Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper No. 11
`Entered: April 19, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CME GROUP, INC.,
`Petitioner,
`
`v.
`
`VOLATILITY PARTNERS, LLC,
`Patent Owner.
`____________
`
`Case CBM2016-00024
`Patent RE43,435 E
`____________
`
`
`
`
`
`
`Before MICHAEL W. KIM, TRENTON A. WARD, and KEVIN W. CHERRY,
`Administrative Patent Judges.
`
`WARD, Administrative Patent Judge.
`
`ORDER
`Motion to Seal
`37 C.F.R. § 42.54
`
`
`
`
`Tel: 571-272-7822
`
`
`Paper No. 11
`Entered: April 19, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CME GROUP, INC.,
`Petitioner,
`
`v.
`
`VOLATILITY PARTNERS, LLC,
`Patent Owner.
`____________
`
`Case CBM2016-00024
`Patent RE43,435 E
`____________
`
`
`
`
`
`
`Before MICHAEL W. KIM, TRENTON A. WARD, and KEVIN W. CHERRY,
`Administrative Patent Judges.
`
`WARD, Administrative Patent Judge.
`
`ORDER
`Motion to Seal
`37 C.F.R. § 42.54
`
`
`
`
`
`CBM2016-00024
`Patent RE43,435 E
`
`
`Motion to Seal
`On December 26, 2015, CME Group, Inc. (“Petitioner”) filed a motion to
`seal portions of its Petition (Paper 4, “Unredacted Petition”) along with Exhibits
`1004 and 1005. Paper 3, 1. Petitioner argues that good cause exists for placing
`these materials under seal because they contain confidential negotiations between
`Petitioner and Volatility Partners, LLC (“Patent Owner”). Id. Patent Owner did
`not oppose this motion. Additionally, Petitioner submitted a copy of the Board’s
`default protective order as a proposed protective order (Paper 3, Appendix A).
`There is a strong public policy in favor of making information filed in a inter
`partes review open to the public, especially because these proceedings determine
`the patentability of claims in issued patents and, therefore, affect the rights of the
`public. Under 35 U.S.C. § 326(a)(1) and 37 C.F.R. § 42.14, the default rule is that
`all papers filed in a inter partes review are open and available for access by the
`public; a party, however, may file a concurrent motion to seal, and the information
`at issue is sealed pending the outcome of the motion. It is, however, only
`“confidential information” that is protected from disclosure. 35 U.S.C. § 316(a)(7);
`see Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48760 (Aug. 14,
`2012). The standard for granting a motion to seal is “for good cause.” 37 C.F.R. §
`42.54(a). The party moving to seal bears the burden of proof in showing
`entitlement to the requested relief, and must explain why the information sought to
`be sealed constitutes confidential information. 37 C.F.R. § 42.20(c).
`We have reviewed the material in the Unredacted Petition along with
`Exhibits 1004 and 1005 which Petitioner seeks to seal. As identified by Petitioner,
`this information pertains primarily to Petitioner’s allegation that it has been
`charged with infringement under 37 C.F.R. §42.302(a). Accordingly, we are
`persuaded that good causes exists to have these documents remain under seal.
`
` 2
`
`
`
`
`
`
`
`CBM2016-00024
`Patent RE43,435 E
`
`Furthermore, the Board hereby enters the protective order provided by Petitioner
`(Paper 3, Appendix A) to govern the treatment of confidential information in these
`proceedings.
`
`Potential Expungement of Confidential Information
`Title 37 C.F.R. § 42.56 is reproduced below:
`§ 42.56 Expungement of confidential information
`
`After denial of a petition to institute a trial or after
`final judgment in a trial, a party may file a motion to
`expunge confidential information from the record.
`Further guidance with respect to expungement of confidential information is set
`forth in the Trial Practice Guide, 77 Fed. Reg. at 48761:
`6. Expungement of Confidential Information: 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. § 42.56. The rule balances the needs of
`the parties to submit confidential information with the public interest
`in maintaining a complete and understandable file history for public
`notice purposes. The rule encourages parties to redact sensitive
`information, where possible, rather than seeking to seal entire
`documents.
`Thus, should Petitioner seek to maintain the confidentiality of the material that is
`the subject of its Motion to Seal, Petitioner should file a motion to expunge the
`information from the record before 45 days from the entry of judgment in this
`proceeding.
`
`
` 3
`
`
`
`
`
`
`
`CBM2016-00024
`Patent RE43,435 E
`
`
`Accordingly, it is hereby:
`
`ORDERED that the Petitioner’s proposed protective order (Paper 3,
`Appendix A) is entered and governs the treatment of confidential information in
`these proceedings; and
`
`FURTHER ORDERED that that Petitioner’s Motion to Seal (Paper 3)
`is granted, and the Unredacted Petition (Paper 4) and Exhibits 1004 and 1005 will
`be kept under seal under the terms of the protective order.
`
`
`
`For PETITIONER:
`Michael Hawes
`michael.hawes@bakerbotts.com
`
`Brad Bowling
`brad.bowling@bakerbotts.com
`
`Ali Dhanani
`ali.dhanani@bakerbotts.com
`
`
`
`For PATENT OWNER:
`David P. Lentini
`david.lentini@gmail.com
`
`
`
` 4
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