That standard includes a 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.

For the above reasons, we find that Patent Owner has established good cause to seal the requested portions of the Vieth and Temovsky Declarations, and grant Patent Owner’s request to seal these materials pursuant to the Protective Order entered in this proceeding (Ex. 2020).

Patent Owner contends that publication of the information to competitors would be detrimental to Ddrops’ business and is prohibited by contractual provisions.

1 Patent Owner’s redacted version of the Reid Declaration purports to “include[] certain information designated by the Petitioner” as confidential.” Mot.

Notice We remind the parties that confidential information that is subject to a protective order ordinarily becomes public 45 days after final judgment2 in a trial.

In instances where an advocate does not meet the LEAP eligibility requirements due to the number of “substantive” oral hearing arguments, but nonetheless has a basis for considering themselves to be in the category of advocates that ...

Petitioner asserts that Dr. Raj’s declaration responds to Patent Owner’s arguments that Harder’s method is not feasible because infants are allegedly unable to lick spoons, and that “any potential prejudice (there is none) was cured ...

During the call, Patent Owner requested authorization to file a Motion to Strike: (1) Petitioner’s Reply, to the extent it raises anticipation arguments; and (2) portions of Dr. Raj’s declaration and related exhibits that concern an experiment conducted by Dr. Raj.

On their face, these sections, which fall within the first nineteen pages of the Reply cited by Patent Owner during the conference call, do not appear to be arguing anticipation.

In short, we encourage Patent Owner to clearly point out specific, discrete passages of the Reply it contends should be stricken for allegedly presenting a new anticipation theory.

In briefing this issue, we remind the parties that “‘there is no blanket prohibition against the introduction of new evidence during an IPR,’ provided it is an ‘expan[sion] on and ... fair extension of ... [a] previously raised ... argument’ and has a ‘nexus’ (and is therefore responsive) to an argument made by the patent owner or the Board.” Corephotonics, Ltd. v. Apple Inc., 84 F.4th 990, 1009 (Fed. Cir. 2023) (quoting Rembrandt Diagnostics, LP v. Alere, Inc., 76 F.4th 1376, 1384–85 (Fed. Cir. 2023)) (alterations in original).

The parties should consider focusing their arguments on whether the material related to Dr. Raj is impermissibly “part of a new theory of unpatentability,” and whether it is “responsive to [Patent Owner’s] contentions or the Board’s institution decision.” Id. at 1008.

That standard includes a 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.

Turning to Petitioner’s motion, Petitioner states that the Opposition “contains confidential business information that is unknown to the public, such as descriptions and excerpts from Petitioner’s competitive strategy documents and email communications reflecting the same.” Paper 50, 2.

Second, the parties’ blanket statements that the materials sought to be sealed contain non-public and/or sensitive financial and/or business information are insufficient to establish good cause.

Any renewed motion should also include a 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.” See Argentum Pharms.

“Redactions to documents filed in this proceeding should be limited to the minimum amount necessary to protect confidential information, and the thrust of the underlying argument or evidence must be clearly discernible from the redacted versions.” Paper 11, 3.

Before JOHN G. NEW, SHERIDAN K. SNEDDEN, and CYNTHIA M. HARDMAN, Administrative Patent Judges.

The parties filed a Joint Motion for Entry of [Revised Proposed Stipulated] Protective Order.

The Proposed Protective Order, which appears in the record at Exhibit 2020,1 seeks to modify the Board’s Default Protective Order by, among other things: (1) adding a designation of “Confidential – Attorneys’ Eyes Only” for “extremely sensitive confidential information;” (2) clarifying “the persons permitted to receive designated information and procedures for disclosure to such persons;” and (3) “permitting the use of designation previously made under a protective order entered in concurrent litigation.” Mot.

As set forth in the Board’s Consolidated Trial Practice Guide, the Board generally will accept proposed modifications to the Board’s Default Protective Order, if the modifications are consistent with the integrity and efficient administration of the proceeding.

The Trial Practice Guide specifically provides that parties may propose additional tiers or categories of confidential information, such as “Attorneys’ Eyes Only.” Id.

Before JOHN G. NEW, SHERIDAN K. SNEDDEN, and CYNTHIA M. HARDMAN, Administrative Patent Judges.

Conduct of the Proceeding Modifying Scheduling Order

Our Scheduling Order (Paper 11) in this proceeding set DUE DATE 8 (Oral argument) for June 11, 2024.

To the extent the parties request oral argument and the Board grants that request, oral argument will be held on June 18, 2023, beginning at 10 am Eastern Daylight Time.

For PETITIONER: David Conrad Lance Wyatt

The Proposed Protective Order (submitted as Exhibit 2018) seeks to modify the Board’s Default Protective Order by, among other things: (1) adding a designation of “Confidential – Attorneys’ Eyes Only;” (2) “clarifying the persons permitted to receive designated information and procedures for disclosure to such persons;” and (3) “permitting use of designation previously made under a protective order entered in concurrent litigation.” Mot.

The Trial Practice Guide specifically provides that parties may propose additional tiers or categories of confidential information, such as “Attorneys’ Eyes Only.” Id.

The Board, however, will not accept overly inclusive definitions that encourage the parties to categorize all or most of their discovery materials as “Attorneys’ Eyes Only.” Id. at 115–16.

The Proposed Protective Order reasonably limits the “Confidential – Attorneys’ Eyes Only” designation to “extremely sensitive Confidential

Generally, in inter partes reviews, a motion will not be entered without prior Board authorization.

Patent Owner responds that the challenged claims are not unpatentable as obvious, including because of certain objective indicia of non-obviousness, i.e., commercial success, copying, and long-felt need.

Patent Owner argues that she will “provide testimony regarding Petitioner’s sales, marketing plans and related documents that show the commercial success of Petitioner’s” product.

Patent Owner also argues that given her long tenure at Petitioner and her involvement in Petitioner’s “decision to introduce” the redesigned product, Ms. Kaderali “will also shed light on the long-felt but unmet need for the invention disclosed in the ’958 Patent” and on copying.

Petitioner argues that Patent Owner has no threshold evidence of a nexus between “Petitioner’s change in its product composition and commercial success.” Opp.

Patent Owner seeks what appears to be non-public information regarding Petitioner’s product development, market share, and sales data, including testimony regarding Petitioner’s internal, non-public documents.

Before JOHN G. NEW, SHERIDAN K. SNEDDEN, and CYNTHIA M. HARDMAN, Administrative Patent Judges.

On December 21, 2023, the panel conducted a conference call with Mr. Ungerman and Mr. Anderson for Patent Owner, and Mr. Conrad and Ms. Patel for Petitioner.

After hearing from the parties during the call, and considering their arguments, the panel authorized Patent Owner to file the motion.

In consideration of the foregoing, it is hereby: ORDERED that Patent Owner is authorized to file a motion for additional discovery, which shall be filed on or before December 28, 2023, and which shall not exceed 7 pages (excluding the proposed discovery requests, which shall be placed in an appendix to the motion); FURTHER ORDERED that Petitioner is authorized to file, on or before January 4, 2024, an opposition to Patent Owner’s motion, which shall not exceed 7 pages; FURTHER ORDERED that neither party is authorized to file any additional evidence or exhibits in support of their briefs; and FURTHER ORDERED that no additional briefing is authorized at this time.

Patent 9,066,958 B2 For PETITIONER: David B. Conrad Lance E. Wyatt Sarika Patel Casey M. Kraning

Petitioner responds that “Patent Owners only request documents relating to a change in composition,” but any alleged copying of the Ddrops formulation is irrelevant, given that the challenged claims recite a method of administration, not a product.

Under Federal Circuit jurisprudence, “[n]ot every competing product that arguably falls within the scope of a patent is evidence of copying; otherwise, ‘every infringement suit would automatically confirm the nonobviousness of the patent.’” Wyers v. Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010) (quoting Iron

Petitioner responds that Patent Owner has “failed to establish how the requested documents will show that it is the claimed method of administering Petitioner’s vitamin D product that contributed to Petitioner’s commercial success (e.g. via increased sales of market share).” Opp.

Petitioner also argues that Patent Owner “omit[s] additional factors they are aware of from the district court litigation that contributed to Petitioner’s sales,” such investor funding that allowed increased marketing efforts.

Patent 9,066,958 Petitioner also argues that production of the requested documents is “unduly burdensome because it would put Petitioner’s highly-confidential information at greater risk of public disclosure, and in the hands of a competitor, in a final written decision.” Opp.