Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`Paper 91
`Entered: September 29, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`AMNEAL PHARMACEUTICALS, LLC
`Petitioner
`
`v.
`
`SUPERNUS PHARMACEUTICALS, INC.
`Patent Owner
`_______________
`
`IPR2013-00368 (Patent 8,206,740)
`IPR2013-00371 (Patent 8,394,405)
`IPR2013-00372 (Patent 8,394,406)
`_______________
`
`
`
`
`Before SCOTT E. KAMHOLZ, Administrative Patent Judge.
`
`
`
`
`DECISION
`Patent Owner’s Motions to Seal
`37 C.F.R. § 42.54
`
`
`
`
`Tel: 571-272-7822
`
`
`
`
`Paper 91
`Entered: September 29, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`AMNEAL PHARMACEUTICALS, LLC
`Petitioner
`
`v.
`
`SUPERNUS PHARMACEUTICALS, INC.
`Patent Owner
`_______________
`
`IPR2013-00368 (Patent 8,206,740)
`IPR2013-00371 (Patent 8,394,405)
`IPR2013-00372 (Patent 8,394,406)
`_______________
`
`
`
`
`Before SCOTT E. KAMHOLZ, Administrative Patent Judge.
`
`
`
`
`DECISION
`Patent Owner’s Motions to Seal
`37 C.F.R. § 42.54
`
`
`
`
`
`IPR2013-00368 (Patent 8,206,740)
`IPR2013-00371 (Patent 8,394,405)
`IPR2013-00372 (Patent 8,394,406)
`
`
`Supernus has filed several Motions to Seal. E.g., IPR2013-00368, Paper 37;
`Paper 75; Paper 81.1,2 Supernus proposes entry of the default protective order to
`govern the treatment and filing of confidential information in these proceedings.
`E.g., Paper 37, 1-2. The default protective order, signed by both Amneal and
`Supernus, was filed as Exhibit 2171 in each case. Amneal has not filed an
`opposition to any of the Motions to Seal. For the reasons that follow, we grant the
`motions and enter the default protective order.
`The record for an inter partes review shall be made available to the public,
`except as otherwise ordered, and a document filed with a motion to seal shall be
`treated as sealed until the motion is decided. 35 U.S.C. § 316(a)(1);
`37 C.F.R. § 42.14. The standard for granting a motion to seal is “good cause.”
`37 C.F.R. § 42.54. There is a strong public policy that favors making information
`filed in inter partes review proceedings open to the public. See Garmin
`International v. Cuozzo Speed Technologies, LLC, Case IPR2012-00001, slip op. at
`1-2 (PTAB March 14, 2013) (Paper 34) (discussing the standards of the Board
`applied to motions to seal). The moving party bears the burden of showing that the
`relief requested should be granted. 37 C.F.R. § 42.20(c). That includes showing
`that the information is truly confidential, and that such confidentiality outweighs
`the strong public interest in having an open record. In addition, a motion to seal is
`required to include a certification that the moving party has, in good faith,
`
`
`1 Essentially identical motions were filed in IPR2013-00371 (Paper 38; Paper 75;
`Paper 83) and in IPR2013-00372 (Paper 36; Paper 72; Paper 79).
`2 All further references to papers are directed to IPR2013-00368.
`
` 2
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`IPR2013-00368 (Patent 8,206,740)
`IPR2013-00371 (Patent 8,394,405)
`IPR2013-00372 (Patent 8,394,406)
`
`conferred, or attempted to confer, with the opposing party in an effort to come to
`an agreement on the scope of the protection sought. See Garmin, Paper 34 at 3.
`
`A. First Motion to Seal
`
`Supernus’s first Motion to Seal accompanies the Patent Owner Response.
`Paper 37, 1. Supernus seeks to protect portions of the Patent Owner Response,
`declarations of its witnesses, and certain other evidentiary exhibits. Id. Supernus
`identifies the types of information in each document that warrant sealing. Id. at
`7-13.
`
`B. Second Motion to Seal
`
`Supernus’s second Motion to Seal accompanies its Motion for Observations.
`Paper 75, 1. Supernus seeks to seal portions of the deposition transcripts of
`Petitioner’s witnesses. Id. at 2. Supernus also seeks to seal portions of
`declarations and deposition transcripts, along with certain other evidentiary
`exhibits, filed under seal by Amneal with its Reply but without a Motion to Seal.
`Id. Supernus identifies the types of information in each document that warrant
`sealing. Id. at 7-9.
`
`C. Third Motion to Seal
`
`Supernus’s third Motion to Seal accompanies its Opposition to Amneal’s
`Motion to Exclude Evidence. Paper 81, 1. Supernus seeks to seal portions of the
`Opposition, a witness declaration, and one other evidentiary exhibit. Id.at 2.
`Supernus identifies the types of information in each document that warrant sealing.
`Id. at 6.
`
` 3
`
`
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`
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`IPR2013-00368 (Patent 8,206,740)
`IPR2013-00371 (Patent 8,394,405)
`IPR2013-00372 (Patent 8,394,406)
`
`
`D. Analysis
`
`Supernus’s proposed redactions in the Response, Motion for Observations,
`Opposition, the declarations, and the deposition transcripts are reasonable and are
`limited strictly to isolated passages consisting entirely of confidential information,
`such that the thrust of the underlying argument or evidence is clearly discernable
`from the redacted versions. The redactions in the other evidentiary exhibits are
`more extensive, in many cases complete, but appropriate given the nature of the
`information sought to be protected. Supernus has explained satisfactorily the
`nature of the redacted information sought to be sealed, the nonpublication of the
`information, and Supernus’s efforts to confer with Amneal on the scope of
`protection.
`Upon consideration of Supernus’s representations as to the nature of the
`redacted information, the appropriate use of redaction, and Amneal’s acquiescence,
`we determine that Supernus has shown good cause that maintaining the
`confidentiality of the information outweighs the public interest in having access to
`it.
`
`Supernus is reminded that the information subject to the protective order will
`become public if identified in a final written decision in this proceeding and that a
`motion to expunge the information will not necessarily prevail over the public
`interest in maintaining a complete and understandable file history. See Office
`Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,761 (Aug. 14, 2012); Paper
`17, 2-3; Paper 34, 3.
`
`
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` 4
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`IPR2013-00368 (Patent 8,206,740)
`IPR2013-00371 (Patent 8,394,405)
`IPR2013-00372 (Patent 8,394,406)
`
`
`Accordingly, it is
`ORDERED that Supernus’s first, second, and third Motions to Seal in each
`of IPR2013-00368, IPR2013-00371, and IPR2013-00372 are granted; and
`FURTHER ORDERED that the proposed protective order, submitted as
`Exhibit 2171 in each proceeding, is entered, and governs the treatment and filing of
`confidential information in each proceeding.
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` 5
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`IPR2013-00368 (Patent 8,206,740)
`IPR2013-00371 (Patent 8,394,405)
`IPR2013-00372 (Patent 8,394,406)
`
`FOR PETITIONER:
`Eldora L. Ellison
`Ralph Powers
`Jonathan Tuminaro
`David Holman
`H. Keeto Sabharwal
`Paul Ainsworth
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`eellison-PTAB@skgf.com
`tpowers-PTAB@skgf.com
`jtuminar-PTAB@skgf.com
`dholman-PTAB@skgf.com
`keetos-PTAB@skgf.com
`painsworth@skgf.com
`
`
`FOR PATENT OWNER:
`Stephen B. Maebius
`Sunit Talapatra
`Andrew S. Baluch
`FOLEY & LARDNER LLP
`smaebius@foley.com
`stalapatra@foley.com
`WASH-Abaluch-PTAB@foley.com
`
`Gregory Morris
`Gerald Flattmann
`Evan Diamond
`PAUL HASTINGS LLP
`gregorymorris@paulhastings.com
`geraldflattmann@paulhastings.com
`evandiamond@paulhastings.com
`
`
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` 6
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