Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`
`
`Paper 18
` Entered: March 9, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`EVE ENERGY CO., LTD.,
`Petitioner,
`
`v.
`
`VARTA MICROBATTERY GMBH,
`Patent Owner.
`
`
`
`IPR2022-01484
`Patent 9,153,835 B2
`
`
`
`
`
`
`
`
`
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, JON B. TORNQUIST, and
`BRIAN D. RANGE, Administrative Patent Judges.
`
`RANGE, Administrative Patent Judge.
`
`
`
`
`ORDER
`Granting Petitioner’s and Patent Owner’s Motions to Seal
`and Entering the Default Protective Order
`37 C.F.R. §§ 42.14, 42.54(a)
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`
`
`
`
`Paper 18
` Entered: March 9, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`EVE ENERGY CO., LTD.,
`Petitioner,
`
`v.
`
`VARTA MICROBATTERY GMBH,
`Patent Owner.
`
`
`
`IPR2022-01484
`Patent 9,153,835 B2
`
`
`
`
`
`
`
`
`
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, JON B. TORNQUIST, and
`BRIAN D. RANGE, Administrative Patent Judges.
`
`RANGE, Administrative Patent Judge.
`
`
`
`
`ORDER
`Granting Petitioner’s and Patent Owner’s Motions to Seal
`and Entering the Default Protective Order
`37 C.F.R. §§ 42.14, 42.54(a)
`
`
`
`
`
`
`
`
`IPR2022-01484
`Patent 9,153,835 B2
`
`
`INTRODUCTION
`
`The parties have filed various motions to seal pre-institution papers
`
`and exhibits. Patent Owner first filed a Motion to Seal requesting entry of
`
`the Board’s Default Protective Order, and moving to seal the Preliminary
`
`Response (Paper 7) and Exhibits 2025 and 2026. Paper 6, “PO First Mot.”
`
`Petitioner then filed a Motion to Seal as to its Preliminary Reply (Paper 12)
`
`and Exhibit 1044. Paper 11, “Pet. Mot.” Finally, Patent Owner filed a
`
`Second Motion to Seal as to its Preliminary Sur-Reply (Paper 15). Paper 14.
`
`For the reasons set forth below, these motions are granted.
`
`DEFAULT PROTECTIVE ORDER
`
`The Board may, for good cause, issue an order to protect a party or
`
`person from disclosing confidential information. 37 C.F.R. § 42.54(a)
`
`(2022). A protective order is not entered by default but must be proposed by
`
`one or more parties and must be approved and entered by the Board. Patent
`
`Trial and Appeal Board Consolidated Trial Practice Guide 19–20, 107 (Nov.
`
`2019), https://www.uspto.gov/TrialPracticeGuideConsolidated (“Trial
`
`Practice Guide”). The Trial Practice Guide sets forth specific guidelines on
`
`proposing a protective order and provides a default protective order. See id.
`
`at 19–20, 107–22 (Appendix B).
`
`In its first Motion, Patent Owner requested that we enter the default
`
`protective order in Appendix B of the Trial Practice Guide. PO First Mot. 1.
`
`Petitioner agrees. Pet. Mot. 1. Given the agreement of the parties, we enter
`
`the default protective order as set forth in the Trial Practice Guide, without
`
`modification.
`
`2
`
`
`
`IPR2022-01484
`Patent 9,153,835 B2
`
`
`EXHIBITS 2025 AND 2026
`
`Under 37 C.F.R. § 42.14, by default all papers filed in inter partes
`
`review proceedings are available to the public. Only “confidential
`
`information” is subject to protection against public disclosure. 35 U.S.C.
`
`§ 316(a)(7) (2018); 37 C.F.R. § 42.54. The Board also observes a strong
`
`policy in favor of making all information filed in inter partes review
`
`proceedings open to the public. See Argentum Pharms. LLC v. Alcon Rsch.,
`
`Ltd., IPR2017-01053, Paper 27 at 3–4 (PTAB Jan. 19, 2018) (informative).
`
`In an inter partes review, a moving party bears the burden of showing
`
`that the relief requested should be granted. 37 C.F.R. § 42.20(c). In the
`
`context of motions to seal, the standard for granting the requested relief is
`
`“good cause.” 37 C.F.R. § 42.54(a). A party must make a sufficient
`
`showing that: (1) the information sought to be sealed is truly confidential,
`
`(2) a concrete harm would result upon public disclosure, (3) there exists a
`
`genuine need to rely in the trial on the specific information sought to be
`
`sealed, and (4), on balance, an interest in maintaining confidentiality
`
`outweighs the strong public interest in having an open record. Argentum,
`
`Paper 27 at 3–4; see also Corning Optical Commc’ns RF, LLC v. PPC
`
`Broadband, Inc., IPR2014-00440, Paper 46 at 2 (PTAB Apr. 6, 2015)
`
`(requiring a showing that information has not been “excessively redacted”).
`
`Patent Owner seeks to maintain the entirety of Exhibits 2025 and
`
`2026 under seal. First PO Mot. 1. According to Patent Owner, the
`
`documents contain material that Petitioner considers confidential and were
`
`produced with confidential markings. Id. Exhibit 2025 is alleged to be a
`
`purchase agreement involving Petitioner, and contains financial and
`
`commercially sensitive information. Id. Exhibit 2026 is correspondence
`
`3
`
`
`
`IPR2022-01484
`Patent 9,153,835 B2
`
`between Petitioner and Patent Owner that was intended to be confidential
`
`between the parties. Id. at 1–2. Petitioner did not oppose Patent Owner’s
`
`motion.
`
`Upon review, we accept Patent Owner’s uncontested characterizations
`
`and determine that the documents appear to contain confidential
`
`information. Furthermore, due to the extent of the confidential information
`
`contained, it does not appear feasible to enter a redacted, public version of
`
`these documents. We, therefore, determine there is good cause to grant
`
`Patent Owner’s motion to seal Exhibits 2025 and 2026 in their entirety.
`
`EXHIBIT 1044
`
`Petitioner seeks to maintain portions of Exhibit 1044 under seal, and
`
`provided a public, redacted version of the exhibit indicating the portions
`
`deemed confidential. Pet. Mot. 2. According to Petitioner, the exhibit is a
`
`declaration discussing Exhibit 2025 and providing details about the purchase
`
`agreement. Id. Petitioner states that it has attempted to redact from the
`
`public version of Exhibit 1044 only those items of information deemed
`
`confidential or subject to a confidentiality designation in district court. Id.
`
`Patent Owner did not oppose Petitioner’s motion.
`
`Upon review, we accept Petitioner’s uncontested characterizations and
`
`determine that the declaration appears to contain confidential information.
`
`Petitioner’s proposed redactions appear narrowly tailored to the information
`
`alleged to be confidential. We, therefore, determine there is good cause to
`
`grant Patent Owner’s motion to seal the unredacted version of Exhibit 1044.
`
`
`
`4
`
`
`
`IPR2022-01484
`Patent 9,153,835 B2
`
`
`PRELIMINARY PAPERS
`
`The parties move to seal portions of the Preliminary Response, the
`
`Preliminary Reply, and the Preliminary Sur-Reply. First PO Mot. 2; Pet.
`
`Mot. 2; Second PO Mot. 2. Specifically, the parties contend that these
`
`portions of the papers discuss confidential information contained in Exhibits
`
`1044, 2025, and 2026. Id. The parties have filed public, redacted versions
`
`of the paper, and those redactions appear narrowly tailored to only the
`
`portions discussing the three exhibits. Because we have found sufficient
`
`good cause exists to seal the underlying exhibits, we also determine that the
`
`parties have articulated sufficient good cause to seal the portions of the
`
`papers discussing those exhibits.
`
`In light of the foregoing, it is hereby:
`
`ORDER
`
`ORDERED that the Board’s default protective order set forth in
`
`Appendix B of the Trial Practice Guide is entered in this proceeding, and the
`
`parties shall comply with its provisions in their entirety;
`
`FURTHER ORDERED that Patent Owner’s Motion to Seal (Paper 6)
`
`is granted;
`
`FURTHER ORDERED that Petitioner’s Motion to Seal (Paper 11) is
`
`granted; and
`
`FURTHER ORDERED that Patent Owner’s Second Motion to Seal
`
`(Paper 14) is granted.
`
`5
`
`
`
`IPR2022-01484
`Patent 9,153,835 B2
`
`For PETITIONER:
`
`Eric Cohen
`RIMON PC
`eric.cohen@rimonlaw.com
`
`
`For PATENT OWNER:
`
`H. Michael Hartmann
`Wesley O. Mueller
`Robert T. Wittmann
`Paul J. Filbin
`Brent A. Chatham
`LEYDIG, VOIT & MAYER, LTD.
`mhartmann@leydig.com
`wmueller@leydig.com
`bwittmann@leydig.com
`pfilbin@leydig.com
`bchatham@leydig.com
`
`
`
`
`
`
`
`
`
`6
`
`
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