Trials@uspto.gov
`571-272-7822
`
`
` Paper: 16
`
`
` Entered: July 9, 2024
`
`
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`
`
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`MICROSOFT CORPORATION, HP INC.,
`DELL INC., DELL TECHNOLOGIES INC.,
`ASUSTEK COMPUTER INC., ASUS GLOBAL PTE. LTD.,
`Petitioner,
`v.
`LITLE LLC,
`Patent Owner.
`
`IPR2024-00457
`Patent 9,880,715 B2
`
`
`Before GARTH D. BAER, BRIAN D. RANGE, and DAVID COTTA,
`Administrative Patent Judges.
`
`RANGE, Administrative Patent Judge.
`
`
`ORDER
`Granting-in-Part Petitioner’s Request for Entry of Protective Order
`and Motion to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`
`
`571-272-7822
`
`
` Paper: 16
`
`
` Entered: July 9, 2024
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`MICROSOFT CORPORATION, HP INC.,
`DELL INC., DELL TECHNOLOGIES INC.,
`ASUSTEK COMPUTER INC., ASUS GLOBAL PTE. LTD.,
`Petitioner,
`v.
`LITLE LLC,
`Patent Owner.
`
`IPR2024-00457
`Patent 9,880,715 B2
`
`
`Before GARTH D. BAER, BRIAN D. RANGE, and DAVID COTTA,
`Administrative Patent Judges.
`
`RANGE, Administrative Patent Judge.
`
`
`ORDER
`Granting-in-Part Petitioner’s Request for Entry of Protective Order
`and Motion to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`
`
`
`IPR2024-00457
`Patent 9,880,715 B2
`
`
`INTRODUCTION
`I.
`Petitioner filed a Request for Entry of Protective Order and Motion to
`Seal Pursuant to 37 C.F.R. §§ 42.14 & 42.54. Paper 12 (“Motion”).
`Petitioner’s Motion seeks to enter Petitioner’s proposed modified Protective
`Order (Ex. 1033)1 and to seal portions of Patent Owner’s Preliminary
`Response (Paper 11) as well as Exhibits 2018–2020, 2023, 2025,
`2032–2034, 2038, and 2039. Petitioner represents that Patent Owner does
`not oppose the Motion. Paper 12, 1.
`For the reasons discussed below, we grant-in-part Petitioner’s
`Motion.
`
`II. PETITIONER’S MODIFIED PROTECTIVE ORDER
`The Board may, for good cause, issue a protective order “to protect a
`party or person from disclosing confidential information.” 37 C.F.R.
`§ 42.54(a). 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) (“Trial Practice Guide”).2 The Trial Practice Guide sets forth
`specific guidelines on proposing a protective order and provides a Default
`Protective Order. See Trial Practice Guide 19–20, 107–122. The parties may
`propose modifications to the Default Protective Order and the Board will
`generally accept such proposed changes if they are consistent with the
`
`
`1 Petitioner filed a redline comparison between Petitioner’s proposed
`modified Protective Order and the Board’s Default Protective Order as
`Exhibit 1032.
`2 Available at http://www.uspto.gov/TrialPracticeGuideConsolidated.
`
`2
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`
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`IPR2024-00457
`Patent 9,880,715 B2
`
`integrity and efficient administration of the proceedings. Id. at 115. For
`example, the parties may agree to provide additional tiers or categories of
`confidential information, such as “Attorneys’ Eyes Only,” and 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.
`Id. at 115–116.
`Petitioner seeks to modify the Board’s Default Protective Order to
`“introduce an additional level of confidentiality as ‘CONFIDENTIAL—
`OUTSIDE ATTORNEYS’ EYESE ONLY MATERIAL.’” Paper 12, 1.
`We observe that Petitioner’s modified Protective Order differs from
`the Default Protective Order in that it provides an additional category of
`confidential information. Ex. 1032. After reviewing the proposed
`modifications to the Default Protective Order, we determine that the changes
`are consistent with the integrity and efficient administration of the
`proceedings. Accordingly, we grant Petitioner’s request to enter Petitioner’s
`modified Protective Order.
`
`III. MOTION TO SEAL
`Petitioner moves to seal the confidential version of Patent Owner’s
`Preliminary Response (Paper 11) (public version in Paper 13), as well as
`Exhibits 2018–2020, 2023, 2025, 2032–2034, 2038, and 2039.
`The record of an inter partes review shall be made available to the
`public, except as otherwise ordered, and a document filed with a motion to
`seal shall be treated as sealed until the motion is decided. 35 U.S.C.
`§ 316(a)(1); 37 C.F.R. § 42.14. Only “confidential information” may be
`
`3
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`IPR2024-00457
`Patent 9,880,715 B2
`
`protected against public disclosure. 35 U.S.C. § 316(a)(7); 37 C.F.R.
`§ 42.54. The Board observes a strong public policy in favor of making
`information filed in inter partes review proceedings open to the public. See
`Argentum Pharms. LLC v. Alcon Research, Ltd., IPR2017-01053, Paper 27
`at 3–4 (PTAB Jan. 19, 2018) (informative).
`The standard for granting a motion to seal is “good cause.” 37 C.F.R.
`§ 42.54(a). The moving party bears the burden of showing that the relief
`requested should be granted. 37 C.F.R. § 42.20(c). That includes 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 April 6, 2015)
`(requiring a showing that information has not been “excessively redacted”).
`As Petitioner set forth in the Motion, we find that the material sought
`to be redacted from Patent Owner’s Preliminary Response as well as the
`material sought to be sealed in Exhibits 2018, 2020, 2023, 2025, 2032–2034,
`2038, and 2039 largely relates to “licensing, including precise license terms
`and rates” and that “[d]isclosure of this confidential information could also
`cause competitive harm to Microsoft and other parties.” Paper 12, 2. We find
`that good cause exists to seal the designated portions of Patent Owner’s
`Preliminary Response as well as Exhibits 2018, 2020, 2023, 2025,
`
`4
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`IPR2024-00457
`Patent 9,880,715 B2
`
`2032–2034, 2038, and 2039 because this information contains confidential
`business information.
`With respect to Exhibit 2019, however, we do not find this exhibit
`contains confidential business information, nor does this exhibit relate to any
`licensing agreements. See Ex. 2019. Exhibit 2019 includes emails between
`the parties’ representatives and the PTAB discussing discovery disputes
`related to these proceedings. As such, we do not find good cause to seal
`Exhibit 2019. Within fourteen (14) days of this order, either party may file a
`renewed motion to seal Exhibit 2019 that establishes why Exhibit 2019
`should be sealed based upon the Argentum factors. Alternatively, the parties
`may consider filing, within fourteen (14) days, a redacted version of Exhibit
`2019 and file a renewed motion to seal that establishes why the redacted
`information should be sealed based upon the Argentum factors.
`
`IV. ORDER
`
`Accordingly, it is
`ORDERED that Petition’s Motion to Seal is granted-in-part with
`respect to Patent Owner’s Preliminary Response (Paper 11) and Exhibits
`2018, 2020, 2023, 2025, 2032–2034, 2038, and 2039;
`FURTHER ORDERED that Petitioner’s Motion to Seal is denied
`without prejudice with respect to Exhibit 2019 and Exhibit 2019 is unsealed;
`FURTHER ORDERED that either party may file a renewed motion to
`seal Exhibit 2019 within fourteen (14) days of this order;
`FURTHER ORDERED that if neither party files a renewed motion
`with fourteen (14) days of this order, Exhibit 2019 will be unsealed; and
`
`5
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`IPR2024-00457
`Patent 9,880,715 B2
`
`
`FURTHER ORDERED that Petitioner’s modified Protective Order
`(Exhibit 1033) is entered.
`
`
`
`
`
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`6
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`IPR2024-00457
`Patent 9,880,715 B2
`
`FOR PETITIONER:
`
`Jessica Kaiser
`Christina McCullough
`Kyle Canavera
`Tyler Knox
`James Day
`Daniel Callaway
`James Heintz
`kaiser-ptab@perkinscoie.com
`mccullough-ptab@perkinscoie.com
`canavera-ptab@perkinscoie.com
`knox-ptab@perkinscoie.com
`jday@fbm.com
`dcallaway@fbm.com
`jim.heintz@dlapiper.com
`
`FOR PATENT OWNER:
`
`Gerald Hrycyszyn
`Richard Giunta
`ghrycyszyn-ptab@wolfgreenfield.com
`rgiunta-ptab@wolfgreenfield.com
`
`
`
`7
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