Paper 41
`Entered: June 27, 2018
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EDWARDS LIFESCIENCES CORPORATION,
`Petitioner,
`v.
`BOSTON SCIENTIFIC SCIMED, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00444
`Patent 6,915,560 B2
`____________
`
`
`Before NEIL T. POWELL, JAMES A. TARTAL, and
`STACY B. MARGOLIES, Administrative Patent Judges.
`
`TARTAL, Administrative Patent Judge.
`
`
`
`
`
`
`DECISION
`Granting-in-Part Joint Motion to Seal
`37 C.F.R. §§ 42.5, 42.14 and 42.54
`
`
`
`Entered: June 27, 2018
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EDWARDS LIFESCIENCES CORPORATION,
`Petitioner,
`v.
`BOSTON SCIENTIFIC SCIMED, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00444
`Patent 6,915,560 B2
`____________
`
`
`Before NEIL T. POWELL, JAMES A. TARTAL, and
`STACY B. MARGOLIES, Administrative Patent Judges.
`
`TARTAL, Administrative Patent Judge.
`
`
`
`
`
`
`DECISION
`Granting-in-Part Joint Motion to Seal
`37 C.F.R. §§ 42.5, 42.14 and 42.54
`
`
`
`
`IPR2017-00444
`Patent 6,915,560 B2
`
`
`Edwards Lifesciences Corporation (“Petitioner”) and Boston
`Scientific Scimed, Inc., (“Patent Owner”), (collectively, “the Parties”),
`jointly move to seal Exhibit 1128 and related portions of Petitioner’s Reply
`Brief. Paper 19 (“Motion” or “Mot.”).
`In accordance with 37 C.F.R. § 42.14, “[a] party intending a document
`or thing to be sealed shall file a motion to seal concurrent with the filing of
`the document or thing to be sealed.” Our regulations state that 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. To this end, the
`Office Patent Trial Practice Guide sets forth the following:
`Where confidentiality is alleged as to some but not all of
`the information submitted to the Board, the submitting party shall
`file confidential and non-confidential versions of its submission,
`together with a Motion to Seal the confidential version setting
`forth the reasons why the information redacted from the non-
`confidential version is confidential and should not be made
`available to the public. The nonconfidential version of the
`submission shall clearly indicate the locations of information that
`has been redacted. The confidential version of the submission
`shall be filed under seal.
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,771 (Aug.
`14, 2012). Similarly, the Case Management and Scheduling Order sets
`forth the following:
`The Board has a strong interest in promoting public
`accessibility to the proceedings. If a party seeks to redact
`information from documents filed in this proceeding in
`accordance with a protective order, the redactions must be
`limited to isolated passages consisting entirely of confidential
`information, and the thrust of the underlying argument or
`evidence must remain clearly discernible.
`
`2
`
`
`
`IPR2017-00444
`Patent 6,915,560 B2
`
`Paper 10, 3. Thus, the default rule is that all papers filed in an inter partes
`review are open and available for access by the public; only “confidential
`information” may be protected from disclosure upon a showing of good
`cause. See 35 U.S.C. §§ 316(a)(1) and 316(a)(7); 37 C.F.R. §§ 42.14 and
`42.54(a). Generally, the party asserting confidentiality bears the burden of
`showing that the relief requested should be granted. 37 C.F.R. § 42.20(c).
`This includes showing that the information is truly confidential, and that
`such confidentiality outweighs the strong public interest in having an open
`record. A motion to seal will not be granted if based only on broad or
`generic contentions of confidentiality.
`With respect to Exhibit 1128, the Parties states that Exhibit 1128 is
`“an invention disclosure by the named inventor on U.S. Patent No.
`6,915,560” and that the exhibit “includes information considered sensitive
`by” Patent Owner. Mot. 2; see also id. at 1 (stating that Exhibit 1128
`contains Patent Owner’s confidential business and technical information).
`The Parties further represent that the information sought to be sealed has not
`been published or otherwise made available to the public and that efforts to
`maintain the confidentiality of the information have been undertaken by
`Patent Owner. Id. at 2.
`A redacted version of Exhibit 1128 was not filed. Few, if any,
`exhibits, even business records, should ever be filed as confidential in their
`entirety because it is unlikely that all of the information contained therein is
`truly sensitive. See 37 C.F.R. § 42.54(a). Even business records often
`contain some non-confidential information serving to identify the nature of
`confidential portions of the exhibit. In all cases, the motion to seal must set
`
`3
`
`
`
`IPR2017-00444
`Patent 6,915,560 B2
`
`forth the reasons why the information redacted from the non-confidential
`version is confidential and should not be made publicly available. Patent
`Office Trial Practice Guide, 77 Fed. Reg. at 48,771.
`In this case, the Motion fails to establish that “every paragraph, every
`sentence, and every word” in Exhibit 1128 “constitutes confidential
`information that should be sealed.” See, e.g., Unified Patents Inc. v.
`Blitzsafe Texas, LLC, IPR2016-00118, Paper 13, 3 (PTAB Feb. 29, 2016);
`see also FFF Enterprises, Inc., v. AmerisourceBergen Specialty Grp., Inc.,
`CBM2014-00154, Paper 36, (PTAB Jan. 28, 2016); Palo Alto Networks, Inc.
`v. Finjan, Inc., IPR2016-00151, Paper 50 (PTAB Feb. 24, 2017). A
`statement asserting in a conclusory manner that the exhibit “includes
`information considered sensitive by” Patent Owner is, on its face,
`insufficient to support sealing that exhibit in its entirety. Nor does the
`designation of a document as “Highly Confidential – Attorney’s Eyes Only”
`by Patent Owner during production as part of discovery demonstrate that the
`entirety of the document contains confidential information. Accordingly, we
`conclude that good cause has not been shown to seal Exhibit 1128.
`With regard to Petitioner’s Reply, in addition to the version filed
`under seal as Paper 17, Petitioner also filed a redacted version available to
`the public as Paper 18. We have reviewed the portions of Petitioner’s Reply
`that have been redacted and determine that the redactions do not appear to be
`facially excessive and appear to be tailored to encompass asserted
`confidential information. Accordingly, we grant the joint request to seal the
`unredacted version of Petitioner’s Reply (Paper 17).
`
`4
`
`
`
`IPR2017-00444
`Patent 6,915,560 B2
`
`
`As set forth in the order below, the unredacted version of Paper 17
`shall remain under seal. Exhibit 1128 shall be made publicly available after
`July 10, 2018, unless, on or before July 10, 2018, either party files a Revised
`Motion to Seal directed to Exhibit 1128, including, if good cause cannot be
`shown to seal the entire document, a redacted version of Exhibit 1128.
`It is
`ORDERED that the Joint Motion to Seal is granted, in part, and that
`the unredacted version of Petitioner’s Reply (Paper 17) shall remain under
`seal;
`
`FURTHER ORDERED that the Joint Motion to Seal is, in all other
`regards, denied; and,
`FURTHER ORDERED that Exhibit 1128 shall be made publicly
`available on July 10, 2018, unless, on or before July 10, 2018, Petitioner or
`Patent Owner files a revised Motion to Seal directed to Exhibit 1128.
`
`
`
`
`
`
`
`
`5
`
`
`
`IPR2017-00444
`Patent 6,915,560 B2
`
`PETITIONER:
`
`Craig Summers
`Brenton Babcock
`Christy Lea
`Cheryl Burgess
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2css@knobbe.com
`2brb@knobbe.com
`2cgl@knobbe.com
`2ctb@knobbe.com
`
`PATENT OWNER:
`
`Wallace Wu
`Jennifer Sklenar
`Nicholas Nyemah
`ARNOLD & PORTER KAYE SCHOLER LLP
`wallace.wu@apks.com
`jennifer.sklenar@apks.com
`nicholas.nyemah@aporter.com
`
`
`6
`
`
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