Filed: September 8, 2023
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
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`BAKER HUGHES INCORPORATED,
`Petitioner,
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`v.
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`LIQUIDPOWER SPECIALTY PRODUCTS INC.
`(f/k/a LUBRIZOL SPECIALTY PRODUCTS, INC.)
`Patent Owner.
`______________________
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`Case IPR2016-01901
`U.S. Patent No. 8,450,249 B2
`______________________
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`PATENT OWNER’S MOTION TO EXPUNGE
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`BAKER HUGHES INCORPORATED,
`Petitioner,
`
`v.
`
`LIQUIDPOWER SPECIALTY PRODUCTS INC.
`(f/k/a LUBRIZOL SPECIALTY PRODUCTS, INC.)
`Patent Owner.
`______________________
`
`Case IPR2016-01901
`U.S. Patent No. 8,450,249 B2
`______________________
`
`PATENT OWNER’S MOTION TO EXPUNGE
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`Patent Owner LiquidPower Specialty Products, Inc. (“Patent Owner”) hereby
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`moves to seal portions of the record referencing information that has been designated
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`as confidential by either Patent Owner or non-party Flowchem LLC (“Flowchem”).
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`I.
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`INTRODUCTION
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`Pursuant to 37 C.F.R. § 42.56, Patent Owner respectfully requests the Board
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`expunge certain sealed, confidential information from the record. If the Board denies
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`in whole or in part Patent Owner’s Motion to Expunge, Patent Owner requests that
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`any document(s) the Board previously ordered sealed but does not order expunged
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`be kept confidential and separate from the files of the involved patent.
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`Patent Owner and Petitioner have conferred and Petitioner takes no position
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`on Patent Owner’s Motion. However, Patent Owner, Petitioner and Flowchem all
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`agree the sealed Papers should be expunged.
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`As discussed in greater detail below, the confidential information that Patent
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`Owner moves to expunge consists of highly sensitive, confidential business
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`information and trade secrets of Patent Owner and Flowchem that the Board
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`previously ordered be kept under seal.
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`II.
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`FACTUAL BACKGROUND
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`On October 6, 2016, Petitioner filed for inter partes review, challenging the
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`validity of U.S. Patent No. 8,450,249. Paper 2. The IPR was instituted on April 7,
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`2017. Paper 10.
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`The Board entered the original Final Written Decision on April 4, 2018. Paper
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`Case IPR2016-01901
`U.S. Patent No. 8,450,249 B2
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`65. In its original Final Written Decision, the Board ordered the parties to prepare a
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`joint motion to seal, which the parties filed on April 18, 2018. Paper 65 at 44, Paper
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`67. In the joint motion, the parties (1) identified each paper or exhibit the parties
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`sought to seal and (2) showed why the information the parties sought to seal is truly
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`confidential. Paper 67 at 1. The parties and Flowchem filed accompanying
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`declarations from corporate representatives attesting to the confidentiality of the
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`information. See Ex. 1117, Ex. 2157, Ex. 2158.
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`Pursuant to the Board’s instructions, the parties prepared and filed joint
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`proposed redacted versions of the oral hearing transcript and the original Final
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`Written Decision, bearing in mind the Board’s caution that there is a strong public
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`interest in an unsealed final written decision and the Board’s instruction that any
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`proposed redactions be narrowly tailored. See Paper 67 at 2. The parties endeavored
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`to redact as little as possible. See id. After weighing “the strong public interest in
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`having an open record” against the parties’ confidentiality showing, the Board
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`granted the joint motion to seal in full, acknowledging that the Board “did not rely
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`on most of the information contained in the Documents in [the] Final Decision, and
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`the public versions of the Documents appear[ed] to redact only the information that
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`the parties demonstrate[d] is truly confidential.” Paper 69 at 3-5.
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`2
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`Subsequently, on June 17, 2020, the Federal Circuit vacated the original Final
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`Case IPR2016-01901
`U.S. Patent No. 8,450,249 B2
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`Written Decision and remanded. See IPR2016-00734 Paper 115.1 On April 30, 2021,
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`the Board entered the Final Written Decision on Remand. Paper 79. The Board
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`ordered the parties to file a joint motion to seal the Final Written Decision on
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`Remand and prepare a redacted version, which the parties did on May 10, 2021.
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`Paper 79 at 32, Paper 80. The parties endeavored to redact as little as possible from
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`the Decision on Remand. Paper 80 at 1, see Paper 82. On May 17, 2021, the Board
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`granted the joint motion to seal in full. Paper 81.
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`The Federal Circuit affirmed the Decision on Remand on April 13, 2023.
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`IPR2016-00734 Paper 116. The Federal Circuit’s opinion affirming the Board’s
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`Final Written Decision on Remand does not cite or refer to any of the Exhibits Patent
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`Owner now seeks to expunge. See IPR2016-00734 Paper 116. The time for further
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`appeal expired on July 12, 2023 and the appeal process is now concluded.
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`III. LEGAL STANDARD
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`Under 37 C.F.R. § 42.56, following “denial of a petition to institute a trial or
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`after final judgment in a trial, a party may file a motion to expunge confidential
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`information from the record.” The Consolidated Trial Practice Guide states that “[a]
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`1 IPR2016-00734 Papers 115 and 116 address IPR2016-00734, IPR2016-01901,
`IPR2016-01903 and IPR2016-01905. These opinions do not appear to have been
`added to the record in this IPR.
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`3
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`party seeking to maintain the confidentiality of information . . . may file a motion to
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`Case IPR2016-01901
`U.S. Patent No. 8,450,249 B2
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`expunge the information from the record prior to the information becoming public.”
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`See Nov. 2019 Consolidated Trial Practice Guide, 22. The moving party bears the
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`burden of showing there is good cause for the relief requested, including why the
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`information is appropriate for sealing. 37 C.F.R. §§ 42.20, 42.54. The movant has
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`the burden to show the movant’s “interest in expunging [information] outweighs the
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`public’s interest in maintaining a complete and understandable file history.” RPX
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`Corp. v. Virnetx Inc., IPR2014-00171, Paper 62 at 3 (P.T.A.B. Sept. 9, 2014); see,
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`e.g., Grimco, Inc. v. Principal Lighting Group, LLC, IPR2021-00968, Paper 54 at 2
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`(P.T.A.B. Apr. 26, 2023). 37 C.F.R. § 42.56 balances “the needs of the parties to
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`submit confidential information with the public interest in maintaining a complete
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`and understandable file history for public notice purposes.” See Nov. 2019
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`Consolidated Trial Practice Guide, 22. The regulations identify confidential
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`information as “a trade secret or other confidential research, development, or
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`commercial information.” 37 C.F.R. § 42.54(a)(7). Importantly, the Board applies
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`the same standard to motions to expunge as motions to file under seal. See, e.g.,
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`Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., IPR2013-00453, Paper 97
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`at 2 (P.T.A.B. Apr. 15, 2015); PNC Bank, NA f/k/a BBVA USA v. United Services
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`Automobile Association, IPR2022-00076, Paper 51 at 3 (P.T.A.B. Jul. 18, 2023).
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`4
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`The Board will consider whether the confidential information was relied on
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`Case IPR2016-01901
`U.S. Patent No. 8,450,249 B2
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`in, and is necessary to understand, the final written decision and will typically
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`expunge information that is not quoted or discussed in the final written decision. See,
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`e.g., Bio-Rad Lab’ys, Inc. v. 10x Genomics, Inc., IPR2019-00565, Paper 25 at 2
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`(P.T.A.B. Sept. 20, 2019) (expunging exhibits “not cited or discussed in the Board’s
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`Decision Denying Institution”); Alcon, Inc. et al v. AMO Development, LLC,
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`IPR2021-00858, Paper 53 at 2-3 (P.T.A.B. May 19, 2023) (expunging exhibits cited
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`but not discussed or quoted in the Final Written Decision). If the Board does not
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`expunge the confidential information, it may retain the confidential materials under
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`seal. See, e.g., Next Caller Inc. v. TRUSTID, Inc., IPR2019-00039, Paper 103 at 6
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`(P.T.A.B. Apr. 12, 2023); RPX Corporation v. Publishing Technologies, LLC et al.,
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`IPR2018-01132 Paper 48 at 7 (P.T.A.B. Dec. 14, 2021).
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`IV. ARGUMENT
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`Here, Patent Owner’s and Flowchem’s interests in protecting their
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`confidential information outweighs the public’s interest. Indeed, the Board has
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`already weighed the public’s interest against Patent Owner’s and Flowchem’s
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`confidentiality interests for the materials now sought to be expunged and ordered
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`them sealed. See Papers 69, 81. As the standard for sealing and expungement is the
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`same, the same rationale favors expungement. Further, the parties and Flowchem
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`5
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`have filed corporate declarations attesting to the sensitivity of the information now
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`sought to be expunged. Ex. 1117, Ex. 2157, Ex. 2158.
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`A. EXHIBITS SOUGHT TO BE EXPUNGED
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`Patent Owner respectfully requests the Board expunge Exhibits 1070, 1072,
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`1074-75, 1083-87, 1094, 1096-1100, 2050, 2062-63, 2068-69, 2072-73, 2080-82,
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`2089, 2091-92, 2095, 2098, 2103-05, 2111, and 2113.
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`Exhibit 1070 is a list of Patent Owner’s confidential documents that includes
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`confidential information regarding Patent Owner’s research and development,
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`business strategies, and the composition of its products. Patent Owner prepared a
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`public version of Exhibit 1070 redacting the highly confidential information. See
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`Redacted Ex. 1070. The Board did not refer to or cite Exhibit 1070 in the Final
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`Written Decision on Remand. See Paper 79.
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`Exhibit 1072 comprises the deposition transcript of Brian Dunn, Ph.D that
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`includes confidential information regarding the chemical structure and composition
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`of Patent Owner’s products and the identity of Patent Owner’s customers. Petitioner
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`prepared a public version of Exhibit 1072 redacting the highly confidential
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`information. See Ex. 1114. The Board did not refer to or cite the sealed information
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`in Exhibit 1072 in the Final Written Decision on Remand. See Paper 79.
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`Exhibits 1074 and 1075 are technical service reports that include confidential
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`information regarding the chemical structure, composition, and properties of Patent
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`6
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`Owner’s polymer products and its research and development efforts. The Board did
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`not quote or discuss Exhibit 1074 or 1075 in the Final Written Decision on Remand.
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`See Paper 79.
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`Exhibit 1077 comprises the deposition transcript of Yung Nam Lee, Ph.D.,
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`which includes confidential information regarding the chemical structure and
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`composition of Patent Owner’s polymer products and its research and development
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`efforts. The Board did not refer to or cite Exhibit 1077 in the Final Written Decision
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`on Remand. See Paper 79.
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`Exhibits 1083 and 1087 are emails containing confidential communications
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`between Patent Owner and its customers. The Board did not refer to or cite Exhibits
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`1083 or 1087 in the Final Written Decision on Remand. See Paper 79.
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`Exhibits 1084, 1085, 1086, 1097 and 1100 are Patent Owner’s confidential,
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`internal emails regarding its research and development efforts. The Board did not
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`refer to or cite to any of the aforementioned Exhibits in the Final Written Decision
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`on Remand. See Paper 79.
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`Exhibit 1094 is a presentation that includes confidential information regarding
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`the chemical structure, composition, and properties of Patent Owner’s polymer
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`products and Patent Owner’s research and development efforts. The Board did not
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`refer to or cite Exhibit 1094 in the Final Written Decision on Remand. See Paper 79.
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`7
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`Exhibit 1096 is a meeting agenda that includes confidential information
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`U.S. Patent No. 8,450,249 B2
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`regarding Patent Owner’s research and development efforts. The Board did not refer
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`to or cite Exhibit 1096 in the Final Written Decision on Remand. See Paper 79.
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`Exhibit 1098 is a spreadsheet that includes confidential information regarding
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`Patent Owner’s research and development efforts. The Board did not refer to or cite
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`Exhibit 1098 in the Final Written Decision on Remand. See Paper 79.
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`Exhibit 1099 comprises emails containing confidential communications
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`between Patent Owner and its customers and confidential information regarding
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`Patent Owner’s research and development efforts. The Board did not refer to or cite
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`Exhibit 1099 in the Final Written Decision on Remand. See Paper 79.
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`Exhibit 2050 comprises the declaration of Dr. Brian Dunn, which includes
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`confidential information regarding the chemical structure, composition, and
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`properties of Patent Owner’s polymer products and Flowchem’s polymer products;
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`the identity of Patent Owner’s customers; information about Patent Owner’s
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`customers’ businesses and practices; Patent Owner’s internal sales/financial
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`information; Flowchem’s research and development information including the
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`results of testing; Flowchem’s commercial information and analysis; and
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`Flowchem’s internal business strategies and communications. Patent Owner
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`prepared a public version of Exhibit 2050 redacting the highly confidential
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`information. See Ex. 2141. Although the Board cited to the sealed paragraphs of
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`8
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`Exhibit 2050 in the Final Written Decision on Remand, the Board did not quote or
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`rely on them and the public record is understandable without reference to the sealed
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`paragraphs. See Paper 79 at 17, 23-26.
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`Exhibit 2062 comprises the declaration of Dr. Brian Dunn filed in IPR2016-
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`00734, which includes confidential information regarding the chemical structure,
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`composition, and properties of Patent Owner’s polymer products and Flowchem’s
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`polymer products; Flowchem’s research and development information; and
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`Flowchem’s commercial information and analysis. Patent Owner prepared a public
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`version of Exhibit 2021 redacting the highly confidential information, which was
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`filed in conjunction with the Patent Owner Response in IPR2016-00734. See
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`IPR2016-00734 Redacted Ex. 2021. The Board did not refer to or cite Exhibit 2062
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`in the Final Written Decision on Remand. See Paper 79.
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`Exhibit 2063 comprises Petitioner’s Reply filed in IPR2016-00734, which
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`includes confidential information regarding the chemical structure, composition, and
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`properties of Patent Owner’s polymer products; Flowchem’s research and
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`development, including the results of testing; Flowchem’s internal business
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`strategies and communications; and Flowchem’s communications with its
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`customers. Patent Owner prepared a public version of Exhibit 2063 redacting the
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`highly confidential information, which was filed in IPR2016-00734. See IPR2016-
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`9
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`00734 Paper 59. The Board did not refer to or cite Exhibit 2063 in the Final Written
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`Case IPR2016-01901
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`Decision on Remand. See Paper 79.
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`Exhibits 2068 and 2069 comprise Petitioner’s confidential, internal emails
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`that include the identity of Patent Owner’s customer, and the results of testing
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`performed by Patent Owner and the customer. Although the Board cited to Exhibits
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`2068 and 2069 in the Final Written Decision on Remand, the Board did not quote or
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`rely on the exhibits and the public record is understandable without reference to the
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`exhibits. See Paper 79 at 14-15, 17, 19.
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`Exhibit 2072 comprises the deposition transcript of Manuel Silva, III, which
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`includes confidential information regarding the composition of Patent Owner’s and
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`Flowchem’s polymer products; Flowchem’s research and development, including
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`testing performed for Flowchem’s customers; the performance of Flowchem’s
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`products; and Flowchem’s business strategies and market analysis. Although the
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`Board cited to Exhibit 2072 in the Final Written Decision on Remand, the public
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`record is understandable without reference to the exhibit. See Paper 79 at 17, 27-28.
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`Exhibit 2073 comprises a Flowchem presentation that includes its confidential
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`commercial information and analysis and discusses proprietary information of a
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`consultant. Although the Board cited to Exhibit 2073 in the Final Written Decision
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`on Remand, the Board did not quote or rely on the exhibit and the public record is
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`understandable without reference to the exhibit. See Paper 79 at 14-15, 17, 19.
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`10
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`Exhibit 2080 comprises a confidential, internal Flowchem presentation that
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`U.S. Patent No. 8,450,249 B2
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`includes confidential information regarding the composition of Patent Owner’s
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`polymer products and Flowchem’s polymer products; the performance of
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`Flowchem’s products and Flowchem’s commercial information and analysis.
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`Although the Board cited to Exhibit 2080 in the Final Written Decision on Remand,
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`the Board did not quote or rely on the exhibit and the public record is understandable
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`without reference to the exhibit. See Paper 79 at 15, 17-18.
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`Exhibit 2081 comprises a confidential, internal Flowchem presentation that
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`includes confidential trade secret information regarding the composition of Patent
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`Owner’s polymer products and Flowchem’s polymer products; the performance of
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`Flowchem’s products and Flowchem’s business strategies and market analysis.
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`Although the Board cited to Exhibit 2081 in the Final Written Decision on Remand,
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`the Board did not quote or rely on the exhibit and the public record is understandable
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`without reference to the exhibit. See Paper 79 at 15, 17-18.
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`Exhibit 2082 comprises Petitioner’s presentation that includes confidential
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`regarding the chemical structure and composition of Patent Owner’s polymer
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`products. Patent Owner prepared a public version of Exhibit 2082 redacting the
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`highly confidential information. See Ex. 1063. Although the Board cited to Exhibit
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`2082 in the Final Written Decision on Remand, the Board did not quote or rely on
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`11
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`the exhibit and the public record is understandable without reference to the exhibit.
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`U.S. Patent No. 8,450,249 B2
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`See Paper 79 at 27.
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`Exhibits 2089 and 2098 comprise Petitioner’s confidential emails that refer to
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`the composition of Patent Owner’s products. The Board did not refer to or cite
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`Exhibits 2089 or 2098 in the Final Written Decision on Remand. See Paper 79.
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`Exhibit 2091 comprises Petitioner’s confidential internal memo that refers to
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`the identity of Patent Owner’s customers and communications therewith. Although
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`the Board cited to Exhibit 2091 in the Final Written Decision on Remand, the public
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`record is understandable without reference to the exhibit. See Paper 79 at 23.
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`Exhibit 2092 comprises a confidential memo prepared at the request of
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`Flowchem that includes confidential information regarding the composition of
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`Patent Owner’s polymer products; Flowchem’s commercial information and
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`analysis; and proprietary information of a consultant for Flowchem. Although the
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`Board cited to Exhibit 2092 in the Final Written Decision on Remand, the public
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`record is understandable without reference to the exhibit. See Paper 79 at 22-23.
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`Exhibit 2094 is a includes confidential internal Flowchem presentation that
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`includes confidential information regarding the composition of Patent Owner’s
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`products; Flowchem’s commercial information and analysis; Flowchem’s business
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`objectives; and Flowchem’s research and development. The Board did not refer to
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`or cite Exhibit 2094 in the Final Written Decision on Remand. See Paper 79.
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`12
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`Exhibit 2095 comprises the results of testing and analysis performed by Patent
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`Owner and includes confidential information regarding the chemical structure,
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`composition, and properties of Patent Owner’s and Flowchem’s polymer products.
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`Although the Board cited to Exhibit 2082 in the Final Written Decision on Remand,
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`the Board did not quote or rely on the exhibit and the public record is understandable
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`without reference to the exhibit. See Paper 79 at 23.
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`
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`Exhibit 2103 comprises a confidential internal Flowchem presentation, which
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`includes confidential information regarding Flowchem’s research and development
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`information; Flowchem’s commercial information and analysis; the chemical
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`compositions and performance of Flowchem’s products and manufacturing
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`capabilities and the composition of Patent Owner’s products. The Board did not refer
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`to or cite Exhibit 2103 in the Final Written Decision on Remand. See Paper 79.
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`Exhibits 2104 and 2105 comprise confidential reports prepared at the request
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`of Flowchem that include confidential information regarding the chemical structure
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`and composition of Patent Owner’s polymer product. The Board did not refer to or
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`cite Exhibit 2104 or 2105 in the Final Written Decision on Remand. See Paper 79.
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`Exhibit 2111 is a confidential internal Flowchem report that discusses
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`confidential information regarding the performance of Flowchem’s products;
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`Flowchem’s research and development information; Flowchem’s commercial
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`information and analysis; and Flowchem’s communications with a customer. The
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`13
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`Board did not refer to or cite Exhibit 2111 in the Final Written Decision on Remand.
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`See Paper 79.
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`Exhibit 2113 is confidential internal Flowchem report that includes
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`confidential
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`information regarding Flowchem’s research and development
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`information and the performance of Flowchem’s products, as well as information
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`that is confidential to Flowchem’s customers. The Board did not refer to or cite
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`Exhibit 2113 in the Final Written Decision on Remand. See Paper 79.
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`B.
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`PAPERS 18, 27, 30, 32, 39, 45, 47, 51, 53, 57, 63, 65
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`Patent Owner moves to expunge the confidential versions of Papers 18, 27,
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`30, 32, 39, 45, 47, 51, 53, 57, 63, and 65. The confidential portions of the papers
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`include trade secrets regarding the chemical structure, composition, and properties
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`of Patent Owner’s, and Flowchem’s polymer products, as well as Flowchem’s
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`confidential research and development information, confidential commercial
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`information, and confidential competitive analyses. See Paper 69 at 5. The parties
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`prepared redacted version of the papers, removing the confidential information. See
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`Papers 19, 28, 31, 33, 40, 46, 49, 52, 54, 59, 64, and 71. The parties jointly prepared
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`redacted versions of Paper 63 and Paper 65, bearing in mind the Board’s caution that
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`there is a strong public interest in an unsealed Final Written Decision and the Board’s
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`instruction that any proposed redactions to the decision and the oral hearing
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`14
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`transcript should be narrowly tailored. See Paper 67 at 2, Papers 64, 71. The parties
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`endeavored to redact as little as possible.
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`During the Federal Circuit appeal briefing for IPR2016-00734, a “limited
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`number of words” originally redacted from Papers 18, 30 and 39 became public.
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`Paper 67 at 2. At the direction of the Board, the parties did not file replacement
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`papers changing the original confidential designations. Ex. 1116. The disclosed
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`information remains publicly available in Appellant’s brief in Appeal No. 18-1141.
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`C.
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`PAPER 79
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`Patent Owner moves to expunge the confidential version of the Final Written
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`Decision on Remand. Pursuant to the Board’s order in the Final Written Decision on
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`Remand, the parties prepared a second Joint Motion to Seal and a joint proposed
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`redacted version of the Final Written Decision on Remand. See Papers 80, 82. The
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`information the parties seek to expunge includes trade secrets including the chemical
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`structure, composition, and properties of Flowchem’s polymer products, as well as
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`Flowchem’s confidential research and development information and Patent Owner’s
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`confidential commercial information. See Paper 81 at 3-4. The Board agreed to seal
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`the confidential version of the Final Written Decision on Remand. See Paper 81.
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`V. CONCLUSION
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`For the foregoing reasons, LSPI respectfully requests that the Board
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`grant the motion to expunge the Exhibits and Papers listed above.
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`15
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`Dated: September 8, 2023
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`
`/ W. Sutton Ansley /
`W. Sutton Ansley, Reg. No. 67,828
`Weil, Gotshal & Manges LLP
`2001 M Street, NW, Suite 600
`Washington, DC 20036
`Tel: (202) 682-7000
`Fax: (202) 857-0940
`sutton.ansley@weil.com
`
`Elizabeth S. Weiswasser, Reg. No. 55,721
`Weil, Gotshal & Manges LLP
`767 Fifth Avenue
`New York, NY 10153
`Tel: (212) 310-8000
`Fax: (212) 310-8007
`elizabeth.weiswasser@weil.com
`
`
`Attorneys for Patent Owner LiquidPower
`Specialty Products, Inc.
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`CERTIFICATE OF SERVICE
`I hereby certify that on September 8, 2023, a copy of the foregoing
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`document was served by filing this document through the PTAB’s P-TACTS
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`System as well as delivering a copy via electronic mail upon the following:
`
`Herbert D. Hart III
`Registration No. 30,063
`McAndrews, Held & Malloy, Ltd.
`500 West Madison Street
`Chicago, Illinois 60661
`Tel.: (312) 775-8000
`Email: hhart@mcandrews-ip.com
`
`Peter J. Lish
`Registration No. 59,383
`McAndrews, Held & Malloy, Ltd.
`500 West Madison Street
`Chicago, Illinois 60661
`Tel.: (312) 775-8000
`Email: plish@mcandrews-ip.com
`
`Ben J. Mahon
`McAndrews, Held & Malloy, Ltd.
`500 West Madison Street
`Chicago, Illinois 60661
`Tel.: (312) 775-8000
`Email: bmahon@mcandrews-ip.com
`
`Attorneys for Baker Hughes Holdings, LLC
`
`Eileen Hyde
`Eileen.Hyde@BakerBotts.com
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`
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`
`
`
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`
`
`Katharine Burke
`Katharine.Burke@BakerBotts.com
`
`Steve Liquori
`Steven.Liquori@BakerBotts.com
`
`Attorneys for FlowChem, LLC
`
`
`
`Dated: September 8, 2023
`
`Case IPR2016-01901
`U.S. Patent No. 8,450,249 B2
`
`/ W. Sutton Ansley /
`W. Sutton Ansley
`Reg. No. 67,828
`
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`2
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