Trials@uspto.gov
`571.272.7822
`
`
`
`IPR2017-00087, Paper No. 70
`IPR2017-00091, Paper No. 78
`IPR2017-00094, Paper No. 78
`
` Entered: February 27, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`CAMPBELL SOUP COMPANY,
`CAMPBELL SALES COMPANY, and
`TRINITY MANUFACTURING, LLC,
`Petitioner,
`
`v.
`
`GAMON PLUS, INC.,
`Patent Owner.
`_____________
`
`Cases IPR2017-00087 (Patent 8,827,111 B2);
`IPR2017-00091 (Patent D621,645 S);
`IPR2017-00094 (Patent D612,646 S)1
` _____________
`
`Before GRACE KARAFFA OBERMANN, BART A. GERSTENBLITH,
`and ROBERT L. KINDER, Administrative Patent Judges.
`
`GERSTENBLITH, Administrative Patent Judge.
`
`
`
`
`DECISION
`Granting In-Part Petitioner’s Motion to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`1 We exercise our discretion to issue one Decision and Order in each of these
`proceedings. The parties may not use this caption style.
`
`
`
`
`
`571.272.7822
`
`
`
`IPR2017-00087, Paper No. 70
`IPR2017-00091, Paper No. 78
`IPR2017-00094, Paper No. 78
`
` Entered: February 27, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`CAMPBELL SOUP COMPANY,
`CAMPBELL SALES COMPANY, and
`TRINITY MANUFACTURING, LLC,
`Petitioner,
`
`v.
`
`GAMON PLUS, INC.,
`Patent Owner.
`_____________
`
`Cases IPR2017-00087 (Patent 8,827,111 B2);
`IPR2017-00091 (Patent D621,645 S);
`IPR2017-00094 (Patent D612,646 S)1
` _____________
`
`Before GRACE KARAFFA OBERMANN, BART A. GERSTENBLITH,
`and ROBERT L. KINDER, Administrative Patent Judges.
`
`GERSTENBLITH, Administrative Patent Judge.
`
`
`
`
`DECISION
`Granting In-Part Petitioner’s Motion to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`1 We exercise our discretion to issue one Decision and Order in each of these
`proceedings. The parties may not use this caption style.
`
`
`
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D621,646 S)
`
`
`
`DISCUSSION
`I.
`Petitioner filed a motion to seal (“Motion”) portions of Patent
`Owner’s Sur-Reply and Exhibits 2031 and 2032. Paper 64.2 Petitioner
`contends that Exhibits 2031 and 2032 are “internal Campbell presentations”
`that “contain confidential ‘research [and] development information’ pursuant
`to Fed. R. Civ. P. 26(c)(1)(G).”3 Motion 3. Petitioner asserts that
`“[a]lthough the internal Campbell presentations are from 2002, they
`represent still-valuable research regarding consumer insights and shopping
`preferences, as well as strategies for optimizing the consumer shopping
`experience in the soup aisle.” Id. In particular, Petitioner explains that the
`presentations “pertain[] to strategies for optimal assortment and grouping of
`different products in the soup aisle, optimal location and use of signage,
`research regarding the amount of time that consumers spend when shopping
`various grocery aisles (including but not limited to the soup aisle), and the
`like.” Id. at 3–4. Petitioner argues that its competitors would gain an unfair
`advantage if given access to the information. Id. at 4. Accordingly,
`Petitioner proposed redactions to Exhibits 2031 and 2032 as well as Patent
`Owner’s Sur-Reply that Petitioner contends “do not materially detract from
`any material understanding of the public record.” Id.
`Patent Owner filed a Partial Opposition (Paper 65) to Petitioner’s
`Motion in which Patent Owner only opposes Petitioner’s proposed
`
`
`2 Citations are to IPR2017-00087 unless otherwise indicated.
`3 Federal Rule of Civil Procedure 26(c)(1)(G) permits a court to protect a
`party (via a protective order) from disclosing “a trade secret or other
`confidential research, development, or commercial information.”
`
`2
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D621,646 S)
`
`
`redactions to Exhibit 2032. Paper 65, 1.4 Patent Owner does not oppose
`Petitioner’s proposed redactions to Patent Owner’s Sur-Reply and
`Exhibit 2031. Id. With respect to Exhibit 2032, however, Patent Owner
`contends that Petitioner seeks improperly to redact all written material in the
`document. Id. Patent Owner argues that much of the information in Exhibit
`2032 “deals with Patent Owner’s display racks and advantages of those
`racks that were known or attributed to Patent Owner or otherwise not truly
`confidential.” Id. Patent Owner further explains that “the information is
`very relevant to the determination of commercial success of the claimed
`invention and should be integral to the Board’s decision in this IPR, which
`militates against it being placed under seal.” Id. at 1–2 (citation omitted).
`In particular, Patent Owner contends that the following information in
`Exhibit 2032 should not be sealed: figures regarding increases in
`Petitioner’s sales, locations of stores shown in several pictures, comments of
`shoppers, observations regarding Patent Owner’s products, and product
`specifications of Patent Owner’s products, including product size and
`capacity. Id. at 2–4. Patent Owner filed a copy of Exhibit 2032, which
`includes the redactions to which Patent Owner does not object—pages 2, 3,
`12, and a portion of page 11. Id. at 4; Paper 74.
`“The record of a proceeding, including documents and things, shall be
`made available to the public, except as otherwise ordered.” 37 C.F.R.
`§ 42.14; see 35 U.S.C. § 316(a)(1). The standard for granting a motion to
`seal is good cause. See 37 C.F.R. § 42.54(a). There is a strong public policy
`that favors making information filed in inter partes review proceedings open
`
`4 Patent Owner’s Opposition erroneously refers to “Exhibit 2031” in the first
`sentence of the third paragraph.
`
`3
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D621,646 S)
`
`
`to the public. See Garmin Int’l v. Cuozzo Speed Techs., LLC,
`IPR2012-00001, slip op. at 1–2 (PTAB Mar. 14, 2013) (Paper 34). The
`moving party bears the burden of showing that the relief requested should be
`granted. 37 C.F.R. § 42.20(c).
`
`Exhibits 2031 and 2032
`We have reviewed the information presented in Exhibits 2031 and
`2032. We agree with the parties that the information in Exhibit 2031 reflects
`internal Campbell presentations regarding consumer research. Additionally,
`the parties do not rely heavily upon the information presented in
`Exhibit 2031 and the confidentiality of the information therein is not readily
`contested as it relates to the issues presented in these cases. Accordingly, we
`grant Petitioner’s Motion with respect to Exhibit 2031.
`Exhibit 2032, however, presents a mixture of information reflecting
`internal Campbell presentations regarding consumer research as well as sales
`figures, shopper comments, locations and images of store shelves, and
`product specifications pertaining to Patent Owner’s commercial products.
`We address each type of information presented in Exhibit 2032 because the
`outcome of our decision is dependent upon each.
`With respect to the material that appears to reflect Campbell’s
`consumer research and internal presentations, we agree with the parties that
`such information may remain under seal. That information is presented on
`pages 2, 3, 12, and a portion of page 11. Additionally, that information is
`not critical to an understanding of the issues presented in these cases nor
`relied upon heavily by the parties.
`
`4
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D621,646 S)
`
`
`
`We reach a different outcome with respect to the information
`presented on pages 4–11 of Exhibit 2032. First, the sales figures reflected
`on page 4, for the most part, are in the same 9 to 14% range that is disclosed
`in Mr. Johnson’s Declaration (see Ex. 2001 ¶ 10 (testifying that “use of the
`display racks resulted in an increase in sales of condensed Campbell Soup
`cans in a range of about 9% to 14%”)) and Mr. Johnson’s deposition
`testimony (see Ex. 1066, 6–12 (“And Cannondale said that the sales went up
`between . . . 9.3 to 14.9.”) neither of which were filed under seal.
`Additionally, this information was not redacted by Petitioner in its proposed
`public version of Patent Owner’s Sur-Reply.5 Further, this information is
`consistent with Campbell’s statements in its 2005-2007 Annual Reports. See
`Ex. 2024, 31 (“Condensed soup sales also benefited from gravity-feed
`shelving systems installed in retail stores.”); Ex. 2025, 39 (same); Ex. 2026,
`36 (“Condensed soup also benefited from the additional installation of
`gravity-feed shelving systems . . . .”). This information also is relevant to
`Patent Owner’s arguments regarding secondary indicia of non-obviousness.
`Accordingly, Petitioner has not established good cause to show that the sales
`figures presented on page 4 should be sealed.
`Second, pages 4 through 10 include single-sentence quotations from
`consumers describing their reactions to Campbell’s use of Patent Owner’s
`display racks in several stores located throughout the United States and the
`locations of those stores. Ex. 2032, 4–10. Petitioner seeks to redact the
`
`
`5 This document was submitted to the Board via email and is not in the file
`at present. Petitioner did not redact the statement that Patent Owner’s
`display racks resulted in “an increase in sales volume of 9.3% for
`Campbell’s condensed soup.”
`
`5
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D621,646 S)
`
`
`quotations and the locations of the stores as well as several bullet point
`observations regarding benefits of using Patent Owner’s display racks, noted
`on page 4. There is no indication, and Petitioner has not contended, that any
`of the consumers providing feedback were under an obligation not to
`disclose their experience with Patent Owner’s display racks or that the
`locations of the stores pictured in Exhibit 2032 are confidential. None of the
`quotations provide any information not otherwise presented publicly in these
`cases that would somehow benefit a competitor or otherwise cause potential
`harm to Campbell were the quotations disclosed. Additionally, we do not
`agree that the noted benefits of Patent Owner’s display racks presented on
`page 4 reflect confidential information. Accordingly, Petitioner has not
`established good cause to show that the quoted consumer feedback, locations
`of the stores, or noted benefits of Patent Owner’s display racks should be
`sealed.
`Third, the majority of page 11 of Exhibit 2032 discloses the product
`specifications of Patent Owner display racks. This information includes
`various product sizes and capacities. Notably, this information is Patent
`Owner’s information and there no indication that any of it is confidential.
`Additionally, Petitioner has provided no reason why the disclosure of Patent
`Owner’s product specifications would somehow cause Petitioner harm.
`Accordingly, Petitioner has not established good cause to show that Patent
`Owner’s product specifications, as reflected in the first five bullet points on
`page 11 of Exhibit 2032 should be sealed.
`Patent Owner filed a proposed public version of Exhibit 2032
`illustrating Patent Owner’s proposed redactions. Paper 66. Our decision
`above aligns with the redactions proposed by Patent Owner.
`
`6
`
`
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D621,646 S)
`
`Patent Owner’s Sur-Reply
`Petitioner’s proposed redactions to Patent Owner’s Sur-Reply include
`information derived from Exhibits 2031 and 2032. For the reasons
`explained above, we agree that the material for which Patent Owner cites to
`Exhibit 2031 may be sealed. The citations in Patent Owner’s Sur-Reply to
`Exhibit 2032, however, pertain to information that we determined Petitioner
`failed to establish good cause to seal.6 Accordingly, only the portions of
`Patent Owner’s Sur-Reply that rely upon Exhibit 2031 shall be sealed.7
`
`Other Matters
`Patent Owner filed proposed redactions to Exhibit 2032 as Paper 66 in
`IPR2017-00087 and erroneously designated its confidentiality status as
`“Filing Party and Board Only.” The designation will be changed to “Parties
`and Board Only” upon issuance of this Decision.
`Patent Owner explained in email correspondence that it was unable to
`file Petitioner’s proposed redactions to Patent Owner’s Sur-Reply in each
`case. Petitioner shall file each of its proposed redacted versions in the
`respective case forthwith so that the record in each case is complete.
`
`
`6 Patent Owner did not object to sealing the portions of its Sur-Reply citing
`Exhibit 2032. Nonetheless, the determination of whether to seal the
`information reflected in the Sur-Reply must be consistent with the
`determination whether to seal the same information in Exhibit 2032.
`7 In IPR2017-00087, the information derived from Exhibit 2031, and hence
`subject to redaction, is presented on the third-to-last line of page 4 and the
`first and second lines of page 5 of Patent Owner’s Sur-Reply (Paper 60). In
`IPR2017-00091 and IPR2017-00094, the information is presented on
`pages 4 and 5 of Patent Owner’s Sur-Reply (Paper 68 in each case).
`
`7
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D621,646 S)
`
`
`Confidential Information After a Final Judgment
`The parties are reminded of the following:
`Confidential information that is [sealed] . . . ordinarily would
`become public 45 days after final judgment in a trial. There is
`an expectation that information will be made public where the
`existence of the information is referred to . . . in a final written
`decision following a trial. A party seeking to maintain the
`confidentiality of the information, however, may file a motion
`to expunge the information from the record prior to the
`information becoming public.
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,761 (Aug. 14,
`2012) (“Expungement of Confidential Information”) (citing 37 C.F.R.
`§ 42.56).
`
`II. ORDER
`
`It is:
`ORDERED that Petitioner’s Motion to Seal (Paper 64,
`IPR2017-00087; Paper 72, IPR2017-00091; Paper 72, IPR2017-00094) is
`granted-in-part;
`FURTHER ORDERED that any request for rehearing of the above
`decision on Petitioner’s Motion to Seal shall be filed within seven (7) days
`of the entry of this Order;
`FURTHER ORDERED that either after the time for rehearing has
`passed or, if a rehearing request is filed, after seven (7) days following a
`decision on said request, the confidentiality status of the redacted versions of
`Exhibit 2032 and Patent Owner’s Sur-Reply shall be removed and the
`documents will be available to public in redacted form;
`FURTHER ORDERED that the confidentiality status of Paper 66 in
`IPR2017-00087 is hereby changed to “Parties and Board Only”; and
`
`8
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D621,646 S)
`
`
`
`FURTHER ORDERED that Petitioner shall file its proposed redacted
`versions of Patent Owner’s Sur-Reply in the corresponding case within two
`(2) business days of the entry of this Order.
`
`
`
`
`9
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D621,646 S)
`
`
`For PETITIONER ENTITIES CAMPBELL SOUP COMPANY and
`CAMPBELL SALES COMPANY CAMPBELL:
`
`Gerard M. Donovan
`Tracy Zurzolo Quinn
`REED SMITH LLP
`gdonovan@reedsmith.com
`tquinn@reedsmith.com
`
`
`For PETITINER ENTITY TRINITY MANUFACTURING, LLC:
`
`Martin B. Pavane
`Darren Mogil
`COZEN O’CONNOR
`mpavane@cozen.com
`dmogil@cozen.com
`
`Ira Jay Levy
`GOODWIN PROCTER LLP
`ILevy@goodwinlaw.com
`
`
`For PATENT OWNER:
`
`
`Andrew L. Tiajoloff
`Edward P. Kelly
`TIAJOLOFF & KELLY LLP
`atiajoloff@tkiplaw.com
`ekelly@tkiplaw.com
`
`10
`
`
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