`571-272-7822
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`Paper 62
`Date Entered: July 26, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MICROSOFT CORPORATION,
`Petitioner
`v.
`
`BRADIUM TECHNOLOGIES LLC
`Patent Owner.
`____________
`
`Case IPR2016-00449
`Patent 8,924,506 B2
`____________
`
`
`
`Before BRYAN F. MOORE, BRIAN J. McNAMARA, and MINN CHUNG,
`Administrative Patent Judges.
`
`
`CHUNG, Administrative Patent Judge.
`
`
`
`DECISION ON MOTIONS TO SEAL
`37 C.F.R. §§ 42.14 AND 42.54
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`IPR2016-00449
`8,924,506 B2
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`Introduction
`Before us are four motions to seal—one filed by Microsoft Corporation
`(“Petitioner”) and three filed by Bradium Technologies LLC (“Patent Owner”).
`All motions to seal are unopposed. The parties stipulated to and filed the Board’s
`Standing Protective Order on November 11, 2016, as Exhibit A to Patent Owner’s
`First Motion to Seal. Paper 15, Ex. A. The Stipulated Protective Order is entered.
`There is a strong public policy for making all information filed in a
`quasijudicial administrative proceeding open to the public, especially in an inter
`partes review which determines the patentability of claims in an issued patent and
`therefore affects the rights of the public. Our rules aim to strike a balance between
`the public’s interest in maintaining a complete and understandable file history and
`the parties’ interests in protecting truly sensitive information. Office Trial Practice
`Guide, 77 Fed. Reg. 48756, 48760 (Aug. 14, 2012). The standard we apply for
`granting a motion to seal is “for good cause.” 37 C.F.R. § 42.54. To grant the
`motion to seal, we examine why the information sought to be placed under seal
`constitutes confidential information. Applying these principles, we consider the
`parties’ motions.
`
`Petitioner’s Motion
`Petitioner moves to seal Exhibits 2012, 2013, 2014, 2015 and 2034, filed by
`Patent Owner and referenced in the Patent Owner Response (Paper 16), on the
`basis that these Exhibits include Petitioner’s confidential business information.
`Paper 18 (“Pet. Mot. to Seal”). Petitioner contends that good cause exists for its
`motion because the Exhibits that are the subject of the motion relate to Microsoft’s
`preliminary discussions with 3DVU, a prior assignee of U.S. Patent No. 8,924,506
`B2 (“the ’506 patent”) that is the subject of this proceeding. Pet. Mot. to Seal 1–2.
`According to Petitioner, Exhibits 2012 and 2013 reflect Microsoft’s internal
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`discussions, including pricing terms and policies and procedures for evaluating
`acquisitions. Id. at 2. Petitioner states that Exhibits 2014, 2015, and 2034 reflect
`confidential communications between Microsoft and the counter-party. Id.
`According to Petitioner, release of these documents will cause competitive harm,
`e.g., by allowing a competitor to estimate Microsoft’s likely pricing range for other
`companies of similar size and technology. Id.
`The existence of discussions between Microsoft and 3DVU is not
`confidential, as it has been revealed by the parties in non-confidential papers. See,
`e.g., Paper 31, Petitioner Reply to Patent Owner Response (“Pet. Reply”), 26. In
`addition, in our Final Written Decision we have referenced these discussions and
`Exhibits 2012, 2013, 2015 and 2034, but not Exhibit 2014. Our references to these
`Exhibits in the Final Written Decision do not discuss the financial and strategic
`details that legitimately concern Microsoft. In view of these circumstances, we are
`persuaded that Microsoft has shown good cause for maintaining the confidentiality
`of the Exhibits it seeks to protect. One option is to deny the Motion to Seal with
`respect to Exhibits we do not cite and allow Petitioner to expunge them. However,
`in view of the state of the record, we maintain the confidential status of Exhibits
`2012, 2013, 2014, 2015, and 2034 and leave it to Petitioner’s choice whether to
`move to expunge any confidential Exhibit not referenced in the Final Written
`Decision.
`
`Patent Owner’s Motions
`In its First Motion to Seal, Patent Owner moves to seal its Patent Owner
`Response (Paper 16), as well as Exhibit 2022, Exhibit 2029, and portions of
`Exhibit 2004. Paper 15 (PO First Mot. to Seal). Patent Owner has filed a redacted
`public version of its Patent Owner Response (Paper 17). Patent Owner filed a
`redacted version of Exhibit 2004 as Exhibit 2072.
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`The confidential version of the Patent Owner Response references Microsoft
`confidential information in the Exhibits that we have ordered sealed above.
`Therefore, we grant Patent Owner’s Motion to seal the confidential version of the
`Patent Owner Response (Paper 16).
`Patent Owner states that Exhibit 2022 is a confidential report signed by
`inventor Isaac Levanon that contains technical information, financial summaries,
`financial terms, and projected sales information. PO First Mot. to Seal 3. Patent
`Owner provides no explanation as to why this particular information should remain
`confidential. Nevertheless, as Patent Owner’s motion is unopposed and there is no
`obvious public interest in making the information non-confidential, we exercise
`our discretion to maintain Patent Owner’s confidentiality designation.
`Patent Owner states that Exhibit 2029 is a confidential agreement with
`DENSO Corporation that includes a confidentiality provision. Id. The existence
`of the agreement with DENSO is public, as Patent Owner reveals that information
`in its non-confidential motion. Id. Patent Owner has shown good cause that
`Exhibit 2029 should be treated as confidential in this proceeding.
`Exhibits 2004 is a confidential version of the Declaration of inventor Isaac
`Levanon and references confidential information concerning licensing activities,
`such as those involving DENSO. A non-confidential version was filed as Exhibit
`2072. For the reasons discussed above relative to Exhibit 2029, we are persuaded
`that Patent Owner has shown good cause that Exhibit 2004 should be treated as
`confidential in this proceeding.
`We do not cite Exhibit 2022 or Exhibit 2029 or the confidential portions of
`Exhibit 2004 in our Final Written Decision. As discussed above, one option is to
`deny Patent Owner’s motion and allow Patent Owner to move to expunge the
`documents. However, we maintain the confidentiality of the documents and leave
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`the decision to move to expunge documents not relied upon in the Final Written
`Decision up to Patent Owner.
`In its Second Motion to Seal, Patent Owner moves to seal the confidential
`version of its Opposition to Petitioner’s Motion to Exclude (Paper 49)1 on the basis
`that it references Exhibits 2022 and 2029 and portions of Exhibit 2004. Paper 48.
`We maintain the confidentiality of Paper 49 for the same reasons as those
`discussed above relative to Exhibits 2022 and 2029.
`In its Third Motion to Seal, Patent Owner moves to seal the confidential
`version of its Reply to Petitioner’s Opposition to Patent Owner’s Motion to Seal
`(Paper 55)2 and Exhibit 2082, on the basis that Paper 55 cites Exhibit 2029, and
`Exhibit 2082 is related and subject to the same confidentiality obligation. Paper
`54. We do not cite Exhibit 2082 in our Final Written Decision, but agree that
`Patent Owner has shown good cause that Paper 55 and Exhibit 2082 should be
`maintained as confidential for the reasons discussed with respect to Exhibit 2029.
`
`ORDER
`In consideration of the above it is
`ORDERED that the Stipulated Protective Order (Paper 15, Exhibit A) is
`ENTERED;
`FURTHER ORDERED that Petitioner’s Motion to Seal Exhibits 2012,
`2013, 2014, 2015, and 2034 is GRANTED; and
`FURTHER ORDERED that Patent Owner’s Motions to Seal Papers 16, 49,
`and 55, and Exhibits 2004, 2022, 2029, and 2082 are GRANTED.
`
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`1 Patent Owner has filed a redacted public version of its Opposition to Petitioner’s
`Motion to Exclude. Paper 50.
`2 Patent Owner has filed a redacted public version of its Reply to Petitioner’s
`Opposition to Patent Owner’s Motion to Seal. Paper 56.
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`PETITIONER:
`Chun M. Ng
`Patrick J. McKeever
`Matthew C. Bernstein
`Vinay Sathe
`Evan S. Day
`PERKINS COIE LLP
`CNg@perkinscoie.comBing
`PMcKeever@perkinscoie.com
`MBernstein@perkinscoie.com
`VSathe@perkinscoie.com
`EDay@perkinscoie.com
`
`PATENT OWNER:
`
`Chris Coulson
`Clifford Ulrich
`ANDREWS KURTH KENYON LLP
`ccoulson@kenyon.com
`culrich@kenyon.com
`
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