`
`Exhibit B
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`
`
`
`Counter Proposal Three:
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`[PROPOSED] ADDENDUM TO PROTECTIVE ORDER
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`IT IS HEREBY ORDERED THAT Order No. 1, the Protective Order for this investigation, is
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`supplemented with the following provisions:
`
`
`24.
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`Documents designated "[supplier's name] CONFIDENTIAL BUSINESS
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`INFORMATION-SOURCE CODE, SUBJECT TO PROTECTIVE ORDER"
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`shall be provided with the following further protections:
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`A.
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`Source Code includes human-readable programming language text that defines
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`software, firmware, or electronic hardware descriptions (hereinafter referred to as
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`"source code"). Text files containing source code shall hereinafter be referred to
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`as "source code files." Source code files include, but are not limited to files
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`containing source code written in "C", "C++", assembler, VHDL, Verilog, and
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`digital signal processor (DSP) programming languages. Source code files further
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`include ".include files," "make" files, link files, and other human-readable text
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`files used in the generation and/or building of software directly executed
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`on a microprocessor, micro-controller, or DSP. Source code does not
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`include binary executable files and object code files, nor does it include
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`tools such as compilers or linkers.1
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`
`1 The parties agree that binary executable files and object code files do not need to be produced. To the extent
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`binary executable files and object code files are required to be produced, they shall be afforded the same protection
`as other "Source Code" defined in this section.
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`
`
`
`
`B.
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`Treatment of Source Code. To the extent that any party wishes to obtain access to
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`source code, the following procedures shall apply:
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`i.
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`The supplier shall make all relevant and properly requested source code
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`available for inspection on a stand-alone, non-networked personal
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`computer running a reasonably current version of the Microsoft Windows
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`operating system ("Source Code Computer"). Alternatively, solely at the
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`supplier's option, the supplier may make such code available on a
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`computer that is networked, as deemed secure by the supplier such that the
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`party wishing to obtain access to the source code cannot provide network
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`access to the computer beyond the specific access enabled or desired by the
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`supplier. The Source Code Computer shall be locked down so that
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`additional peripheral devices cannot be connected to the Source Code
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`Computer by the Receiving Party. Should it be necessary, the Source Code
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`Computer may be configured by the supplier to run other mutually agreed
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`upon operating systems, such as Linux. Upon request by the receiving
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`party, the producing party shall install, at the receiving party’s expense,
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`one or more of the following types of software to aid in reviewing source
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`code: UE Studio, Cygwin, MS Visual Studio Suite, Understand, Eclipse,
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`Visual Slick Edit, PowerGrep, and Source-Navigator.
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`
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`ii.
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`The supplier shall make the source code available electronically and in the
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`form as kept in the ordinary course of business in a secure room at the
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`offices of outside counsel for the supplier (or affiliated counsel's offices) in
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`Deleted: either:
`Deleted: (1) the offices of outside
`counsel for the supplier located in
`Washington, D.C. to be selected by the
`supplier or (2)
`Deleted: or the supplier's facilities
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`
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`the greater Boston, MA area to be selected by the supplier. The supplier
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`need not produce in executable format absent further agreement of the
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`parties or order of the Chief Administrative Law Judge.
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`Deleted: The Receiving Party shall
`select one of the two locations no later
`than five (5) days after the amendment to
`the Protective Order is granted, and the
`source code will be produced at only one
`of the two locations for the entirety of
`this action.
`
`
`
`iii.
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`In order to verify that its source code has not later been altered, the
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`supplier may benchmark the materials before they are provided, but shall
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`not install any keystroke or other monitoring software on the Source Code
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`Computer.
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`
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`iv.
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`The Source Code Computer shall be made available from 8 am to 6 pm
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`local time, Monday through Friday (excluding holidays), and other days
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`and/or times, including weekends, upon reasonable request until the close
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`of discovery in this action. Access on weekends shall be permitted on one
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`business day's written notice. Access on or after hours (6:00 pm to 12:00
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`midnight) shall be permitted on four (4) hours written notice on the same
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`business day. The Source Code Computer will not be permitted to run
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`searches or other operational parameters regarding the Source Code
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`outside of the hours during which it is made available pursuant to this
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`section.
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`
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`v.
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`The source code is to be treated as "[supplier's name] CONFIDENTIAL
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`BUSINESS INFORMATION-SOURCE CODE, SUBJECT TO
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`PROTECTIVE ORDER," and the receiving party may not disclose the
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`Deleted: To the extent that the
`receiving party desires reasonable Access
`on weekends or after hours, supplier will
`consider such requests in good faith, and
`such requested access will not be
`unreasonably withheld.
`
`
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`source code or the content of the source code to anyone who has not
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`undertaken to abide by the Protective Order. No employee of the receiving
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`party may access or obtain the source code. In no case shall any
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`information designated as "[supplier's name] CONFIDENTIAL
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`BUSINESS INFORMATION-SOURCE CODE, SUBJECT TO
`
`PROTECTIVE ORDER" by a Respondent be provided to any other
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`Respondent or Respondent's counsel by any party or counsel absent
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`explicit agreement from the party designating the information.
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`
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`vi. No more than five (5) individuals who qualify under the paragraph 3 of
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`this Protective Order, for the receiving party, may have access to the
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`Source Code Computer. For each day that counsel for the receiving party
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`requests a review of the Source Code Computer, it must give at least one
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`business day (and at least 24 hours) notice to the counsel for the supplier
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`that it will be sending individual(s) authorized to review the source code
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`made available on the Source Code Computer. The receiving party shall
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`identify all individuals who will be given access to the source code at least
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`ten (10) business days prior to any inspection, as required by paragraph 15,
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`during which time the supplier may object to providing source code access
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`to any persons so identified, provided that access will not be unreasonably
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`denied.
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`
`
`Deleted: N
`
`Deleted: In addition, no more than ten
`(10) additional attorneys and/or experts
`who qualify under paragraph 3, of this
`Protective Order, for the receiving party,
`may have access to printed copies of any
`portion of the supplier's source code.
`Deleted: two
`Deleted: s
`Deleted: 48
`
`Deleted: If an objection to an
`individual is made by the supplier, it will
`be the burden of the requesting party to
`prove that individual should be
`authorized to inspect the supplier's source
`code.
`
`
`
`vii. Proper identification of all authorized persons shall be provided prior to
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`any access to the secure facility or the Source Code Computer. Proper
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`identification is hereby defined as a photo identification card sanctioned by
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`the government of a U.S. state, by the District of Columbia, by the United
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`States federal government, or by the nation state of the authorized person's
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`current citizenship. Access to the secure facility or the Source Code
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`Computer may be denied, at the discretion of the supplier, to any
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`individual who fails to provide proper identification.
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`
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`viii. The Source Code Computer shall be equipped with a printer to print copies
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`of the source code on watermarked pre-Bates numbered paper, which shall
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`be provided by the supplier. Counsel for the supplier will keep the
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`originals of these printed documents, and copies shall be made for counsel
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`for the receiving party on watermarked paper within two (2) business days
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`of the printing of any such portions by the receiving party. Counsel for the
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`receiving party may request up to 10 copies of printed source code. No
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`more than 10% or 500 pages of the total source code for any software
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`release may be in printed form at any one time, and all printed source code
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`shall be logged by the receiving party as noted in paragraph xv below. If
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`necessary, the receiving party may request, within 24-hours of day needed,
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`to print additional pages in excess of the 500 pages of total source code for
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`a software release, which request the supplier shall not unreasonably deny.
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`Any request for additional pages in excess of the 500 pages of total source
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`Deleted: Additionally, the receiving
`party shall not print any continuous block
`of source code that results in more than
`10 printed pages.
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`Deleted: , or continuous blocks that
`exceed 10 pages
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`
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`code for a software release will be provided in no more than 500-page
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`increments unless otherwise agreed to by the parties. One page of printed
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`Source Code shall mean one column of Source Code printed on one single-
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`sided sheet of paper measuring no more than 8 and 1/2 inches by 11
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`inches. Upon printing any such portion of Source Code, the receiving party
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`shall log the location of the electronic file(s) printed such that the
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`electronic file(s) may be readily located. Such logging may include, but is
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`not limited to, complete filenames, directory paths, version numbers, and
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`revision numbers. The receiving party shall supply this log to the
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`supplying party at the end of each review session. The receiving party's
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`failure to adequately log the location of the file(s) it prints shall be at least
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`one non-exclusive ground on which the supplying party may object and
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`properly refuse to produce the printed pages. In addition to other
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`reasonable steps to maintain the security and confidentiality of the
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`supplier's source code, printed copies of the source code maintained by the
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`receiving party must be kept in a locked storage container when not in use.
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`No electronic copies of the source code shall be provided by the supplier
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`beyond the Source Code Computer. The supplier shall maintain a Source
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`Code access log identifying, for each and every time any Source Code is
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`viewed, accessed, or analyzed: (1) the name of each person who accessed
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`the Source Code; (2) the date and time of access; (3) the length of time of
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`access: and (4) whether any hard copies of any portion of Source Code
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`were printed.
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`
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`
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`ix.
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`The receiving party's outside counsel and/or technical advisers shall be
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`entitled to take notes relating to the Source Code but may not copy the
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`Source Code into the notes. The receiving party's outside counsel and/or
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`technical advisers shall not take notes electronically on the Source Code
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`Computer itself or any other computer. No copies of all or any portion of
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`the Source Code may leave the room in which the Source Code is
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`inspected, except as otherwise provided herein. Furthermore, no other
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`written or electronic record of the Source Code is permitted except as
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`otherwise provided herein.
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`
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`x.
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`The receiving party's outside counsel of record, experts or consultants shall
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`maintain and store any paper copies of the source code or any notes,
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`analyses or descriptions of source code at their offices in a manner that
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`prevents duplication of or unauthorized access to the source code,
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`including, without limitation, storing the source code in a locked room or
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`cabinet at all times when it is not in use.
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`
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`xi. Other than in connection with pleadings filed under seal and depositions
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`designated "[supplier's name] CONFIDENTIAL BUSINESS
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`INFORMATION-SOURCE CODE, SUBJECT TO PROTECTIVE
`
`ORDER," no copies shall be made of the printed copies provided by the
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`supplier to the requesting party.
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`
`
`
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`xii. Except as otherwise provided within this paragraph, the receiving party
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`will not create electronic images of the source code from the paper copies
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`for use on a computer (e.g., may not scan the source code to a .PDF or
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`other image) or otherwise copy, save, and/or store the source code onto any
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`memory device or drive. The receiving party may only create an electronic
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`copy or image of selected portions of the source code when relevant and
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`necessary for any filing with the Court, the service of any pleadings or
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`other papers on any party, and testifying expert reports, consulting expert
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`written analyses and related drafts. The receiving party may not create an
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`electronic copy or image of selected portions of the Source Code
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`exceeding five (5) printed pages of code in a single document unless the
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`electronic copy has been encrypted using commercially reasonable
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`encryption software including password protection. The communication
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`and/or disclosure of electronic versions of the source code shall at all times
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`be limited to individuals who are authorized to see source code under the
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`provision of this Protective Order. Additionally any copies must be labeled
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`"[supplier's name] CONFIDENTIAL BUSINESS INFORMATION-
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`SOURCE CODE, SUBJECT TO PROTECTIVE ORDER."
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`Notwithstanding any of the foregoing in no event shall the receiving party
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`scan the paper copy of the source code using optical character recognition
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`("OCR") technology or otherwise seek to render text-searchable any source
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`code. Nor shall the receiving party seek to communicate electronically any
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`
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`copy of the source code, including through email, FTP, or any other means
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`of electronic communication.
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`
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`xiii. No outside electronic devices, including but not limited to laptops, floppy
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`drives, USB-connectable devices, zip drives, or other hardware shall be
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`permitted in the secure room. Nor shall any cellular telephones,
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`Blackberries, personal digital assistants (PDAs), cameras, voice recorders,
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`Dictaphones, telephone jacks, or other devices be permitted inside the
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`secure room.
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`
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`xiv. Unless otherwise agreed in advance by the parties in writing, following
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`each inspection, the receiving party's outside counsel and/or technical
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`advisers shall remove all notes, documents, and all other materials from the
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`room that may contain work product and/or attorney-client privileged
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`information. The supplying party shall not be responsible for any items left
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`in the room following each inspection session, and the receiving party shall
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`have no expectation of confidentiality for any items left in the room
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`following each inspection session without prior agreement to that effect.
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`
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`xv. The receiving party’s counsel shall keep a log that records the identity of
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`each individual to whom any hard copy of the source code is provided and
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`when it was provided to that person. Within thirty days after the issuance
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`of a final decision resolving all issues in the Investigation, the receiving
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`
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`party must serve upon the producing party the log and certify the
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`destruction of all paper copies of the producing party’s source code. In
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`addition, all persons to whom the paper copies of the source code were
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`provided must certify in writing that all copies of the source code were
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`returned to the counsel who provided them the information and that they
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`will make no use of the source code or of any knowledge gained from the
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`source code in any future endeavor.
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`
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`xvi. Any expert or consultant retained on behalf of receiving party who is to be
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`given access to supplier's produced Source code (whether in electronic
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`form or otherwise) must agree in writing not to perform software
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`development work directly or indirectly intended for commercial purposes
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`relating to any functionality covered by the source code reviewed by such
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`expert or consultant for a period of one year after the issuance of a final,
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`non-appealable decision resolving all issues in the case. This shall not
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`preclude such experts from consulting in future litigation, so long as such
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`consulting does not involve software development work directly or
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`indirectly intended for commercial purposes relating to any functionality
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`covered by the source code reviewed by such expert or consultant.
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`
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`xvii. Access to and review of the source code shall be strictly for the purpose of
`
`investigating the claims and defenses at issue in the above-styled case. No
`
`person shall review or analyze any source code for purposes unrelated to
`
`Deleted: The receiving party's counsel
`shall keep a log that records the identity
`of each individual to whom each hard
`copy of the source code is provided and
`when it was provided to that person, and
`shall produce such log no later than the
`time its first expert reports relating to
`Source Code are due, regardless of any
`restrictions or stipulations on expert
`discovery, whether in this order or
`subsequent to this order. Further, the log
`will be supplemented with each new
`expert report relating to Source Code, 10
`days after trial, and at the termination of
`this action. Within thirty days after the
`issuance of a final, non-appealable
`decision resolving all issues in the case,
`the receiving party must serve upon the
`supplier the log and serve upon the
`supplier all paper copies of the supplier's
`source code as well as documents,
`pleadings, reports, and notes reflecting or
`referring to such source code. In addition,
`all persons to whom the paper copies of
`the source code were provided must
`certify in writing that all copies of the
`source code were returned to the counsel
`who provided them the information and
`that they will make no. use of the Source
`code or of any knowledge gained from
`the Source code in any future endeavor.
`
`
`
`this case, nor may any person use any knowledge gained as a result of
`
`reviewing source code in this case in any other pending or future dispute,
`
`proceeding, or litigation.
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`
`
`xviii. For depositions, at least ten (10) business days before the date of the
`
`deposition, the receiving party shall notify the supplying party that the
`
`receiving party wishes to have a copy of the produced Source Code
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`available electronically and in the form as kept in the ordinary course of
`
`business at the deposition. The computer upon which Source Code is made
`
`available at the deposition shall include development environments and
`
`tools used to develop the Source Code. Upon such request, which will not
`
`be unreasonably denied:
`
`(a) Nokia shall, at its own discretion, designate the venue of such
`
`deposition in the agreed-upon city, and shall make available a copy
`
`of the produced Source Code electronically and in text searchable
`
`form at the deposition. Nokia shall have full discretion relating to
`
`arrangements to ensure security for the Source Code. Nokia is
`
`willing to absorb the costs associated with producing the Source
`
`Code at the deposition for a reasonable number of depositions, at
`
`no more than two (2) deposition venues.
`
`
`
`(b) LG shall, at its own discretion, designate the venue of such
`
`deposition in the agreed-upon city, and shall make available a copy
`
`
`
`of the produced Source Code electronically and in the form as kept
`
`in the ordinary course of business at the deposition. LG shall have
`
`full discretion relating to arrangements to ensure security for the
`
`Source Code. LG is willing to absorb the costs associated with
`
`producing the Source Code at the deposition for a reasonable
`
`number of depositions, at no more than two (2) deposition venues.
`
`
`
`(c) HTC shall, at their own discretion, designate the venue of such
`
`deposition in the agreed-upon city, and shall make available a copy
`
`of the produced Source Code electronically and in the form as kept
`
`in the ordinary course of business at the deposition. HTC shall have
`
`full discretion relating to arrangements to ensure security for the
`
`Source Code. HTC is willing to absorb the costs associated with
`
`producing the Source Code at the deposition for a reasonable
`
`number of depositions, at no more than two (2) deposition venues.
`
`
`
`(d) RIM shall, at its own discretion, designate the location and
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`venue of such deposition, including in the offices of RIM's outside
`
`counsel or in or around RIM's offices, and shall make available a
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`copy of the produced RIM Source Code electronically and in text
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`searchable form at the deposition. RIM shall have full discretion
`
`relating to arrangements to ensure security for the RIM Source
`
`Code. RIM shall bear the costs associated with producing such
`
`
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`electronic and text searchable RIM Source Code at the deposition
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`for a reasonable number of depositions.
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`
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`Copies of Source Code that are marked as deposition exhibits shall not be
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`provided to the court reporter or attached to deposition transcripts; rather,
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`the deposition record will identify the exhibit by its production numbers.
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`The deposition transcript shall be designated and is to be treated as
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`"[supplier's name] CONFIDENTIAL BUSINESS INFORMATION---
`
`SOURCE CODE, SUBJECT TO PROTECTIVE ORDER."
`
`
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`xix. The Commission Investigation Staff Attorney shall have the same rights to
`
`Deleted: i
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`review and receive documents and things designated "[supplier's name]
`
`CONFIDENTIAL BUSINESS INFORMATION-SOURCE CODE,
`
`SUBJECT TO PROTECTIVE ORDER" by any party as outside counsel
`
`for any party has under this order. The Commission Investigative Staff
`
`Attorney shall have the same obligations as any party under this order,
`
`including obligations related to the storage and maintenance of Source
`
`Code and notes.
`
`
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`25. All discovery material exchanged among the parties in this action shall be used solely for
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`prosecution and defense of the claims in the above-captioned case and shall not be used
`
`for any business, commercial, competitive, personal or other purpose. Moreover, any
`
`individual who personally receives any information designated as "[supplier's name]
`
`
`
`CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE
`
`ORDER" or "[supplier's name] CONFIDENTIAL BUSINESS INFORMATION-
`
`SOURCE CODE, SUBJECT TO PROTECTIVE ORDER" shall not be involved directly
`
`or indirectly (e.g., by advising) in any of the following activities: preparing, prosecuting,
`
`drafting, editing, and/or amending of patent applications, specifications, claims, and/or
`
`responses to office actions (including reissue, reexaminations, and certificates of
`
`correction), before any foreign or domestic agency, including the United States Patent and
`
`Trademark Office, relating to the particular technology or information disclosed in the
`
`documents or information designated "[supplier's name] CONFIDENTIAL BUSINESS
`
`INFORMATION, SUBJECT TO PROTECTIVE ORDER" or "[supplier's name]
`
`CONFIDENTIAL BUSINESS INFORMATION-SOURCE CODE, SUBJECT TO
`
`PROTECTIVE ORDER" which that individual received, for a period ending one (1) year
`
`after the final resolution of this litigation. This bar is not intended to preclude counsel
`
`from participating in reexamination proceedings on behalf of a party challenging the
`
`validity of a patent where counsel will not be involved in crafting claims, but it is
`
`intended to preclude counsel from participating directly or indirectly in reexamination
`
`proceedings on behalf of a patentee where counsel will be involved in crafting claims.