Trials@uspto.gov
`Tel: 571-272-7822
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`Paper 15
`Entered: November 24, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SAMSUNG ELECTRONICS CO., LTD, SAMSUNG ELECTRONICS
`AMERICA, INC., AND SAMSUNG SEMICONDUCTOR, INC,
`Petitioner,
`
`v.
`
`NVIDIA CORPORATION,
`Patent Owner.
`
`Case IPR2015-01029
`Patent 6,992,667 B2
`
`Before KEVIN F. TURNER, BEVERLY M. BUNTING, AND
`JON B. TORNQUIST, Administrative Patent Judges.
`
`BUNTING, Administrative Patent Judge.
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. §§ 42.14 and 42.54
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`
`
`
`Tel: 571-272-7822
`
`Paper 15
`Entered: November 24, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SAMSUNG ELECTRONICS CO., LTD, SAMSUNG ELECTRONICS
`AMERICA, INC., AND SAMSUNG SEMICONDUCTOR, INC,
`Petitioner,
`
`v.
`
`NVIDIA CORPORATION,
`Patent Owner.
`
`Case IPR2015-01029
`Patent 6,992,667 B2
`
`Before KEVIN F. TURNER, BEVERLY M. BUNTING, AND
`JON B. TORNQUIST, Administrative Patent Judges.
`
`BUNTING, Administrative Patent Judge.
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. §§ 42.14 and 42.54
`
`
`
`
`
`IPR2015-01029
`Patent 6,992,667 B2
`
`
`
`I. INTRODUCTION
`Patent Owner filed a Motion to Seal (Paper 6, “Mot.”) with its
`
`Preliminary Response (Paper 7), as well as certain exhibits accompanying
`
`the Preliminary Response (Ex. 2001–2002, 2005, “Exhibits”) in this
`
`proceeding. Patent Owner did not file a redacted version of the Preliminary
`
`Response nor the Exhibits. In its Motion to Seal, Patent Owner avers that
`
`the Parties, after meeting and conferring, agreed to a proposed protective
`
`order.1 Mot. 1, Appendix A. Patent Owner makes no representation as to
`
`whether Petitioner opposes Patent Owner’s Motion to Seal.
`
`
`
`II. DISCUSSION
`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
`
`
`1 We note that Appendix A is unsigned, and a modification of the Default
`Standing Protective Order set forth in Appendix B to the Office Patent Trial
`Practice Guide.
`
`2
`
`
`
`
`IPR2015-01029
`Patent 6,992,667 B2
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`
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`is truly confidential, and that such confidentiality outweighs the strong public
`
`interest in having an open record. See Garmin at 3.
`
`Patent Owner, as the moving party, has failed to carry this burden.
`
`Patent Owner’s mere assertion that the Preliminary Response and Exhibits
`
`should be sealed because of the confidential information contained therein
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`(Mot. 1) is not sufficient, especially when weighed against the public’s
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`access rights to the evidence relied on by the parties.
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`Given the public’s access rights to evidence relied on by the parties,
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`redactions are to be limited to confidential information that meet the
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`aforementioned standard. Here, Patent Owner provides no redacted versions
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`of the Preliminary Response or the Exhibits. Patent Owner’s assertion that
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`“within ten (10) business days of the granting of an Order to seal, a redacted
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`version of the Preliminary Response and each confidential exhibit in public
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`PRPS” would be filed, is not sufficient to demonstrate that the redactions are
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`limited to confidential information. Id. Thus, with any renewed motion to
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`seal, Patent Owner should provide a redacted version demonstrating those
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`portions of its Preliminary Response and Exhibits that it believes contain
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`confidential information.
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`The parties should be mindful that a motion to seal is required to
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`include a certification that the moving party has in good faith conferred, or
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`attempted to confer, with the opposing party in an effort to come to an
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`agreement on the scope of the protection sought. Garmin, supra at 3. A
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`protective order governs the treatment of confidential portions of documents,
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`testimony, and other information designated as confidential, as well as the
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`filing of confidential documents or discussion of such information in papers
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`3
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`
`
`
`IPR2015-01029
`Patent 6,992,667 B2
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`
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`filed with the Board. The Board has the authority to enforce the terms of a
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`protective order entered in a proceeding. Office Patent Trial Practice Guide,
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`77 Fed. Reg. 48756, 48770 (Aug. 14, 2012).
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`In view of the above, it is important that the Board understand and
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`agree to the terms of any proposed protective order filed with the Board. As
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`such, the Board has provided a default protective order that the parties may
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`follow. When the parties deviate from the default protective order, the party
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`filing the proposed protective order should explain the differences between
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`the proposed protective order and the default protective order, preferably by
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`providing the Board with a redlined version of the proposed protective order
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`that effects a comparison of the terms of the proposed protective order with
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`those of the default protective order. A protective order that deviates from
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`the Board’s default protective order must include certain terms as outlined in
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`the Office Patent Trial Practice Guide. Id. (“The Protective Order shall
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`include the following terms: . . .”).
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`
`
`Before filing a further motion to seal, the parties are directed to meet
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`and confer on the issues raised by this decision. The motion to seal filed by
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`Patent Owner should be a joint motion that acts as a renewed motion
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`replacing Patent Owner’s original motion to seal. The renewed motion
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`should be specific as to why each document or redacted portion of a
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`document is confidential such that it outweighs the public interest in an open
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`record.
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`
`
`4
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`
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`IPR2015-01029
`Patent 6,992,667 B2
`
`
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`III. CONCLUSION
`We do not decide Patent owner’s Motion to seal at this time. We note
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`
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`that a document filed with a motion to seal is treated as sealed until the
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`motion is decided. 37 C.F.R. § 42.14.
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`
`
`
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`
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`IV. ORDER
`In consideration of the foregoing, it is:
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`ORDERED that Patent Owner renew its Motion to Seal and file a
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`redacted version of its Preliminary Response and Exhibits by December 8, 2015;
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`and
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`
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`Further ORDERED that any motion seeking entry of a protective
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`order, other than the Board’s default protective order, shall include a
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`redlined comparison of the proposed form of protective order and the
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`Board’s default protective order and be filed as a joint motion to seal.
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`5
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`
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`IPR2015-01029
`Patent 6,992,667 B2
`
`PETITIONER:
`
`
`
`Robert A. Appleby, P.C.
`Gregory S. Arovas, P.C.
`KIRKLAND & ELLIS LLP
`robert.appleby@kirkland.com
`greg.arovas@kirkland.com
`Samsung-NVIDIA-IPR-Service@kirkland.com
`
`
`
`PATENT OWNER:
`
`Christopher Broderick
`Don Daybell
`ORRICK HERRINGTON & SUTCLIFFE LLP
`CPBPTABDocket@orrick.com
`D2DPTABDocket@orrick.com
`
`
`
`
`6
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