Trials@uspto.gov
`571.272.7822
`
` Paper No. 31
`Filed: October 16, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GRACO CHILDREN’S PRODUCTS INC.,
`Petitioner,
`
`v.
`
`KOLCRAFT ENTERPRISES, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-00816 (Patent D604,970 S)
`Case IPR2016-00826 (Patent D616,231 S)1
`____________
`
`Before KEN B. BARRETT, JOSIAH C. COCKS, and
`JENNIFER S. BISK, Administrative Patent Judges.
`
`BARRETT, Administrative Patent Judge.
`
`ORDER
`Granting Patent Owner’s Motion to Seal and
`Granting Patent Owner’s Motion for Entry of the Default Protective Order
`37 C.F.R. §§ 42.14, 42.54
`
`1 This Paper will be entered in each case. The parties are not authorized to
`use this caption style.
`
`
`571.272.7822
`
` Paper No. 31
`Filed: October 16, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GRACO CHILDREN’S PRODUCTS INC.,
`Petitioner,
`
`v.
`
`KOLCRAFT ENTERPRISES, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-00816 (Patent D604,970 S)
`Case IPR2016-00826 (Patent D616,231 S)1
`____________
`
`Before KEN B. BARRETT, JOSIAH C. COCKS, and
`JENNIFER S. BISK, Administrative Patent Judges.
`
`BARRETT, Administrative Patent Judge.
`
`ORDER
`Granting Patent Owner’s Motion to Seal and
`Granting Patent Owner’s Motion for Entry of the Default Protective Order
`37 C.F.R. §§ 42.14, 42.54
`
`1 This Paper will be entered in each case. The parties are not authorized to
`use this caption style.
`
`
`
`IPR2016-00816 (Patent D604,970 S)
`IPR2016-00826 (Patent D616,231 S)
`
`
`Procedural Background
`
`
`
`Petitioner Graco Children’s Products Inc. filed a Motion to Seal
`
`(IPR2016-00816, Paper 22; IPR2016-00826, Paper 23) concurrently with its
`
`Reply Brief and certain exhibits, including transcripts of the depositions of
`
`the named-inventors. Petitioner represented that the motion was necessary
`
`because Patent Owner Kolcraft Enterprises, Inc. had designated the subject
`
`exhibits and the deposition transcripts, in their entirety, as being confidential
`
`protective order material. Id. at 12. Petitioner’s Reply relies on the subject
`
`exhibits. According to Petitioner, “this motion is filed to avoid prejudicing
`
`either Graco’s timely Reply or Kolcraft’s ability to make a claim of
`
`confidentiality as to information it contends should be not be publicly
`
`disclosed.” Id. at 2. Specifically, Petitioner sought the provisional sealing
`
`of Exhibits 1019, 1024, and 1025, and Petitioner’s Reply. Id.
`
`
`
`Later, Patent Owner filed a Motion to Seal. IPR2016-00816,
`
`Paper 25; IPR2016-00826, Paper 26. Patent Owner sought to seal a
`
`document characterized as an “unredacted version of Exhibit 2008.” Id. at 2.
`
`The earlier filed Exhibit 2008 is titled “Rule 131 Declaration of Damon
`
`Oliver Casati Troutman and Edward B. Bretschger,” and relates to the
`
`purported conception and reduction to practice of the patents at issue in
`
`these proceedings.
`
`
`
`The motions to seal were discussed at the oral argument. See
`
`IPR2016-00816, Paper 28; IPR2016-00826, Paper 29 (Hearing Transcript),
`
`56–60. We expressed concerns regarding the excessiveness of sealing, in
`
`
`
`2 Substantively similar papers and exhibits were filed in both the subject
`cases. Unless indicated otherwise, all citations are to IPR2016-00816.
`
`2
`
`
`
`IPR2016-00816 (Patent D604,970 S)
`IPR2016-00826 (Patent D616,231 S)
`
`
`their entirety, the deposition transcripts and Petitioner’s Reply. Id. at 58.
`
`We asked the parties meet and confer to discuss further the matter, and to
`
`limit the material requested to be sealed. Id.
`
`
`
`Subsequently, Patent Owner filed another Motion to Seal designating
`
`as containing confidential information certain portions of Petitioner’s Reply,
`
`the “unredacted version of Exhibit 2008,” and the deposition transcripts of
`
`inventors Edward Bretschger and Damon Troutman (Exhibits 1024 and
`
`1025). IPR2016-00816, Paper 27; IPR2016-00826, Paper 28. Patent Owner
`
`seeks to keep confidential the specific dates pertaining to the work of the
`
`inventors on play yards with exposed bowed legs. Id. at 3.
`
`
`
`Additionally, Patent Owner filed a Motion for Entry of the Default
`
`Protective Order (Exhibit 2010), and represents that Petitioner does not
`
`oppose the terms of the Default Protective Order. IPR2016-00816,
`
`Paper 26; IPR2016-00826, Paper 27.
`
`Discussion
`
`
`
`There is a strong public policy in favor of making information filed in
`
`an inter partes review open to the public, especially because the proceeding
`
`determines the patentability of claims in an issued patent and, therefore,
`
`affects the rights of the public. See Garmin Int’l, Inc. v. Cuozzo Speed
`
`Techs. LLC, Case IPR2012-00001, slip op. at 1–2 (PTAB Mar. 14, 2013)
`
`(Paper 34). Under 35 U.S.C. § 316(a)(1) and 37 C.F.R. § 42.14, the default
`
`rule is that all papers filed in an inter partes review are open and available
`
`for access by the public; however, a party may file a concurrent motion to
`
`seal and the information at issue is sealed pending the outcome of the
`
`motion. It is only “confidential information” that is protected from
`
`disclosure. 35 U.S.C. § 316(a)(7); see Office Patent Trial Practice Guide,
`
`3
`
`
`
`IPR2016-00816 (Patent D604,970 S)
`IPR2016-00826 (Patent D616,231 S)
`
`
`77 Fed. Reg. 48,756, 48,760 (Aug. 14, 2012). The standard for granting a
`
`motion to seal is “good cause.” 37 C.F.R. § 42.54(a). The party moving to
`
`seal bears the burden of proof in showing entitlement to the requested relief
`
`and must explain why the information sought to be sealed constitutes
`
`confidential information. See 37 C.F.R. § 42.20(c). As set forth in the Trial
`
`Practice Guide (77 Fed. Reg. at 48,761), there is an expectation that
`
`information will be made public if identified in the Final Written Decision.
`
`
`
`Patent Owner has provided redacted public versions of Petitioner’s
`
`Reply (Exhibit 2012) and the deposition transcripts of inventors Edward
`
`Bretschger and Damon Troutman (Exhibits 2011 and 2013), and has
`
`provided the earlier-filed version of Exhibit 2008 (the inventors’ declaration)
`
`containing blank lines instead of dates. Patent Owner’s counsel certifies that
`
`Patent Owner has not previously publicly disclosed the information it seeks
`
`to seal. See Patent Owner’s Mot. to Seal (Paper 27), 3. Patent Owner’s
`
`counsel also certifies that the parties have conferred regarding Patent
`
`Owner’s motion to seal and that the parties were unable to reach agreement
`
`as to the scope of the proposed protective order. Id. at 3. Petitioner did not
`
`file a paper in opposition to the motion.
`
`
`
`We have considered Patent Owner’s arguments to partially seal
`
`Petitioner’s Reply, the inventor deposition transcripts, and the inventors’
`
`declaration. The information Patent Owner seeks to seal was not relied on in
`
`the Final Written Decision. As such, protecting the confidential information
`
`from public disclosure minimally impacts the public’s interest in
`
`maintaining a complete file history. We determine that Patent Owner has
`
`demonstrated “good cause” for sealing portions of Petitioner’s Reply, the
`
`inventors’ declaration, and the inventors’ deposition transcripts pursuant to
`
`4
`
`
`
`IPR2016-00816 (Patent D604,970 S)
`IPR2016-00826 (Patent D616,231 S)
`
`
`the default protective order. See 37 C.F.R. § 42.54. Accordingly, we grant
`
`Patent Owner’s Motions to Seal (IPR2016-00816, Paper 27;
`
`IPR2016-00826, Paper 28).
`
`
`
`We remind the parties that confidential information that is subject to a
`
`protective order ordinarily would become public after final judgment in a
`
`trial. See 37 C.F.R. §§ 42.14; Office Patent Trial Practice Guide, 77 Fed.
`
`Reg. at 48761. The parties may move to expunge confidential information
`
`from the record after final judgment (and appeals, if any). 37 C.F.R.
`
`§ 42.56.
`
`
`
`
`
`Accordingly, it is
`
`ORDERED that Patent Owner’s Motions to Seal (IPR2016-00816,
`
`Paper 27; IPR2016-00826, Paper 28) are granted;
`
`
`
`FURTHER ORDERED that Patent Owner’s motions for entry of the
`
`Default Protective Order (IPR2016-00816, Paper 26; IPR2016-00826,
`
`Paper 27) are granted;
`
`
`
`FURTHER ORDERED that the Default Protective Order submitted
`
`by Patent Owner (Exhibit 2010) is hereby entered;
`
`
`
`FURTHER ORDERED that Petitioner’s Motions to Seal
`
`(IPR2016-00816, Paper 22; IPR2016-00826, Paper 23) and Patent Owner’s
`
`first Motions to Seal (IPR2016-00816, Paper 25; IPR2016-00826, Paper 26)
`
`are dismissed as moot.
`
`
`
`
`
`
`
`
`
`5
`
`
`
`IPR2016-00816 (Patent D604,970 S)
`IPR2016-00826 (Patent D616,231 S)
`
`
`For PETITIONER:
`
`Gregory J. Carlin
`Walter Hill Levie III
`MEUNIER CARLIN & CURFMAN LLC
`litdocketing@mcciplaw.com
`tlevie@mcciplaw.com
`
`
`
`For PATENT OWNER:
`
`Brian P. Lynch
`Raymond P. Niro
`NIRO McANDREWS, LLC
`blynch@niro-mcandrews.com
`rnirojr@niro-mcandrews.com
`
`6
`
`
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