) ) ) ) ) ) ) Investigation No. 337-TA-5 10 Consolidated Enforcement and Advisory Opinion Proceeding Order 29: Denving Complainant’s Motion No. 510-27 To Declassifv On January 17,2006, pursuant to Commission rule 210.20 and ground rule 3(i), complainant Trend Micro Incorporated (Trend Micro) moved for the declassification of a December 7,2005 OEM agreement between Fortinet, Inc. (Fortinet) and Clearswift, Ltd.

Commission that patent license agreements between settling parties are likely to contain confidential business information and hence should be subject to a protective order.

Regarding Trend Micro’s argument that Fortinet has waived confidentiality of the OEM Agreement as to Trend Micro, under the terms of the protective order in this proceeding, information produced in discovery is expressly shielded from the opposing party if it qualifies as “Confidential Business Information.” By its terms, the protective order applies to any information produced “either voluntarily or pursuant to order.” Moreover, Fortinet did in fact mark its request for advisory opinion as “Confidential Business Information,” thus alerting Trend Micro that Fortinet contended that Paragraph 2 applied.

Also the protective order states that documents marked confidential will be treated as such unless or until the administrative law judge or the Commission rules otherwise.