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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`UNDER ARMOUR, INC.
`Petitioner,
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`v.
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`ADIDAS AG,
`Patent Owner.
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`Case No. IPR2015-00698
`U.S. Patent No. 8,092,345
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`PETITIONER’S UNOPPOSED MOTION TO SEAL AND FOR ENTRY OF
`A PROTECTIVE ORDER PURSUANT TO 37 C.F.R. § 42.54
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`Petitioner Under Amour, Inc. (“Petitioner”) hereby moves for entry of the
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`Protective Order appended below as Addendum A and further moves to seal
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`Petitioner’s Reply to Patent Owner’s Response (“Reply”) and certain exhibits
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`submitted with its Reply, as described herein. The Protective order appended
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`below is identical to the Protective Order agreed to by both parties in IPR2015-
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`00700. Patent Owner adidas AG (“Patent Owner”) does not oppose the motion to
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`file under seal or the motion for entry of the Protective Order at Addendum A.
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`
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`Petitioner submits its Reply concurrently with the filing of this motion. In
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`support of its Reply, Petitioner submits certain documents designated as
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`“PROTECTIVE ORDER MATERIAL” by Petitioner. Petitioner submits that its
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`Reply and these confidential and competitively-sensitive supporting exhibits are
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`properly sealed in order to protect Petitioner’s highly-confidential business
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`information from disclosure to its competitors as well as the general public.
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`I. MOTION TO SEAL
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`Petitioner moves to seal its Reply submitted concurrently with this motion.
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`Petitioner further moves to seal the following exhibits submitted in support of its
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`Reply:
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`1. Exhibit UA-1011 (Declaration of Joseph A. Paradiso)
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`2. Exhibit UA-1014 (Declaration of Julie L. Davis)
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`2
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`Petitioner concurrently files redacted versions of its Reply and supporting exhibits
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`UA-1011 and UA-1014. Petitioner has served Patent Owner with both confidential
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`and redacted versions of the Reply and supporting exhibits.
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`The record of an inter partes review proceeding, including documents and
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`things, is made available to the public, except as otherwise ordered. 37 C.F.R. §
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`2.14. But despite the default rule of public availability, the Board will seal
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`confidential information for “good cause,” because it is necessary to “strike a
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`balance between
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`the public’s
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`interest
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`in maintaining a complete and
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`understandable file history and the parties’ interest in protecting truly sensitive
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`information.” 37 C.F.R. § 42.54(a); 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012).
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`As laid out in the Office Trial Practice Guide, the Board treats confidential
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`information “consistent with Federal Rule of Civil Procedure 26(c)(1)(G), which
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`provides for protective orders for trade secret or other confidential research,
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`development, or commercial information.” Id. at 48760. Petitioner respectfully
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`submits that good cause exists to seal its Reply, and Exhibits UA-1011 and UA-
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`1014.
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`Petitioner’s Reply and supporting exhibits include competitively-sensitive
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`business information of Petitioner. Specifically, Petitioner’s Reply includes
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`confidential business information regarding marketing, user data, Petitioner’s
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`business strategy, and product and financial performance. Exhibit UA-1011
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`contains confidential technical information on the performance and operation of
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`products. Exhibit UA-1014 contains confidential information of Petitioner’s
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`regarding financial performance, sales figures, marketing, user data, and business
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`strategy, all of which are redacted in full and were relied upon by Petitioner’s
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`Expert Julie L. Davis in fashioning her declaration, which is redacted in part to
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`protect Petitioner’s confidential business information. These materials have been
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`made available to the opposing party only under similar “CONFIDENTIAL
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`BUSINESS INFORMATION – ATTORNEYS’ EYES ONLY” conditions in the
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`related district court litigation.
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`
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`If this highly-confidential information were disclosed publicly or to Patent
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`Owner’s employees, that information would likely cause competitive business
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`harm. In other inter partes review proceedings, the Board has held that
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`confidential information such as what Petitioner has submitted here should remain
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`under seal. See, e.g., Greene’s Energy Grp., LLC v. Oil States Energy Svcs., LLC,
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`IPR2014-00216, Paper 27, at 5 (PTAB Sept. 23, 2014) (holding that portions of
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`exhibit that contained confidential financial information remain under seal where
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`proposed redactions were reasonable and thrust of underlying argument or
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`evidence was clearly discernable); Baby Trend, Inc. v. Wonderland Nurserygoods
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`Co., Ltd., IPR2015-00841, Paper 35, at 3 (PTAB November 17, 2015) (holding
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`good cause existed to seal market related information that was not otherwise public
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`4
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`and did not inhibit the general public from understanding the underlying arguments
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`and evidence being relied upon in the public versions of the filings). Here,
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`Petitioner has redacted from its public filings only those portions of its Reply and
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`supporting exhibits that reflect competitively sensitive information. Petitioner
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`submits that the thrust of its underlying arguments and evidence are still clearly
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`discernable from the redacted, public versions of its filings.
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`
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`Petitioner respectfully requests that the Board grant this motion to seal.
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`Petitioner has met and conferred with Patent Owner, who does not oppose.
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`II. MOTION FOR ENTRY OF A PROTECTIVE ORDER
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`Both parties have met-and-conferred and agreed upon entry of a Protective
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`Order in this case. The agreed Protective Order is appended below as Addendum
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`A, along with a redline copy showing changes from the Board’s default protective
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`order, appended as Addendum B. The agreed Protective Order is identical to the
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`Protective Order agreed upon by both parties in IPR2015-00700. The agreed
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`Protective Order deviates from the Board’s default protective order in that it limits
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`disclosure of PROTECTIVE ORDER MATERIAL to up to three in-house counsel
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`for the parties.
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`With these minor revisions, Petitioner moves for entry of the attached
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`Protective Order. Petitioner does not oppose.
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`5
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`III. CONCLUSION
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`For the foregoing reasons, Petitioner respectfully requests that the Board
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`grant this unopposed motion to seal and for entry of a protective order.
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`Respectfully submitted,
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`/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
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`6
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`Dated: February 16, 2016
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`ADDENDUM A
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`Standing Protective Order
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`This standing protective order governs the treatment and filing of
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`
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`confidential information, including documents and testimony.
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`1.
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`Confidential
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`information shall be clearly marked ‘‘PROTECTIVE
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`ORDER MATERIAL.’’
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`2.
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`Access to confidential information marked ‘‘PROTECTIVE ORDER
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`MATERIAL’’ is limited to the following individuals who have executed
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`the acknowledgment appended to this order:
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`(A) Party Representatives. Representatives of record for a party in
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`the proceeding.
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`(B) Experts. Retained experts of a party in the proceeding who
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`further certify in the Acknowledgement that they are not a
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`competitor to any party, or a consultant for, or employed by,
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`such a competitor with respect to the subject matter of the
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`proceeding.
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`(C)
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`In-house counsel. Up to three in-house counsel of a party who
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`are responsible for this action and who sign the Acknowledgement.
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`(D) The Office. Employees and representatives of the Office who have a
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`1
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`need for access to the confidential information shall have such
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`access without the requirement to sign an Acknowledgement. Such
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`employees and representatives shall include the Director, members
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`of the Board and their clerical staff, other support personnel, court
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`reporters, and other persons acting on behalf of the Office.
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`(E) Support Personnel. Administrative assistants, clerical staff, court
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`reporters and other support personnel of the foregoing persons who
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`are reasonably necessary to assist those persons in the proceeding
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`shall not be required to sign an Acknowledgement, but shall be
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`informed of the terms and requirements of the Protective Order by
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`the person
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`they are supporting who
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`receives confidential
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`information.
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`3. Persons receiving confidential information shall use reasonable efforts to
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`maintain the confidentiality of the information, including:
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`(A) Maintaining such information in a secure location to which persons
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`not authorized to receive the information shall not have access;
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`(B) Otherwise using reasonable efforts to maintain the confidentiality of
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`the information, which efforts shall be no less rigorous than those
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`the recipient uses to maintain the confidentiality of information
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`not received from the disclosing party;
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`2
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`(C) Ensuring that support personnel of the recipient who have access to
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`the confidential information understand and abide by the obligation
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`to maintain the confidentiality of information received that is
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`designated as confidential; and
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`(D) Limiting the copying of confidential information to a reasonable
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`number of copies needed for conduct of the proceeding and
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`maintaining a record of the locations of such copies.
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`4.
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`Persons receiving confidential
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`information shall use
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`the
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`following procedures to maintain the confidentiality of the information:
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`(A) Documents and Information Filed With the Board.
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`(i) A party may file documents or information with the Board
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`under seal, together with a non-confidential description of the
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`nature of the confidential information that is under seal and
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`the reasons why the information is confidential and should
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`not be made available to the public. The submission shall be
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`treated as confidential and remain under seal, unless, upon
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`motion of a party and after a hearing on the issue, or sua
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`sponte,
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`the Board determines
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`that
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`the documents or
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`information do not to qualify for confidential treatment.
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`(ii) Where confidentiality is alleged as to some but not all of
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`3
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`the information submitted to the Board, the submitting party
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`shall file confidential and non-confidential versions of its
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`submission,
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`together with
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`a Motion
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`to Seal
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`the
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`confidential version setting forth the reasons why the
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`information redacted from the non-confidential version is
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`confidential and should not be made available to the public.
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`The nonconfidential version of the submission shall clearly
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`indicate the locations of information that has been redacted.
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`The confidential version of the submission shall be filed
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`under seal. The redacted information shall remain under seal
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`unless, upon motion of a party and after a hearing on the
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`issue, or sua sponte, the Board determines that some or all of
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`the redacted information does not qualify for confidential
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`treatment.
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`(B) Documents and Information Exchanged Among
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`the Parties.
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`Information designated as confidential
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`that
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`is disclosed
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`to
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`another party during discovery or other proceedings before the
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`Board shall be clearly marked as “PROTECTIVE ORDER
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`MATERIAL” and shall be produced in a manner that maintains
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`confidentiality.
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`4
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
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`
`
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`UNDER ARMOUR, INC.
`Petitioner,
`
`
`
`v.
`
`
`
`ADIDAS AG,
`Patent Owner.
`
`
`Case No. IPR2015-00700
`U.S. Patent No. 8,579,767
`
`
`
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`Standard Acknowledgement for Access to Protective Order Material
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`5
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`I
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`, affirm that I have read the
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`Protective Order; that I will abide by its terms; that I will use the confidential
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`information only in connection with this proceeding and for no other purpose;
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`that I will only allow access to support staff who are reasonably necessary to
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`assist me in this proceeding; that prior to any disclosure to such support staff I
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`informed or will inform them of the requirements of the Protective Order; that I
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`am personally responsible for the requirements of the terms of the Protective
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`Order and I agree to submit to the jurisdiction of the Office and the United States
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`District Court for the Eastern District of Virginia for purposes of enforcing the
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`terms of the Protective Order and providing remedies for its breach.
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`____________________________________
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`[Signature]
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`6
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`ADDENDUM B
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`Standing Protective Order
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`This standing protective order governs
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`the
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`treatment and filing of
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`confidential information, including documents and testimony.
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`1.
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`Confidential information shall be clearly marked ‘‘PROTECTIVE ORDER
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`MATERIAL.’’
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`2.
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`Access
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`to confidential
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`information marked ‘‘PROTECTIVE ORDER
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`MATERIAL’’ is limited to the following individuals who have executed the
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`acknowledgment appended to this order:
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`(A) Parties. Persons who are owners of a patent involved in the
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`proceeding and other persons who are named parties to the
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`proceeding.
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`(BA) Party Representatives. Representatives of record for a party in the
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`proceeding.
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`(CB) Experts. Retained experts of a party in the proceeding who further
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`certify in the Acknowledgement that they are not a competitor to any
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`party, or a consultant for, or employed by, such a competitor with
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`respect to the subject matter of the proceeding.
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`1
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`(DC) In-house counsel. Up to three Iin-house counsel of a party who are
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`responsible for this action and who sign the Acknowledgement..
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`(E) Other Employees of a Party. Employees, consultants or other persons
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`performing work for a party, other than in-house counsel and in-house
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`counsel’s support staff, who sign the Acknowledgement shall be
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`extended access to confidential information only upon agreement of
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`the parties or by order of the Board upon a motion brought by the
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`party seeking to disclose confidential information to that person. The
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`party opposing disclosure to that person shall have the burden of
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`proving that such person should be restricted from access to
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`confidential information.
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`(FD) The Office. Employees and representatives of the Office who have a
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`need for access to the confidential information shall have such access
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`without
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`the requirement
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`to sign an Acknowledgement. Such
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`employees and representatives shall include the Director, members of
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`the Board and their clerical staff, other support personnel, court
`
`reporters, and other persons acting on behalf of the Office.
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`(GE) Support Personnel. Administrative assistants, clerical staff, court
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`reporters and other support personnel of the foregoing persons who
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`2
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`are reasonably necessary to assist those persons in the proceeding
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`shall not be required to sign an Acknowledgement, but shall be
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`informed of the terms and requirements of the Protective Order by the
`
`person they are supporting who receives confidential information.
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`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;
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`(C) Ensuring that support personnel of the recipient who have access to
`
`the confidential information understand and abide by the obligation to
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`maintain the confidentiality of information received that is designated
`
`as confidential; and
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`(D) Limiting the copying of confidential information to a reasonable
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`number of copies needed for conduct of the proceeding and
`
`maintaining a record of the locations of such copies.
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`3
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`4.
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`Persons
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`receiving
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`confidential
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`information
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`shall use
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`the
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`following
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`procedures to maintain the confidentiality of the information:
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`(A) Documents and Information Filed With the Board.
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`(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
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`confidential and remain under seal, unless, upon motion of a
`
`party and after a hearing on the issue, or sua sponte, the Board
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`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
`
`
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`its
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`submission, together with a Motion to Seal the confidential
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`version setting forth the reasons why the information redacted
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`from the non-confidential version is confidential and should not
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`be made available to the public. The nonconfidential version of
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`4
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`the submission shall clearly
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`indicate
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`the
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`locations of
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`information that has been redacted. The confidential version of
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`the submission shall be filed under seal. The redacted
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`information shall remain under seal unless, upon motion of a
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`party and after a hearing on the issue, or sua sponte, the Board
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`determines that some or all of the redacted information does not
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`qualify for confidential treatment.
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`(B) Documents and
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`Information Exchanged Among
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`the Parties.
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`Information designated as confidential that is disclosed to another
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`party during discovery or other proceedings before the Board shall be
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`clearly marked as ‘‘PROTECTIVE ORDER MATERIAL’’ and shall
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`be produced in a manner that maintains its confidentiality.
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`5
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`
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`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
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`6
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`
`
`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
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`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.
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`[Signature]
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`IPR2015-00698
`Patent No. 8,092,345
`Petitioner's Motion to Seal and Motion for Protective Order
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`7
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on February 16, 2016, the foregoing
`
`PETITIONER’S UNOPPOSED MOTION TO SEAL AND FOR ENTRY OF
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`A PROTECTIVE ORDER PURSUANT TO 37 C.F.R. § 42.54 was served via
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`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