Trials@uspto.gov
`571.272.7822
`
`
` Paper No. 91
`
` Entered: August 28, 2020
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`PRECISION PLANTING, LLC and AGCO CORP.,
`Petitioner,
`
`v.
`
`
`
`
`
`DEERE & COMPANY,
`Patent Owner.
`____________
`
`IPR2019-01044 (Patent 8,813,663 B2)
`IPR2019-01046 (Patent 9,480,199 B2)
`IPR2019-01053 (Patent 9,861,031 B2)
`IPR2019-01055 (Patent 9,699,955 B2)1
`____________
`
`Before MICHAEL W. KIM, BARRY L. GROSSMAN,
`JAMES A. TARTAL, and TIMOTHY J. GOODSON,
`Administrative Patent Judges.2
`
`GOODSON, Administrative Patent Judge.
`
`
`ORDER
`Granting Patent Owner’s and Petitioner’s Unopposed Motions to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`1 We exercise our discretion to issue one order to be filed in each
`proceeding. The parties may use this style heading only if the paper
`includes a statement certifying that the identical paper is being filed in each
`proceeding listed in the caption.
`2 This listing of Administrative Patent Judges does not reflect an expanded
`panel under SOP 1 § III.M. This order addresses multiple proceedings that
`collectively involve more than three Administrative Patent Judges.
`
`
`
`
`571.272.7822
`
`
` Paper No. 91
`
` Entered: August 28, 2020
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`PRECISION PLANTING, LLC and AGCO CORP.,
`Petitioner,
`
`v.
`
`
`
`
`
`DEERE & COMPANY,
`Patent Owner.
`____________
`
`IPR2019-01044 (Patent 8,813,663 B2)
`IPR2019-01046 (Patent 9,480,199 B2)
`IPR2019-01053 (Patent 9,861,031 B2)
`IPR2019-01055 (Patent 9,699,955 B2)1
`____________
`
`Before MICHAEL W. KIM, BARRY L. GROSSMAN,
`JAMES A. TARTAL, and TIMOTHY J. GOODSON,
`Administrative Patent Judges.2
`
`GOODSON, Administrative Patent Judge.
`
`
`ORDER
`Granting Patent Owner’s and Petitioner’s Unopposed Motions to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`1 We exercise our discretion to issue one order to be filed in each
`proceeding. The parties may use this style heading only if the paper
`includes a statement certifying that the identical paper is being filed in each
`proceeding listed in the caption.
`2 This listing of Administrative Patent Judges does not reflect an expanded
`panel under SOP 1 § III.M. This order addresses multiple proceedings that
`collectively involve more than three Administrative Patent Judges.
`
`
`
`
`
`IPR2019-01044 (Patent 8,813,663 B2)
`IPR2019-01046 (Patent 9,480,199 B2)
`IPR2019-01053 (Patent 9,861,031 B2)
`IPR2019-01055 (Patent 9,699,955 B2)
`
`INTRODUCTION
`I.
`In the above-captioned cases, Patent Owner filed a Motion to Exclude
`Evidence, including a confidential version of the motion (Paper 71) and a
`public, redacted version of the motion (Paper 72).3 Patent Owner filed an
`accompanying Unopposed Motion to Seal (Paper 70) the confidential
`version of its Motion to Exclude Evidence. Subsequently, Petitioner filed an
`Opposition to Patent Owner’s Motion to Exclude Evidence (Paper 77,
`confidential version; Paper 75, public, redacted version), along with an
`Unopposed Motion to Seal (Paper 78) the confidential version of its
`Opposition. Patent Owner then filed a Reply to Petitioner’s Opposition to
`the Motion to Exclude Evidence (Paper 86, confidential version; Paper 87,
`public, redacted version), accompanied by an Unopposed Motion to Seal
`(Paper 85) the confidential version of its Reply.
`For the reasons discussed below, Patent Owner’s and Petitioner’s
`motions to seal are granted.
`II. DISCUSSION
`The record for an inter partes review shall be made available to the
`public, except as otherwise ordered, and a document filed with a motion to
`seal shall be treated as sealed until the motion is decided. 35 U.S.C.
`§ 316(a)(1); 37 C.F.R. § 42.14. There is a strong public policy that favors
`making information filed in inter partes review proceedings open to the
`public. See Garmin International v. Cuozzo Speed Technologies, LLC,
`IPR2012-00001, Paper 34 (PTAB March 14, 2013) (discussing the standards
`
`
`3 We cite to the papers and exhibits filed in IPR2019-01044. Similar papers
`and exhibits were filed in each of the above-captioned cases.
`
`2
`
`
`
`IPR2019-01044 (Patent 8,813,663 B2)
`IPR2019-01046 (Patent 9,480,199 B2)
`IPR2019-01053 (Patent 9,861,031 B2)
`IPR2019-01055 (Patent 9,699,955 B2)
`
`of the Board applied to motions to seal). Unlike in district court, where a
`party routinely will determine whether a document is produced under the
`terms of a district court protective order, in an inter partes review, “the
`default rule is that all papers . . . are open and available for access by the
`public.” See Garmin at 2. The standard for granting a motion to seal is
`“good cause.” 37 C.F.R. § 42.54. The moving party bears the burden of
`showing that the relief requested should be granted. 37 C.F.R. § 42.20(c).
`That includes showing that the information is truly confidential, and that
`such confidentiality outweighs the strong public interest in having an open
`record. See Garmin at 3. Further, redactions to documents should be
`limited to the minimum amount necessary to protect confidential
`information, and the thrust of the underlying argument or evidence must be
`clearly discernible from the redacted versions. See Scheduling Order, Paper
`18, 2–3; see also Consolidated Office Patent Trial Practice Guide
`(“Consolidated Practice Guide”), November 2019, at 91–92.4
`In their motions to seal, Patent Owner and Petitioner assert there is
`good cause to seal their briefs related to Patent Owner’s Motion to Exclude
`Evidence, because the briefs discuss exhibits previously filed under seal.
`Paper 70, 1; Paper 78, 1–2; Paper 85, 1. Specifically, the parties contend the
`briefs discuss Exhibits 1049, 1050, 1052, and 1054 (id.), for which we
`determined there was good cause to enter under seal (Paper 60, 4–5; Paper
`74, 3–4). Upon reviewing the confidential versions of the parties’ briefs on
`Patent Owner’s Motion to Exclude Evidence (Papers 71, 77, and 86), we
`agree that these briefs refer to confidential information contained in sealed
`
`4 Available at https://www.uspto.gov/TrialPracticeGuideConsolidated.
`
`3
`
`
`
`IPR2019-01044 (Patent 8,813,663 B2)
`IPR2019-01046 (Patent 9,480,199 B2)
`IPR2019-01053 (Patent 9,861,031 B2)
`IPR2019-01055 (Patent 9,699,955 B2)
`
`Exhibits 1049, 1050, 1052, and 1054, and thus, there is good cause to seal
`the confidential briefs. Further, the parties have filed public, redacted
`versions of their briefs (Papers 72, 75, and 87) that appear to be tailored
`narrowly to redact only confidential information. Accordingly, we grant
`Patent Owner’s and Petitioner’s motions to seal the confidential versions of
`their briefs on Patent Owner’s Motion to Exclude Evidence (Papers 71, 77,
`and 86). All documents entitled to confidentiality in the above-identified
`proceedings are subject to the Board’s Default Protective Order (Ex. 3001),
`which was previously entered (Paper 60, 2–3).
`We remind the parties of the public’s interest in maintaining a
`complete and understandable file history, and thus, that there is an
`expectation that confidential information relied upon in a subsequent
`decision will be made public. See Consolidated Practice Guide at 21–22. In
`addition, confidential information that is subject to a protective order
`ordinarily becomes public 45 days after denial of a petition to institute or 45
`days after final judgment in a trial. Id. A party seeking to maintain the
`confidentiality of the information may file a motion to expunge the
`information from the record prior to the information becoming public. 37
`C.F.R. § 42.56.
`
`III. ORDER
`
`Accordingly, it is:
`ORDERED that Patent Owner’s Unopposed Motions to Seal the
`confidential version of its Motion to Exclude Evidence and its Reply to
`Petitioner’s Opposition to the Motion to Exclude Evidence are granted; and
`
`4
`
`
`
`IPR2019-01044 (Patent 8,813,663 B2)
`IPR2019-01046 (Patent 9,480,199 B2)
`IPR2019-01053 (Patent 9,861,031 B2)
`IPR2019-01055 (Patent 9,699,955 B2)
`
`FURTHER ORDERED that Petitioner’s Unopposed Motion to Seal
`the confidential version of its Opposition to Patent Owner’s Motion to
`Exclude Evidence is granted.
`
`
`
`5
`
`
`
`IPR2019-01044 (Patent 8,813,663 B2)
`IPR2019-01046 (Patent 9,480,199 B2)
`IPR2019-01053 (Patent 9,861,031 B2)
`IPR2019-01055 (Patent 9,699,955 B2)
`
`
`PETITIONER:
`
`Grant Rowan
`Mary Sooter
`R. Gregory Israelsen
`Natalie Pous
`WILMER HALE CUTLER, PICKERING, HALE AND DORR, LLP
`grant.rowan@wilmerhale.com
`mindy.sooter@wilmerhale.com
`greg.israelsen@wilmerhale.com
`natalie.pous@wilmerhale.com
`
`
`PATENT OWNER:
`
`Jay Alexander
`Peter Chen
`Nicholas L. Evoy
`Rajesh Paul
`Richard Rainey
`COVINGTON & BURLING LLP
`jalexander@cov.com
`pchen@cov.com
`nevoy@cov.com
`rpaul@cov.com
`rrainey@cov.com
`
`
`6
`
`
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