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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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`DEXCOM, INC.,
`Petitioner,
`v.
`WAVEFORM TECHNOLOGIES, INC.
`Patent Owner.
`____________________
`
`Case IPR2016-01679
`U.S. Patent No. 7,146,202
`_____________________
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`PETITIONER’S UNOPPOSED MOTION TO EXPUNGE
`SEALED DOCUMENTS
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`Pursuant to 37 C.F.R. § 42.56, Petitioner Dexcom, Inc. (“Dexcom”) hereby
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`moves for an order expunging protected documents filed under seal in this
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`proceeding, namely Exhibits 1030-32, 2027, 2039, 2041-48, 2051-53, 2055,
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`2060-61, 2076, and 2082-83, and Papers 28 and 36. Petitioner Dexcom has
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`conferred with Patent Owner Waveform Technologies, Inc. (“Waveform”), and
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`Waveform does not oppose Dexcom’s motion to expunge the confidential
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`information in these exhibits and papers. The documents Petitioner seeks to expunge
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`disclose confidential technical and business information, the majority of which was
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`associated with Waveform’s arguments regarding secondary considerations of non-
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`obviousness. The Patent Trial and Appeal Board (the “Board”), in its Final Written
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`Decision, did not cite to any of this evidence, nor did it discuss secondary
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`considerations. (See Paper 53.)
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`If the Board is not inclined to grant this motion, Dexcom respectfully requests
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`a conference call with the Board to discuss the issues raised in this motion before
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`any information becomes irreversibly public.
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`I.
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`Statement of Precise Relief Requested
`Dexcom requests that the confidential information in Exhibits 1030-32, 2027,
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`2039, 2041-48, 2051-53, 2055, 2060-61, 2076, and 2082-83 and Papers 28 and 36
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`be expunged from the record. Specifically, Dexcom requests that sealed Exhibits
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`1030-32, 2039, 2041-48, 2051-52, 2055, 2060-61, 2076, and 2082-83 be expunged
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`from the record; Dexcom requests further that the sealed versions of Exhibits 2027
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`and 2053 be expunged from the record; and Dexcom requests further that the sealed
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`versions of Papers 29 and 37 (which are sealed Papers 28 and 36, respectively) be
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`expunged from the record.
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`II. Reasons the Requested Relief Should Be Granted
`Confidential exhibits ordinarily become public after the final judgment in an
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`inter partes review. See Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756,
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`48,761 (Aug. 14, 2012). “A party seeking to maintain the confidentiality of
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`information, however, may file a motion to expunge the information from the record
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`prior to the information becoming public.” Trial Practice Guide, 77 Fed. Reg. at
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`48,761. The moving party has the burden to establish that it is entitled to the
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`requested relief. 37 C.F.R. § 42.20(c).
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`“Confidential information” is protected from disclosure by statute. 35 U.S.C.
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`§ 316(a)(7). “Confidential information” is defined as “trade secret or other
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`confidential research, development, or commercial information.” 37 C.F.R. § 42.2.
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`The standard for granting a motion to seal information is “for good cause.” 37 C.F.R.
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`§ 42.54. For example, where the details of the confidential business or commercial
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`information are unimportant to the merits of the case and the public’s interest in
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`having access to such information is minimal, such information may be sealed for
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`good cause. See 37 C.F.R. § 42.54(a)(7); Trial Practice Guide, 77 Fed. Reg. at
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`48,760. Where the Final Decision does not rely (or only minimally relies) on the
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`confidential information, the Board has granted motions to expunge, finding that
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`there is limited public interest in the confidential information and the record is
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`minimally affected. See, e.g., Unverferth Mfg. Co. v. J&M Mfg. Co., IPR2015-
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`00758, Paper 29 at 2 (P.T.A.B. Sept. 30, 2015) (granting the motion because the
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`final decision did not rely upon the exhibit at issue and “the file and decision remain
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`understandable in the absence of” the exhibit).
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`Therefore, Petitioner respectfully requests that the Board expunge the sealed
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`versions of Papers 29 and 37 (Papers 28 and 36, respectively), the sealed versions of
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`Exhibits 2027 and 2053, and sealed Exhibits 1030-32, 2039, 2041-48, 2051-52,
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`2055, 2060-61, 2076, and 2082-83 due to the confidential nature of the technical and
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`business information in these documents. In addition, the information was not relied
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`upon by the Board in the Final Written Decision and the absence of these exhibits
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`and the unredacted versions of the papers will not hinder the public’s understanding
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`of the Board’s Final Written Decision.
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`A. Expungement of Exhibits 1030-32, 2039, 2041-48, 2051-52, 2055,
`2060-61, 2076, and 2082-83 Is Appropriate
`Where the Board has found no need to rely on documents sought to be
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`protected as sealed in terminating a proceeding, it has expunged those documents
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`upon entry of judgment. See LG Elecs., Inc. v. Cypress Semiconductor Corp.,
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`IPR2014-01405, Paper 25, at 2-3 (P.T.A.B. Aug. 6, 2015) (“In entering judgment,
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`we find it unnecessary to rely on documents the Patent Owner seeks to maintain as
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`sealed, and, therefore, we expunge from the record the sealed documents….”)
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`Here, the Board issued its Final Written Decision without relying on any of
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`these sealed exhibits Petitioner seeks to expunge. The exhibits relate generally to
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`Dexcom’s confidential technical and business information, the details of which are
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`further explained in Petitioner’s Response to Patent Owner’s Motion to Seal (Paper
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`32) and Petitioner’s Motion to Seal (Paper 38). Briefly, Exhibits 1030-32, 2039,
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`2041-48, 2052, 2055, and 2060-61 contain confidential technical information
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`relating to the design, manufacture, function, usability, and testing of products from
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`Dexcom and/or their wire supplier. Exhibits 2051, 2076, and 2082-83 detail secret
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`financial business information including product costs, market evaluations, product
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`revenue and margins, business strategies, user base data, and similar confidential
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`information.
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`Dexcom’s interests in expunging the confidential information at issue
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`outweigh the public’s interest in retaining it. None of these documents, nor the
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`information they contain, is public knowledge. The parties submitted this
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`information under seal and subject to the stringent requirements of a Protective
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`Order, which the Board found good cause to enforce. And, the thrust of all
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`arguments relating to these exhibits is fully discernable from the redacted versions
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`of all papers citing these exhibits. The public has little, if any, need to know the
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`specific information that Petitioner seeks to expunge from the record. Disclosure of
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`this sensitive information could put Dexcom at a competitive disadvantage.
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`B.
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`Expungement of the Confidential Versions of Exhibits 2027 and
`2053 Is Appropriate
`Exhibits 2027 and 2053 are declarations which reference or incorporate
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`information from some or all of the aforementioned sealed exhibits and are
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`confidential for the same reasons. Redacted versions of each were filed by Patent
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`Owner with its Motion to Seal (Paper 30). The redactions are limited to confidential
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`technical and business information which the Board did not cite or rely upon in its
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`Final Written Decision. In fact, the Board specifically stated that it “rel[ied] on the
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`public, redacted version of Exhibit 2027.” (See Paper 53 at 3.) And Exhibit 2053
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`was not relied upon at all. (See id.)
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`The parties submitted the confidential information under seal and subject to
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`the stringent requirements of a Protective Order, which the Board found good cause
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`to enforce. As with the sealed exhibits above, the redactions do not detract from the
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`public’s understanding of the Board’s Final Written Decision. On the other hand,
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`revealing this information would risk putting Dexcom at a competitive disadvantage.
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`C. Expungement of the Confidential Versions of Papers 29 and 37 Is
`Appropriate
`Paper 28 is Patent Owner’s Response to the Institution Decision (Paper 10).
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`Paper 29 is the publicly available redacted version. Paper 36 is Petitioner’s Reply
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`Brief. Paper 37 is the publicly available redacted version. The redactions are limited
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`to confidential technical information and evidence of secondary considerations of
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`non-obviousness, which the Board did not cite or rely upon in its Final Decision. In
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`fact, the Board specifically stated that it “rel[ied] on the public, redacted versions of
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`Patent Owner’s Response and Petitioner’s Reply” in its Final Decision. (See Paper
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`53 at 2.) And evidence of secondary considerations of non-obviousness was not
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`even considered in the Final Decision. (Id. at 31, 48 (“We conclude that Petitioner
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`has not met its burden of proof to show obviousness in view of [the references], even
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`without considering Patent Owner’s evidence of secondary considerations of non-
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`obviousness.”))
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`The parties submitted the confidential information under seal and subject to
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`the stringent requirements of a Protective Order, which the Board found good cause
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`to enforce. As with the sealed exhibits above, the redactions do not detract from the
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`public’s understanding of the Board’s Final Written Decision. On the other hand,
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`revealing this information would risk putting Dexcom at a competitive disadvantage.
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`III. Conclusion
`For the reasons stated herein and the previous motions to seal and responses,
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`Petitioner respectfully requests that the Board expunge sealed Exhibits 1030-32,
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`2039, 2041-48, 2051-52, 2055, 2060-61, 2076, and 2082-83. Petitioner further
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`requests that the Board expunge the sealed versions of Exhibits 2027 and 2053.
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`Petitioner further requests that Papers 28 and 36, which are the sealed, confidential
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`versions of publicly available redacted documents, be expunged. Petitioner
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`respectfully requests that the Board grant this Motion.
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`Dated: June 4, 2019
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`Respectfully submitted,
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`/Matthew W. Johnson/
`Matthew W. Johnson (Reg. No. 59,108)
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`Attorney for Petitioner Dexcom, Inc.
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`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6(e), this is to certify that I caused to be served a
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`true and correct copy of the foregoing “Petitioner’s Unopposed Motion to Expunge
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`Sealed Documents” on June 4, 2019 via email to the counsel for Patent Owner at
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`the following addresses:
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`Scott D. Eads
`Schwabe, Williamson & Wyatt, P.C.
`1211 SW Fifth Avenue, Suite 1900
`Portland, OR 97204
`SEads@schwabe.com
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`Karri Kuenzli Bradley
`Schwabe, Williamson & Wyatt, P.C.
`1211 SW Fifth Avenue, Suite 1900
`Portland, OR 97204
`KBradley@schwabe.com
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`Nicholas F. Aldrich, Jr.
`Schwabe, Williamson & Wyatt, P.C.
`1211 SW Fifth Avenue, Suite 1900
`Portland, OR 97204
`NAldrich@schwabe.com
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`Jason A. Wrubleski
`Schwabe, Williamson & Wyatt, P.C.
`1211 SW Fifth Avenue, Suite 1900
`Portland, OR 97204
`JWrubleski@schwabe.com
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`Dated: June 4, 2019
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`Respectfully submitted,
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` /Matthew W. Johnson/
`Matthew W. Johnson (Reg. No. 59,108)
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