Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`
`Paper 81
`Date: June 21, 2021
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`PFIZER INC.,1
`Petitioner,
`
`v.
`
`NOVO NORDISK A/S,
`Patent Owner.
`____________
`
`IPR2020-003242
`Patent 8,114,833 B2
`____________
`
`
`
`Before ERICA A. FRANKLIN, JOHN G. NEW, and
`SUSAN L. C. MITCHELL, Administrative Patent Judges.
`
`FRANKLIN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Granting Patent Owner’s Unopposed Renewed
`Motion to Seal Exhibits 2023, 1078, and 1079
`37 C.F.R. §§ 42.14 and 42.54
`
`
`
`1 The proceeding has been terminated as to the original petitioner, Mylan
`Institutional LLC. Paper 67.
`2 IPR2020-01252 has been joined with this proceeding. See Paper 33.
`
`
`Tel: 571-272-7822
`
`
`
`
`
`Paper 81
`Date: June 21, 2021
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`PFIZER INC.,1
`Petitioner,
`
`v.
`
`NOVO NORDISK A/S,
`Patent Owner.
`____________
`
`IPR2020-003242
`Patent 8,114,833 B2
`____________
`
`
`
`Before ERICA A. FRANKLIN, JOHN G. NEW, and
`SUSAN L. C. MITCHELL, Administrative Patent Judges.
`
`FRANKLIN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Granting Patent Owner’s Unopposed Renewed
`Motion to Seal Exhibits 2023, 1078, and 1079
`37 C.F.R. §§ 42.14 and 42.54
`
`
`
`1 The proceeding has been terminated as to the original petitioner, Mylan
`Institutional LLC. Paper 67.
`2 IPR2020-01252 has been joined with this proceeding. See Paper 33.
`
`
`
`IPR2020-00324
`Patent 8,114,833 B2
`
`
`I.
`INTRODUCTION
`Patent Owner renews its motion to seal Exhibit 2023, the Declaration
`of Dorthe Kot Engelund. Patent Owner also moves to seal Exhibit 1078, the
`Transcript for the Deposition of Dorthe Kot Engelund, and Exhibit 1079, the
`Transcript for the Deposition of Tina B. Pedersen, Ph.D. Petitioner does not
`oppose the motion.
`
`II. DISCUSSION
` “There is a strong public policy for making all information filed in a
`quasi-judicial administrative proceeding open to the public, especially in an
`inter partes review which determines the patentability of claims in an issued
`patent and therefore affects the rights of the public.” Garmin Int’l v. Cuozzo
`Speed Techs., LLC, IPR2012-00001, Paper 34, 1–2 (PTAB Mar. 14, 2013).
`A motion to seal may be granted for good cause. 37 C.F.R. § 42.54. The
`moving party bears the burden of showing that there is good cause for the
`relief requested, including why the information is appropriate to be filed
`under seal. 37 C.F.R. §§ 42.20, 42.54; see also Argentum Pharms. LLC v.
`Alcon Research, Ltd., IPR2017-01053, Paper 27 at 3–4 (PTAB Jan. 19,
`2018) (informative) (discussing factors the Board may consider when
`deciding whether to grant a motion to seal documents asserted to contain
`confidential information). The Patent Trial and Appeal Board Consolidated
`Trial Practice Guide (“CTPG”) notes that 37 C.F.R. § 42.54 identifies
`confidential information in a manner consistent with Federal Rule of Civil
`Procedure 26(c)(1)(G), which provides for protective orders for trade secret
`
`2
`
`
`
`IPR2020-00324
`Patent 8,114,833 B2
`
`or other confidential research, development, or commercial information.
`CTPG at 19.3
`Regarding Exhibit 2023, Patent Owner asserts that it has corrected the
`deficiencies that we noted in our decision denying the original motion to seal
`the exhibit. Mot. 1. In particular, we explained that Patent Owner has not
`shown that the exhibit should be sealed in its entirety because it appears to
`contain at least some information that is not confidential. Paper 72, 4.
`With its current motion, Patent Owner appropriately seeks to seal on
`the confidential material in the exhibit. Mot. 3. Accordingly, Patent Owner
`has filed a redacted, non-confidential version of Exhibit 2023 as Exhibit
`2099. Patent Owner asserts that good cause exists for maintaining the
`confidential portions of the exhibits under seal because they contain
`confidential, non-public research and development information in the form
`of proprietary clinical and scientific data. Id.
`Regarding Exhibits 1078 and 1079, Patent Owner asserts that it has
`corrected the deficiencies that we noted in our decision denying the original
`motion to seal filed by Petitioner. Mot. 1. In the original motion by
`Petitioner, Petitioner asserted that “good cause exists for placing the Exhibits
`. . . under seal because Patent Owner has contended this information should
`be sealed according to the reasons set forth in Paper No. 22 [Patent Owner’s
`Motion to Seal and for Entry of a Protective Order].” Paper 34, 2.
`Petitioner explained that it “takes no position as to whether the underlying
`information satisfies the Board’s requirements for filing under seal, as it is
`
`
`3 November 2019 Edition, available at
`https://www.uspto.gov/TrialPracticeGuideConsolidated.
`3
`
`
`
`IPR2020-00324
`Patent 8,114,833 B2
`
`Patent Owner that has asserted the confidentiality of these exhibits.” Id.
`Petitioner also stated that it would file redacted versions of the exhibits. Id.
`at 3. In our decision denying the motion to seal Exhibits 1078 and 1079, we
`noted that redacted versions of Exhibits 1078 and 1079 had not been filed
`and good cause was not shown to seal the exhibits in their entirety. Paper
`74, 4.
`In its current motion, Patent Owner explains that it has now filed
`redacted, non-confidential versions of Exhibit 1078 and 1079, as Exhibits
`2100 and 2101, respectively. Mot. 3. Patent Owner asserts that good cause
`exists for maintaining the confidential portions of the exhibits under seal
`because they contain confidential, non-public research and development
`information in the form of proprietary clinical and scientific data. Id.
`We therefore determine that Petitioner has shown good cause to seal
`the confidential versions of the Declaration of Dorthe Kot Engelund (Exhibit
`2023) and the Transcripts for the Depositions of Dorthe Kot Engelund
`(Exhibit 1078) and Tina B. Pedersen, Ph.D. (Exhibit 1079).
`Further, as discussed in our Consolidated Trial Practice Guide,
`Confidential information that is subject to a protective order
`ordinarily would become public 45 days after denial of a petition
`to institute a trial or 45 days after final judgment in a trial. There
`is an expectation that information will be made public where the
`existence of the information is referred to in a decision to grant
`or deny a request to institute a review or is identified in a final
`written decision following a trial. A party seeking to maintain the
`confidentiality of information, however, may file a motion to
`expunge the information from the record prior to the information
`becoming public.
`
`CTPG at 21–22; see also 37 C.F.R. § 42.56 (“After denial of a petition to
`institute a trial or after final judgment in a trial, a party may file a motion to
`
`4
`
`
`
`IPR2020-00324
`Patent 8,114,833 B2
`
`expunge confidential information from the record.”).
`Today, we have entered an Order terminating this proceeding. Paper 80.
`Accordingly, papers and exhibits filed subject to the protective order would
`ordinarily be made public 45 days from this date. As set forth in the CTPG,
`the parties are authorized to file a motion to expunge those sealed materials.
`
`
`III. ORDER
`
`Accordingly, it is
`ORDERED that Patent Owner’s Unopposed Renewed Motion to Seal
`is granted.
`
`
`
`
`5
`
`
`
`IPR2020-00324
`Patent 8,114,833 B2
`
`For PETITIONER PFIZER:
`
`Thomas J. Meloro
`tmeloro@willkie.com
`
`Michael W. Johnson
`mjohnson1@willkie.com
`
`For PATENT OWNER:
`
`Jeffrey Oelke
`joelke@fenwick.com
`
`Ryan Johnson
`ryan.johnson@fenwick.com
`
`Laura Moran
`laura.moran@fenwick.com
`
`6
`
`
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