Trials@uspto.gov
`Tel: 571.272.7822
`
`Paper 37
`Entered: June 22, 2016
`
`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.,
`Petitioner,
`
`v.
`
`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner.
`
`Case IPR2015-01362 (Patent 8,969,841)
`Case IPR2015-01375 (Patent 9,048,000)1
`
`
`
`
`
`
`
`
`
`Before SALLY C. MEDLEY, JONI Y. CHANG, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`PARVIS, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`1 This Decision addresses the same issue in the above-identified inter partes
`reviews. We exercise our discretion to issue one Order to be docketed in
`each case. The parties, however, are not authorized to use this style of filing
`in subsequent papers, without prior authorization.
`
`
`Tel: 571.272.7822
`
`Paper 37
`Entered: June 22, 2016
`
`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.,
`Petitioner,
`
`v.
`
`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner.
`
`Case IPR2015-01362 (Patent 8,969,841)
`Case IPR2015-01375 (Patent 9,048,000)1
`
`
`
`
`
`
`
`
`
`Before SALLY C. MEDLEY, JONI Y. CHANG, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`PARVIS, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`1 This Decision addresses the same issue in the above-identified inter partes
`reviews. We exercise our discretion to issue one Order to be docketed in
`each case. The parties, however, are not authorized to use this style of filing
`in subsequent papers, without prior authorization.
`
`
`
`IPR2015-01362 (Patent 8,969,841)
`IPR2015-01375 (Patent 9,048,000)
`
`
`Background
`
`On June 6, 2016, Petitioner, ASML Netherlands B.V., Excelitas
`
`Technologies Corp., and Qioptiq Photonics GmbH & Co. KG, and Patent
`
`Owner, Energetiq Technology, Inc. filed a Joint Motion to Terminate in each
`
`of the above-identified proceedings. Paper 35.2 On June 13, 2016, we
`
`granted the Joint Motions to Terminate in IPR2015-01362 and IPR2015-
`
`01375 (“Judgment,” Paper 36), and terminated each of the proceedings with
`
`respect to both Petitioner and Patent Owner. Id. at 6.
`
`Additionally, we noted that Patent Owner filed Motions to Seal
`
`(Paper 23 in IPR2015-01362 and Paper 24 in IPR2015-01375) Patent Owner
`
`Responses (Paper 22 in IPR2015-01362 and Paper 23 in IPR2015-01375)
`
`and certain documents filed as Exhibits 2008, 2010, 2016, 2027, 2028, 2030,
`
`2036, 2037, 2040, 2041, 2042, 2043, and 2065 in each of IPR2015-01362
`
`and IPR2015-01375. Id. at 4. With respect to each of Patent Owner’s
`
`Motions to Seal, we determined that Patent Owner, as the moving party, has
`
`failed to carry its burden. Id. However, we recognized that a denial of the
`
`Motions to Seal would immediately unseal the material that Patent Owner
`
`desires to remain confidential and the effect would be irreversible. Id. at 5.
`
`Therefore, rather than denying the motions, we provided Patent Owner five
`
`business days (1) to refile its motion to seal with further argument and
`
`evidence, along with public versions of the Exhibits that include redactions
`
`of only confidential material, or (2) to withdraw the motions to seal and
`
`request that we expunge the confidential versions of the Patent Owner
`
`
`2 For the purpose of clarity and expediency, we treat IPR2015-01362 as
`representative, and all citations are to IPR2015-01362 unless otherwise
`noted.
`
`2
`
`
`
`IPR2015-01362 (Patent 8,969,841)
`IPR2015-01375 (Patent 9,048,000)
`
`Responses (Paper 22 in IPR2015-01362 and Paper 23 in IPR2015-01375), as
`
`well as Exhibits 2008, 2010, 2016, 2027, 2028, 2030, 2036, 2037, 2040,
`
`2041, 2042, 2043, and 2065 filed in each of IPR2015-01362 and IPR2015-
`
`01375 (referred to collectively as “materials designated as confidential”).
`
`Id.
`
`June 21, 2016 Call
`
`On June 21, 2016, at the request of the parties, a conference call was
`
`held between respective counsel for the parties and Judges Medley, Chang,
`
`and Parvis. During that call, the parties provided further clarification
`
`regarding the materials designated as confidential. In particular, Petitioner
`
`indicated that the information designated as confidential includes
`
`purportedly confidential information of Petitioner, as well as Patent
`
`Owner. Additionally, Patent Owner indicated that Exhibit 2066 filed on
`
`March 1, 2016 in each of IPR2015-01362 and IPR2015-01375 also includes
`
`purportedly confidential information, but was not filed under seal in error.
`
`On March 4, 2016, a replacement Exhibit 2066 was filed in each of
`
`IPR2015-01362 and IPR2015-01375, as well as a Motion to Replace
`
`Exhibit 2066 (Paper 28 in IPR2015-01362 and Paper 29 in IPR2015-01375).
`
`The Motion to Replace Exhibit 2066 requests substitution of the
`
`March 4, 2016 Exhibit 2066 for the earlier filed exhibit and further requests
`
`that the March 1, 2016 Exhibit 2066 be expunged from the record.
`
`We reminded the parties that confidential information that is subject
`
`to a protective order ordinarily would become public 45 days after final
`
`judgment in a trial. Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756,
`
`48,761 (Aug. 14, 2012). However, a party seeking to maintain the
`
`confidentiality of information may file a motion to expunge the information
`
`3
`
`
`
`IPR2015-01362 (Patent 8,969,841)
`IPR2015-01375 (Patent 9,048,000)
`
`from the record prior to the information becoming public. Id.; see also
`
`37 C.F.R. § 42.56 (“After denial of a petition to institute a trial or after final
`
`judgment in a trial, a party may file a motion to expunge confidential
`
`information from the record.”).
`
`During the June 21, 2016 call, we further offered as a third alternative
`
`to the options in the Judgment that upon agreement by the parties, we would
`
`expunge materials designated as confidential, as well as Exhibit 2066 filed
`
`March 1, 2016. Both Petitioner and Patent Owner represented that they
`
`agree to our expunging the materials designated as confidential as well as
`
`Exhibit 2066 filed March 1, 2016. Based on the representations made by the
`
`parties during the call, we determine that the materials designated as
`
`confidential and as well as Exhibit 2066 filed March 1, 2016 shall be
`
`expunged. Accordingly, Patent Owner’s Motions to Seal (Paper 23 in
`
`IPR2015-01362 and Paper 24 in IPR2015-01375) are dismissed as moot.
`
`For the foregoing reasons, it is:
`
`ORDER
`
`ORDERED that each of the following documents shall be expunged
`
`from the record in each of IPR2015-01362 and IPR2015-01375: (1) Patent
`
`Owner Responses designated as confidential, in particular, Paper 22 in
`
`IPR2015-01362 and Paper 23 in IPR2015-01375, (2) exhibits submitted with
`
`Patent Owner Responses designated as confidential, in particular
`
`Exhibits 2008, 2010, 2016, 2027, 2028, 2030, 2036, 2037, 2040, 2041, 2042,
`
`2043, and 2065, in each of IPR2015-01362 and IPR2015-01375, and
`
`(3) Exhibit 2066 submitted on March 1, 2016; and
`
`4
`
`
`
`IPR2015-01362 (Patent 8,969,841)
`IPR2015-01375 (Patent 9,048,000)
`
`
`FURTHER ORDERED that Patent Owner’s Motions to Seal
`
`(Paper 23 in IPR2015-01362 and Paper 24 in IPR2015-01375) are dismissed
`
`as moot.
`
`
`
`PETITIONER:
`
`Donald R. Steinberg
`David L. Cavanaugh
`Michael H. Smith
`Brian Seeve
`Theodoros Konstantakopoulos
`Arthur Shum
`Richard Goldenberg
`WILMER CUTLER PICKERING HALE & DORR LLP
`Don.steinberg@wilmerhale.com
`David.cavanaugh@wilmerhale.com
`Michaelh.smith@wilmerhale.com
`Brian.seeve@wilmerhale.com
`Theodoros.konstantakopoulos@wilmerhale.com
`Arthur.shum@wilmerhale.com
`Richard.goldenberg@wilmerhale.com
`
`
`
`PATENT OWNER:
`
` Steven M. Bauer
`Joseph A. Capraro Jr.
`PROSKAUER ROSE LLP
`PTABMattersBoston@proskauer.com
`jcapraro@proskauer.com
`
`
`5
`
`
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