Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`Paper No. 14
`Entered: June 30, 2016
`
`
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`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
`Sealed Decision to Institute, 37 C.F.R. § 42.14
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`
`Paper No. 14
`Entered: June 30, 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
`Sealed Decision to Institute, 37 C.F.R. § 42.14
`
`
`
`
`
`
`
`
`CBM2016-00024
`Patent RE43,435 E
`
`
`On April 19, 2016, Volatility Partners, LLC (“Patent Owner”) filed a motion
`
`to seal portions of its Preliminary Response (Paper 10, “Unredacted Preliminary
`
`Response”) along with Exhibits 2002, 2003, 2004, and 2005. Paper 12, 1. Patent
`
`Owner 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, Patent Owner agreed with Petitioner’s previous submission of a copy
`
`of the Board’s default protective order as a proposed protective order (Paper 3,
`
`Appendix A).
`
`On April 19, 2016, the Board entered an Order granting Petitioner’s previous
`
`motion to seal Petitioner’s Unredacted Petition (Paper 4) and Exhibits 1004 and
`
`1005. See Paper 11. This Order also entered Petitioner’s proposed protective
`
`order (Paper 3, Appendix A (“CBM2016-00024 Protective Order”) to govern the
`
`treatment of confidential information in this proceeding.
`
`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. 48,756, 48,760
`
`(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
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` 2
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`CBM2016-00024
`Patent RE43,435 E
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`showing entitlement to the requested relief, and must explain why the information
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`sought to be sealed constitutes confidential information. 37 C.F.R. § 42.20(c).
`
`We have reviewed the material in the Unredacted Preliminary Response
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`along with Exhibits 2002, 2003, 2004, and 2005 which Patent Owner seeks to seal.
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`As identified by Petitioner, this information pertains primarily to agreements
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`between Petitioner and Patent Owner. Accordingly, we are persuaded that good
`
`causes exists to have these documents remain under seal at this time.
`
`Additionally, we note that Patent Owner filed a public version of its
`
`Preliminary Response (Paper 12, Attachment A) and a public version of Ex. 2002
`
`(Paper 12, Attachment B). Both of these papers will be separately entered into the
`
`record.
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`Concurrent with this Order, we issued a Decision denying institution an inter
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`partes review in this proceeding. The Decision has been designated “For Board
`
`and Parties Only,” because it cites to papers and exhibits that are subject to seal
`
`under the above referenced Protective Order. The parties are ordered to jointly file
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`a proposed redacted version of the Decision within ten business days of this Order.
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`If redactions are proposed, the party desiring the redactions shall file a Motion to
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`Seal the Decision on Institution, providing good cause why the proposed redacted
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`portions of the Decision should be maintained under seal.
`
`We note that in light of the public’s interest in maintaining a complete and
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`understandable file history, there is an expectation that confidential information
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`relied upon in a decision will be made public. See Office Trial Practice Guide,
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`77 Fed. Reg. 48,756, 48,760–61 (Aug. 14, 2012). The parties’ proposed redactions
`
`to the Decision should be informed by this guidance. The parties may request a
`
`conference call with the panel if further guidance is necessary.
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` 3
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`CBM2016-00024
`Patent RE43,435 E
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`Once a redacted Decision is entered, the parties may request expungement of
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`any currently sealed confidential information pursuant to 37 C.F.R. § 42.56.
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`Alternatively, either party may file a motion to preserve the record of the
`
`proceeding until after the resolution of any appeal or time for appeal. If granted,
`
`the determination of whether to make any confidential information public or
`
`expunge the confidential information will be made after the resolution of any
`
`appeal or time for appeal. The parties are advised to consider the guidance set
`
`forth herein, when making such a request.
`
`Accordingly, it is hereby:
`
`ORDERED that that Patent Owner’s Motion to Seal (Paper 12) is granted,
`
`and the Unredacted Preliminary Response (Paper 10) and Exhibits 2002, 2003,
`
`2004, and 2005 will be kept under seal under the terms of the CBM2016-00024
`
`Protective Order at this time;
`
`FURTHER ORDERED the public version of Patent Owner’s Preliminary
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`Response (Paper 12, Attachment A) and the public version of Ex. 2002 (Paper 12,
`
`Attachment B) will be separately entered into the record;
`
`FURTHER ORDERED that parties shall jointly file a proposed redacted
`
`version of the concurrently entered Decision on Institution within ten business days
`
`of this Order; and
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`FURTHER ORDERED that if any redactions are proposed, a Motion to Seal
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`should accompany the proposed redacted version as set forth above.
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` 4
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`CBM2016-00024
`Patent RE43,435 E
`
`
`PETITIONER:
`
`Michael Hawes
`Brad Bowling
`Ali Dhanani
`BAKER BOTTS LLP
`michael.hawes@bakerbotts.com
`brad.bowling@bakerbotts.com
`ali.dhanani@bakerbotts.com.
`
`
`
`PATENT OWNER:
`
`David P. Lentini
`david.lentini@gmail.com
`
`Bryan K. Wheelock
`HARNESS, DICKEY & PIERCE, PLC
`bwheelock@hdp.com
`
` 5
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