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`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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`PETITIONERS’ MOTION TO FILE CONFIDENTIAL DOCUMENTS
`UNDER SEAL PURSUANT TO 37 C.F.R. §§ 42.14 & 42.54
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`1
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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”)
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`respectfully submit this Motion to Seal their Reply and Exhibits 1045, 1046, 1049,
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`1050, 1061, 1062, and 1063, all of which are filed concurrently herewith.1
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`I.
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`BACKGROUND
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`On August 10, 2017, the Board granted (Paper No. 29) the parties’ Joint
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`Motion for Entry of Stipulated Protective Order (Paper No. 26) and entered the
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`Stipulated Protective Order (Exhibit 2092). Petitioners now move pursuant to the
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`Stipulated Protective Order to file under seal their Reply, as well as Exhibits 1045,
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`1046, 1049, 1050, 1061, 1062, and 1063.
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`Petitioners request only that portions of their Reply and Exhibits 1045 (the
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`“Buller Declaration”) and 1046 (the “Wood Declaration”) be sealed. Thus,
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`Petitioners concurrently submit non-confidential, redacted versions of their Reply
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`and Exhibits 1045 and 1046. Petitioners request that Exhibits 1049, 1050, 1061,
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`1062, and 1063 be sealed in their entirety. Petitioners’ reasons why the
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`information in each document is confidential and should not be made public are
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`provided below.
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`1 Patent Owner did not indicate whether they oppose this motion in response to
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`Petitioners' request. As such, Petitioners' indicated that they would represent to the
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`Board that this motion is opposed.
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`2
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`II. GOOD CAUSE EXISTS FOR SEALING CERTAIN CONFIDENTIAL
`INFORMATION
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`Petitioners submit that each of the proposed Exhibits summarized in the
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`table below contains Petitioners’ confidential engineering, design, business, or
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`commercial information. In the table below, Petitioners provide detailed good
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`cause reasons for sealing each of the exhibits.
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`Exhibit
`1045
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`1046
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`1049
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`Good Cause for Filing Under Seal
`[Buller Declaration] – This is a declaration filed by Petitioners containing
`references to and copying pictures from Petitioners’ highly confidential
`documents, including references to and pictures from exhibits that were
`addressed in the parties’ July 28, 2017 Joint Motion to Seal (Paper No.
`25), as well as exhibits included in this submission. The portions that
`have been redacted contain internal Edwards information about Edwards’
`Sapien 3 product, including competitively sensitive information such as
`engineering and design information, as well as highly confidential
`information about Edwards’ prototypes.
`[Wood Declaration] – This is a declaration filed by Petitioners containing
`references to and copying pictures from Petitioners’ highly confidential
`documents. (Petitioners also request herein to file under seal those
`source documents.) The portions of the declaration that have been
`redacted contain internal Edwards information about Edwards’ highly
`confidential prototypes and highly confidential prototypes that PVT
`developed before it was acquired by Edwards, including design ideas and
`testing results. This highly confidential design and testing information
`includes competitively sensitive information.
`[EDWARDS 01016212-314] – This document is an internal Edwards
`“Technical Design Review” presentation regarding a confidential
`development project and contains internal Edwards information about
`Edwards’ prototypes. It contains photographs and information about the
`designs of these prototypes, as well as testing results and information on
`design goals and changes. This highly confidential design and testing
`information includes competitively sensitive information. This document
`was produced in the district court litigation with all pages designated as
`“Highly Confidential” pursuant to the terms of the Delaware protective
`order.
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`3
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`Exhibit
`1050
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`1061
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`1062
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`1063
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`Good Cause for Filing Under Seal
`[EDWARDS 02433143-211] – This document is an internal presentation
`given at Edwards discussing prototypes developed by PVT. It includes
`photographs of these highly confidential prototype designs. This
`document was produced in the district court litigation with all pages
`designated as “Highly Confidential” pursuant to the terms of the
`Delaware protective order.
`Exhibits 32-43 to May 26, 2017 Deposition of A. Bash in Boston Sci.
`Corp. v. Edwards Lifesciences Corp., C.A. No. 16-275-JFB-SRF (D.
`Del.) – This document is a set of photographs of highly confidential
`prototypes designed by PVT. These prototypes were entered as exhibits
`during the Deposition of Assaf Bash on May 26, 2017 in connection with
`the district court litigation. That deposition was marked as “Confidential
`– Attorneys’ Eyes Only” and the photographs of the prototypes were
`subsequently produced designated as “Highly Confidential” pursuant to
`the terms of the protective order in the district court litigation.
`[EDWARDS 01026774-82] – This document is a set of highly
`confidential engineering drawings containing precise details of the design
`and assembly of Petitioners’ product. This document was produced in
`the district court litigation with all pages designated as “Highly
`Confidential – Attorneys’ Eyes Only” pursuant to the terms of the
`Delaware protective order.
`[EDWARDS 01026765-73] – This document is a set of highly
`confidential engineering drawings containing precise details of the design
`and assembly of Petitioners’ product. This document was produced in
`the district court litigation with all pages designated as “Highly
`Confidential – Attorneys’ Eyes Only” pursuant to the terms of the
`Delaware protective order.
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`Finally, Petitioners’ Reply cites to and excerpts text and pictures from highly
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`confidential documents—both documents included in the above list that Petitioners
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`now move to seal and documents included in the parties’ July 28, 2017 Joint
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`Motion to Seal (Paper No. 25). Pursuant to Paragraph 5(A) of the Protective Order
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`(Ex. 2092), Petitioners submit concurrently herewith a redacted version of their
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`Reply. The portions that have been redacted contain internal Edwards information
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`4
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`that is competitively sensitive, including information about Edwards’ Sapien 3
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`product, as well as design and testing of highly confidential prototypes.
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`For the reasons explained in the above table, Petitioners request that only
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`portions of Exhibits 1045 and 1046 be filed under seal, and submit concurrently
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`herewith redacted versions of Exhibits 1045 and 1046.
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`In light of the competitively sensitive, confidential information disclosed
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`throughout each of Exhibits 1049, 1050, 1061, 1062, and 1063, Petitioners seek to
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`maintain each of these exhibits under seal in their entirety. Moreover, the entirety
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`of each of Exhibits 1049, 1050, 1061,2 1062, and 1063 is marked “Highly
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`Confidential”—a designation that has not been disputed for any of these
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`Exhibits—in accordance with the Protective Order entered in the United States
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`District Court for the District of Delaware matter captioned Boston Scientific Corp.
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`v. Edwards Lifesciences Corp., C.A. No. 16-275-JFB-SRF. The Protective Order
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`there requires Exhibits marked “Highly Confidential” to be filed under seal.
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`2
`As Petitioners explain in the above table, although the pages in Exhibit
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`1061, which are photographs of physical prototypes that were entered as deposition
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`exhibits, are not stamped “Highly Confidential,” the deposition itself was
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`designated as “Confidential – Attorneys’ Eyes Only” and the photographs were
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`subsequently produced as “Highly Confidential” in the district court litigation.
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`5
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`Petitioners respectfully request that the Board grant their Motion to Seal
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`Petitioners’ Reply and Exhibits 1045, 1046, 1049, 1050, 1061, 1062, and 1063.
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`DATED: September 22, 2017
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`/s/ Gregory S. Cordrey
`
`
`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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`6
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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 September
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`22, 2017, a complete and entire copy of PETITIONERS’ MOTION TO FILE
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`CONFIDENTIAL DOCUMENTS UNDER SEAL PURSUANT TO 37 C.F.R.
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`§§ 42.14 & 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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`DATED: September 22, 2017
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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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`7
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