`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`
`HOPEWELL PHARMA VENTURES, INC.,
`Petitioner
`v.
`MERCK SERONO S.A.,
`Patent Owner
`
`___________________
`
`Case IPR2023-00481
`U.S. Patent No. 8,377,903
`___________________
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`PETITIONER HOPEWELL PHARMA VENTURES, INC.’S
`MOTION TO SEAL EXHIBIT 1092
`
`
`
`
`
`
`
`Case IPR2023-00481
`U.S. Patent No. 8,377,903
`TABLE OF CONTENTS
`
`INTRODUCTION ....................................................................................... 1
`I.
`GOVERNING RULES AND PTAB GUIDANCE....................................... 1
`II.
`IDENTIFICATION OF CONFIDENTIAL DOCUMENTS ......................... 2
`III.
`IV. GOOD CAUSE EXISTS FOR SEALING THE CONFIDENTIAL
`INFORMATION. ........................................................................................ 3
`RELIEF REQUESTED ................................................................................ 4
`
`V.
`
`
`
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`- i -
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`
`
`Case IPR2023-00481
`U.S. Patent No. 8,377,903
`
`I.
`
`INTRODUCTION
`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Petitioner Hopewell Pharma
`
`Ventures, Inc. (“Hopewell”) respectfully submits this Motion to Seal Exhibit 1092,
`
`Hopewell’s Demonstratives for Oral Argument (“Hopewell’s Demonstratives”).
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`The parties have met and conferred regarding this Motion to Seal, as required by
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`37 C.F.R. § 42.54(a), and Patent Owner Merck Serono, S.A. (“Merck”) has stated
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`it will not oppose this motion.
`
`All of the confidential material submitted in this proceeding belongs to
`
`Merck. Good cause to seal exists because Merck has represented to Hopewell that
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`certain information in Hopewell’s Demonstratives is “highly confidential,
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`competitively sensitive information.” Mot. To Seal And For Entry of Default
`
`Protective Order, 2, Hopewell Pharma Ventures, Inc. v. Merck Serono SA,
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`IPR2023-00481 (P.T.A.B. Dec. 21, 2023) (“Paper 19”). Hopewell therefore
`
`submits this Motion to Seal under the Default Protective Order in this case. See
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`Papers 19 and 42.
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`II. GOVERNING RULES AND PTAB GUIDANCE
`While under 35 U.S.C. § 316(a)(1), papers filed in an inter partes review are
`
`generally open and available for access by the public, a party may file a concurrent
`
`Motion to Seal to protect public disclosure of certain confidential information,
`
`which has the effect of sealing the information at issue pending resolution of the
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`- 1 -
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`
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`Case IPR2023-00481
`U.S. Patent No. 8,377,903
`motion. In determining whether to grant a Motion to Seal, the Board must find
`
`“good cause,” 37 C.F.R. § 42.54(a), and “strike a balance between the public’s
`
`interest in maintaining a complete and understandable file history and the parties’
`
`interest in protecting truly sensitive information,” Consolidated Trial Practice
`
`Guide, November 2019 (“TPG”), 19. The Board identifies confidential information
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`in a manner “consistent with Federal Rule of Civil Procedure 26(c)(1)(G), which
`
`provides for protective orders for … confidential research, development, or
`
`commercial information.” TPG, 19.
`
`Based on the procedure set forth in the TPG, Hopewell seeks to prevent the
`
`disclosure of sensitive information that Merck has represented is contained in
`
`Hopewell’s Demonstratives.
`
`III.
`
`IDENTIFICATION OF CONFIDENTIAL DOCUMENTS
`The confidential information at issue here comprises a portion of Hopewell’s
`
`Demonstratives (Exhibit 1092), which quotes and characterizes exhibits previously
`
`filed under seal by Merck (Exhibits 2048, 2049, and 2050), as well as other
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`documents previously filed under seal by Hopewell (Exhibits 1059, 1060, 1063,
`
`1080, and 1084, and the Petitioner’s Reply) that discuss Exhibits 2048, 2049, and
`
`2050 (collectively, “the Confidential Documents”). Paper 19, 4–7; Paper 42, 3–4.
`
`*
`
`*
`
`*
`
`To the best of Hopewell’s knowledge, and based on Merck’s representation
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`- 2 -
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`
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`Case IPR2023-00481
`U.S. Patent No. 8,377,903
`that the Confidential Documents and the information contained therein are indeed
`
`confidential, the information sought to be sealed has not been published or
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`otherwise made public.
`
`IV. GOOD CAUSE EXISTS FOR SEALING THE CONFIDENTIAL
`INFORMATION.
`The standard for granting a motion to seal is “good cause.” Garmin Int’l,
`
`Inc. v. Cuozzo Speed Techs. LLC, IPR2012-00001, Paper 34 at 3 (P.T.A.B. Mar.
`
`14, 2013). This requires the Board to “strike a balance between the public’s interest
`
`in maintaining a complete and understandable file history and the parties’ interest
`
`in protecting truly sensitive information.” Garmin Int’l, Inc. v. Cuozzo Speed
`
`Techs. LLC, IPR2012-00001, Paper 36 at 4 (P.T.A.B. Apr. 5, 2013). Good cause
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`can be established by demonstrating that (1) the information sought to be sealed is
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`truly confidential, (2) 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
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`sealed, and (4) on balance, the interest in maintaining confidentiality outweighs the
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`strong public interest in having an open record. See Argentum Pharms. LLC v.
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`Alcon Research, Ltd., IPR2017-01053, Paper 27 at 4 (P.T.A.B. Jan. 19, 2018).
`
`Merck previously submitted Exhibits 2048, 2049, and 2050 under seal,
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`stating that they contained “confidential technical information regarding drug
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`development and/or financial and business information of [Merck] and non-
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`parties” in this proceeding, which are “subject to non-party confidentiality
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`- 3 -
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`Case IPR2023-00481
`U.S. Patent No. 8,377,903
`obligations.” Paper 19, 4. Hopewell’s Demonstratives relate at least in part to
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`Exhibits 2048, 2049, and 2050, which Merck has stated would cause “competitive
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`business harm” to Merck if publicly disclosed. Id., 4-5. To the best of Hopewell’s
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`knowledge, the same risk of concrete harm to non-parties applies to Exhibits 1059,
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`1060, 1063, 1080, 1083, and Petitioner’s Reply, which are also discussed in
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`Hopewell’s Demonstratives. Due to the competitive harm that Merck has asserted,
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`which Hopewell currently has no reason to doubt extends to Hopewell’s
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`Demonstratives, the interest in maintaining confidentiality outweighs the strong
`
`public interest in maintaining a public record.
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`V. RELIEF REQUESTED
`For the reasons stated above, Hopewell requests that the Board seal and
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`protect Exhibit 1092 according to the proposed Default Protective Order in this
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`case.
`
`Respectfully submitted,
`
`STERNE, KESSLER, GOLDSTEIN & FOX PLLC
`
`/Eldora L. Ellison/
`
`Eldora L. Ellison, Ph.D., Esq.
`Registration No. 39,967
`Lead Attorney for Petitioner
`
`Date: June 20, 2024
`
`1101 K Street, NW, 10th Floor
`Washington, DC 20005
`(202) 371-2600
`
`- 4 -
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`Case IPR2023-00481
`U.S. Patent No. 8,377,903
`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`I certify that the above-captioned PETITIONER HOPEWELL PHARMA
`
`VENTURES, INC.’S MOTION TO SEAL EXHIBIT 1092 was served in its
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`entirety on June 20, 2024, upon the following parties via electronic mail:
`
`
`
`Emily R. Whelan (Lead Counsel) Emily.Whelan@wilmerhale.com
`Deric Geng (Back-up Counsel) Deric.Geng@wilmerhale.com
`Cindy Kan (Back-up Counsel) Cindy.Kan@wilmerhale.com
`David B. Bassett (Back-up Counsel) David.Bassett@wilmerhale.com
`Vinita Ferrera (Back-up Counsel) Vinita.Ferrera@wilmerhale.com
`David Mlaver (Back-up Counsel) David.Mlaver@wilmerhale.com
`Mary.Pheng (Back-up Counsel) Mary.Pheng@wilmerhale.com
`Asher McGuffin (Back-up Counsel) Asher.McGuffin@wilmerhale.com
`Scott Bertulli (Back-up Counsel) Scott.Bertulli@wilmerhale.com
`WILMER CUTLER PICKERING HALE AND DORR LLP
`WHMerckMavencladIPRs@wilmerhale.com
`
`Respectfully submitted,
`
`STERNE, KESSLER, GOLDSTEIN & FOX PLLC
`
`/Eldora L. Ellison/
`
`Eldora L. Ellison, Ph.D., Esq.
`Registration No. 39,967
`Lead Attorney for Petitioner
`
`Date: June 20, 2024
`1101 K Street, NW, 10th Floor
`Washington, DC 20005
`(202) 371-2600
`
`22597709.1
`
`
`
`
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