throbber
UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`UNDER ARMOUR, INC.
`Petitioner,
`
`
`
`v.
`
`
`
`ADIDAS AG,
`Patent Owner.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case No. IPR2015-00698
`U.S. Patent No. 8,092,345
`
`PETITIONER’S UNOPPOSED MOTION TO SEAL AND FOR ENTRY OF
`A PROTECTIVE ORDER PURSUANT TO 37 C.F.R. § 42.54
`
`
`
`
`
`
`
`

`
`
`
`
`
`Petitioner Under Amour, Inc. (“Petitioner”) hereby moves for entry of the
`
`Protective Order appended below as Addendum A and further moves to seal
`
`Petitioner’s Reply to Patent Owner’s Response (“Reply”) and certain exhibits
`
`submitted with its Reply, as described herein. The Protective order appended
`
`below is identical to the Protective Order agreed to by both parties in IPR2015-
`
`00700. Patent Owner adidas AG (“Patent Owner”) does not oppose the motion to
`
`file under seal or the motion for entry of the Protective Order at Addendum A.
`
`
`
`Petitioner submits its Reply concurrently with the filing of this motion. In
`
`support of its Reply, Petitioner submits certain documents designated as
`
`“PROTECTIVE ORDER MATERIAL” by Petitioner. Petitioner submits that its
`
`Reply and these confidential and competitively-sensitive supporting exhibits are
`
`properly sealed in order to protect Petitioner’s highly-confidential business
`
`information from disclosure to its competitors as well as the general public.
`
`I. MOTION TO SEAL
`
`Petitioner moves to seal its Reply submitted concurrently with this motion.
`
`Petitioner further moves to seal the following exhibits submitted in support of its
`
`Reply:
`
`1. Exhibit UA-1011 (Declaration of Joseph A. Paradiso)
`
`2. Exhibit UA-1014 (Declaration of Julie L. Davis)
`
`
`
`
`2
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`

`
`
`
`Petitioner concurrently files redacted versions of its Reply and supporting exhibits
`
`UA-1011 and UA-1014. Petitioner has served Patent Owner with both confidential
`
`and redacted versions of the Reply and supporting exhibits.
`
`
`
`The record of an inter partes review proceeding, including documents and
`
`things, is made available to the public, except as otherwise ordered. 37 C.F.R. §
`
`2.14. But despite the default rule of public availability, the Board will seal
`
`confidential information for “good cause,” because it is necessary to “strike a
`
`balance between
`
`the public’s
`
`interest
`
`in maintaining a complete and
`
`understandable file history and the parties’ interest in protecting truly sensitive
`
`information.” 37 C.F.R. § 42.54(a); 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012).
`
`As laid out in the Office Trial Practice Guide, the Board treats confidential
`
`information “consistent with Federal Rule of Civil Procedure 26(c)(1)(G), which
`
`provides for protective orders for trade secret or other confidential research,
`
`development, or commercial information.” Id. at 48760. Petitioner respectfully
`
`submits that good cause exists to seal its Reply, and Exhibits UA-1011 and UA-
`
`1014.
`
`
`
`Petitioner’s Reply and supporting exhibits include competitively-sensitive
`
`business information of Petitioner. Specifically, Petitioner’s Reply includes
`
`confidential business information regarding marketing, user data, Petitioner’s
`
`business strategy, and product and financial performance. Exhibit UA-1011
`
`
`
`
`3
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`

`
`
`
`contains confidential technical information on the performance and operation of
`
`products. Exhibit UA-1014 contains confidential information of Petitioner’s
`
`regarding financial performance, sales figures, marketing, user data, and business
`
`strategy, all of which are redacted in full and were relied upon by Petitioner’s
`
`Expert Julie L. Davis in fashioning her declaration, which is redacted in part to
`
`protect Petitioner’s confidential business information. These materials have been
`
`made available to the opposing party only under similar “CONFIDENTIAL
`
`BUSINESS INFORMATION – ATTORNEYS’ EYES ONLY” conditions in the
`
`related district court litigation.
`
`
`
`If this highly-confidential information were disclosed publicly or to Patent
`
`Owner’s employees, that information would likely cause competitive business
`
`harm. In other inter partes review proceedings, the Board has held that
`
`confidential information such as what Petitioner has submitted here should remain
`
`under seal. See, e.g., Greene’s Energy Grp., LLC v. Oil States Energy Svcs., LLC,
`
`IPR2014-00216, Paper 27, at 5 (PTAB Sept. 23, 2014) (holding that portions of
`
`exhibit that contained confidential financial information remain under seal where
`
`proposed redactions were reasonable and thrust of underlying argument or
`
`evidence was clearly discernable); Baby Trend, Inc. v. Wonderland Nurserygoods
`
`Co., Ltd., IPR2015-00841, Paper 35, at 3 (PTAB November 17, 2015) (holding
`
`good cause existed to seal market related information that was not otherwise public
`
`
`
`
`4
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`

`
`
`
`and did not inhibit the general public from understanding the underlying arguments
`
`and evidence being relied upon in the public versions of the filings). Here,
`
`Petitioner has redacted from its public filings only those portions of its Reply and
`
`supporting exhibits that reflect competitively sensitive information. Petitioner
`
`submits that the thrust of its underlying arguments and evidence are still clearly
`
`discernable from the redacted, public versions of its filings.
`
`
`
`Petitioner respectfully requests that the Board grant this motion to seal.
`
`Petitioner has met and conferred with Patent Owner, who does not oppose.
`
`II. MOTION FOR ENTRY OF A PROTECTIVE ORDER
`
`Both parties have met-and-conferred and agreed upon entry of a Protective
`
`Order in this case. The agreed Protective Order is appended below as Addendum
`
`A, along with a redline copy showing changes from the Board’s default protective
`
`order, appended as Addendum B. The agreed Protective Order is identical to the
`
`Protective Order agreed upon by both parties in IPR2015-00700. The agreed
`
`Protective Order deviates from the Board’s default protective order in that it limits
`
`disclosure of PROTECTIVE ORDER MATERIAL to up to three in-house counsel
`
`for the parties.
`
`
`
`With these minor revisions, Petitioner moves for entry of the attached
`
`Protective Order. Petitioner does not oppose.
`
`
`
`
`5
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`

`
`
`
`III. CONCLUSION
`
`For the foregoing reasons, Petitioner respectfully requests that the Board
`
`grant this unopposed motion to seal and for entry of a protective order.
`
`Respectfully submitted,
`
`/Brian E. Ferguson/
`Brian E. Ferguson (Reg No. 36,801)
`Anish R. Desai (Reg. No. 73,760)
`Christopher T. Marando (Reg. No.67,898)
`W. Sutton Ansley (Reg. No. 67,828)
`Weil, Gotshal & Manges LLP
`1300 Eye Street NW, Suite 900
`Washington, DC 20005
`T: 202-682-7000
`brian.ferguson@weil.com
`anish.desai@weil.com
`christopher.marando@weil.com
`sutton.ansley@weil.com
`
`
`
`
`6
`
`
`
`Dated: February 16, 2016
`
`
`
`
`
`
`
`
`
`
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`

`
`
`ADDENDUM A
`
`Standing Protective Order
`
`This standing protective order governs the treatment and filing of
`
`
`
`
`
`
`
`confidential information, including documents and testimony.
`
`1.
`
`Confidential
`
`information shall be clearly marked ‘‘PROTECTIVE
`
`ORDER MATERIAL.’’
`
`2.
`
`Access to confidential information marked ‘‘PROTECTIVE ORDER
`
`MATERIAL’’ is limited to the following individuals who have executed
`
`the acknowledgment appended to this order:
`
`(A) Party Representatives. Representatives of record for a party in
`
`the proceeding.
`
`(B) Experts. Retained experts of a party in the proceeding who
`
`further certify in the Acknowledgement that they are not a
`
`competitor to any party, or a consultant for, or employed by,
`
`such a competitor with respect to the subject matter of the
`
`proceeding.
`
`(C)
`
`In-house counsel. Up to three in-house counsel of a party who
`
`are responsible for this action and who sign the Acknowledgement.
`
`(D) The Office. Employees and representatives of the Office who have a
`
`
`
`
`
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`1
`
`

`
`
`
`
`
`
`need for access to the confidential information shall have such
`
`access without the requirement to sign an Acknowledgement. Such
`
`employees and representatives shall include the Director, members
`
`of the Board and their clerical staff, other support personnel, court
`
`reporters, and other persons acting on behalf of the Office.
`
`(E) Support Personnel. Administrative assistants, clerical staff, court
`
`reporters and other support personnel of the foregoing persons who
`
`are reasonably necessary to assist those persons in the proceeding
`
`shall not be required to sign an Acknowledgement, but shall be
`
`informed of the terms and requirements of the Protective Order by
`
`the person
`
`they are supporting who
`
`receives confidential
`
`information.
`
`3. Persons receiving confidential information shall use reasonable efforts to
`
`maintain the confidentiality of the information, including:
`
`(A) Maintaining such information in a secure location to which persons
`
`not authorized to receive the information shall not have access;
`
`(B) Otherwise using reasonable efforts to maintain the confidentiality of
`
`the information, which efforts shall be no less rigorous than those
`
`the recipient uses to maintain the confidentiality of information
`
`not received from the disclosing party;
`
`
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`2
`
`

`
`
`
`
`
`
`(C) Ensuring that support personnel of the recipient who have access to
`
`the confidential information understand and abide by the obligation
`
`to maintain the confidentiality of information received that is
`
`designated as confidential; and
`
`(D) Limiting the copying of confidential information to a reasonable
`
`number of copies needed for conduct of the proceeding and
`
`maintaining a record of the locations of such copies.
`
`4.
`
`Persons receiving confidential
`
`information shall use
`
`the
`
`following procedures to maintain the confidentiality of the information:
`
`(A) Documents and Information Filed With the Board.
`
`
`(i) A party may file documents or information with the Board
`
`under seal, together with a non-confidential description of the
`
`nature of the confidential information that is under seal and
`
`the reasons why the information is confidential and should
`
`not be made available to the public. The submission shall be
`
`treated as confidential and remain under seal, unless, upon
`
`motion of a party and after a hearing on the issue, or sua
`
`sponte,
`
`the Board determines
`
`that
`
`the documents or
`
`information do not to qualify for confidential treatment.
`
`(ii) Where confidentiality is alleged as to some but not all of
`
`
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`3
`
`

`
`
`
`
`
`
`the information submitted to the Board, the submitting party
`
`shall file confidential and non-confidential versions of its
`
`submission,
`
`together with
`
`a Motion
`
`to Seal
`
`the
`
`confidential version setting forth the reasons why the
`
`information redacted from the non-confidential version is
`
`confidential and should not be made available to the public.
`
`The nonconfidential version of the submission shall clearly
`
`indicate the locations of information that has been redacted.
`
`The confidential version of the submission shall be filed
`
`under seal. The redacted information shall remain under seal
`
`unless, upon motion of a party and after a hearing on the
`
`issue, or sua sponte, the Board determines that some or all of
`
`the redacted information does not qualify for confidential
`
`treatment.
`
`(B) Documents and Information Exchanged Among
`
`the Parties.
`
`Information designated as confidential
`
`that
`
`is disclosed
`
`to
`
`another party during discovery or other proceedings before the
`
`Board shall be clearly marked as “PROTECTIVE ORDER
`
`MATERIAL” and shall be produced in a manner that maintains
`
`confidentiality.
`
`
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`4
`
`

`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`UNDER ARMOUR, INC.
`Petitioner,
`
`
`
`v.
`
`
`
`ADIDAS AG,
`Patent Owner.
`
`
`Case No. IPR2015-00700
`U.S. Patent No. 8,579,767
`
`
`
`
`Standard Acknowledgement for Access to Protective Order Material
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`5
`
`

`
`
`
`I
`
`, affirm that I have read the
`
`Protective Order; that I will abide by its terms; that I will use the confidential
`
`information only in connection with this proceeding and for no other purpose;
`
`that I will only allow access to support staff who are reasonably necessary to
`
`assist me in this proceeding; that prior to any disclosure to such support staff I
`
`informed or will inform them of the requirements of the Protective Order; that I
`
`am personally responsible for the requirements of the terms of the Protective
`
`Order and I agree to submit to the jurisdiction of the Office and the United States
`
`District Court for the Eastern District of Virginia for purposes of enforcing the
`
`terms of the Protective Order and providing remedies for its breach.
`
`____________________________________
`
`[Signature]
`
`
`
`
`
`
`
`
`
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`6
`
`

`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ADDENDUM B
`
`Standing Protective Order
`
`This standing protective order governs
`
`the
`
`treatment and filing of
`
`confidential information, including documents and testimony.
`
`1.
`
`Confidential information shall be clearly marked ‘‘PROTECTIVE ORDER
`
`MATERIAL.’’
`
`2.
`
`Access
`
`to confidential
`
`information marked ‘‘PROTECTIVE ORDER
`
`MATERIAL’’ is limited to the following individuals who have executed the
`
`acknowledgment appended to this order:
`
`(A) Parties. Persons who are owners of a patent involved in the
`
`proceeding and other persons who are named parties to the
`
`proceeding.
`
`(BA) Party Representatives. Representatives of record for a party in the
`
`proceeding.
`
`(CB) Experts. Retained experts of a party in the proceeding who further
`
`certify in the Acknowledgement that they are not a competitor to any
`
`party, or a consultant for, or employed by, such a competitor with
`
`respect to the subject matter of the proceeding.
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`1
`
`

`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`(DC) In-house counsel. Up to three Iin-house counsel of a party who are
`
`responsible for this action and who sign the Acknowledgement..
`
`(E) Other Employees of a Party. Employees, consultants or other persons
`
`performing work for a party, other than in-house counsel and in-house
`
`counsel’s support staff, who sign the Acknowledgement shall be
`
`extended access to confidential information only upon agreement of
`
`the parties or by order of the Board upon a motion brought by the
`
`party seeking to disclose confidential information to that person. The
`
`party opposing disclosure to that person shall have the burden of
`
`proving that such person should be restricted from access to
`
`confidential information.
`
`(FD) The Office. Employees and representatives of the Office who have a
`
`need for access to the confidential information shall have such access
`
`without
`
`the requirement
`
`to sign an Acknowledgement. Such
`
`employees and representatives shall include the Director, members of
`
`the Board and their clerical staff, other support personnel, court
`
`reporters, and other persons acting on behalf of the Office.
`
`(GE) Support Personnel. Administrative assistants, clerical staff, court
`
`reporters and other support personnel of the foregoing persons who
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`2
`
`

`
`
`
`
`
`are reasonably necessary to assist those persons in the proceeding
`
`shall not be required to sign an Acknowledgement, but shall be
`
`informed of the terms and requirements of the Protective Order by the
`
`person they are supporting who receives confidential information.
`
`3. Persons receiving confidential information shall use reasonable efforts to
`
`maintain the confidentiality of the information, including:
`
`(A) Maintaining such information in a secure location to which persons
`
`not authorized to receive the information shall not have access;
`
`(B) Otherwise using reasonable efforts to maintain the confidentiality of
`
`the information, which efforts shall be no less rigorous than those the
`
`recipient uses to maintain the confidentiality of information not
`
`received from the disclosing party;
`
`(C) Ensuring that support personnel of the recipient who have access to
`
`the confidential information understand and abide by the obligation to
`
`maintain the confidentiality of information received that is designated
`
`as confidential; and
`
`(D) Limiting the copying of confidential information to a reasonable
`
`number of copies needed for conduct of the proceeding and
`
`maintaining a record of the locations of such copies.
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`3
`
`

`
`
`
`
`
`
`
`4.
`
`Persons
`
`receiving
`
`confidential
`
`information
`
`shall use
`
`the
`
`following
`
`procedures to maintain the confidentiality of the information:
`
`(A) Documents and Information Filed With the Board.
`
`(i) A party may file documents or information with the Board
`
`under seal, together with a non-confidential description of the
`
`nature of the confidential information that is under seal and the
`
`reasons why the information is confidential and should not be
`
`made available to the public. The submission shall be treated as
`
`confidential and remain under seal, unless, upon motion of a
`
`party and after a hearing on the issue, or sua sponte, the Board
`
`determines that the documents or information do not to qualify
`
`for confidential treatment.
`
`(ii) Where confidentiality is alleged as to some but not all of the
`
`information submitted to the Board, the submitting party shall
`
`file confidential and non-confidential versions of
`
`
`
`its
`
`submission, together with a Motion to Seal the confidential
`
`version setting forth the reasons why the information redacted
`
`from the non-confidential version is confidential and should not
`
`be made available to the public. The nonconfidential version of
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`4
`
`

`
`
`
`
`
`the submission shall clearly
`
`indicate
`
`the
`
`locations of
`
`information that has been redacted. The confidential version of
`
`the submission shall be filed under seal. The redacted
`
`information shall remain under seal unless, upon motion of a
`
`party and after a hearing on the issue, or sua sponte, the Board
`
`determines that some or all of the redacted information does not
`
`qualify for confidential treatment.
`
`(B) Documents and
`
`Information Exchanged Among
`
`the Parties.
`
`Information designated as confidential that is disclosed to another
`
`party during discovery or other proceedings before the Board shall be
`
`clearly marked as ‘‘PROTECTIVE ORDER MATERIAL’’ and shall
`
`be produced in a manner that maintains its confidentiality.
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`5
`
`

`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`Under Armour Inc.
`Petitioner
`
`v.
`
`adidas AG,
`Patent Owner
`
`
`
`Case No. IPR2015-00700
`
`Patent No. 8,579,767
`
`Standard Acknowledgement for Access to Protective Order Material
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`6
`
`

`
`I
`
`, affirm that I have read the Protective
`
`Order; that I will abide by its terms; that I will use the confidential information
`
`only in connection with this proceeding and for no other purpose; that I will only
`
`allow access to support staff who are reasonably necessary to assist me in this
`
`proceeding; that prior to any disclosure to such support staff I informed or will
`
`inform them of the requirements of the Protective Order; that I am personally
`
`responsible for the requirements of the terms of the Protective Order and I agree to
`
`submit to the jurisdiction of the Office and the United States District Court for the
`
`Eastern District of Virginia for purposes of enforcing the terms of the Protective
`
`Order and providing remedies for its breach.
`
`[Signature]
`
`
`
`
`
`
`
`
`
`
`
`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
`
`7
`
`

`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on February 16, 2016, the foregoing
`
`PETITIONER’S UNOPPOSED MOTION TO SEAL AND FOR ENTRY OF
`
`A PROTECTIVE ORDER PURSUANT TO 37 C.F.R. § 42.54 was served via
`
`electronic mail, upon the following:
`
`Mitchell G. Stockwell
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta, GA 30309-4528
`mstockwell@kilpatricktownsend.com
`
`Wab P. Kadaba
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta, GA 30309-4528
`wkadaba@kilpatricktownsend.com
`
`Jonathan D. Olinger
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta, GA 30309-4528
`jolinger@kilpatricktownsend.com
`
`/Timothy J. Andersen/ c
`Timothy J. Andersen
`Case Manager
`Weil, Gotshal & Manges LLP
`1300 Eye Street NW, Suite 900
`Washington, DC 20005
`T: 202-682-7000
`timothy.andersen@weil.com
`
`
`
`13

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket