`571-272-7822
`
`
`
`
`Paper 15
`Entered: September 20, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`TELULAR CORPORATION,
`Petitioner,
`
`v.
`
`PERDIEM CO., LLC.,
`Patent Owner.
`
`
`Cases1
`IPR2017-00968 (Patent 9,485,314 B2)
`IPR2017-00969 (Patent 8,149,113 B2)
`IPR2017-00973 (Patent 9,319,471 B2)
`__________________________
`
`Before WILLIAM V. SAINDON, CARL M. DEFRANCO, and
`AMBER L. HAGY, Administrative Patent Judges.
`
`HAGY, Administrative Patent Judge.
`
`
`
`
`ORDER
`Patent Owner’s Motion to Seal
`37 C.F.R. §§ 42.14
`
`
`1 This Order addresses issues that are substantially similar in the cases. We
`exercise our discretion to issue one order to be filed in each case.
`
`
`
`IPR2017-00968 (Patent 9,485,314 B2)
`IPR2017-00969 (Patent 8,149,113 B2)
`IPR2017-00973 (Patent 9,319,471 B2)
`
`
`Patent Owner’s Motion to Seal
`A.
`On June 29, 2017, pursuant to 37 C.F.R. § 42.14, Patent Owner filed a
`
`Motion to Seal requesting sealing of Exhibit 2013. Paper 8, 1 (“Patent
`Owner’s Mot. to Seal”).2 Exhibit 2013 purports to be a “Settlement
`Agreement” that is marked “Confidential.” Ex. 2013. Patent Owner states
`“Petitioner has indicated that it does not oppose this motion.” Patent
`Owner’s Mot. to Seal 1.
`
`B. Analysis
`There is a strong public policy in favor of making information filed in
`
`an inter partes review open to the public, especially because these
`proceedings determine the patentability of claims in issued patents and,
`therefore, affect the rights of the public. Under 35 U.S.C. § 326(a)(1) and 37
`C.F.R. § 42.14, the default rule is that all papers filed in an inter partes
`review are open and available for access by the public; a party, however,
`may file a concurrent motion to seal, and the information at issue is sealed
`pending the outcome of the motion. It is, however, only “confidential
`information” that is protected from disclosure. 35 U.S.C. § 316(a)(7); see
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48760 (Aug. 14,
`2012).
`
`The standard for granting a motion to seal is “for good cause.” 37
`C.F.R. § 42.54. The party moving to seal bears the burden of proof of
`
`
`2 Identification of Exhibits and Papers herein, unless otherwise indicated,
`refer to those filed in IPR2017-00968. The corresponding Papers and
`Exhibits in the other two proceedings are: Paper 8 (IPR2017-00969), Ex.
`2013; and Paper 8 (IPR2017-00973), Ex. 2013.
`2
`
`
`
`
`
`IPR2017-00968 (Patent 9,485,314 B2)
`IPR2017-00969 (Patent 8,149,113 B2)
`IPR2017-00973 (Patent 9,319,471 B2)
`
`showing entitlement to the requested relief, and establishing that information
`sought to be sealed is confidential information. 37 C.F.R. § 42.20(c).
`
`Patent Owner filed Exhibit 2013 in support of its Preliminary
`Response to the Petition.3 Patent Owner represents that Exhibit 2013 is a
`“confidential settlement agreement” that “is not publicly known and should
`remain confidential.” Patent Owner’s Mot. to Seal 1.
`
`We agree that Exhibit 2013, on its face, appears to contain
`confidential business information. Further, this exhibit is offered as
`evidence directed to an issue only tangentially related to the patentability of
`the patents at issue—namely, Patent Owner’s assertions regarding the
`context in which inter partes review was sought. We, therefore, are
`persuaded that Patent Owner shows good cause for sealing Exhibit 2013 in
`its entirety. Accordingly, we grant Patent Owner’s Motion to Seal.
`
`The parties are advised that, according to the Office Patent Trial
`Practice Guide, 77 Fed. Reg. 48,756, 48,761 (Aug. 14, 2012) (“Trial Practice
`Guide”):
`Confidential information that is subject to a protective order
`ordinarily would become public 45 days after denial of a
`petition to institute a trial or 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
`decision to grant or deny a request to institute a review or is
`identified in a final written decision following a trial. A party
`seeking to maintain the confidentiality of information, however,
`may file a motion to expunge the information from the record
`prior to the information becoming public. [37 C.F.R.] § 42.56.
`
`
`
`
`3 In IPR2017-00968, Paper 7. Similar papers exist in the other proceedings.
`3
`
`
`
`
`
`IPR2017-00968 (Patent 9,485,314 B2)
`IPR2017-00969 (Patent 8,149,113 B2)
`IPR2017-00973 (Patent 9,319,471 B2)
`
`IT IS:
`ORDERED that Patent Owner’s Motion to Seal is granted and Exhibit
`
`2013 shall be sealed in each case.
`
`
`
`
`
`4
`
`
`
`IPR2017-00968 (Patent 9,485,314 B2)
`IPR2017-00969 (Patent 8,149,113 B2)
`IPR2017-00973 (Patent 9,319,471 B2)
`
`PETITIONER:
`
`
`Vivek Ganti
`Steven Hill
`HILL, KERTSCHER & WHARTON, LLP
`vg@hkw-law.com
`perdiemIPR@hkw-law.com
`
`PATENT OWNER:
`
`Alan Whitehurst
`Marissa R. Ducca
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`alanwhitehurst@quinnemanuel.com
`marissaducca@quinnemanuel.com
`PERDIEM-IPR@quinnemanuel.com
`
`Robert Babayi
`VECTOR IP LAW GROUP
`robert@vectoriplaw.com
`
`
`
`5
`
`
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