Trials@uspto.gov
`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`DEXCOM, INC.
`Petitioner,
`v.
`WAVEFORM TECHNOLOGIES, INC.
`Patent Owner.
`____________________
`
`IPR2016-01679
`Patent No. 7,146,202
`_____________________
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`PATENT OWNER’S UNOPPOSED MOTION TO EXPUNGE
`SEALED DOCUMENT
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`571-272-7822
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`DEXCOM, INC.
`Petitioner,
`v.
`WAVEFORM TECHNOLOGIES, INC.
`Patent Owner.
`____________________
`
`IPR2016-01679
`Patent No. 7,146,202
`_____________________
`
`PATENT OWNER’S UNOPPOSED MOTION TO EXPUNGE
`SEALED DOCUMENT
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`
`
`
`
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`Pursuant to 37 C.F.R. § 42.56, Patent Owner WaveForm Technologies, Inc.
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`IPR2016-01679
`Patent 7,146,202
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`
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`(“WaveForm”) hereby moves for an order expunging a protected document filed
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`under seal in this proceeding, namely Exhibit 1041, and replacing it with a redacted
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`version of the exhibit to be submitted by Petitioner.1 Patent Owner has conferred
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`with Petitioner Dexcom, Inc. (“Dexcom”), and Dexcom does not oppose
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`WaveForm’s motion to expunge this exhibit. The document Patent Owner seeks to
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`expunge is a sealed deposition transcript disclosing confidential technical and
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`business information that was not relied on in any submission in this case. The only
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`submissions relying on any portion of Exhibit 1041 were the parties’ public briefing
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`on Dexcom’s Motion to Exclude Evidence (Papers 41, 46), and WaveForm does not
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`seek to expunge portions of Exhibit 1041 referred to therein. Further, in its Final
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`Written Decision, the Patent Trial and Appeal Board (the “Board”) stated that it did
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`not rely on the evidence Petitioner sought to exclude—let alone the deposition
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`testimony referred to in the Motion to Exclude briefing—and so dismissed that
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`Motion as moot. (See Paper 53 at 48-49.)
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`1 Patent Owner consulted with P.T.A.B. staff on June 5, 2019, and was
`informed that it is not possible for Patent Owner to file a replacement exhibit in the
`“1000” range. It was recommended that Petitioner file the Exhibit on Patent
`Owner’s behalf, which Petitioner has agreed to do upon submission of this Motion.
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`2
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`If the Board is not inclined to grant this motion, Patent Owner respectfully
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`IPR2016-01679
`Patent 7,146,202
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`requests a conference call with the Board to discuss the issues raised in this motion
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`before any information becomes public.
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`I.
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`Statement of Precise Relief Requested
`Patent Owner WaveForm requests that sealed Exhibit 1041 be expunged from
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`the record, and replaced with a redacted version of Exhibit 1041 prepared by Patent
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`Owner, which will be submitted by Petitioner upon filing of this Motion.
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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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`3
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`information are unimportant to the merits of the case and the public’s interest in
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`IPR2016-01679
`Patent 7,146,202
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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., IPR2014-
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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, Patent Owner respectfully requests that the Board expunge the
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`confidential information in Exhibit 1041. In addition, the information was not relied
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`upon by the Board in the Final Written Decision, or by the parties in any submission
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`in this proceeding, and the redactions to this exhibit will not hinder the public’s
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`understanding of the file or the Board’s Final Written Decision.
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`A. Expungement of Exhibit 1041 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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`4
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`we find it unnecessary to rely on documents the Patent Owner seeks to maintain as
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`IPR2016-01679
`Patent 7,146,202
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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 Exhibit
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`1041, or on any submission discussing Exhibit 1041.2 The exhibit is a transcript of
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`the deposition of WaveForm employee Ellen Anderson, who had submitted a brief
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`factual declaration in support of WaveForm’s Patent Owner Response (Exhibit
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`2035). Petitioner took Ms. Anderson’s deposition and moved to exclude the
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`declaration based on certain deposition testimony. (Papers 41, 46, 47.) The Board
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`did not rely on Ms. Anderson’s declaration in its Final Written Decision, and so
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`dismissed Petitioner’s Motion to Exclude as moot. (Paper 53 at 48-49.) Exhibit
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`1041 contains confidential business and technical information relating to the
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`development, design, manufacture, testing, and regulatory approval of Patent
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`Owner’s glucose monitoring products, including products currently in development.
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`(See Exhibit 1041 at pp. 35-38, 40-44, 49-55, 96, 99-100, 123-124, 134-135, 138-
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`141.)3 Petitioner did not rely on this information in its Motion to Exclude Evidence.
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`2 Exhibit 1041 is referred to briefly in a footnote to Petitioner’s Reply (Paper
`36 at 2 n. 2), but only in reference to its forthcoming Motion to Exclude, which had
`not been filed at the time of the Reply. Patent Owner also does not seek to
`expunge the portion of Exhibit 1041 referred to in Petitioner’s Reply.
`3 Ms. Anderson also provided her home address on page 3, which has been
`removed in the redacted transcript submitted herewith. The Board has directed the
`expungement of personal information unrelated to the merits of a case. See
`5
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`WaveForm’s interests in expunging the confidential information at issue
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`IPR2016-01679
`Patent 7,146,202
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`outweigh the public’s interest in retaining it. The parties submitted this information
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`under seal and subject to a Protective Order. The information Patent Owner seeks
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`to expunge was not referred to in any submission in this case. As such, the public
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`has no need to know the specific information that Patent Owner seeks to expunge in
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`order to understand the proceedings in this case.
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`III. Conclusion
`For the reasons stated herein, Patent Owner respectfully requests that the
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`Board grant this motion, expunge sealed Exhibit 1041, and replace it in the public
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`record with the redacted version to be submitted by Petitioner.
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`Dated: June 6, 2019
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`Respectfully submitted,
`
`/Scott D. Eads/
`Scott D. Eads
`Reg. No.: 41,726
`Karri Kuenzli Bradley
`Reg. No.: 56,300
`Nicholas F. Aldrich
`Admitted pro hac vice
`Jason A. Wrubleski
`Admitted pro hac vice
`
`Attorney for Patent Owner WaveForm
`Technologies, Inc.
`
`
`Garmin Int’l, Inc. et al. v. Cuozzo Speed Techs. LLC, IPR2012-00001, Paper 36,
`2013 Pat. App. LEXIS 6306 at *7-*10, *14 (P.T.A.B. April 5, 2013).
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`6
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`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on the 6th day
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`of June, 2019, a complete and entire copy of this PATENT OWNER’S
`UNOPPOSED MOTION TO EXPUNGE SEALED DOCUMENT was
`provided via electronic mail to the Petitioner’s known representatives at the e-mail
`addresses noted below:
`
`
`Matthew W. Johnson
`JONES DAY
`One Mellon Center
`500 Grant Street
`Pittsburgh, PA 15219
`mwjohnson@jonesday.com
`
`David B. Cochran
`Calvin P. Griffith
`JONES DAY
`901 Lakeside Avenue
`Cleveland, Ohio 44114
`dcochran@jonesday.com
`cpgriffith@jonesday.com
`
`Vishal V. Khatri
`JONES DAY
`51 Louisiana Avenue, N.W.
`Washington, D.C. 20001
`vkhatri@jonesday.com
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`Respectfully submitted,
`SCHWABE, WILLIAMSON & WYATT, P.C.
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`
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`By: /Scott D. Eads/
`
`Scott D. Eads
` Reg. No.: 41,726
`Attorney for Patent Owner
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`1
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