Paper No. ___
`Filed: August 24, 2015
`
`
`
`Filed on behalf of: Paragon BioTeck, Inc.
`By: Michael T. Rosato
`
`Steven W. Parmelee
`
`WILSON SONSINI GOODRICH & ROSATI
`
`701 Fifth Avenue, Suite 5100
`
`Seattle, WA 98104-7036
`
`Tel.: 206-883-2529
`
`Fax: 206-883-2699
`
`Email: mrosato@wsgr.com
`
`Email: sparmelee@wsgr.com
`
`
`
`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 No. 8,859,623
`_____________________________
`
`
`
`
`
`
`
`PATENT OWNER’S MOTION TO SEAL AND MOTION FOR ENTRY OF
`PROTECTIVE ORDER PURSUANT TO 37. C.F.R. § 42.14 AND § 42.54
`
`
`Filed: August 24, 2015
`
`
`
`Filed on behalf of: Paragon BioTeck, Inc.
`By: Michael T. Rosato
`
`Steven W. Parmelee
`
`WILSON SONSINI GOODRICH & ROSATI
`
`701 Fifth Avenue, Suite 5100
`
`Seattle, WA 98104-7036
`
`Tel.: 206-883-2529
`
`Fax: 206-883-2699
`
`Email: mrosato@wsgr.com
`
`Email: sparmelee@wsgr.com
`
`
`
`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 No. 8,859,623
`_____________________________
`
`
`
`
`
`
`
`PATENT OWNER’S MOTION TO SEAL AND MOTION FOR ENTRY OF
`PROTECTIVE ORDER PURSUANT TO 37. C.F.R. § 42.14 AND § 42.54
`
`
`
`Case PGR2015-00011
`Patent 8,859,623
`
`
`
`I. STATEMENT OF PRECISE RELIEF REQUESTED
`
`Pursuant to 37 C.F.R. § 42.14, Patent Owner Paragon BioTeck, Inc.
`
`(“Paragon” or “Patent Owner”) respectfully moves to seal Ex. 2004 filed
`
`concurrently herewith Paragon’s Preliminary Response to Altaire Pharmaceuticals,
`
`Inc.’s (“Altaire” or “Petitioner”) Petition for Post-Grant Review of U.S. Patent No.
`
`8,859,623 (the “ ’623 Patent”). As detailed below, Ex. 2004 - “PROTECTIVE
`
`ORDER MATERIAL - Paragon’s Response to Defendants’ Motion to Dismiss or
`
`for Transfer of Venue” contains highly confidential and extremely sensitive
`
`information related to financial matters concerning Paragon’s business that
`
`Paragon has not and would not make publicly available.
`
`Pursuant to 37 C.F.R. § 42.54, Paragon respectfully moves for entry of the
`
`Default Protective Order set forth in the Office Patent Trial Practice Guide (Ex.
`
`2012) submitted herewith Patent Owner’s Motion to Seal and Motion for Entry of
`
`Default Protective Order. The Office Patent Trial Practice Guide, 77 Fed. Reg.
`
`48756, 48771 (Aug. 14, 2012). Paragon submits Ex. 2012 concurrently herewith
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`Patent Owner’s Preliminary Response to Altaire Pharmaceuticals, Inc.’s Petition
`
`for Post-Grant Review of the ’623 Patent.
`
`II. GOOD CAUSE EXISTS FOR SEALING CONFIDENTIAL
`
`INFORMATION
`
`
`
`By default, the record of a proceeding is open and available for access by the
`
`public. See 37 C.F.R. § 42.14. The Board must find “good cause” in deciding
`
`whether to seal documents. Garmin v. Cuozzo, IPR2012-00001, Paper 36 at 3
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`
`
`-1-
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`
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`Case PGR2015-00011
`Patent 8,859,623
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`
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`(PTAB April 5, 2013). “The rules aim 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.” The Office Patent Trial Practice
`
`Guide, 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012).
`
`
`
`The balance in this proceeding shifts towards maintaining confidentiality of
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`Paragon’s financial information. This information has nothing to do with the
`
`patentability of the ’623 patent claims and rather involves Sawaya Aquebogue
`
`LLC’s (“Sawaya Aquebogue”) status as an unnamed real party-in-interest to this
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`post grant review. For at least this reason, the public’s interest in access to
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`Ex. 2004 is significantly lessened. Garmin, at 8-9 (PTAB).
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`
`
`As described below, Paragon is submitting highly confidential financial
`
`information that is not publicly available. Disclosure of this information would
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`significantly harm Paragon by, (1) violating a May 30, 2011 Agreement (“the
`
`Agreement”) between Paragon and Altaire and, (2) jeopardizing Paragon’s
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`competitive position in the marketplace.
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`
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`First, pursuant to the Agreement, “[t]he parties further acknowledge and
`
`agree that any/all writings, documents, data and/or information that reveals the
`
`financial data and business information relating to a party are the proprietary and
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`confidential information of such party, and may not be disclosed to any third party
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`
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`-2-
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`Case PGR2015-00011
`Patent 8,859,623
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`
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`without the written consent of said party.” (emphasis added). See Ex. 2001 at 9.1
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`Confidential Ex. 2004 is a document that reveals financial data and business
`
`information relating to Paragon and Altaire. Filing Confidential Ex. 2004 under
`
`seal is required by the terms of the Agreement.
`
`
`
`Second, disclosure of the highly confidential information allows a direct
`
`competitor, a current investor or potential investor, to access some of Paragon’s
`
`sensitive financial data regarding business strategy. Access to such sensitive
`
`financial information may allow a direct competitor an advantage over Paragon
`
`and/or impact negotiations between Paragon and current or potential investors.
`
`Filing Confidential Ex. 2004 under seal prevents Paragon from jeopardizing its
`
`competitive position in the marketplace in order to support arguments that Sawaya
`
`Aquebogue is a real party-in-interest in this proceeding and should have been
`
`named in the petition.
`
`
`
`Paragon redacted only the specific information that it considers confidential
`
`financial information, none of which is relied upon by Paragon to support
`
`arguments made in Patent Owner’s Preliminary Response. See Table 1 infra. The
`
`Board has previously maintained financial information under seal when the
`
`moving party proposed reasonable redactions such that the thrust of the argument
`
`
`
`
`
`1
`
` Ex. 2001 is a copy of Assad Sawaya’s Declaration filed in the United States
`
`District Court For the District of Oregon on March 23, 2015. A copy of a redacted
`
`version of the Agreement was also included. See Ex. 2001 at 6-10.
`
`
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`-3-
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`Case PGR2015-00011
`Patent 8,859,623
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`or evidence can be reasonably understood from the redacted versions. Greene’s
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`Energy Grp., LLC, Inc. v. Oil States Energy Svs., LLC, IPR2014-00216, Paper 27
`
`at pg. 5 (Sept. 23, 2014). None of Paragon’s arguments in Patent Owner’s
`
`Preliminary Response rely on any of the aforementioned redacted information. As
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`such, there is little legitimate public interest favoring the disclosure of Paragon’s
`
`highly confidential financial information. Accordingly, the public interest will not
`
`be harmed by entry of the attached Default Protective Order or by filing the
`
`Confidential Ex. 2004 under seal as “PROTECTIVE ORDER MATERIAL.”
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`
`
`
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`TABLE 1 – PROPOSED SEALED PAPERS AND EXHIBITS
`
`CONFIDENTIAL MATERIALS TO BE SEALED UNDER THE
`
`DEFAULT PROTECTIVE ORDER
`
`Exhibit
`No.
`
`Exhibit Title
`
`Portions With
`Confidential
`Information
`
`Pg. 6, lns. 7-12
`
`Pg. 10, lns. 9-10
`
`PROTECTIVE ORDER MATERIAL -
`
`Pg. 11, lns. 13-27
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`2004
`
`Paragon’s Response to Defendants’ Motion
`
`Pg. 12, lns. 1-6
`
`to Dismiss or for Transfer of Venue
`
`Pg. 14, lns. 22-24
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`Pg. 21, lns. 6-9;19-22
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`Pg. 22, lns. 8-10
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`
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`-4-
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`Case PGR2015-00011
`Patent 8,859,623
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`III. CONFIDENTIAL INFORMATION IS NOT PUBLICLY AVAILABLE
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`
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`Paragon certifies the information identified in Ex. 2004 and sought to be
`
`sealed is not publicly available. In the aforementioned District Court case,
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`Petitioner’s counsel filed an unredacted version of the Agreement concurrently
`
`with the Motion to Dismiss Paragon’s Complaint. The unredacted version was
`
`promptly removed from public docket within days. Petitioner’s filing of the
`
`unredacted version was a violation of the aforementioned Agreement.
`
`IV. CERTIFICATION OF CONFERENCE WITH OPPOSING PARTY
`
`PURSUANT TO 37 C.F.R. §42.54
`
`
`
`Paragon has in good faith attempted to confer with Petitioner’s counsel
`
`regarding Patent Owner’s Motion to Seal and Motion for Protective Order.
`
`Paragon contacted Petitioner and requested Petitioner’s consent to file the Ex. 2004
`
`under seal and for consent to enter the Default Protective Order. Petitioner has not
`
`responded to Paragon’s request.
`
`V. PROPOSED PROTECTIVE ORDER PURSUANT TO 37 C.F.R.
`
`§42.54
`
`Paragon respectfully requests entry of the attached Default Protective Order
`
`set forth in the Office Patent Trial Practice Guide, which is attached as Ex. 2012.2
`
`
`
`
`
`2
`
` The Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48771 (Aug. 14,
`
`2012).
`
`
`
`-5-
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`
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`Upon entry of the Protective Order, Patent Owner designates Ex. 2004 as
`
`“PROTECTIVE ORDER MATERIAL.”
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`Case PGR2015-00011
`Patent 8,859,623
`
`Respectfully submitted,
`
`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
`
`
`
`Date: August 24, 2015
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`
`
`-6-
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`Case PGR2015-00011
`Patent 8,859,623
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`CERTIFICATE OF SERVICE
`
`The undersigned certifies that the foregoing “PATENT OWNER’S
`
`MOTION TO SEAL AND MOTION FOR PROTECTIVE ORDER” and Exhibits
`
`2001 through 2015 were served on this 24th day of August, at the following
`
`addresses of record for the subject patent:
`
`Dipu A. Doshi
`Edward A. Meilman
`Jonathan W.S. England
`DICKSTEIN SHAPIRO LLP
`1825 Eye Street NW
`Washington, DC 20006
`Tel: (202)420-2604
`Fax: (202)420-2201
`Email: doshid@dicksteinshapiro.com
`Email: meilmane@dicksteinshapiro.com
`Email: englandj@dicksteinshapiro.com
`
`Respectfully submitted,
`
`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
`
`
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`
`
`Date: August 24, 2015
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