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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`______________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`______________________
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`NINTENDO CO., LTD., and
`NINTENDO OF AMERICA INC.,
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`Petitioners,
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`v.
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`ANCORA TECHNOLOGIES, INC.,
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`Patent Owner.
`______________________
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`Case IPR2021-01338
`U.S. Patent No. 6,411,941
`______________________
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`PETITIONERS’ MOTION
`UNDER 37 C.F.R. §§ 42.14 AND 42.54 TO SEAL
`EXHIBITS 1034, 1050-1057 AND PETITIONERS’ REPLY
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`
`
`Mail Stop “Patent Board”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`
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`Case IPR2021-01338
`U.S. Patent No. 6,411,941
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`TABLE OF CONTENTS
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`INTRODUCTION ........................................................................................... 1
`GOVERNING RULES AND PTAB GUIDANCE ......................................... 1
`IDENTIFICATION OF CONFIDENTIAL INFORMATION AND
`CERTIFICATION THAT THE CONFIDENTIAL INFORMATION
`SOUGHT TO BE PROTECTED HAS NOT BEEN MADE PUBLICLY
`AVAILABLE .................................................................................................. 2
`IV. GOOD CAUSE EXISTS FOR SEALING THE CONFIDENTIAL
`INFORMATION. ............................................................................................ 4
`RELIEF REQUESTED ................................................................................... 4
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`I.
`II.
`III.
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`V.
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`- i -
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`INTRODUCTION
`Nintendo Co., Ltd. and Nintendo of America Inc. (collectively, “Petitioner”)
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`Case IPR2021-01338
`U.S. Patent No. 6,411,941
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`I.
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`request that confidential exhibits 1034 and 1050-1057 (collectively, “the
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`Confidential Exhibits”), as well as portions of Petitioner’s Reply quoting or
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`characterizing such documents, be sealed under 37 C.F.R. §§ 42.14 and 42.54.
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`All of the confidential material submitted in this proceeding belongs to
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`Patent Owner. Good cause to seal exists because Patent Owner has represented to
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`Petitioner that certain information in the Confidential Exhibits is sensitive, non-
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`public information. Petitioner therefore submits this Motion to Seal under the
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`jointly proposed Protective Order in this case (EX2038).
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`Pursuant to 37 C.F.R. § 42.54(a), Petitioner’s counsel conferred in good
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`faith with Patent Owner’s counsel in an attempt to resolve any dispute about this
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`Motion. Patent Owner does not oppose this motion.
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`II. GOVERNING RULES AND PTAB GUIDANCE
`While under 35 U.S.C. § 316(a)(1), papers filed in an inter partes review are
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`generally open and available for access by the public, a party may file a concurrent
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`Motion to Seal to protect public disclosure of certain confidential information,
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`which has the effect of sealing the information at issue pending resolution of the
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`motion. In determining whether to grant a Motion to Seal, the Board must find
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`“good cause,” 37 C.F.R. § 42.54(a), and “strike a balance between the public’s
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`- 1 -
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`interest in maintaining a complete and understandable file history and the parties’
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`Case IPR2021-01338
`U.S. Patent No. 6,411,941
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`interest in protecting truly sensitive information,” Consolidated Trial Practice
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`Guide, November 2019 (“TPG”), 19. The Board identifies confidential information
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`in a manner “consistent with Federal Rule of Civil Procedure 26(c)(1)(G), which
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`provides for protective orders for … confidential research, development, or
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`commercial information.” TPG, 19.
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`Based on the procedure set forth in the TPG, Petitioner seeks to prevent the
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`disclosure of sensitive information that Patent Owner has represented is contained
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`in the confidential documents.
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`III.
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`IDENTIFICATION OF CONFIDENTIAL INFORMATION
`The Confidential Exhibits at issue here comprise certain patent license
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`agreements (EX1050-EX1057) that Patent Owner produced in this proceeding in
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`view of Petitioner’s granted Motion for Additional Discovery (Paper 25), as well
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`as deposition testimony discussing those license agreement (EX1034). The
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`confidential information also includes portions of Petitioners’ Reply, which quotes
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`and characterizes those Confidential Exhibits. Patent Owner has represented to
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`Petitioner that the agreements are confidential and thus have not been published or
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`otherwise made public. In particular, pursuant to the Board’s June 17, 2022 Order
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`(Paper 29), Patent Owner designated the agreements as “THIRD-PARTY
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`CONFIDENTIAL – PARTY ACCESS LIMITED” under the Protective Order in
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`- 2 -
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`this proceeding (EX2038). Under the terms of the Protective Order, documents so
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`Case IPR2021-01338
`U.S. Patent No. 6,411,941
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`designated must be filed under seal. (EX2038, ¶4(A)(i).)
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`A. The Confidential Exhibits
`Petitioner is not in a position to dispute Patent Owner’s designation of its
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`own Confidential Exhibits and confidential information. Nor is Petitioner in a
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`position to identify the specific information within the Confidential Exhibits that is
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`confidential, as such information belongs solely to Patent Owner, and Patent
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`Owner has not specifically identified such information for Petitioner. Accordingly,
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`Petitioner will not attempt to redact the Confidential Exhibits—rather, Petitioner
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`files the Confidential Exhibits in their entirety, and is not filing public versions of
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`the Confidential Exhibits.
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`B.
`Petitioner’s Reply
`Petitioner has, to the best of its ability, limited material in its Reply to non-
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`confidential information. It has redacted confidential information citing, quoting,
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`or characterizing the Confidential Exhibits. Pursuant to guidance in the TPG,
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`Petitioner has filed both confidential and non-confidential versions of its Reply.
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`*
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`*
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`*
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`To the best of Petitioner’s knowledge, and based on Patent Owner’s
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`representation that the Confidential Exhibits and the information contained therein
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`- 3 -
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`are indeed confidential, the information sought to be sealed has not been published
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`Case IPR2021-01338
`U.S. Patent No. 6,411,941
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`or otherwise made public.
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`IV. GOOD CAUSE EXISTS FOR SEALING THE CONFIDENTIAL
`INFORMATION.
`By designating the Confidential Exhibits as confidential under the Protective
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`Order, Patent Owner has represented that public disclosure of the agreements and
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`information contained therein would significantly harm Patent Owner and
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`potentially violate confidentiality provisions associated with those Confidential
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`Exhibits. The public interest will not be harmed by granting this Motion to Seal the
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`documents as “PROTECTIVE ORDER MATERIAL.” To the contrary, at least
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`according to Patent Owner’s representations about the Confidential Exhibits,
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`granting this Motion to Seal would achieve “a balance between the public’s
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`interest in maintaining a complete and understandable file history and the parties’
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`interest in protecting truly sensitive information.” 77 Fed. Reg. at 48,760.
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`Therefore, good cause exists for granting this motion to seal.
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`V. RELIEF REQUESTED
`For the reasons stated above, Petitioner requests that the Board seal and
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`protect the Confidential Exhibits and portions of Petitioner’s Reply citing thereto.
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`- 4 -
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`Dated: July 22, 2022
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`Case IPR2021-01338
`U.S. Patent No. 6,411,941
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`/Kyle R. Canavera/
`Kyle R. Canavera, Reg. No. 72,167
`Jerry A. Riedinger, Reg. No. 30,582
`Jose Villarreal, Reg. No. 43,969
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`Attorney for Petitioners
`Nintendo Co., Ltd. and Nintendo of America Inc.
`PERKINS COIE LLP
`1201 3rd Ave., #4900
`Seattle, WA 98101
`(206) 359-8664
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`- 5 -
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`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that a true and correct copy of the
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`Case IPR2021-01338
`U.S. Patent No. 6,411,941
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`foregoing PETITIONERS’ MOTION UNDER 37 C.F.R. §§ 42.14 AND 42.54
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`TO SEAL EXHIBITS 1034, 1050-1057 AND PETITIONERS’ REPLY was
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`served electronically via e-mail on July 22, 2022, in its entirety on the following
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`counsel of record for Patent Owner:
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`David A. Gosse (Lead Counsel)
`Nicholas T. Peters (Back-up Counsel)
`Karen J. Wang (Back-up Counsel)
`FITCH, EVEN, TABIN & FLANNERY LLP
`dgosse@fitcheven.com
`ntpete@fitcheven.com
`kwang@fitcheven.com
`ancora-ipr@fitcheven.com
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`Respectfully submitted,
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`/Amy Candeloro/
`Amy Candeloro
`Paralegal
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`Date: July 22, 2022
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