`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`UNIFIED PATENTS, LLC,
`Petitioner,
`v.
`
`DYNAPASS IP HOLDINGS LLC,
`Patent Owner.
`IPR2023-00425
`U.S. Patent 6,993,658
`
`_____________________________________
`
`MOTION FOR ENTRY OF MODIFIED PROTECTIVE ORDER
`
`
`
`I.
`
`INTRODUCTION
`Petitioner Unified Patents, LLC (“Petitioner”) hereby moves for entry of the
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`Modified Protective Order appended below as Appendix A.
`
`Petitioner has conferred with Patent Owner through counsel via email. Patent
`
`Owner has agreed to the Modified Protective Order and has indicated that it does not
`
`oppose the Motion for Entry of Modified Protective Order.
`
`II. MOTION FOR DEFAULT PROTECTIVE ORDER
`
`The parties have agreed to a Modified Protective Order and accordingly ask
`
`the Board to enter it in this case. The agreed-upon Protective Order differs from the
`
`Board’s Default Protective Order in Appendix B of the Patent Trial and Appeal
`
`Consolidated Trial Practice Guide, November 2019 (“TPG”) in that the default
`
`Protective Order has been modified to include the “HIGHLY CONFIDENTIAL –
`
`ATTORNEY’S EYES ONLY” designation. Additionally, the Protective Order
`
`identifies the persons to which access to confidential information is limited and
`
`clarifies the treatment of confidential materials unless the Board determines that
`
`information does not qualify for confidential treatment. These changes are shown in
`
`the redline contained in Appendix B and are designed to limit access to certain
`
`materials by each party’s representatives and in-house counsel with competitive
`
`decision-making authority. The Protective Order, which has been acknowledged by
`
`counsel for Patent Owner, is attached as Appendix A. These additional limitations
`
`
`
`1
`
`
`
`IPR2023-00425
`U.S. Patent 6,993,658
`to the default protective order are necessary. It may be necessary to produce or file
`
`additional highly confidential, competitively-sensitive information in this case. As
`
`per the TPG, “[t]he 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 116 the additional categories.”
`
`TPG at page 115. Here, Petitioner submits that the categories in the Protective Order
`
`are reasonable and adequately define what types of material are to be included in the
`
`additional categories in paragraph 2. Petitioner further notes that paragraph 2 of the
`
`Protective Order mirrors the “paragraph defining what constitutes ‘HIGHLY
`
`CONFIDENTIAL – ATTORNEY’S EYES ONLY’ information” added by the
`
`Board in IPR2022-00806. Unified Patents, LLC v. LBT IP II LLC, IPR2022-00806,
`
`Paper 16 at 4 (Dec. 5, 2022). Accordingly, Petitioner moves for entry of the attached
`
`protective order.
`
`Dated: March 14, 2023
`
`
`
`
`
`2
`
`/Jordan M. Rossen/
`Jordan M. Rossen
`Reg. No. 74,064
`jordan@unifiedpatents.com
`Ashraf Fawzy
`Reg. No. 67,914
`roshan@unifiedpatents.com
`Tel: (202) 701-1850
`
`Attorneys for Petitioner
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`I certify that on March 14, 2023 I caused a true and correct copy of
`
`MOTION FOR ENTRY OF MODIFIED PROTECTIVE ORDER on counsel
`
`for Patent Owner as follows:
`
`John Wittenzellner – johnw@wsltrial.com
`
`Todd E. Landis – tlandis@wsltrial.com
`
`Michael J. Fagan, Jr. – mfagan@wsltrial.com
`
`Mark McCarthy – mmccarthy@wsltrial.com
`
`IPRDYNAPASSWSL@wsltrial.com
`
`Dated: March 14, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/Ashley F. Cheung/
`Ashley F. Cheung
`Paralegal for Petitioner
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2023-00425
`IPR2023-00425
`U.S. Patent 6,993,658
`USS. Patent 6,993,658
`
`APPENDIX A
`APPENDIX A
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`UNIFIED PATENTS, LLC,
`Petitioner,
`
`v.
`
`DYNAPASS IP HOLDINGS LLC,
`Patent Owner.
`
`IPR2023-00425
`Patent 6,993,658
`
`PROTECTIVE ORDER
`
`
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`The following Protective Order will govern the filing and treatment of confidential
`
`information in the proceeding:
`
`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 –
`
`PROTECTIVE ORDER MATERIAL” or “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY.”
`
`2. A party will mark confidential information as “HIGHLY CONFIDENTIAL
`
`– ATTORNEYS’ EYES ONLY” only upon a good faith belief that the information
`
`is so commercially sensitive that its dissemination deserves even further limitation
`
`than information designated as “CONFIDENTIAL – PROTECTIVE ORDER
`
`MATERIAL.” Confidential information marked as “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY” may include trade secrets and confidential business
`
`strategy information.
`
`3. Access to confidential information marked “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY” is limited to the following individuals who have
`
`executed the acknowledgement appended to this order:
`
`(A) Outside counsel. Outside counsel of record for a party in the proceeding,
`
`including employees of outside counsel of record’s law firm(s) to whom it is
`
`1
`
`
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`reasonably necessary to disclose this information to assist outside counsel of
`
`record in connection with this proceeding, including members of their firms,
`
`associate attorneys, paralegal, clerical, and other regular employees of such
`
`counsel. All in-house counsel and other representatives of the parties (other
`
`than outside counsel of record) shall not be allowed to view HIGHLY
`
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY Information.
`
`(B) 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.
`
`(C) 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.
`
`(D) 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
`
`2
`
`
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`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.
`
`4. Access
`
`to confidential
`
`information marked “CONFIDENTIAL –
`
`PROTECTIVE ORDER MATERIAL” is limited to the following individuals who
`
`have executed the acknowledgment appended to this order:
`
`(A) Above Personnel. Those persons or entities identified in paragraph 2 of
`
`this Protective Order under the conditions set forth in that paragraph.
`
`(B) Parties. Persons who are owners of a patent involved in the proceeding
`
`and other persons who are named parties to the proceeding.
`
`(C) In-house counsel. In-house counsel of a party.
`
`5. Employees (e.g., corporate officers), consultants, or other persons
`
`performing work for a party, other than in-house counsel and in-house counsel’s
`
`support staff, who sign the Acknowledgement 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. The party opposing disclosure to that person shall have the burden of
`
`proving that such person should be restricted from access to confidential
`
`information.
`
`3
`
`
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`6. 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
`
`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.
`
`7. 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-
`
`4
`
`
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`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 submission shall be treated as confidential and
`
`remain under seal, unless the Board determines that the documents or
`
`information do not to qualify for confidential treatment. The
`
`information shall remain under seal unless the Board determines that
`
`some or all of the information does not qualify for confidential
`
`treatment.
`
`(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
`
`5
`
`
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`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 “CONFIDENTIAL
`
`– PROTECTIVE ORDER MATERIAL” or “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY” and shall be produced in a manner that
`
`maintains its confidentiality.
`
`8. Within 60 days after the final disposition of this action, including the
`
`exhaustion of all appeals and motions, each party receiving confidential information
`
`must return, or certify the destruction of, all copies of the confidential information
`
`to the producing party.
`
`6
`
`
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`EXHIBIT A
`
`UNIFIED PATENTS, LLC v. DYNAPASS IP HOLDINGS LLC
`Case IPR2023-00425
`U.S. Patent 6,993,658
`
`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 Court for the
`
`Eastern District of Virginia for purposes of enforcing the terms of the Protective
`
`Order and providing remedies for its breach.
`
`Executed on
`
`
`
`
`
`
`
`, 20__.
`
`1
`
`
`
`IPR2023-00425
`IPR2023-00425
`U.S. Patent 6,993,658
`USS. Patent 6,993,658
`
`APPENDIX B
`APPENDIX B
`
`2
`
`
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`The following DEFAULT Protective Order will govern the filing and treatment of
`
`confidential information in the proceeding: DEFAULT
`
`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 –
`
`PROTECTIVE ORDER MATERIAL.” 2.” or “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY.”
`
`2. A party will mark confidential information as “HIGHLY CONFIDENTIAL
`
`– ATTORNEYS’ EYES ONLY” only upon a good faith belief that the information
`
`is so commercially sensitive that its dissemination deserves even further limitation
`
`than information designated as “CONFIDENTIAL – PROTECTIVE ORDER
`
`MATERIAL.” Confidential information marked as “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY” may include trade secrets and confidential business
`
`strategy information.
`
`3. Access to confidential information marked “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY” is limited to the following individuals who have
`
`executed the ACKNOWLEDGMENTacknowledgement appended to this order: (A)
`
`PARTIES. PERSONS WHO ARE OWNERS OF A PATENT INVOLVED IN THE
`
`3
`
`
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`PROCEEDING AND OTHER PERSONS WHO ARE NAMED PARTIES TO THE
`PROCEEDING. (B) PARTY REPRESENTATIVES. REPRESENTATIVES
`
`(A) Outside counsel. Outside counsel of record for a party in the proceeding.
`
`(C, including employees of outside counsel of record’s law firm(s) to whom
`
`it is reasonably necessary to disclose this information to assist outside counsel
`
`of record in connection with this proceeding, including members of their
`
`firms, associate attorneys, paralegal, clerical, and other regular employees of
`
`such counsel. All in-house counsel and other representatives of the parties
`
`(other than outside counsel of record) shall not be allowed to view HIGHLY
`
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY Information.
`
`(B) 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. (D) IN-HOUSE COUNSEL.
`
`(CIn-house counsel of a party. (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. (F) The Office.
`
`4
`
`
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`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.
`
`(D) 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.
`
`4. Access
`
`to confidential
`
`information marked “CONFIDENTIAL –
`
`PROTECTIVE ORDER MATERIAL” is limited to the following individuals who
`
`have executed the acknowledgment appended to this order:
`
`(A) Above Personnel. Those persons or entities identified in paragraph 2 of
`
`this Protective Order under the conditions set forth in that paragraph.
`
`(B) Parties. Persons who are owners of a patent involved in the proceeding
`
`and other persons who are named parties to the proceeding.
`
`5
`
`
`
`(C) In-house counsel. In-house counsel of a party. 3
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`
`5. 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),in-house counsel and in-house counsel’s support staff, who sign the
`
`Acknowledgement 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. 4
`
`6. 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
`
`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
`
`6
`
`
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`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. 5
`
`7. 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 submission shall be treated as confidential and
`
`remain under seal, unless the Board determines that the documents or
`
`information do not to qualify for confidential treatment. The
`
`information shall remain under seal unless the Board determines that
`
`some or all of itthe information does not qualify for confidential
`
`7
`
`
`
`treatment.
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`
`(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 “CONFIDENTIAL
`
`– PROTECTIVE ORDER MATERIAL” or “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY” and shall be produced in a manner that
`
`8
`
`
`
`maintains its confidentiality. 6
`
`IPR2023-00425
`U.S. Patent 6,993,658
`
`
`8. Within 60 days after the final disposition of this action, including the
`
`exhaustion of all appeals and motions, each party receiving confidential information
`
`must return, or certify the destruction of, all copies of the confidential information
`
`to the producing party. (k) Standard Acknowledgement of Protective Order. The
`
`following form may be used to acknowledge a protective order and gain access to
`
`information covered by the protective order: [CAPTION]
`
`
`
`9
`
`
`
`IPR2020-01018
`U.S. Patent 10,491,679
`
`
`EXHIBIT A
`
`UNIFIED PATENTS, LLC v. DYNAPASS IP HOLDINGS LLC
`Case IPR2023-00425
`U.S. Patent 6,993,658
`
`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 Court for the
`
`Eastern District of Virginia for purposes of enforcing the terms of the Protective
`
`Order and providing remedies for its breach. [Signature]
`
`Executed on
`
`
`
`
`
`
`
`, 20__.
`
`
`
`
`
`
`
`i
`
`
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