`571.272.7822
`
`
`
`
`
` Paper 14
`
` Date: November 15, 2022
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MASIMO CORPORATION,
`Patent Owner.
`
`IPR2022-01299 (US 7,761,127 B2)
` IPR2022-01300 (US 7,761,127 B2)1
`
`
`
`
`
`Before JOSIAH C. COX, JAMES A. TARTAL, and
`ROBERT A. POLLOCK, Administrative Patent Judges.
`
`POLLOCK, Administrative Patent Judge.
`
`
`
`ORDER
`Denying Without Prejudice Patent Owner’s Motion to Seal and
`for Entry of a Modified Protective Order
` 37 C.F.R. §§ 42.5, 42.14, 42.54
`
`
`
`
`1 These cases are not consolidated and the parties may not use this style of
`heading absent express authorization. Similar papers are filed in both
`proceedings; for simplicity we refer herein to those filed in IPR2022-01299.
`
`
`
`IPR2022-01299 (US 7,761,127 B2)
`IPR2022-01300 (US 7,761,127 B2)
`
`
`I. INTRODUCTION
`
`On November 4, 2022, Patent Owner, Masimo Corporation, filed a
`
`motion to seal confidential versions of its Preliminary Response2 and certain
`
`exhibits, presently designated “Filing Party and Board.” Paper 8, “Mot.”
`
`Patent Owner indicated that Petitioner would oppose the motion and
`
`included a proposed modified protective order as Appendix A.
`
`With respect to the latter, page 91 of our Consolidated Trial Practice
`
`Guide (Nov. 2019) (“CTPG”)3 provides that:
`
`No protective order shall apply to this proceeding until the
`Board enters one. If either party files a motion to seal before
`entry of a protective order, a jointly proposed protective order
`shall be filed as an exhibit with the motion. . . . If the parties
`choose to propose a protective order deviating from the default
`protective order, they must submit the proposed protective
`order jointly along with a marked-up comparison of the
`proposed and default protective orders showing the differences
`between the two and explain why good cause exists to deviate
`from the default protective order.
`
`CTPG 91.
`
`
`
`In its present filings, Patent Owner has not 1) jointly submitted the
`
`proposed protective order, 2) provided a marked-up comparison of the
`
`proposed and default protective orders showing the differences between the
`
`two, nor 3) explained why good cause exists to deviate from the default
`
`protective order. In view of these deficiencies, Patent Owner’s motion is
`
`denied without prejudice to refile within one week of this Order.
`
`
`2 On November 14, 2022, Patent Owner filed a Corrected Patent Owner
`Preliminary Response for IPR2022-01300.
`3 Available at https://www.uspto.gov/TrialPracticeGuideConsolidated.
`
`2
`
`
`
`IPR2022-01299 (US 7,761,127 B2)
`IPR2022-01300 (US 7,761,127 B2)
`
`
`Patent Owner should also confirm within one week of this Order that
`
`the exhibits designated “Filing Party and Board” have been served on
`
`Petitioner’s counsel for this proceeding. Absent such confirmation or
`
`acceptable explanation, those exhibits will be designated “Board and Parties
`
`Only.”
`
`
`
`SO ORDERED
`
`
`
`
`For PETITIONER:
`
`Walter Renner
`Nicholas Stephens
`Andrew Patrick
`Dan Smith
`FISH & RICHARDSON P.C.
`axf-ptab@fr.com
`nstephens@fr.com
`patrick@fr.com
`dsmith@fr.com
`
`
`For PATENT OWNER:
`
`Irfan A. Lateef
`Ted M. Cannon
`Jarom D. Kesler
`Jacob Peterson
`KNOBBE, MARTENS, OLSON, & BEAR, LLP
`2ial@knobbe.com
`2tmc@knobbe.com
`2jzk@knobbe.com
`2jup@knobbe.com
`
`3
`
`
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