Paper No. ___
`Filed: June 5, 2015
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`Filed on behalf of: Askeladden LLC
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`Askeladden LLC
`Petitioner
`v.
`Sean McGhie and Brian Buchheit
`Patent Owner
`_____________
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`Case IPR2015-00125
`U.S. Patent No. 8,540,152
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`_____________
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`PETITIONER’S MOTION TO SEAL
`PETITIONER’S OPPOSITION TO
`PATENT OWNERS’ MOTION FOR DISCOVERY AUTHORIZATION
`PURSUANT TO 37 C.F.R. § 42.54
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`Filed: June 5, 2015
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`Filed on behalf of: Askeladden LLC
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`Askeladden LLC
`Petitioner
`v.
`Sean McGhie and Brian Buchheit
`Patent Owner
`_____________
`
`Case IPR2015-00125
`U.S. Patent No. 8,540,152
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`_____________
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`PETITIONER’S MOTION TO SEAL
`PETITIONER’S OPPOSITION TO
`PATENT OWNERS’ MOTION FOR DISCOVERY AUTHORIZATION
`PURSUANT TO 37 C.F.R. § 42.54
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`Pursuant to 37 C.F.R. § 42.54, Petitioner Askeladden LLC (“Askeladden”)
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`hereby moves to seal portions of Petitioner’s Opposition to Patent Owner’s Motion
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`for Discovery Authorization (“the Opposition”), filed concurrently herewith. The
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`Opposition discusses evidence that has already been sealed, as a result of
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`Petitioner’s previous discussions with Patent Owners and Patent Owners’
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`acquiescence to sealing such evidence. See Paper 19 at 1; Paper 22 at 1.
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`Consequently, the Board’s Default Protective Order (“Protective Order”) was
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`entered in this case. Paper 20; Paper 24; Paper 25. Thus, Petitioner seeks to seal the
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`Opposition inasmuch as it contains information already deemed confidential and
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`related information. Pursuant to Section 4(A)(ii) of the Protective Order, Petitioner
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`is also filing partially redacted public versions of its Opposition.
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`I.
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`Good cause exists for sealing Petitioner’s confidential information.
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`The Office Patent Trial Practice Guide provides that “the rules aim to strike
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`a balance between the public’s interest in maintaining a complete and
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`understandable file history and the parties’ interest in protecting truly sensitive
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`information.” 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012). Under the Board’s
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`rules, “confidential information [is identified] in a manner consistent with Federal
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`Rule of Civil Procedure 26(c)(1)(G), which provides for protective orders for trade
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`secret or other confidential research, development, or commercial information.”
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`Id. (citing 37 C.F.R. § 42.54).
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`- 1 -
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`Patent Owners seek discovery in connection with their speculation that
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`“Alleged RPI,” i.e., “owning banks” of The Clearing House Payments Company
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`LLC (“PayCo”) and the Clearing House Association, are real parties-in-interest in
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`this proceeding. See Paper 39. The Opposition discusses evidence showing that
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`Askeladden alone controls the prosecution, direction, and funding of this IPR. The
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`narrowly-tailored excerpts of the Opposition that Askeladden seeks to seal discuss
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`details of Askeladden’s organizational structure, business processes, financing, and
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`operational guidelines, which are confidential.
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`Askeladden has a strong interest in maintaining the confidentiality of its
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`internal business structure and strategy. Further, there is no countervailing interest
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`that would counsel against grant of the present motion. The confidential
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`information relates to evidence already sealed in this case, which Patent Owners
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`did not oppose. And, the sealed information has nothing to do with the underlying
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`substantive matters and questions at issue in this IPR proceeding. Therefore, grant
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`of the present motion will have no effect on the public’s interest in “maintaining a
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`complete and understandable file history.”
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`Moreover, the Opposition relates only to a non-dispositive request for
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`discovery about third-parties such that sealing it will not inhibit public access to a
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`complete and understandable file history.
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`- 2 -
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`Additionally, the Board previously accepted Askeladden’s motions to seal
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`papers and exhibits containing the same or substantively similar information. See
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`Papers 17-19; Paper 22; Paper 36; Ex. 1031; Ex. 1033.
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`II.
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`Certification of Non-Publication
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`On behalf of Petitioner, undersigned counsel certifies that the information
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`identified as confidential and sought to be sealed has not, to their knowledge, been
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`published or otherwise made public.
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`III. Certification of Conference with Opposing Party
`Pursuant to 37 C.F.R. § 42.54 and Proposed Protective Order
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`Petitioner previously conferred with Patent Owners regarding sealing
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`documents and portions thereof containing the same, or substantively similar,
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`confidential information that Petitioner requests to seal in the Opposition. Patent
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`Owners did not oppose. The Board’s Default Protective Order has already been
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`entered. Further, Petitioner notified Patent Owners of its intent to file the present
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`motion, and Patent Owners did not object.
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`IV. Conclusion
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`For the foregoing reasons, Petitioner respectfully requests that the Board seal
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`the Opposition, which Petitioner files concurrently herewith.
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`FITZPATRICK, CELLA, HARPER & SCINTO
`1290 Avenue of the Americas
`New York, New York 10104-3800
`Facsimile: (212) 218-2200
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`Respectfully submitted,
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`/Frank A. DeLucia/
`Frank A. DeLucia, Jr.
`Attorney for Petitioner
`Registration No. 42,476
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. §§ 42.6(e)(4) and 42.105, the undersigned certifies
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`that on this date, a true and correct copy of this Petitioner’s Motion to Seal
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`Petitioner’s Opposition to Patent Owners’ Motion for Discovery Authorization
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`Pursuant to 37 C.F.R. § 42.54 was served via email on the Patent Owner’s counsel
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`at the following address indicated in the Patent Owner’s Mandatory Notices.
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`bbuchheit@gmail.com
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`Dated: June 5, 2015
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`/Frank A. DeLucia/
`Frank A. DeLucia, Jr.
`Attorney for Petitioner
`Registration No. 42,476
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