IPR2015-01362
`U.S. Patent No. 8,969,841
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`ASML NETHERLANDS B.V., EXCELITAS TECHNOLOGIES CORP., AND
`QIOPTIQ PHOTONICS GMBH & CO. KG,
`Petitioners
`
`v.
`
`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner
`_____________
`
`Case IPR2015-01362
`U.S. Patent No. 8,969,841
`_____________
`
`MOTION FOR ENTRY OF DEFAULT PROTECTIVE ORDER AND
`MOTION TO FILE CONFIDENTIAL DOCUMENTS UNDER SEAL
`PURUSANT TO 37 C.F.R. §§ 42.14 & 42.54
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`U.S. Patent No. 8,969,841
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`ASML NETHERLANDS B.V., EXCELITAS TECHNOLOGIES CORP., AND
`QIOPTIQ PHOTONICS GMBH & CO. KG,
`Petitioners
`
`v.
`
`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner
`_____________
`
`Case IPR2015-01362
`U.S. Patent No. 8,969,841
`_____________
`
`MOTION FOR ENTRY OF DEFAULT PROTECTIVE ORDER AND
`MOTION TO FILE CONFIDENTIAL DOCUMENTS UNDER SEAL
`PURUSANT TO 37 C.F.R. §§ 42.14 & 42.54
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`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Patent Owner Energetiq
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`Technology, Inc. (“Energetiq”) respectfully submits this Motion to Seal portions of
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`Energetiq’s Patent Owner Response and certain exhibits thereto.
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`I.
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`Background
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`Energetiq is submitting materials in this proceeding that contain highly
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`sensitive technical and business information belonging to Energetiq as well as a
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`third party, a competitor of Petitioner ASML. On February 16, 2016, a conference
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`call was held among respective counsel for Petitioner and Patent Owner, and
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`Judges Medley, Chang, and Parvis, to discuss submission of these materials under
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`a revised Protective Order.
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`The same day, the Board issued paper 18, which, among other things, urged
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`Patent Owner to contact the third party regarding de-designating or redacting to
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`eliminate third party confidential information that Patent Owner seeks to submit.
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`Paper 18 at 3, 5. The Board additionally required that the Patent Owner remind the
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`third party that information submitted in these IPR proceedings may be made
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`public, as set forth in the Office Patent Trial Practice Guide, so as to ensure that the
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`third party’s agreement to the use of its information in these IPR proceedings is
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`with the knowledge of the risks associated with the submission of the information
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`to the Board.
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`Patent Owner has complied with the Board’s requests. In response to Patent
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`2
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`Owner’s relaying the above information to the third party, the third party has
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`agreed to Patent Owner’s submitting redacted copies of its materials under seal,
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`with certain material withheld due to the competitive situation that exists between
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`it and ASML Netherlands B.V. Patent Owner now moves to the Board to enter the
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`default Protective Order, attached as Appendix A, and moves to file these redacted
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`third party papers—in addition to certain other materials discussed below—under
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`seal.
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`II. Good Cause Exists for Sealing Certain Confidential Information
`Under 35 U.S.C. § 316(a)(1) and 37 C.F.R. § 42.14, papers filed in an inter
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`partes review are open and available to the public by default; however, a party may
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`file a motion to seal, in which case the information at issue remains sealed pending
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`the outcome of the motion. Id. Generally, only “confidential information” is
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`protected from disclosure. 35 U.S.C. § 316(a)(7). The standard for granting a
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`motion to seal is “for good cause.” 37 C.F.R. § 42.54(a).
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`
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`Patent Owner submits that portions of its Response and each of the Proposed
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`Exhibits summarized in the table below contains confidential trade secret,
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`business, and/or commercial information of either Energetiq or a third party. In the
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`table below, Patent Owner provides detailed reasons demonstrating good cause to
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`seal each of the Proposed Exhibits.
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`3
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`Exhibit Good Cause for Filing Under Seal
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`2008 “A Novel Electrodeless Light Source for Wafer Inspection
`Applications,” (January 4, 2006)
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`This document contains confidential information in the form of
`Energetiq proprietary design information and third party business
`strategy information.
`2010 Bucksbaum Declaration
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`This document contains confidential information in the form of
`multiple references to documents having proprietary design
`information and business strategy information of Energetiq and third
`parties.
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`Patent Owner is also submitting a redacted (public) version of this
`Exhibit.
`2016 Smith Declaration
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`This document contains confidential information in the form of
`multiple references to documents having proprietary design
`information and business strategy information of Energetiq and third
`parties.
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`Patent Owner is also submitting a redacted (public) version of this
`Exhibit.
`2027 “Light Source Proposal…” (12/15/2005)
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`This document contains confidential information in the form of
`Energetiq proprietary design information and third party business
`strategy information.
`2028 2007 ASML/Energetiq Email
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`This document contains confidential information in the form of
`Energetiq proprietary technical and business strategy information and
`confidential ASML information.
`2030 Project Agreement for Feasibility Study (May 3, 2006)
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`4
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`This document contains Energetiq and third-party proprietary
`business strategy and technical information.
`2036 Presentation to ASML, “LDLS Laser Driven Light Sources for i-
`Line” (10/25/2007)
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`This document contains confidential information in the form of
`Energetiq proprietary design information.
`2037 Presentation to ASML, “Next Generation LDLS UV Lamp for
`ASML” (2/12/2008)
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`This document contains confidential information in the form of
`Energetiq proprietary design information and confidential ASML
`information.
`2040 2007 Energetiq License Agreement
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`This document contains Energetiq and third party confidential
`licensing and financial information.
`2041 2010 Energetiq License Agreement
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`This document contains Energetiq and third party confidential
`licensing and financial information.
`2042 Email from Energetiq to ASML
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`This document contains confidential information in the form of
`Energetiq business strategy information and confidential ASML
`information.
`2043 Email from Qioptiq to Energetiq dated September 29, 2014
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`This document contains confidential information in the form of
`Energetiq business strategy information.
`2065 ASML BV LDLS Roadmap (6/11/2013)
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`This document contains confidential information in the form of
`Energetiq business strategy and technical information and
`confidential ASML information.
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`5
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`In addition, Patent Owner submits a redacted version of its Response. The
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`Response contains confidential material at least to the extent that it reflects the
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`confidential material outlined in the above exhibits.
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`III. Certificate of Conference
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`Pursuant to 37 C.F.R. §42.54(a), Patent Owner hereby certifies that it has conferred
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`in good faith and Petitioners do not oppose this motion under the Board’s Default
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`Protective Order, attached as Appendix A.
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`Respectfully submitted,
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`Proskauer Rose LLP
`
`/ Joseph A. Capraro Jr. /
`Joseph A. Capraro Jr., Reg. No. 36,471
`Attorney for Patent Owner
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`
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`Date: March 1, 2016
`PROSKAUER ROSE LLP
`One International Place
`Boston, Massachusetts 02110
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`6
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`APPENDIX A
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`ASML NETHERLANDS B.V., EXCELITAS TECHNOLOGIES CORP., AND
`QIOPTIQ PHOTONICS GMBH & CO. KG,
`Petitioners
`
`v.
`
`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner
`_____________
`
`Case IPR2015-01375
`U.S. Patent No. 9,048,000
`_____________
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`DEFAULT PROTECTIVE ORDER
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`This standing protective order governs the treatment and filing of confidential
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`information, including documents and testimony.
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`1. Confidential information shall be clearly marked ‘‘PROTECTIVE ORDER
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`MATERIAL.’’
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`2. Access to confidential information is limited to the following individuals
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`who have executed the acknowledgment appended to this order:
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`(A) Parties. Persons who are owners of a patent involved in the proceeding and
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`other persons who are named parties to the proceeding.
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`1
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`(B) Party Representatives. Representatives of record for a party in the
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`proceeding.
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`(C) Experts. Retained experts of a party in the proceeding who further certify in
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`the Acknowledgement that they are not a competitor to any party, or a
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`consultant for, or employed by, such a competitor with respect to the subject
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`matter of the proceeding.
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`(D) In-house counsel. In-house counsel of a party.
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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 extended
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`access to confidential information only upon agreement of the parties or by
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`order of the Board upon a motion brought by the party seeking to disclose
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`confidential information to that person. The party opposing disclosure to
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`that person shall have the burden of proving that such person should be
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`restricted from access to confidential information.
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`(F) The Office. Employees and representatives of the Office who have a need
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`for access to the confidential information shall have such access without the
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`requirement to sign an Acknowledgement. Such employees and
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`representatives shall include the Director, members of the Board and their
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`2
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`clerical staff, other support personnel, court reporters, and other persons
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`acting on behalf of the Office.
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`(G) Support Personnel. Administrative assistants, clerical staff, court reporters
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`and other support personnel of the foregoing persons who are reasonably
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`necessary to assist those persons in the proceeding shall not be required to
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`sign an Acknowledgement, but shall be informed of the terms and
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`requirements of the Protective Order by the person they are supporting who
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`receives confidential 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 not
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`authorized to receive the information shall not have access;
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`(B) Otherwise using reasonable efforts to maintain the confidentiality of the
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`information, which efforts shall be no less rigorous than those the recipient
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`uses to maintain the confidentiality of information not received from the
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`disclosing party;
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`(C) Ensuring that support personnel of the recipient who have access to the
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`confidential information understand and abide by the obligation to maintain
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`the confidentiality of information received that is designated as confidential;
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`and
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`3
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`(D) Limiting the copying of confidential information to a reasonable number of
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`copies needed for conduct of the proceeding and maintaining a record of the
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`locations of such copies.
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`4. Persons receiving confidential information shall use the 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,
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`together with a non-confidential description of the nature of the
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`confidential information that is under seal and the reasons why the
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`information is confidential and should not be made available to the
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`public. The submission shall be treated as confidential and remain under
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`seal, unless, upon motion of a party and after a hearing on the issue, or
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`sua sponte, the Board determines that the documents or information do
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`not to qualify for confidential treatment.
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`(ii) Where confidentiality is alleged as to some but not all of the information
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`submitted to the Board, the submitting party shall file confidential and
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`non-confidential versions of its submission, together with a Motion to
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`Seal the confidential version setting forth the reasons why the
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`information redacted from the non-confidential version is confidential
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`and should not be made available to the public. The nonconfidential
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`4
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`version of the submission shall clearly indicate the locations of
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`information that has been redacted. The confidential version of the
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`submission shall be filed under seal. The redacted information shall
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`remain under seal unless, upon motion of a party and after a hearing on
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`the issue, or sua sponte, the Board determines that some or all of the
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`redacted information does not qualify for confidential treatment.
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`(B) Documents and Information Exchanged Among the Parties. Information
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`designated as confidential that is disclosed to another party during discovery
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`or other proceedings before the Board shall be clearly marked as
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`‘‘PROTECTIVE ORDER MATERIAL’’ and shall be produced in a manner
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`that maintains its confidentiality.
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`(j) Standard Acknowledgement of Protective Order. The following form may be
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`used to acknowledge a protective order and gain access to information covered by
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`the protective order:
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`5
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`ASML NETHERLANDS B.V., EXCELITAS TECHNOLOGIES CORP., AND
`QIOPTIQ PHOTONICS GMBH & CO. KG,
`Petitioners
`
`v.
`
`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner
`_____________
`
`Case IPR2015-01375
`U.S. Patent No. 9,048,000
`_____________
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`
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`Standard Acknowledgment for Access to Protective Order Material
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`I _____________, affirm that I have read the Protective Order; that I will abide by
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`its terms; that I will use the confidential information only in connection with this
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`proceeding and for no other purpose; that I will only allow access to support staff
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`who are reasonably necessary to assist me in this proceeding; that prior to any
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`disclosure to such support staff I informed or will inform them of the requirements
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`of the Protective Order; that I am personally responsible for the requirements of the
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`terms of the Protective Order and I agree to submit to the jurisdiction of the Office
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`and the United States District Court for the Eastern District of Virginia for
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`6
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`purposes of enforcing the terms of the Protective Order and providing remedies for
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`its breach.
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`[Signature]
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`7
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on March 1, 2016 this motion and copies of
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`the three redacted documents are being served pursuant to 37 C.F.R. § 42.6
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`electronically on Petitioner (by consent of the parties) to the following email
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`addresses:
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`Don.Steinberg@wilmerhale.com
`David.Cavanaugh@wilmerhale.com
`MichaelH.Smith@wilmerhale.com
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`
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`Respectfully submitted,
`Proskauer Rose LLP
`
`/ Morgan J. Peterson /
`Morgan J. Peterson
`Project Assistant
`
`
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`
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`
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`Date: March 1, 2016
`PROSKAUER ROSE LLP
`One International Place
`Boston, Massachusetts 02110
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