Filed on behalf of: Askeladden LLC
`
`Paper No. ___
`Filed: February 26, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`Askeladden LLC
`Petitioner
`v.
`Sean McGhie and Brian Buchheit
`Patent Owner
`_____________
`
`Case IPR2015-00124
`U.S. Patent No. 8,540,152
`
`_____________
`
`PETITIONER’S MOTION TO SEAL
`PETITIONER’S LIMITED LIABILITY COMPANY AGREEMENT
`PURSUANT TO 37 C.F.R. § 42.54
`
`
`
`Paper No. ___
`Filed: February 26, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`Askeladden LLC
`Petitioner
`v.
`Sean McGhie and Brian Buchheit
`Patent Owner
`_____________
`
`Case IPR2015-00124
`U.S. Patent No. 8,540,152
`
`_____________
`
`PETITIONER’S MOTION TO SEAL
`PETITIONER’S LIMITED LIABILITY COMPANY AGREEMENT
`PURSUANT TO 37 C.F.R. § 42.54
`
`
`
`In an email dated February 24, 2015, the Board requested that Petitioner
`
`Askeladden LLC (“Askeladden”) submit Askeladden’s Operating Guidelines.
`
`That document is contained within Askeladden’s Limited Liability Company
`
`Agreement (“LLC Agreement”), attached hereto as Exhibit 1533. Further, at
`
`present, Patent Owners do not oppose Petitioner’s filing of confidential
`
`information under seal, but oppose certain terms in the Board’s Default Protective
`
`Order.
`
`I.
`
`Good cause exists for sealing Petitioner’s confidential information.
`
`The Office Patent Trial Practice Guide provides that “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.” 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012). Under the Board’s
`
`rules, “confidential information [is identified] in a manner consistent with Federal
`
`Rule of Civil Procedure 26(c)(1)(G), which provides for protective orders for trade
`
`secret or other confidential research, development, or commercial information.”
`
`Id. (citing 37 C.F.R. § 42.54).
`
`Askeladden is the sole real party-in-interest in this proceeding. In their
`
`Preliminary Response, Patent Owners allege that another entity, The Clearing
`
`House, is a real party-in-interest. See IPR2015-00124, Paper 15, at 55. On
`
`February 17, 2015, the Board authorized a reply to Patent Owner’s Preliminary
`
`1
`
`
`
`Response and directed Askeladden to “present evidence to support its apparent
`
`position that Askeladden is the sole real party-in-interest,” preferably in the form
`
`of a declaration (Paper No. 16). On February 23, 2015, Askeladden filed a Reply
`
`Brief (“Brief”) and a Declaration of Sean Reilly (“Declaration”), along with a
`
`Motion to Seal the Brief and Declaration and an executed copy of the Board’s
`
`default protective order. See Paper Nos. 17, 18, 19, 20; Exhibit 1531. On
`
`February 24, 2015, the Board contacted the parties via email, requesting that
`
`Askeladden provide a document referenced in Paragraph 11 of the Declaration as
`
`“Operating Guidelines”. The LLC Agreement attached hereto includes, as Exhibit
`
`A, the Operating Guidelines where the relevant portions referenced in the
`
`Declaration may be found.
`
`The LLC Agreement establishes, as stated in the Declaration, that
`
`Askeladden maintains sole control over the handling of this IPR. See, e.g., Unified
`
`Patents Inc. v. Dragon Intellectual Property, LLC, IPR2014-01252, Paper 37
`
`(B.P.A.I. 2015). In particular, the narrowly-tailored excerpts that Askeladden
`
`seeks to seal discuss details of Askeladden’s organizational structure, business
`
`processes, financing, and operational guidelines, which are confidential.
`
`Askeladden has a strong interest in maintaining the confidentiality of its
`
`internal business structure and strategy. On the other hand, there is no
`
`countervailing interest that would counsel against grant of the present motion. The
`
`2
`
`
`
`Patent Owners do not oppose the filing of Askeladden’s supporting information
`
`under seal. And, the sealed information has nothing to do with the ground of
`
`invalidity at issue in the IPR proceeding. Therefore, grant of the present motion
`
`will have no effect on the public’s interest in “maintaining a complete and
`
`understandable file history.”
`
`Certification of Non-Publication
`
`On behalf of Petitioner, undersigned counsel certifies that the information
`
`identified as confidential and sought to be sealed has not, to their knowledge, been
`
`published or otherwise made public.
`
`II.
`
`Certification of Conference with Opposing Party
`Pursuant to 37 C.F.R. § 42.54 and Proposed Protective Order
`
`Petitioner proposes using the Board’s Default Protective Order, attached as
`
`Appendix A. Petitioner’s executed copy of this proposed Protective Order was
`
`already previously filed (Paper No. 20).
`
`Petitioner has conferred in good faith with Patent Owners regarding the use
`
`of the Board’s Default Protective Order to file Askeladden’s confidential
`
`information under seal. While Patent Owners are not opposed to such filings under
`
`seal, the Patent Owners currently disagree with certain terms in the Board’s
`
`Default Protective Order. The parties have both discussed this matter over the
`
`phone and via email, but did not reach agreement in advance of the Board’s
`
`imposed filing deadline.
`
`3
`
`
`
`III. Conclusion
`
`For the foregoing reasons, Petitioner respectfully requests that the Board seal
`
`the LLC Agreement, which Petitioner files concurrently herewith.
`
`Respectfully submitted,
`
`/Stephen K Yam/
`Stephen K. Yam
`Attorney for Petitioner
`Registration No. 64,927
`
`FITZPATRICK, CELLA, HARPER & SCINTO
`1290 Avenue of the Americas
`New York, New York 10104-3800
`Facsimile: (212) 218-2200
`
`4
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. §§ 42.6(e)(4) and 42.105, the undersigned certifies
`
`that on this date, a true and correct copy of this Petitioner’s Motion to Seal and
`
`Appendix A thereto was served via email on the Patent Owner’s counsel at the
`
`following address indicated in the Patent Owner’s Mandatory Notices.
`
`bbuchheit@gmail.com
`
`Upon receipt of an executed Protective Order by Patent Owner, Petitioner agrees to
`
`serve a copy of the accompanying exhibit.
`
`Dated: February 26, 2015
`
`/Stephen K Yam/
`Stephen K. Yam
`Attorney for Petitioner
`Registration No. 64,927
`
`5
`
`
`
`APPENDIX A
`DEFAULT PROTECTIVE ORDER
`77 Fed. Reg. 48771
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`Askeladden LLC
`Petitioner
`v.
`Sean McGhie and Brian Buchheit
`Patent Owner
`_____________
`
`Case IPR2015-00124
`U.S. Patent No. 8,540,152
`
`_____________
`
`PROTECTIVE ORDER
`
`Finding good cause exists to enter a Protective Order governing the
`
`disclosure and treatment of confidential information produced in this inter partes
`
`review, it is ordered:
`
`1.
`
`Confidential information shall be clearly marked “PROTECTIVE ORDER
`
`MATERIAL.”
`
`2.
`
`Access to confidential information is limited to the following individuals
`
`who have executed the acknowledgment appended to this order:
`
`(A)
`
`Parties. Persons who are owners of a patent involved in the
`
`proceeding and other persons who are named parties to the proceeding.
`
`A-1
`
`
`
`(B)
`
`Party Representatives. Representatives of record for a party in the
`
`proceeding.
`
`(C)
`
`Experts. Retained experts of a party in the proceeding who further
`
`certify in the Acknowledgement that they are not a competitor to any party, or a
`
`consultant for, or employed by, such a competitor with respect to the subject matter
`
`of the proceeding.
`
`(D)
`
`In-house counsel. In-house counsel of a party.
`
`(E) Other Employees of a Party. Employees, consultants or other persons
`
`performing work for a party, other than in-house counsel and in-house counsel’s
`
`support staff, who sign the Acknowledgement shall be extended access to
`
`confidential information only upon agreement of the parties or by order of the
`
`Board upon a motion brought by the party seeking to disclose confidential
`
`information to that person. The party opposing disclosure to that person shall have
`
`the burden of proving that such person should be restricted from access to
`
`confidential information.
`
`(F)
`
`The Office. Employees and representatives of the Office who have a
`
`need for access to the confidential information shall have such access without the
`
`requirement to sign an Acknowledgement. Such employees and representatives
`
`shall include the Director, members of the Board and their clerical staff, other
`
`support personnel, court reporters, and other persons acting on behalf of the Office.
`
`A-2
`
`
`
`(G)
`
`Support Personnel. Administrative assistants, clerical staff, court
`
`reporters and other support personnel of the foregoing persons who are reasonably
`
`necessary to assist those persons in the proceeding shall not be required to sign an
`
`Acknowledgement, but shall be informed of the terms and requirements of the
`
`Protective Order by the person they are supporting who receives confidential
`
`information.
`
`3.
`
`Persons receiving confidential information shall use reasonable efforts to
`
`maintain the confidentiality of the information, including:
`
`(A) Maintaining such information in a secure location to which persons
`
`not authorized to receive the information shall not have access;
`
`(B) Otherwise using reasonable efforts to maintain the confidentiality of
`
`the information, which efforts shall be no less rigorous than those the recipient
`
`uses to maintain the confidentiality of information not received from the disclosing
`
`party;
`
`(C)
`
`Ensuring that support personnel of the recipient who have access to
`
`the confidential information understand and abide by the obligation to maintain the
`
`confidentiality of information received that is designated as confidential; and
`
`(D) Limiting the copying of confidential information to a reasonable
`
`number of copies needed for conduct of the proceeding and maintaining a record of
`
`the locations of such copies.
`
`A-3
`
`
`
`4.
`
`Persons receiving confidential information shall use the following
`
`procedures to maintain the confidentiality of the information:
`
`(A) Documents and Information Filed With the Board.
`
`(i)
`
`A party may file documents or information with the Board
`
`under seal, together with a non-confidential description of the nature of the
`
`confidential information that is under seal and the reasons why the information is
`
`confidential and should not be made available to the public. The submission shall
`
`be treated as confidential and remain under seal, unless, upon motion of a party
`
`and after a hearing on the issue, or sua sponte, the Board determines that the
`
`documents or information do not to qualify for confidential treatment.
`
`(ii) Where confidentiality is alleged as to some but not all of the
`
`information submitted to the Board, the submitting party shall file confidential and
`
`non-confidential versions of its submission, together with a Motion to Seal the
`
`confidential version setting forth the reasons why the information redacted from
`
`the non-confidential version is confidential and should not be made available to the
`
`public. The non-confidential version of the submission shall clearly indicate the
`
`locations of information that has been redacted. The confidential version of the
`
`submission shall be filed under seal. The redacted information shall remain under
`
`seal unless, upon motion of a party and after a hearing on the issue, or sua sponte,
`
`A-4
`
`
`
`the Board determines that some or all of the redacted information does not qualify
`
`for confidential treatment.
`
`(B) Documents and Information Exchanged Among the Parties.
`
`Information designated as confidential that is disclosed to another party during
`
`discovery or other proceedings before the Board shall be clearly
`
`marked as “PROTECTIVE ORDER MATERIAL” and shall be produced in a
`
`manner that maintains its confidentiality.
`
`A-5
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`Askeladden LLC
`Petitioner
`v.
`Sean McGhie and Brian Buchheit
`Patent Owner
`_____________
`
`Case IPR2015-00124
`U.S. Patent No. 8,540,152
`
`_____________
`
`Acknowledgment for Access to Protective Order Material
`
`I _____________________________, affirm that I have read the Protective Order;
`
`that I will abide by its terms; that I will use the confidential information only in
`
`connection with this proceeding and for no other purpose; that I will only allow
`
`access to support staff who are reasonably necessary to assist me in this
`
`proceeding; that prior to any disclosure to such support staff I informed or will
`
`inform them of the requirements of the Protective Order; that I am personally
`
`responsible for the requirements of the terms of the Protective Order and I agree to
`
`submit to the jurisdiction of the Office and the United States District Court for the
`
`Eastern District of Virginia for purposes of enforcing the terms of the Protective
`
`Order and providing remedies for its breach.
`
`A-6
`
`
`
`________________________
`
`By
`
`___________________
`
`Date: ___________________
`
`A-7
`
`
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