Paper No. ___
`Filed: March 7, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________________
`
`
`
`ALTAIRE PHARMACEUTICALS, INC.,
`Petitioner,
`
`v.
`
`PARAGON BIOTECK, INC.,
`Patent Owner.
`
`_____________________________
`
`Case PGR2015-00011
`Patent 8,859,623
`_____________________________
`
`
`
`PARAGON’S OPPOSITION TO PETITIONER’S
` MOTION TO SEAL
`
`
`
`Filed: March 7, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________________
`
`
`
`ALTAIRE PHARMACEUTICALS, INC.,
`Petitioner,
`
`v.
`
`PARAGON BIOTECK, INC.,
`Patent Owner.
`
`_____________________________
`
`Case PGR2015-00011
`Patent 8,859,623
`_____________________________
`
`
`
`PARAGON’S OPPOSITION TO PETITIONER’S
` MOTION TO SEAL
`
`
`
`
`Case PGR2015-00011
`Patent 8,859,623
`
`Paragon does not oppose the motion to seal only to the limited extent that it
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`seeks to seal information regarding certain specific terms of a non-public
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`agreement between the parties (specifically,
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`
`
` See Paper 6; see also Exhibit
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`A. Petitioner, however, moves to keep large swaths of the deposition of Al
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`Sawaya under seal, which would also necessitate keeping under seal an entire
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`section of Paragon’s Patent Owner Response. Petitioner’s motion to seal should be
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`denied because Petitioner (1) has not established entitlement to the relief requested,
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`and (2) aims to prevent public access to the truth regarding the common ownership
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`and control of Altaire Pharmaceuticals and Sawaya Aquebogue
`
`
`
`
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`In support of its motion, Petitioner provides nothing more than conclusory
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`statements and yet another unauthorized1 conclusory declaration from a member of
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`the Sawaya family. See also Ex. 1022. A review of the transcript at issue shows
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`Petitioner’s unsupported assertions in its motion are not true. See Exhibit A. To the
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`extent that Petitioner’s proposed redactions are explicable at all, they do not seek
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`to protect sensitive business information, they seek to hide the truth from the
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`public and the legal system because it is inconsistent with representations made
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`1 The declaration (Ex. 1024) should be expunged. However, it contains the
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`same conclusory statements found in the motion and so is not addressed separately.
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`-1-
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`Case PGR2015-00011
`Patent 8,859,623
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`publicly by the Sawayas to the Board and the U.S. district courts, fatal to the
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`Sawayas’ litigation positions, and embarrassing to the Sawayas.
`
`I.
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`PETITIONER HAS NOT ESTABLISHED ENTITLEMENT TO THE
`RELIEF REQUESTED
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`Public policy favors public access to Board proceedings and motions to seal
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`are only granted “for good cause.” Garmin v. Cuozzo, IPR2012-00001, Paper 34 at
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`1-3 (quoting 37 C.F.R. § 42.54). Petitioner has the burden of showing entitlement
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`to a seal, 37 C.F.R. § 42.20(c), which requires more than mere conclusory
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`statements of the need for protection, Corning v. PPC Broadband, IPR2014-
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`00736, Paper 37 at 2. Finally, only information that is confidential may be afforded
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`protection. 35 U.S.C. § 326(a)(7).
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`As an initial matter, Petitioner requests too many proposed redactions
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`involving non-confidential information to address each individually. By way of
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`example, Petitioner proposes redacting
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`
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` See, e.g. Ex. 2034, 32:15-19.2 Al Sawaya, however,
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`already publicly testified that Sawaya Aquebogue is an LLC that holds real
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`property. Ex. 1022 ¶¶ 1-3, 13. Further, property records are a matter of public
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`record and establish that Sawaya Aquebogue owns the facility rented by Altaire.
`
`
`2 Only proposed redactions to the deposition transcript (Ex. 2034) are
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`addressed, because they are the reason for the other proposed redactions.
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`-2-
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`Case PGR2015-00011
`Patent 8,859,623
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`Ex. 2032.
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`Moreover, Petitioner’s proposed redactions include
`
`
`
` See, e.g. Ex. 2034, 68:2-11. It is not confidential
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`that there is at least one general partner of Sawaya Aquebogue, because every LLC
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`has at least one general partner. And Al Sawaya publicly testified that he is a
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`“General Manager of Sawaya Aquebogue, LLC,” (Ex. 1022 ¶ 1), by which he
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`meant
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` of Sawaya Aquebogue. (See, e.g. Ex. 2034, 23:15-21).
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`Further, Petitioner proposes redacting the perceived benefit of this post-grant
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`review to Altaire shareholders—
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` Ex. 2034, 16:7-15.
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`Petitioner also proposes redacting testimony that
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`
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` Id. at 19:4-10. Neither is confidential, let alone sensitive.
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`Petitioner concludes, without basis, that “[d]isclosure would allow a
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`competitor or potential investors to access Petitioner’s highly sensitive financial
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`information and strategic decision making processes.” Paper 24 at 2. The transcript
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`at issue contains no financial information, and it is incredible to suggest that a
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`potential investor would not inquire into the ownership and decision-making
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`processes of a company prior to investing. Further, it is difficult to understand how
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`the ownership of a corporation
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`(Ex. 2034, 7:18-8:3)
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`and the ownership of an
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`(Ex. 2034, 21:3-14)—to be
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`clear,
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`—could possibly
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`-3-
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`Case PGR2015-00011
`Patent 8,859,623
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`be confidential, let alone sensitive.
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`Petitioner argues that because the proposed redactions do not relate to
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`patentability that “any public interest in a complete and understandable record is
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`sated.” Paper 24 at 3. That proposition is unsupported by the rules. See 37 C.F.R.
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`§ 42.14. Indeed, the redacted information would need to be made public should the
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`Board decide this case on RPI grounds. See 77 Fed. Reg. at 48761.
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`Petitioner’s conclusory statements are insufficient to establish “good cause”
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`and many of Petitioner’s proposed redactions encompass publicly available
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`information. Accordingly, Petitioner’s motion should be denied.
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`II. THE PUBLIC SAWAYA DECLARATION IS UNTRUE AND
`INCONSISTENT WITH HIS DEPOSITION TESTIMONY
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`Beyond lacking a basis, Petitioner’s motion seeks to perpetuate a falsehood,
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`to the ongoing harm of Paragon. Al Sawaya publicly testified that “Altaire and
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`Saw[aya] Aque[bogue] are not under common control or even run by the same
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`person, with each having different ownership interests and different controlling
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`interests.” Ex. 1022 ¶ 6. During the deposition of Al Sawaya, it became clear that
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`this statement was untrue. “Sunlight is said to be the best of disinfectants; electric
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`light the most efficient policeman.” L. BRANDEIS, OTHER PEOPLE’S MONEY 62
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`(1913). Petitioner should not be allowed to use the Board’s authority to hide the
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`true nature of ownership and control from public light.
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`Petitioner seeks to seal information related to “ownership interests of
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`-4-
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`
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`privately held entities.” Paper 24 at 2; see, e.g. Ex. 2034, 35:15-36:14. The
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`proposed redactions include, among others, the following exchange:
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`Case PGR2015-00011
`Patent 8,859,623
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`
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` Id. at 50:8-14.
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`In fact, many if not most of the proposed redactions, (see, e.g., Ex. 2034,
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`45:2-7), are incompatible with the publicly available, and untrue, testimony
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`advanced by Petitioner that Altaire and Sawaya Aquebogue have “different
`
`ownership interests and different controlling interests” (Ex. 1022 ¶ 6). The Board
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`instituted review on the basis of that false testimony. Paper 14 at 7. And Petitioner
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`is now attempting to use the Board’s authority to bar the public’s access to the
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`truth. Indeed, Petitioner has made similar representations in the related district
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`court litigation between Petitioner and Paragon. See Ex. 2015. Under the terms of
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`the protective order (Ex. 2012), sealing the deposition testimony would impair
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`Paragon’s ability to apprise the court of the truth, causing Paragon ongoing harm.
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`The Board should not allow Petitioner to publicly make untrue statements
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`and then hide the truth under seal. Petitioner’s motion should be denied.
`
`
`
`Date: March 7, 2016
`
`
`
`Respectfully submitted,
`
`
`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
`
`
`
`
`
`
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`-5-
`
`
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`CERTIFICATE OF SERVICE
`
`Case PGR2015-00011
`Patent 8,859,623
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`I certify that the foregoing Paragon’s Opposition to Petitioner’s Motion to
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`Seal and accompanying Exhibit A, was served on this 7th day of March, 2016 on
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`the Petitioner at the correspondence address of the Petitioner as follows:
`
`Dipu A. Doshi
`Jonathan W.S. England
`Mark J. Thronson
`BLANK ROME LLP
`1825 Eye Street NW
`Washington, DC 20006
`Tel: (202)420-2604
`Fax: (202)420-2201
`Email: ddoshi@blankrome.com
`Email: jwengland@blankrome.com
`Email: mthronson@blankrome.com
`
`
`Respectfully submitted,
`
`
`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
`
`
`
`
`
`
`
`Date: March 7, 2016
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`-6-
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