Filed on behalf of: Askeladden LLC
`
`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 IPR2015-00125
`U.S. Patent No. 8,540,152
`
`_____________
`
`PETITIONER’S UNOPPOSED MOTION TO SEAL
`PETITIONER’S AUTHORIZED REPLY BRIEF TO PATENT OWNER’S
`PRELIMINARY RESPONSE AND DECLARATION OF SEAN REILLY
`PURSUANT TO 37 C.F.R. § 42.54
`
`
`
`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 IPR2015-00125
`U.S. Patent No. 8,540,152
`
`_____________
`
`PETITIONER’S UNOPPOSED MOTION TO SEAL
`PETITIONER’S AUTHORIZED REPLY BRIEF TO PATENT OWNER’S
`PRELIMINARY RESPONSE AND DECLARATION OF SEAN REILLY
`PURSUANT TO 37 C.F.R. § 42.54
`
`
`
`Pursuant to 37 C.F.R. § 42.54, Petitioner Askeladden LLC (“Askeladden”)
`
`hereby moves to seal portions of Petitioner’s Authorized Reply Brief to Patent
`
`Owner’s Preliminary Response (“the Brief”) and the Declaration of Sean Reilly
`
`(“the Declaration”), both filed concurrently herewith. Petitioner has conferred
`
`with Patent Owners and the Patent Owners have advised they do not oppose this
`
`motion. The parties have agreed to entry of the Board’s Default Protective Order,
`
`and, pursuant to Section 4(A)(ii) of that Order, Petitioner is also filing partially
`
`redacted public versions of its Brief and Declaration.
`
`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. Patent
`
`Owners allege that another entity, The Clearing House, is a real party-in-interest.
`
`See IPR2015-00125, Paper 14, at 47. On February 17, 2015, the Board directed
`
`1
`
`
`
`Askeladden to “present evidence to support its apparent position that Askeladden is
`
`the sole real party-in-interest” (Paper No. 16). Askeladden is submitting the Brief
`
`and Declaration attached hereto in response to the Board’s February 17, 2015
`
`Order.
`
`Askeladden’s responsive Brief and Declaration delineate and discuss in
`
`detail the evidence that shows Askeladden alone controls the prosecution, direction
`
`and funding 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
`
`Patent Owners do not oppose this motion. And, the sealed information has nothing
`
`to do with the underlying substantive matters and questions 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.”
`
`Moreover, it is undisputed that neither Petitioner nor any alleged real party-
`
`in-interest has been sued on the patent at-issue. Thus, the Petition will not be time-
`
`2
`
`
`
`barred regardless of the Board’s decision on the real party-in-interest.
`
`Accordingly, the Brief and Declaration relate only to a non-dispositive, non-
`
`substantive issue such that sealing them will not inhibit public access to a complete
`
`and understandable file history.
`
`II.
`
`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.
`
`III. Certification of Conference with Opposing Party
`Pursuant to 37 C.F.R. § 42.54 and Proposed Protective Order
`
`Petitioner has conferred in good faith with Patent Owners regarding this
`
`Motion to Seal. Patent Owners do not oppose the motion, and the parties have
`
`agreed to entry of the Board’s Default Protective Order, attached as Appendix A.
`
`IV. Conclusion
`
`For the foregoing reasons, Petitioner respectfully requests that the Board seal
`
`the Brief and Declaration regarding the real party-in-interest, which Petitioner files
`
`concurrently herewith.
`
`3
`
`
`
`Respectfully submitted,
`
`/Frank A. DeLucia, Jr./
`Frank A. DeLucia, Jr.
`Attorney for Petitioner
`Registration No. 42,476
`
`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 Unopposed 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
`
`Dated: February 23, 2015
`
`/Frank A. DeLucia, Jr./
`Frank A. DeLucia, Jr.
`Attorney for Petitioner
`Registration No. 42,476
`
`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 IPR2015-00125
`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 IPR2015-00125
`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
`
`A-6
`
`
`
`Eastern District of Virginia for purposes of enforcing the terms of the Protective
`
`Order and providing remedies for its breach.
`
`________________________
`
`By
`
`___________________
`
`Date: ___________________
`
`A-7
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
