UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`MYLAN PHARMACEUTICALS INC. and MYLAN LABORATORIES
`LIMITED,
`Petitioners,
`
`v.
`
`UCB PHARMA GMBH
`Patent Owner
`
`Patent No. 6,858,6501
`Case IPR2016-00510
`
`
`
`
`
`
`JOINT MOTION TO SEAL
`AND FOR ENTRY OF A PROTECTIVE ORDER
`PURSUANT TO 37 C.F.R. § 42.54
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1 Petitioners Alembic Pharmaceuticals Limited from IPR2016-01596, Torrent
`Pharmaceuticals Limited from IPR2016-01636, and Amerigen Pharmaceuticals
`Limited from IPR2016-01665 have been joined as Petitioners to this proceeding.
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`MYLAN PHARMACEUTICALS INC. and MYLAN LABORATORIES
`LIMITED,
`Petitioners,
`
`v.
`
`UCB PHARMA GMBH
`Patent Owner
`
`Patent No. 6,858,6501
`Case IPR2016-00510
`
`
`
`
`
`
`JOINT MOTION TO SEAL
`AND FOR ENTRY OF A PROTECTIVE ORDER
`PURSUANT TO 37 C.F.R. § 42.54
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1 Petitioners Alembic Pharmaceuticals Limited from IPR2016-01596, Torrent
`Pharmaceuticals Limited from IPR2016-01636, and Amerigen Pharmaceuticals
`Limited from IPR2016-01665 have been joined as Petitioners to this proceeding.
`
`
`
`
`
`
`
`
`Petitioners Mylan Pharmaceuticals Inc., Mylan Laboratories Limited,
`
`Alembic Pharmaceuticals Limited, Torrent Pharmaceuticals Limited, and
`
`Amerigen Pharmaceuticals Limited and Patent Owner UCB Pharma GmbH hereby
`
`move for entry of the Protective Order appended below as Addendum A and
`
`further move to seal certain exhibits submitted as supplemental information as
`
`permitted in Paper No. 32. The exhibits are sealed to protect confidential business
`
`information from disclosure to competitors and from disclosure to the general
`
`public.
`
`Additionally, submitted as Addendum B is the joint document indicating
`
`how each full deposition transcript filed as an Exhibit in this proceeding2
`
`corresponds to the excerpts cited in the Response or Reply as directed in Paper No.
`
`32.
`
`I. MOTION TO SEAL
`
`
`
`The parties move to seal the following exhibits:
`
`1. Exhibit 1073A - Deposition Transcript of William Roush, dated
`
`September 9, 2016; and
`
`2. Exhibit 1075A - Deposition Transcript of Leonard Chyall, dated
`
`August 23, 2016.
`
`
`
`2 Exhibits 1073A-1076A, 2020, 2026, and 2027.
`
`
`
`
`
`
`
`
`
`Petitioner has concurrently filed redacted versions of Exhibits 1073A and
`
`1075A.
`
`
`
`The above-listed exhibits
`
`include competitively-sensitive, non-public,
`
`business information of third parties. The confidential information contained in
`
`the above-listed exhibits was disclosed to Mylan Pharmaceuticals Inc. pursuant to
`
`a Protective Order entered in the related district court litigation, Pfizer Inc. and
`
`UCB Pharma GmbH v. Mylan Pharmaceuticals Inc., No. 1:15-cv-0079-GMS (D.
`
`Del.).
`
`
`
`If this confidential information were disclosed publicly, it likely would cause
`
`competitive business harm. In other inter partes review proceedings, the Board
`
`has held that confidential information such as that submitted here should remain
`
`under seal. See, e.g., Greene’s Energy Grp., LLC, Inc. v. Oil States Energy Svcs.,
`
`LLC, IPR2014-00216, Paper 27, at 5 (PTAB Sept. 23, 2014). In Greene’s Energy
`
`Group, the Board held that portions of an exhibit containing confidential financial
`
`information should remain under seal where the proposed redactions were
`
`reasonable and the thrust of the underlying argument or evidence was clearly
`
`discernable from the redacted versions. Id. Here, Patent Owner has redacted from
`
`the public filings only those portions of the exhibits that reflect competitively-
`
`sensitive information of third parties.
`
`
`
`
`
`
`
`
`
`II. MOTION FOR ENTRY OF A PROTECTIVE ORDER
`
`The parties have further met-and-conferred and agreed upon entry of a
`
`Protective Order in this case. The Board’s default protective order is appended as
`
`Addendum A.
`
`III. CONCLUSION
`
`For the foregoing reasons, the parties respectfully request that the Board
`
`grant this joint motion to seal and entry of a protective order.
`
`Dated: March 2, 2017
`
`
`
`
`
`
`
`Respectfully submitted,
`
`By: /s/ Mitchell G. Stockwell
`Mitchell G. Stockwell
`Registration No. 39,389
`
`Lead Counsel for Petitioner Mylan
`Pharmaceuticals, Inc.
`
`
`By: /s/ Jeffrey J. Oelke
`Jeffrey J. Oelke
`Registration No. 37,409
`
`Lead Counsel for Patent Owner UCB
`Pharma GmbH
`
`
`
`
`
`
`
`
`ADDENDUM A
`
`Standing Protective Order
`
`This standing protective order governs the treatment and filing of
`
`confidential information, including documents and testimony.
`
`1. Confidential information shall be clearly marked “PROTECTIVE
`
`ORDER MATERIAL.”
`
`2. Access to confidential information marked “PROTECTIVE ORDER
`
`MATERIAL” is limited to the following individuals who have executed the
`
`acknowledgment appended to this order:
`
`(A) Parties. Persons who are owners of a patent involved in the proceeding
`
`and other persons who are named parties to the proceeding.
`
`(B) Party Representatives. Representatives of record for a party in the
`
`proceeding.
`
`(C) Experts. Retained experts of a party in the proceeding who further
`
`certify in the Acknowledgement that they are not a competitor to any party, or a
`
`consultant for, or employed by, such a competitor with respect to the subject matter
`
`of the proceeding.
`
`(D) In-house counsel. In-house counsel of a party.
`
`(E) Other Employees of a Party. Employees, consultants, or other persons
`
`performing work for a party, other than in-house counsel and in-house counsel’s
`
`
`
`
`
`
`
`
`
`support staff, who sign the Acknowledgement shall be extended access to
`
`confidential information only upon agreement of the parties or by order of the
`
`Board upon a motion brought by the party seeking to disclose confidential
`
`information to that person. The party opposing disclosure to that person shall have
`
`the burden of proving that such person should be restricted from access to
`
`confidential information.
`
`
`
`(F) The Office. Employees and representatives of the Office who have a
`
`need for access to the confidential information shall have such access without the
`
`requirement to sign an Acknowledgement. Such employees and representatives
`
`shall include the Director, members of the Board and their clerical staff, other
`
`support personnel, court reporters, and other persons acting on behalf of the Office.
`
`(G) Support Personnel. Administrative assistants, clerical staff, court
`
`reporters and other support personnel of the foregoing persons who are reasonably
`
`necessary to assist those persons in the proceeding shall not be required to sign an
`
`Acknowledgement, but shall be informed of the terms and requirements of the
`
`Protective Order by the person they are supporting who receives confidential
`
`information.
`
`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;
`
`(C) Ensuring that support personnel of the recipient who have access
`
`to the confidential information understand and abide by the obligation to
`
`maintain the confidentiality of information received that is designated as
`
`confidential; and
`
`(D) Limiting the copying of confidential information to a reasonable
`
`number of copies needed for conduct of the proceeding and maintaining a
`
`record of the locations of such copies.
`
`4. Persons receiving confidential information shall use the following
`
`procedures to maintain the confidentiality of the information:
`
`(A) Documents and Information Filed With the Board.
`
`(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 confidential and remain under seal,
`
`unless, upon motion of a party and after a hearing on the issue, or sua
`
`sponte, the Board determines that the documents or information do not
`
`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 its submission, together with a
`
`Motion to Seal the confidential version setting forth the reasons why the
`
`information redacted from the non-confidential version is confidential and
`
`should not be made available to the public. The non-confidential version of
`
`the submission shall clearly indicate the locations of information that has
`
`been redacted. The confidential version of the submission shall be filed
`
`under seal. The redacted information shall remain under seal unless, upon
`
`motion of a party and after a hearing on the issue, or sua sponte, the Board
`
`determines that some or all of the redacted information does not qualify for
`
`confidential treatment.
`
`(B) Documents and Information Exchanged Among the Parties. Information
`
`designated as confidential that is disclosed to another party during discovery or
`
`other proceedings before the Board shall be clearly marked as “PROTECTIVE
`
`
`
`
`
`
`
`
`
`ORDER MATERIAL” and shall be produced in a manner that maintains its
`
`confidentiality.
`
`Standard Acknowledgement of Protective Order. The following form may be used
`
`to acknowledge a protective order and gain access to information covered by the
`
`protective order.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`MYLAN PHARMACEUTICALS INC. and MYLAN LABORATORIES
`LIMITED
`Petitioners,
`
`v.
`
`UCB PHARMA GMBH
`Patent Owner
`
`Patent No. 6,858,6501
`Case IPR2016-00510
`
`
`
`
`Standard Acknowledgment for Access to Protective Order Material
`
`
`
`
`
`1 Petitioners Alembic Pharmaceuticals Limited from IPR2016-01596, Torrent
`Pharmaceuticals Limited from IPR2016-01636, and Amerigen Pharmaceuticals
`Limited from IPR2016-01665 have been joined as Petitioners to this proceeding.
`
`
`
`
`
`
`
`
`
`
`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 submit to the jurisdiction of the Office and the United States District
`
`Court for the District of Delaware for purposes of enforcing the terms of the
`
`Protective Order and providing remedies for its breach.
`
`
`
`____________________________
`[Signature]
`
`
`
`
`
`
`
`
`
`ADDENDUM B
`
`IPR2016-00510 (U.S. Pat. No. 6,858,650)
`Declarant
`or
`Pages of the
`Correlation
`Witness
`Reply Brief of
`Transcript
`Petitioner on
`Which the
`Deposition Is
`Cited
`3
`12
`13
`15
`21
`
`to
`
`the Full Deposition
`
`94:16-24; 95:8-18
`66:10-25
`71:16-24
`110:20-111:7; 112:7-113:7
`133:1-15
`
`William Roush,
`Ph.D.
`Exhibit 1073A:
`Transcript of the
`Deposition of
`William Roush,
`Ph.D., dated
`9/9/2016 in Case
`No. 15-cv-00079
`(D. Del.), and
`agreed by the
`parties to be used
`as the cross-
`examination
`testimony of Dr.
`Roush in IPR2016-
`00510.
`Declarant
`Witness
`
`or
`
`Hans Maag, Sc.D.
`Exhibit 1074A:
`Transcript of the
`Deposition of Hans
`
`
`
`Pages of the
`Reply Brief of
`Petitioner on
`Which the
`Deposition Is
`Cited
`7
`9
`10
`
`Correlation
`Transcript
`
`to
`
`the Full Deposition
`
`77:11-19
`202:10-18
`116:20-118:11
`
`
`
`
`
`26:8-16
`52:9-21; 151:15-152:3; 153:7-12
`102:6-103:6; 185:8-21
`64:24-65:13; 78:2-7
`70:24-72:16; 85:5-87:19; 185:22-186:20;
`199:9-200:20; 211:14-212:9; 218:5-17;
`225:5-226:2; 228:13-229:11; 192:15-193:8
`71:18-24
`130:4-15
`Correlation
`Transcript
`
`the Full Deposition
`
`to
`
`117:22-118:6
`76:4-77:10; 98:22-99:7
`
`11
`12
`15
`16
`19
`
`25
`26
`Pages of the
`Reply Brief of
`Petitioner on
`Which the
`Deposition Is
`Cited
`21
`22
`
`
`
`Maag, Ph.D., dated
`August 16, 2016, in
`Case No. 15-cv-
`00079 (D. Del.),
`and agreed by the
`parties to be used
`as the cross-
`examination
`testimony of Dr.
`Maag in IPR2016-
`00510.
`
`Declarant
`Witness
`
`or
`
`Leonard Chyall,
`Ph.D.
`Exhibit 1075A:
`Transcript of the
`Deposition of
`Leonard Chyall,
`Ph.D., dated
`August 23, 2016, in
`Case No. 15-cv-
`00079 (D. Del.),
`and agreed by the
`parties to be used
`as the cross-
`examination
`testimony of Dr.
`Chyall in IPR2016-
`00510.
`
`
`
`
`
`
`
`
`
`Declarant
`Witness
`
`or
`
`Claus Meese,
`Ph.D.
`Exhibit 1076A:
`Transcript of the
`Deposition of
`Claus Meese,
`Ph.D., dated
`January 20, 2015,
`in Case No. 13-cv-
`01110 (D. Del.),
`and agreed by the
`parties to be used
`as the cross-
`examination
`testimony of Dr.
`Meese in IPR2016-
`00510.
`
`
`Pages of the
`Reply Brief of
`Petitioner on
`Which the
`Deposition Is
`Cited
`22
`
`Correlation
`Transcript
`
`to
`
`the Full Deposition
`
`109:22-111:2
`
`
`
`
`
`
`
`
`
`
`
`to
`
`the Full Deposition
`
`Steven Patterson,
`Ph.D.
`Exhibit 2020:
`Transcript of the
`Deposition of
`Steven Patterson,
`Ph.D., dated
`October 4, 2016
`Case IPR2016-
`00510, Case
`IPR2016-00512,
`Case IPR2016-
`00514, Case
`IPR2016-00516,
`Case IPR2016-
`00517.
`
`IPR2016-00510 (U.S. Pat. No. 6,858,650)
`Declarant
`or
`Pages of the
`Correlation
`Transcript2
`Witness
`Patent Owner
`Response on
`Which the
`Deposition Is
`Cited
`15
`18
`20-21
`22-23
`23
`24
`26
`27
`28
`29
`30
`34
`38
`38
`38
`40
`
`181:19-183:9
`56:14-21; 58:10-59:2
`111:2-14; 112:4-13
`94:24-95:6
`118:15-120:25
`120:16-20
`133:13-20, 209:18-23
`135:18-24
`180:14-17
`132:11-15
`135:18-24
`143:14-21
`174:25-175:5
`159:24-160:5; 172:25-173:5
`158:25-161:12
`153:23-154:20
`
`
`
`2 Patent Owner filed the complete transcript of Steven Patterson, Ph.D. as Exhibit
`2020 to the Patent Owner Response dated October 24, 2016. The below listed
`citations are the same citations to Exhibit 2020 provided in the Patent Owner
`Response.
`
`
`
`
`
`
`
`
`
`40
`40
`41
`42-43
`43
`43
`44
`46
`47
`48
`48
`48
`53
`60
`60
`66
`Pages of the
`Patent Owner
`Response on
`Which the
`Deposition Is
`Cited
`17
`
`164:25-165:8; 166:19-167:16
`173:6-13
`166:19-167:21
`188:4-8
`190:12-16; 193:16-20
`190:18-24
`180:14-17
`161:13-22
`177:14-21
`199:7-14
`200:5-14
`173:6-13
`217:15-20
`229:18-230:3
`228:9-13
`107:25-108:24
`Correlation
`to
`Transcript3
`
`the Full Deposition
`
`60:4-61:8
`
`Declarant
`Witness
`
`or
`
`Culley C. Carson
`
`
`
`3 Patent Owner filed the complete transcript of Culley C. Carson III, M.D. as
`Exhibit 2026 to the Patent Owner Response dated October 24, 2016. The below
`listed citations are the same citations to Exhibit 2026 provided in the Patent Owner
`Response.
`
`
`
`
`
`
`
`56:13-57:10; 93:15-95:7
`44:5-45:11
`109:12-110:16
`76:23-77:4
`86:14-18; 147:12-18
`105:6-21
`60:4-61:8
`129:24–130:4
`141:2-5
`48:25-49:3; 142:13-144:8
`Correlation
`to
`the Full Deposition
`Transcript4
`
`192:14-20
`248:25-249:16
`
`17-18
`18
`20
`21
`23
`25
`26
`65
`65
`66
`Pages of the
`Patent Owner
`Response on
`Which the
`Deposition Is
`Cited
`29-30
`40
`
`
`
`III, M.D.
`Exhibit 2026:
`Transcript of the
`Deposition of
`Culley C. Carson
`III, M.D., dated
`August 25, 2016,
`C.A. No. 15-cv-
`0079 (D. Del.).
`
`Declarant
`Witness
`
`or
`
`David R. Janero,
`Ph.D.
`Exhibit 2027:
`Transcript of the
`Deposition of
`David R. Janero,
`Ph.D., dated
`August 16, 2016,
`No. 15-cv-0079 (D.
`Del.).
`
`
`
`4 Patent Owner filed the complete transcript of David R. Janero, Ph.D. as Exhibit
`2027 to the Patent Owner Response dated October 24, 2016. The below listed
`citations are the same citations to Exhibit 2027 provided in the Patent Owner
`Response.
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of JOINT MOTION TO
`
`SEAL AND FOR ENTRY OF A PROTECTIVE ORDER PURSUANT TO 37
`
`C.F.R. § 42.54 was served on March 2, 2017, by filing this document through the
`
`Patent Trial and Appeal Board End to End system, as well as delivering a copy via
`
`US Mail upon the following attorneys of record:
`
`Jeffrey Ginsberg
`Kenyon & Kenyon LLP
`One Broadway
`New York, New York 10004-1007
`
`with a courtesy copy to counsel for Pfizer Inc. and UCB Pharma GmbH, Plaintiffs
`
`in the underlying litigation as follows:
`
`Jack Blumenfeld
`Morris, Nichols, Arsht & Tunnell LLP
`1201 North Market Street
`Wilmington DE 19899
`
`Dimitrios T. Drivas
`Jeffrey J. Oelke
`James S. Trainor, Jr.
`Ryan P. Johnson
`Robert Counihan
`WHITE &CASE LLP
`1155 Avenue of the Americas
`New York, NY 10036
`
`By: /s/ Mitchell G. Stockwell
`Registration No. 39,389
`Counsel for Petitioner
`
` Dated: March 2, 2017
`
`
`
`
`
`
`
`
`
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