UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________
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`EDWARDS LIFESCIENCES CORPORATION, EDWARDS LIFESCIENCES
`LLC, AND EDWARDS LIFESCIENCES AG
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`Petitioners
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`v .
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`BOSTON SCIENTIFIC SCIMED, INC.
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`Patent Owner
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`_______________
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`Case IPR2017-0060
`Patent 8,992,608
`_______________
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`JOINT MOTION TO FILE CONFIDENTIAL DOCUMENTS
`UNDER SEAL PURSUANT TO 37 C.F.R. §§ 4214 & 42.54
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`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Petitioners Edwards Lifesciences,
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`Edwards Lifesciences LLC, and Edwards Lifesciences AG (“Petitioners”) and
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`Patent Owner Boston Scientific Scimed, Inc. (“Patent Owner”) respectfully submit
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`this Joint Motion to Seal Exhibits 2031, 2034, 2036, 2039, 2041, 2042, 2043, 2044,
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`2045, 2046, 2055, 2056, 2057, 2063, 2077, 2080, 2085, 2086, 2087, 2088, 2089,
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`2090, and 2091, all of which were filed concurrently with Patent Owner’s
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`Response (Paper No. 22).
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`I.
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`BACKGROUND
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`On July 20, 2017, the Board denied without prejudice the Parties’ Joint
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`Motion for Entry of a Stipulated Protective Order. Paper 24. The Board rejected
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`the Proposed Protective Order because, among other things, it incorporated by
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`reference portions of the Protective Order in the related litigation pending in the
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`District of Delaware (“Delaware Protective Order”). The Board also noted that no
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`motion to seal was filed concurrent with the confidential exhibits that Patent
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`Owner filed with restricted public access and none of the confidential exhibits
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`were accompanied by non-confidential versions of the redacted exhibits. Paper 24
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`at 6.
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`The Board authorized the Parties to file a motion for entry of a substitute
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`stipulated protective order on, or before, July 28, 2017, providing good cause for
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`entry of such order, and instructed the Parties that the stipulated protective order
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`shall not be dependent on any other agreement of the Parties. The Board also
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`authorized the Parties to file on, or before, July 28, 2017, a motion to seal
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`addressing each and every paper or exhibit the Patent Owner or Petitioner seeks to
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`maintain as confidential as well as filing a non-confidential, redacted version of
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`each exhibit or paper sought to be maintained as confidential; notify the Board of
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`each exhibit or paper no longer sought to be maintained as confidential; and notify
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`the Board of each exhibit or paper sought to be expunged and no longer relied
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`upon in this proceeding.
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`The Parties have met and conferred in good faith to comply with the Board’s
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`order and hereby submit the Joint Motion to Seal Exhibits 2031, 2034, 2036, 2039,
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`2041, 2042, 2043, 2044, 2045, 2046, 2055, 2056, 2057, 2063, 2077, 2080, 2085,
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`2086, 2087, 2088, 2089, 2090, and 2091.
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`II. GOOD CAUSE EXISTS FOR SEALING CERTAIN CONFIDENTIAL
`INFORMATION
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`Petitioner submits that each of the Proposed Exhibits summarized in the
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`table below contains Petitioner’s confidential trade secret, business, and
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`commercial information. In the table below, Petitioner provides detailed good
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`cause reasons for sealing each of the exhibits.
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`Exhibit
`2031
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`2034
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`Good Cause for Filing Under Seal
`[EDWARDS 01933840-939] – This document is a highly confidential internal
`presentation that discloses competitive information regarding internal conversations
`about development of the Sapien product line, including product testing.
`[EDWARDS 01026580-751] – This document is a highly confidential presentation
`disclosed to a limited number of physicians who participate in Edwards’ training. It
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`Exhibit
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`2036
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`2039
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`2041
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`2042
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`2043
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`2044
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`2045
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`2046
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`2055
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`2056
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`2057
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`2063
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`2077
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`2080
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`Good Cause for Filing Under Seal
`contains competitively sensitive information regarding Edwards’ physician training
`strategy.
`[EDWARDS 01026527-35] – This document is a highly confidential internal
`manufacturing specification for a product in Edwards’ Sapien line of products. This
`document contains competitively sensitive information regarding the manufacturing
`process for Edwards’ products.
`[EDWARDS00743914-18] – This document is a highly confidential internal report
`regarding physician preferences related to transcatheter heart valve devices, and
`therefore contains competitively sensitive information.
`[EDWARDS 01033971-90] – This document is highly confidential internal notes
`regarding business and marketing decisions and progress, and therefore contains
`competitively sensitive information.
`[EDWARDS 01033782-825] – This document is highly confidential internal notes
`regarding business and marketing decisions and progress. This document contains
`competitively sensitive information.
`[EDWARDS 01033844-86] – This document is highly confidential internal notes
`regarding business and marketing decisions and progress, and therefore contains
`competitively sensitive information.
`[EDWARDS00260617-58] – This document is a highly confidential internal design
`review of Edwards’ products that contains competitively sensitive information
`regarding Edwards’ products.
`[EDWARDS02438701-26] – This document is a highly confidential internal
`presentation containing marketing, testing, and product development information, and
`therefore contains competitively sensitive information.
`[EDWARDS 0174788-849] – This document is a highly confidential internal
`presentation regarding the design review for Sapien 3, one of Edwards’ Sapien
`products. It contains competitively sensitive information, including design and
`testing results.
`[EDWARDS 02186714-69] – This is a highly confidential document regarding
`competition in the transcatheter heart valve industry that includes competitively
`sensitive information, including survey results.
`[EDWARDS 02079411-527] – This is a highly confidential document containing
`assessments of competition in the transcatheter heart valve industry and contains
`competitively sensitive information.
`[EDWARDS 01809151-282] – This is a highly confidential internal presentation
`regarding Edwards’ messaging and marketing strategy for its products, and therefore
`contains competitively sensitive information.
`[EDWARDS02399064-68] – This is a highly confidential internal draft of a script for
`a video about Sapien 3 that was later changed. This document contains competitively
`sensitive information, especially regarding marketing information and messaging of
`Edwards’ products.
`[EDWARDS01820001-48] – This is a highly confidential internal marketing
`presentation regarding Edwards’ products, messaging, design trade-offs and choices,
`and summaries of results, and therefore contains competitively sensitive information.
`[Brecker Declaration] – This is a declaration filed by Patent Owner, containing
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`Exhibit
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`2085
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`2086
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`2087
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`2088
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`2089
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`2090
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`2091
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`Good Cause for Filing Under Seal
`references to Edwards’ confidential exhibits. The portions that have been redacted
`contain internal Edwards information about Edwards’ Sapien 3 product, including
`competitively sensitive information.
`[EDWARDS 01934680-84] – This is highly confidential internal meeting notes and
`an internal presentation regarding Edwards’ Sapien 3 product, including testing,
`testing results, and proposed studies, and therefore contains competitively sensitive
`information.
`[EDWARDS01956628-77] – This is a highly confidential internal presentation
`regarding marketing strategies, messaging, and design goals for Edwards’ Sapien 3
`product and related systems, and therefore contains competitively sensitive
`information.
`EDWARDS01029569] – This is a highly confidential internal testing video of the
`Sapien 3 valve. This video is competitively sensitive and would reveal Edwards’
`testing of its products to its competition.
`[EDWARDS 01756438] – This is highly confidential internal meeting notes
`regarding Edwards’ Sapien 3 product, including testing, testing results, and proposed
`studies, and therefore contains competitively sensitive information.
`[EDWARDS 02405909-10] – This is a highly confidential set of internal emails
`regarding internal analysis of results of a clinical trial, and therefore contains
`competitively sensitive information.
`[EDWARDS 01807655-707] – This is a highly confidential presentation regarding
`Edwards’ internal sales strategy and messaging for its products, and therefore
`contains competitively sensitive information.
`[EDWARDS 02186713] – This is a highly confidential set of internal emails
`regarding Edwards’ employees’ views on market preferences and design attributes of
`transcatheter heart valves, and therefore contains competitively sensitive information.
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`In light of the competitively sensitive, confidential information disclosed
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`throughout each of Exhibits 2031, 2034, 2036, 2039, 2041, 2042, 2043, 2044,
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`2045, 2046, 2055, 2056, 2057, 2063, 2077, 2085, 2086, 2087, 2088, 2089, 2090,
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`and 2091, the Petitioner seeks to maintain each of these exhibits under seal in their
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`entirety. Moreover, the entirety of each of Exhibits 2031, 2034, 2036, 2039, 2041,
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`2042, 2043, 2044, 2045, 2046, 2055, 2056, 2057, 2063, 2077, 2085, 2086, 2087,
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`2088, 2089, 2090, and 2091 is marked “Highly Confidential” – a designation that
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`has not been disputed for any of these Exhibits – in accordance with the Protective
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`Order entered in the United States District Court for the District of Delaware
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`matter captioned Boston Scientific Corp., et al. v. Edwards Lifesciences Corp., et
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`al., No. 1:16-cv-275-SLR (the “Delaware Action”) (D.I. 78). The Protective Order
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`there requires Exhibits marked “Highly Confidential” to be filed under seal.
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`The remaining confidential exhibit, Exhibit 2080, has previously been
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`submitted in redacted form, and for the reasons set forth in the chart above,
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`Petitioner seeks to maintain those redactions as previously submitted.
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`Petitioner notifies the Board that Petitioner no longer seeks to maintain
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`Exhibit 2040 as confidential.
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`Patent owner notifies the Board that Patent Owner no longer seeks to
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`maintain Exhibits 2035 and 2078 as confidential.
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`Concurrent with this Motion, the Parties also are filing a motion for entry of
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`a substitute stipulated protective order governing the use and disclose of
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`confidential exhibits or papers in this Trial.
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`The Parties respectfully request that the Board grant this Joint Motion to
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`Seal Exhibits 2031, 2034, 2036, 2039, 2041, 2042, 2043, 2044, 2045, 2046, 2055,
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`2056, 2057, 2063, 2077, 2080, 2085, 2086, 2087, 2088, 2089, 2090, and 2091.
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`III. CERTIFICATION OF CONFERENCE
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`Pursuant to 37 C.F.R. § 42.54(a), Petitioner and Patent Owner hereby certify
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`that they have conferred in good faith and have agreed to be bound by the terms of
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`the Parties’ substitute stipulated protective order, concurrently filed herewith.
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`/s/ Gregory S. Cordrey
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`Gregory S. Cordrey (Reg. No. 44,089)
`Brian P. Egan (Reg. No. (54,866)
`Catherine Nyarady (Reg. No. 42,042)
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`Attorneys for Petitioners
`Edwards Lifesciences Corporation,
`Edwards Lifesciences LLC, and
`Edwards Lifesciences AG
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`DATED: July 28, 2017
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`Respectfully submitted,
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`/s/ Jennifer A. Sklenar
`Jennifer A. Sklenar (Reg. No. 40,205)
`Wallace Wu (Reg. No. 45,380)
`ARNOLD & PORTER KAYE
`SCHOLER LLP
`777 S. Figueroa Street, 44th Floor
`Los Angeles, CA 90017-5844
`Tel: (213) 243-4000
`Fax: (213) 243-4199
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`Attorneys for Patent Owner Boston
`Scientific Scimed, Inc.
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on July 28,
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`2017, a complete and entire copy of JOINT MOTION TO FILE
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`CONFIDENTIAL DOCUMENTS UNDER SEAL PURSUANT TO 37 C.F.R.
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`§§ 4214 & 42.54 has been served in its entirety by e-mail on the following
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`addresses of record for Patent Owner:
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`jennifer.sklenar@apks.com
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`wallace.wu@apks.com
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`/s/ Gregory S Cordrey
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`Gregory S. Cordrey, Esq. (Reg. No. 44,089)
`Attorney for Petitioners
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