the nature of the
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`objective evidence and why it supports patentability. The information Masimo seeks
`
`to seal is a small fraction of the information Masimo relies on to argue patentability
`
`in its POPR. See Redacted Paper 10. The public will be able to understand that
`
`Masimo’s rainbow® sensors embody the ’127 patent and have enjoyed commercial
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`success and praise without accessing CBI detailing precisely how the rainbow®
`
`sensors practice the patent. Moreover, Masimo has submitted redacted versions of
`
`its POPR and supporting declarations, appropriately balancing the public’s interest
`
`in an open record with Masimo’s interest in protecting its CBI. However, in addition
`
`to Masimo’s strong interest in protecting its intellectual property in this IPR, Masimo
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`also has a strong interest in maintaining the confidentiality of information related to
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`the development, design, structure, and functionality of the rainbow® sensors.
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`Masimo should not be required to sacrifice either interest.
`
`III. GOOD CAUSE EXISTS TO MODIFY THE PROTECTIVE ORDER
`A. The “Confidential Business Information” Designation
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`-6-
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`
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`Masimo proposes the following changes to the Default Protective Order’s
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`“Protective Order Material” designation: (1) replacing the designation with a
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`“Confidential Business Information” (“CBI”) designation, (2) including a specific
`
`and relatively narrow definition of the scope of CBI, (3) limiting access by party
`
`representatives to outside counsel of record only, (4) eliminating access by in-house
`
`counsel, (5) eliminating access by employees and consultants of the parties (except
`
`retained experts), and (6) including a process to resolve objections to the disclosure
`
`of CBI to a particular expert. These are similar to the ITC’s CBI designation and
`
`common Attorneys’ Eyes Only designations. See EX2083 ¶¶1, 3, 11.
`
`Good cause exists for these proposed CBI provisions. As explained above,
`
`the disclosure or use of Masimo’s confidential information about the development,
`
`design, structure, and functionality of the rainbow® sensors would substantially
`
`harm Masimo. See supra II(Second). Disclosure to or use by Apple would be
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`particularly damaging because it would facilitate an attempt to compete with
`
`Masimo in the field of noninvasive physiological measurement devices. Thus, good
`
`cause exists to prevent Apple’s employees and in-house counsel from accessing
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`Masimo’s CBI. Bio-Rad Labs., Inc. v. 10X Genomics, Inc., IPR2019-00565, Paper
`
`21 at 3-5 (PTAB July 22, 2019) (finding good cause, despite opposition, to enter
`
`protective order tracking ITC protective order provisions prohibiting the non-
`
`producing party and its in-house counsel from seeing CBI); Brunswick Corp. v.
`
`-7-
`
`
`
`Volvo Penta of the Ams., LLC, IPR2020-01512, Paper 27 at 3 (PTAB June 2, 2021)
`
`(finding good cause to prohibit in-house counsel from seeing CBI when the parties
`
`are competitors); T-Max (Hangzhou) Tech. Co. v. T-Max Indus. (H.K.) Co.,
`
`IPR2018-01636, Paper 28 at 3-4 (PTAB Mar. 12, 2020). Masimo proposes a
`
`process for resolving objections to experts’ seeing CBI to avoid intractable disputes.
`
`In the parties’ meet and confer, Apple did not object to the CBI provisions.
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`Further, the parties agreed to and operated under similar provisions in the ITC
`
`Investigation. The CTPG indicates that the “Board will presumptively accept
`
`agreed-to changes that provide additional categories of confidentiality as long as
`
`they are reasonable and adequately define what types of materials are to be included
`
`in the additional categories.” CTPG, 115-116. Here, the proposed protective order
`
`specifically defines the types of materials included in the CBI designation. EX2086
`
`¶2; compare EX2083 ¶1 (ITC definition). The definition is not “overly inclusive”
`
`and does not “encourage the parties to categorize all or most of their discovery
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`materials” as CBI. See CTPG, 116. Indeed, Masimo has publicly filed many
`
`exhibits and the vast majority of its POPR and supporting declarations. Masimo
`
`designates as CBI confidential design, engineering, and financial information only.
`
`B.
`
`The Prosecution and Development Bar
`Masimo also proposes a prosecution and development bar similar to the one
`
`the parties agreed to in the ITC Investigation. EX2086 ¶4; compare EX2084
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`-8-
`
`
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`¶¶19(A)-19(C). The bar is limited in scope and duration, including the following:
`
` Applies only to individuals who receive CBI; no imputation to firm
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` Applies only to activity within narrowly defined “Relevant Technology”
`
` Except for amending claims, IPR and post-grant activities are not barred
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` Prosecution bar extends no longer than two years after IPR termination
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` Development bar extends no longer than one year after expert withdraws
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`EX2086 ¶4. In the meet and confer, Apple outright rejected any prosecution and
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`development bar, and would not consider a bar narrower in scope.
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`The bar’s purpose is to prevent the inadvertent use of a party’s most
`
`confidential and detailed information to inform a competitor’s patent prosecution
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`strategy or design of competing commercial products. Preventing such inadvertent
`
`use is a well-accepted reason to impose a prosecution and development bar. See,
`
`e.g., In re Deutsche Bank Tr. Co. Ams., 605 F.3d 1373, 1378 (Fed. Cir. 2010). The
`
`Federal Circuit explained that courts recognize that even rigorous efforts to abide by
`
`a protective order “may not prevent inadvertent compromise” because “it is very
`
`difficult for the human mind to … selectively suppress information once learned, no
`
`matter how well-intentioned the effort may be to do so.” Id. The ITC similarly
`
`recognized that CBI, once seen, cannot simply be forgotten. Certain Memory
`
`Devices with Increased Capacitance and Prods. Containing Same, Inv. No. 337-
`
`TA-371, Order No. 19 at 2 (Apr. 27, 1995) (EX2089).
`
`-9-
`
`
`
`1.
`
`The balance of interests between the parties favors entry of
`the proposed prosecution and development bar.
`The Board directed the parties to Green Cross Corp. v. Shire Human Genetic
`
`Therapies, Inc., IPR2016-00258, Paper 37 (PTAB Aug. 9, 2016), which states that
`
`a court deciding whether to impose a prosecution bar must balance the risk to the
`
`proponent’s interests against the potential harm of restricting the opposing party’s
`
`choice of counsel. Green Cross, IPR2016-00258, Paper 37 at 3 (citing Deutsche
`
`Bank). Here, the balance of interests favors entry of the proposed bar.
`
`The use of Masimo’s CBI during prosecution or product development by
`
`competitors would be far more damaging to Masimo than it would have been to the
`
`disclosing party in Green Cross. In Green Cross, the patent owner, Shire, attempted
`
`to antedate a prior art reference by establishing an earlier reduction to practice. Id.
`
`at 2. The Board explained that the confidential information needed for this purpose
`
`was “limited” and its disclosure not “unduly prejudicial” because “Shire need not
`
`disclose its earliest invention date but only sufficient information to antedate” the
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`alleged prior art. Id. at 2-3. Here, by contrast, Masimo needs to disclose significant
`
`confidential information about the development, design, structure, and functionality
`
`of the rainbow® sensors to show nexus. See supra I, II(Second). The inadvertent
`
`use of that information for prosecution or product development would substantially
`
`harm Masimo by enabling Apple and other competitors to seek patents meant to
`
`interfere with Masimo’s sales of rainbow® sensors or to develop competing
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`-10-
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`
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`products. Id.
`
`Unlike in Green Cross, this Motion identifies “with specificity the nature of
`
`the information that may potentially be misused [and] the harm that may ensue.”
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`See Green Cross, Paper 37 at 4; see also supra I, II(Second). Further, the risk of
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`Apple’s prosecutors or experts inadvertently using Masimo’s CBI during
`
`prosecution or product development is not speculative. The parties are engaged in
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`extensive patent and trade secret litigation against each other in three district court
`
`cases and the ITC. On October 20, 2022, Apple accused Masimo of infringing
`
`patents that Apple prosecuted during Masimo’s earlier lawsuits and were issued
`
`from April 21, 2020 to October 18, 2022. Therefore, with pending lawsuits and
`
`concurrent prosecution, absent entry of the proposed prosecution bar, there is a risk
`
`that Masimo’s CBI would inadvertently inform Apple’s prosecution strategy. And
`
`Masimo’s CBI is precisely the type of detailed product information that could be
`
`exploited in that manner.
`
`In addition, absent entry of the development bar, there is significant risk that
`
`Masimo’s CBI would inadvertently inform Apple’s expert Anthony in developing
`
`commercial products for Masimo competitors. In the ITC, Masimo objected to
`
`Anthony seeing Masimo’s CBI because Anthony works with its competitors,
`
`including Apple and Philips, in fields including “Medical Device Design and
`
`Manufacturing,” “Innovation and Product Realization,” and “wearable, non-
`
`-11-
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`
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`invasive and minimally invasive optical biosensor devices.” See EX2090; EX1003
`
`¶5 & pp. 97-98, 102. Philips is one of Masimo's largest competitors. Masimo Corp.
`
`v. Philips Elec. N. Am. Corp., No. CV 09-80-LPS, 2015 WL 2379485 (D. Del. May
`
`18, 2015) (awarding Masimo $466 million for Philips’s patent infringement).
`
`As Masimo explained to the ITC, it “is entirely foreseeable that Anthony will
`
`use information” from Masimo’s CBI “that cannot be forgotten for the use and
`
`benefit” of the Masimo competitors with whom he works. EX2090, 8-9. Apple
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`responded that a product development bar would address Masimo’s concerns.
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`EX2091, 2, 11-12.
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`Subsequently, the parties resolved the objections to Anthony and other experts
`
`by agreeing to a prosecution and development bar, which the ALJ entered for “good
`
`cause.” See EX2084, 2. Anthony agreed to the ITC protective order and the
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`development bar. EX2092. Indeed, Apple insisted, in view of Masimo’s
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`prosecution of patents, that “a patent prosecution and product development bar is a
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`necessary and reasonable amendment to the Protective Order.” EX2091, 3.
`
`
`
`The ALJ correctly found “good cause” to protect the parties’ CBI from
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`inadvertent use during prosecution or product development. EX2084, 2. Apple has
`
`not explained why it insisted on a prosecution and development bar in the ITC but
`
`opposes them here. Likely, Apple sees no need to submit any CBI here, as its
`
`Petition included none. The Board should reject Apple’s attempt to undo the agreed-
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`-12-
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`
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`upon protection to Masimo’s CBI that it demanded for Apple’s CBI in the ITC.
`
`The proposed prosecution and development bar does not significantly harm
`
`Apple or impose undue restrictions on its right to choose its counsel or experts.
`
`Apple told the ITC that its proposed prosecution and development bar, which the
`
`parties negotiated, is “appropriately limited in duration and scope, consistent with
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`other patent and prosecution bars permitted by the CALJ in other investigations.”
`
`EX2091, 3. And because the proposed bar “is to be determined on an individual-
`
`by-individual basis,” Apple can reasonably have particular attorneys review
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`Masimo’s CBI without preventing other attorneys from continuing to prosecute for
`
`Apple. And Apple’s prosecution attorneys can work on the vast majority of
`
`Masimo’s patentability arguments, which do not rely upon Masimo CBI. Apple
`
`already agreed, in the ITC, that these provisions strike the right balance.
`
`The Board has previously recognized the propriety of entering a protective
`
`order with a prosecution bar “commensurate in scope with the protective order
`
`entered in the related ITC investigation.” Caterpillar Inc. v. Wirtgen Am., Inc.,
`
`IPR2017-02188, Paper 18 at 3, 7, Paper 19 at 2 (PTAB Aug. 22, 2018).
`
`2.
`
`Entry of the proposed prosecution and development bar is
`in the public interest.
`In Green Cross, the Board also relied on “Board policy and practice” to deny
`
`entry of a prosecution bar. Green Cross, Paper 37 at 4. The Board quoted a
`
`guideline that “[c]ounsel for a party who receives confidential information in a
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`-13-
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`
`
`proceeding will not be restricted by the Board from representing that party in any
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`other proceeding or matter before the Office.” Id. This guideline is not a per se rule
`
`prohibiting prosecution bars in all PTAB cases. See Caterpillar, Paper 18 at 3, 7,
`
`Paper 19 at 2 (entering protective order matching ITC order with prosecution bar).
`
`Also, the proposed prosecution bar does not prohibit PTAB activities except claim
`
`amendment, which would only apply to Masimo.
`
`The Board panel denying entry of a prosecution bar in Green Cross also relied
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`on “a strong public policy in favor of making information filed in an inter partes
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`review open to the public.” Green Cross, Paper 37 at 5. Here, the vast majority of
`
`the record would remain open because Masimo has designated only a small amount
`
`of CBI. Further, Masimo has shown, in addressing the Argentum factors, that
`
`Masimo’s interest in protecting the limited amount of information it has designated
`
`as CBI outweighs the public’s interest in a completely open record. See supra II.
`
`The CTPG’s general guidance that “prosecution bars are rarely appropriate”
`
`in PTAB cases because they may harm “patent owners wishing to make use of
`
`amendment or reissue processes” does not apply here. See CTPG, 116 (emphases
`
`added). The patent owner, Masimo, does not seek to amend or reissue its claims.
`
`
`
`Entry of a prosecution and development bar in appropriate circumstances is
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`in the public interest because it encourages the parties to provide a fuller record. The
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`Board should not discourage reliance on relevant CBI by providing less protection
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`-14-
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`
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`for CBI than other tribunals. Nor should the Board condition a party’s right to rely
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`on its CBI on exposing its CBI to an unnecessarily high risk of inadvertent use.
`
`IV.
`
`37 C.F.R. § 42.54(a) CERTIFICATION OF CONFERENCE
`Masimo certifies the parties conferred regarding this Motion on November
`
`14, 2022. Apple said it opposes the Motion at least because of the prosecution bar.
`
`V.
`
`STATEMENT ABOUT SERVICE OF CBI DOCUMENTS
`In reliance on protective order guideline (e) of the CTPG, Masimo has not
`
`served Apple’s counsel with the unredacted confidential versions of CBI documents
`
`and exhibits. That guideline provides that, once a proposed protective order is filed:
`
`Prior to the receipt of confidential information, any other party to the
`proceeding also shall certify that the party accepts and agrees to the
`terms of the proposed Protective Order.
`CTPG, 113-114 (guideline (e)). Therefore, Apple cannot yet receive CBI, from
`
`Masimo or the Board, because it has not accepted the proposed protective order.
`
`VI. CONCLUSION
`The Board should grant this Motion and enter the proposed protective order.
`
`Dated: November 22, 2022
`
`Respectfully submitted,
`
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`
`
`
`/Ted M. Cannon/
`Ted M. Cannon (Reg. No. 55,036)
`Customer No. 64,735
`
`Attorney for Patent Owner
`Masimo Corporation
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`-15-
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`
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`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that, pursuant to 37 C.F.R. § 42.6(e) and with the agreement
`
`of counsel for Petitioner, a true and correct copy of PATENT OWNER
`
`RENEWED MOTION TO SEAL AND FOR ENTRY OF A PROTECTIVE
`
`ORDER is being served electronically on November 22, 2022, to the e-mail
`
`Daniel D. Smith
`Andrew B. Patrick
`Nicholas Stephens
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Tel: 202-783-5070
`Fax:877-769-7945Email:
`PTABInbound@fr.com
`
`
`
`/Ted M. Cannon/
`Ted M. Cannon (Reg. No. 55,036)
`Customer No. 64,735
`
`Attorney for Patent Owner
`Masimo Corporation
`
`
`
`
`addresses shown below:
`
`W. Karl Renner
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Tel: 612-335-5070
`Fax: 612-288-9696
`Email: IPR50095-0046IP1@fr.com
`
`Dated: November 22, 2022
`
`56652011
`
`
`
`-16-
`
`