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CQV Co., Ltd. v. Merck Patent GmbH

Docket PGR2021-00054, Patent Trial and Appeal Board (Feb. 11, 2021)
Erica Franklin, Jo-Anne Kokoski, Jon Tornquist, presiding
Case TypePost Grant Review
Patent
10647861
Patent Owner Merck Patent GmbH
Petitioner CQV Co., Ltd.
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60 Order Other: Order Other

Document PGR2021-00054, No. 60 Order Other - Order Other (P.T.A.B. Sep. 8, 2022)
Unsealing the Final Written Decision and Granting Patent Owner’s Motion to Seal Portions of the Oral Hearing Transcript
“There is a strong public policy for making all information filed in a quasi-judicial administrative proceeding open to the public, especially in an inter partes review which determines the patentability of claims in an issued patent and therefore affects the rights of the public.” Garmin Int’l v. Cuozzo Speed Techs., LLC, IPR2012-00001, Paper 34, 1–2 (PTAB Mar. 14, 2013).
The moving party bears the burden of showing that there is good cause for the relief requested, including why the information is appropriate to be filed under seal.
Patent Owner explains that it has filed a proposed public version of Paper 54 which redacts the specific information that it seeks to seal.
The parties are advised that any papers or exhibits that are currently sealed in this case ordinarily would become public 45 days after final judgment.
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61 Notice Other: Final Written Decision Determining No Challenged Claims Unpatentable Dismissing Patent Owners Motion to Exclude

Document PGR2021-00054, No. 61 Notice Other - Final Written Decision Determining No Challenged Claims Unpatentable Dismissing Patent Owners Motion to Exclude (P.T.A.B. Sep. 8, 2022)
According to the Specification, when compared to the prior art, the alumina flakes of the present invention provide improved optical properties, in particular, increased chroma, higher luster, lower haze and excellent finishing, as well as a high chemical stability.
Patent Owner challenges Petitioner’s declarant, Mr. Ladson, as not being qualified to give meaningful testimony about the perspective of a person of ordinary skill in the art because he does not hold a degree from an accredited university.
Further, Patent Owner notes that Mr. Choi provides no testimony regarding how Merck, or another coatings manufacturer, would typically publish a Technical Data Sheet relative to the product being first made available to the public.
Even if such incentive existed, Petitioner still fails to offer persuasive evidence that the Xirallic lot identified as Sample C was, in fact and not in theory, available to the public prior to either alleged critical date.
Based on the foregoing discussion, we determine that Petitioner’s evidence does not amount to a satisfactory showing that the relied upon Xirallic sample was “in public use, on sale, or otherwise available to the public” prior to either critical date alleged by the parties.
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61 Notice Other: Final Written Decision Determining No Challenged Claims Unpatentable Dismissing Patent Owners Motion to Exclude

Document PGR2021-00054, No. 61 Notice Other - Final Written Decision Determining No Challenged Claims Unpatentable Dismissing Patent Owners Motion to Exclude (P.T.A.B. Sep. 8, 2022)
According to the Specification, when compared to the prior art, the alumina flakes of the present invention provide improved optical properties, in particular, increased chroma, higher luster, lower haze and excellent finishing, as well as a high chemical stability.
Patent Owner challenges Petitioner’s declarant, Mr. Ladson, as not being qualified to give meaningful testimony about the perspective of a person of ordinary skill in the art because he does not hold a degree from an accredited university.
Further, Patent Owner notes that Mr. Choi provides no testimony regarding how Merck, or another coatings manufacturer, would typically publish a Technical Data Sheet relative to the product being first made available to the public.
Even if such incentive existed, Petitioner still fails to offer persuasive evidence that the Xirallic lot identified as Sample C was, in fact and not in theory, available to the public prior to either alleged critical date.
Based on the foregoing discussion, we determine that Petitioner’s evidence does not amount to a satisfactory showing that the relied upon Xirallic sample was “in public use, on sale, or otherwise available to the public” prior to either critical date alleged by the parties.
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57 Order Other: ORDER Conduct of the Proceedings 37 CFR 425

Document PGR2021-00054, No. 57 Order Other - ORDER Conduct of the Proceedings 37 CFR 425 (P.T.A.B. Aug. 11, 2022)
The Oral Hearing held on June 1, 2022, was closed to the public because the parties believed that confidential information in those sealed materials may be discussed.
Accordingly, the Oral Hearing Transcript and the Decision have been entered into the record as available to “Board and Parties Only” in PTAB End-to-End, to provide the parties with an opportunity to determine whether any confidential information is contained in the Oral Hearing Transcript and/or the Decision.
If either party identifies confidential information in the Oral Hearing Transcript or Final Written Decision that it would like to remain sealed, the party shall file a motion to seal the portions of those papers that contain the confidential material.
Absent that notification, and if a motion to seal is not filed by September 2, 2022, the confidential designation for the Oral Hearing Transcript and Decision will be removed and the papers will be made available to the public after that date.
For PATENT OWNER: Joshua Griswold Christopher Bowley Kim Leung
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55 Order on Motion: Order Granting Patent Owners Updated Motion to Seal and for Entry of the Stipulated Protective Order and Granting Petitioners Updated Motion to Seal

Document PGR2021-00054, No. 55 Order on Motion - Order Granting Patent Owners Updated Motion to Seal and for Entry of the Stipulated Protective Order and Granting Petitioners Updated Motion to S...
Merck Patent GmbH (“Patent Owner”) filed an updated motion to seal, wherein it also seeks entry of a modified version of the Board’s Default Protective Order.
In the updated motion, Patent Owner explains that the parties have agreed to use the “Stipulated Protective Order in Attachment 1 to govern the handling of confidential information in this proceeding.” PO Mot.
Accordingly, Patent Owner’s request to enter the updated Modified Stipulated Protective Order, Paper 22, Attachment 1, in this proceeding is granted.
Patent Owner asserts that good cause exists for sealing Exhibit 2021 because Mr. Fritsch’s testimony includes a disclosure of trade secret technical and business
Petitioner asserts that good cause exists for sealing portions of Petitioner’s Reply because it contains a discussion of information in Exhibits 2021 and 2022 that Patent Owner has designated as confidential.
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51 Order on Motion: ORDER Denying Without Prejudice Patent Owners Motion to S...

Document PGR2021-00054, No. 51 Order on Motion - ORDER Denying Without Prejudice Patent Owners Motion to Seal and for Entry of the Stipulated Protective Order and Denying Without Prejudice Peti...

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47 Order Other: ORDER Setting Oral Argument 37 CFR 4270

Document PGR2021-00054, No. 47 Order Other - ORDER Setting Oral Argument 37 CFR 4270 (P.T.A.B. May. 17, 2022)

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