`571-272-7822
`
`
`
`
`Paper No. 109
`Entered: March 4, 2021
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`COOK GROUP INCORPORATED
`and
`COOK MEDICAL LLC,
`Petitioner,
`
`v.
`
`BOSTON SCIENTIFIC SCIMED, INC.,
`Patent Owner.
`_______________
`
`Case IPR2017-00134
`Patent 8,709,027 B2
`_______________
`
`
`
`Before JAMES T. MOORE, JAMES A. TARTAL,
`and ROBERT L. KINDER, Administrative Patent Judges.
`
`KINDER, Administrative Patent Judge.
`
`
`
`DECISION
`
`
`
`Granting Patent Owner’s Motion to Expunge
`37 C.F.R. § 42.56
`
`
`
`
`
`
`IPR2017-00134
`Patent 8,709,027 B2
`
`
`With our authorization and pursuant to 37 C.F.R. § 42.56, Patent
`Owner filed a motion seeking to expunge the unredacted version of
`Exhibit 2029. Paper 108 (“Motion”). Patent Owner represents that
`Petitioner does not oppose the Motion. Id. at 1.
`“[A]fter final judgment in a trial, a party may file a motion to expunge
`confidential information from the record.” See 37 C.F.R. § 42.56. On
`November 3, 2018, we entered a Final Written Decision in this proceeding
`(Paper 92), which was appealed (Papers 93, 94). On April 30, 2020, the
`U.S. Court of Appeals for the Federal Circuit “AFFIRMED IN PART AND
`VACATED AND REMANDED IN PART” our Final Written Decision.
`Boston Scientific Scimed, Inc. v. Cook Group Inc., 809 Fed.Appx. 990 (Fed.
`Cir. 2020) (appeals from Case Nos. IPR2017-00133, IPR2017-00134). The
`Federal Circuit affirmed our decision in IPR2017-00133 in its entirety, but
`vacated and remanded IPR2017-00134 for us to consider certain issues only
`applicable to that proceeding. On November 19, 2020, we issued a Final
`Written Decision on Remand in IPR2017-00134, which was not appealed.
`Paper 107.
`A strong public policy exists for making open to the public all
`information filed in this administrative proceeding. Only “confidential
`information” is protected from disclosure. 35 U.S.C. § 316(a)(7) (“The
`Director shall prescribe regulations . . . providing for protective orders
`governing the exchange and submission of confidential information.”). The
`Consolidated Office Patent Trial Practice Guide1 states that, “[t]he rules aim
`to strike a balance between the public’s interest in maintaining a complete
`
`
`1 Patent Trial and Appeal Board Consolidated Patent Trial Practice Guide
`at 19 (Nov. 2019), http://www.uspto.gov/TrialPracticeGuideConsolidated.
`
`2
`
`
`
`IPR2017-00134
`Patent 8,709,027 B2
`
`and understandable file history and the parties’ interest in protecting truly
`sensitive information.” Accordingly, a party seeking expungement of
`material from the record must show good cause by demonstrating that any
`information sought to be expunged constitutes confidential information, and
`that the party’s interest in expunging it outweighs the public’s interest in
`maintaining a complete and understandable history of this inter partes
`review. Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., IPR2013-
`00453, Paper 97, 2 (PTAB Apr. 15, 2015).
`We are persuaded by Patent Owner’s unopposed contentions that
`expunging Exhibit 2029 would protect confidential information without
`harming the public’s interest in maintaining a complete and understandable
`file history. Motion 1–3. We agree with Patent Owner’s assessment that
`Exhibit 2029 contains confidential information and that good cause exists to
`maintain such information as confidential. Id. Specifically, Exhibit 2029 is
`the declaration of Dr. Vaitekunas, and Patent Owner alleges that it contains
`confidential statements and information related to figures from a highly
`confidential technical design document related to Boston Scientific
`Corporation’s Resolution™ Clip and a highly confidential 510(k) pre-
`market application document submitted to the FDA related to Boston
`Scientific Corporation’s Resolution™ Clip. Id. at 1–2.
`Moreover, we did not rely upon confidential information contained in
`Exhibit 2029 in our Final Written Decision or in our Final Written Decision
`on Remand. See Papers 92, 107; see also Motion 2–3. We also did not rely
`upon Exhibit 2029 in any decision or in any order. Id. Thus, we determine
`that the confidential information present in Exhibit 2029 is not necessary to
`present a complete and understandable file history.
`
`3
`
`
`
`IPR2017-00134
`Patent 8,709,027 B2
`
`
`
`ORDER
`Accordingly, it is:
`ORDERED that Patent Owner’s Motion (Paper 108) is granted and
`the unredacted version of Exhibit 2029 shall be expunged from the record.
`
`4
`
`
`
`IPR2017-00134
`Patent 8,709,027 B2
`
`PETITIONER:
`Dominic P. Zanfardino
`Jeffry M. Nichols
`Robert Mallin
`Jason W. Schigelone
`James M. Oehler
`Andrew S. McElligott
`BRINKS GILSON & LIONE
`dpz@brinksgilson.com
`jnichols@brinksgilson.com
`rmallin@brinksgilson.com
`jschigelone@brinksgilson.com
`joehler@brinksgilson.com
`amcelligott@brinksgilson.com
`
`PATENT OWNER:
`
`David A. Caine
`Wallace Wu
`Jeffrey Martin
`ARNOLD & PORTER LLP
`david.caine@aporter.com
`wallace.wu@aporter.com
`jeffrey.martin@arnoldporter.com
`
`5
`
`
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