`
`By: Michael P. Chu, Reg No. 37,112
` McDermott Will & Emery
`
`227 W. Monroe, Ste #4400
`
`Chicago, IL 60606
`
`Phone: 312-984-5485
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________________
`
`Solenis LLC
`
`Petitioner,
`
`v.
`
`Ecolab USA,
`
`Patent Owner
`
`_____________________
`
`Inter Partes Review No.: IPR2016-1281
`
`U.S. Patent No. 8,465,623
`
`
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S MOTION TO
`SEAL EXHIBITS 2002-2004, 2010-2011, PORTIONS OF EXHIBITS 2007-
`2008 AND PORTIONS OF ITS MOTION
`
`
`
`
`
`
`I.
`
`INTRODUCTION
`
`Ecolab USA’s (“Ecolab”) Motion to Seal should be denied. While Ecolab’s
`
`Motion to Disqualify Dr. Dyer and accompanying exhibits purportedly contain
`
`confidential information, no such information is actually included in many of the
`
`exhibits or its Motion. Ecolab will not suffer adverse consequences from the
`
`publication of those exhibits or the portions of the motion discussing those
`
`exhibits, so the public’s interest in maintaining a complete and understandable
`
`record of the proceedings outweighs any potential harm to Ecolab.
`
`II. LEGAL STANDARD
`Confidential information in an IPR is defined by 37 C.F.R. § 42.2 as “trade
`
`secret or other confidential research, development, or commercial information.”
`
`Sealing such information requires a party to show four things: (1) identifiable
`
`confidential information; (2) a need to rely on that information; (3) the adverse
`
`consequences and harm from public disclosure of that confidential information,
`
`and (4) why the party presenting the information must rely on the information.
`
`Kayak Software Corp. v. Intern’l Bus. Mach. Corp., Case No. IPR2016-00608,
`
`Paper 19 at 5. The party seeking to seal the information must then show that the
`
`harm it would suffer by publication of the information and its need to rely on that
`
`information outweighs the public’s interest in maintaining a complete and
`
`understandable record of the proceedings. Id.
`
`
`
`1
`
`
`
`III. ARGUNIENT
`
`Ecolab’s Motion to Seal fails to identify any confidential information in
`
`Exhibits 2002, 2007-2008, or 2010-2011 or to demonstrate any harm from the
`
`publication of those documents.‘ As such, Ecolab cannot show that its interests
`
`outweigh the public’s interest in a complete, coherent record.
`
`1 Solenis has no objections to entry of the default protective order or the sealing of
`
`Exhibits 2003-2004 or the portions of Ecolab’s Motion to Disqualify discussing
`
`those exhibits.
`
`
`
`
`
`ll:
`
` 4
`
`
`
`
`
`
`
`
`
`
`IV. CONCLUSION
`Ecolab’s motion fails to demonstrate the existence of confidential
`
`information meriting sealing and fails to show how Ecolab will be harmed by the
`
`publication of these documents. As such, the public’s interest in having a complete
`
`record of the proceedings should control, and this court should not seal Exhibits
`
`2002, 2007-2008, and 2010-2011 or the portions of Ecolab’s Motion to Disqualify
`
`related to those exhibits.
`
`Dated: September 20, 2016
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Michael P. Chu
`Michael P. Chu
`Kevin P. Shortsle
`McDermott Will & Emery LLP
`227 West Monroe Street, Suite 4700
`Chicago, Illinois 60606
`Phone: 312.372.2000
`Fax: 312.984.7700
`mchu@mwe.com
`kshortsle@mwe.com
`
`Attorneys for Petitioner Solenis LLC
`
`
`
`6
`
`
`
`CERTIFICATE OF SERVICE
`I hereby certify that a true and correct copy of PETITIONER’S
`OPPOSITION TO PATENT OWNER’S MOTION TO SEAL EXHIBITS
`2002-2004, 2010-2011, PORTIONS OF EXHIBITS 2007-2008 AND
`PORTIONS OF ITS MOTION was served via email on September 20, 2016
`upon:
`
`
`
`
`
`Anthony R. Zeuli
`tzeuli@merchantgould.com
`MERCHANT & GOULD
`3200 IDS Center
`80 South Eighth Street
`Minneapolis, MN 55402
`
`
`
`/s/Michael P. Chu
`Michael P. Chu
`
`
`
`
`
`
`
`
`
`
`DM_US 76224610-1.098680.0012
`
`
`
`7
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