UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________
`
`LSI CORPORATION and AVAGO TECHNOLOGIES U.S., INC.,
`
`Petitioners,
`
`v.
`
`REGENTS OF THE UNIVERSITY OF MINNESOTA,
`
`Patent Owner.
`
`_____________
`
`Case No. IPR2017-01068
`
`Patent No. 5,859,601
`
`_____________
`
`DEFAULT PROTECTIVE ORDER
`
`307665289 v3
`
`1
`
`LSI Corp. Exhibit 1038
`Page 1
`
`
`
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________
`
`LSI CORPORATION and AVAGO TECHNOLOGIES U.S., INC.,
`
`Petitioners,
`
`v.
`
`REGENTS OF THE UNIVERSITY OF MINNESOTA,
`
`Patent Owner.
`
`_____________
`
`Case No. IPR2017-01068
`
`Patent No. 5,859,601
`
`_____________
`
`DEFAULT PROTECTIVE ORDER
`
`307665289 v3
`
`1
`
`LSI Corp. Exhibit 1038
`Page 1
`
`
`
`The following Default Protective Order will govern the filing and treatment
`
`of confidential information in the proceeding:
`
`Default Protective Order
`
`This protective order governs the treatment and filing of confidential
`
`information, including documents and testimony.
`
`1.
`
`As used in this Protective Order, these terms have the following
`
`meanings:
`
`(a)
`
`“Party”: any Party to this action, including all of its officers, directors,
`
`employees, consultants, retained experts and consultants, and Outside
`
`Counsel (and their support staff).
`
`(b)
`
`“Material”: all information, documents, items and things produced,
`
`served or otherwise provided in this action (whether paper, electronic,
`
`tangible, or otherwise) by the Parties or by non-parties including, but not
`
`limited to, deposition testimony, transcripts and videotapes, and deposition
`
`exhibits.
`
`(c)
`
`“Producing Party”: a Party or non-party that produces Material in this
`
`action.
`
`(d)
`
`“Receiving Party”: a Party that receives Material from a Producing
`
`Party.
`
`(e)
`
`“Designating Party”: a Party or non-party that designates Material as
`
`307665289 v3
`
`2
`
`LSI Corp. Exhibit 1038
`Page 2
`
`
`
`“Confidential Information” or “Confidential -- Attorneys’ Eyes Only
`
`Information.”
`
`(f)
`
`“Confidential Information”: Material the Designating Party believes
`
`in good faith is not generally known to others, and which the Designating
`
`Party (i) would not normally reveal to third parties except in confidence or
`
`has undertaken with others to maintain in confidence; (ii) believes in good
`
`faith is protected by a right to privacy under federal or state law or any other
`
`applicable privilege or right related to confidentiality or privacy; or (iii)
`
`believes in good faith to constitute or to contain trade secrets or other
`
`confidential research, development, or commercial information. Confidential
`
`Information shall include all Material referring or relating to the foregoing,
`
`including but not limited to copies, summaries, and abstracts of the
`
`foregoing, and shall be designated as such in the manner described in
`
`Paragraph 3.
`
`(g)
`
`“Confidential -- Attorneys’ Eyes Only Information”: Material the
`
`Designating Party believes in good faith is not generally known to others
`
`and has significant value such that unrestricted disclosure to others would
`
`create a substantial risk of serious injury, and which the Designating Party
`
`(i) would not normally reveal to third parties except in confidence or has
`
`undertaken with others to maintain in confidence; (ii) believes in good faith
`
`307665289 v3
`
`3
`
`LSI Corp. Exhibit 1038
`Page 3
`
`
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`is protected by a right to privacy under federal or state law or any other
`
`applicable privilege or right related to confidentiality or privacy; or (iii)
`
`believes in good faith constitutes proprietary financial, technical or
`
`commercially sensitive competitive information that the Producing Party
`
`maintains as highly confidential in its business. “Confidential -- Attorneys’
`
`Eyes Only Information,” shall include all Material referring or relating to the
`
`foregoing, including but not limited to copies, summaries, and abstracts of
`
`the foregoing, and shall be designated as such in the manner described in
`
`Paragraph 4.
`
`(h)
`
`“Designated Material”: Material that is designated “Confidential
`
`Information” or “Confidential -- Attorneys’ Eyes Only Information.”
`
`(i)
`
`“Outside Counsel”: attorneys (including litigation and clerical support
`
`staff) at the firm that is counsel of record for a Party and who are not
`
`employees, directors, or officers of a Party or a Party’s parents, affiliates, or
`
`subsidiaries.
`
`(j)
`
`“Outside Consultant”: a person with specialized knowledge or
`
`experience in a matter pertinent to this action who has been retained by a
`
`Party or its Outside Counsel to serve as an expert witness or as a consultant
`
`in this action and who is not: (i) a past, current, or anticipated employee of a
`
`Party or of a Party’s competitor; or (ii) a consultant involved in product
`
`307665289 v3
`
`4
`
`LSI Corp. Exhibit 1038
`Page 4
`
`
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`and/or process design or development for a Party or for a Party’s competitor.
`
`(k)
`
`“Professional Vendors”: persons or entities that provide litigation
`
`support services (e.g., photocopying, videotaping, translating, preparing
`
`exhibits or demonstrations, organizing or processing data) and their
`
`employees and subcontractors. Court reporters and videographers are
`
`included. Professional Vendors do not include consultants who fall within
`
`the definition of Outside Consultant.
`
`(l)
`
`“Written Assurance”: an executed document in the form attached as
`
`Exhibit A.
`
`2.
`
`1. Confidential informationDesignated Material shall be clearly
`
`marked “PROTECTIVE ORDER MATERIALCONFIDENTIAL
`
`INFORMATION” or “CONFIDENTIAL - ATTORNEYS’ EYES ONLY
`
`INFORMATION.”
`
`3.
`
`Access to information marked “CONFIDENTIAL INFORMATION”
`
`may be disclosed to the Receiving Party only to the following individuals
`
`provided that such individuals are informed of the terms of this Protective Order:
`
`(a) two (2) employees of the Receiving Party who are required in good faith to
`
`provide assistance in the conduct of this litigation, including any settlement
`
`307665289 v3
`
`5
`
`LSI Corp. Exhibit 1038
`Page 5
`
`
`
`discussions, and who are identified as such in writing to counsel for the
`
`Designating Party in advance of the disclosure; (b) two (2) in-house counsel who
`
`are identified by the Receiving Party to the Producing Party prior to disclosure;
`
`(c) Outside Counsel; (d) Outside Consultants; and (e) Professional Vendors.
`
`2. Access to confidential information is limited to the following individuals
`
`who have executed the acknowledgment appended to this order:
`
`(A) Parties. Persons who are owners of a patent involved in the proceeding
`
`and other persons who are named parties to the proceeding.
`
`(B) Party Representatives. Representatives of record for a party in the
`
`proceeding.
`
`(C) Experts. Retained experts of a party in the proceeding who further
`
`certify in the Acknowledgement that they are not a competitor to any
`
`party, or a consultant for, or employed by, such a competitor with
`
`respect to the subject matter of the proceeding.
`
`(D) In-house counsel. In-house counsel of a party.
`
`4.
`
`Access to information marked “CONFIDENTIAL - ATTORNEYS’
`
`EYES ONLY INFORMATION” may be disclosed by the Receiving Party only to
`
`the following individuals provided that such individuals are informed of the terms
`
`of this Protective Order: (a) Outside Counsel; (b) Outside Consultants; and (c)
`
`Professional Vendors.
`
`307665289 v3
`
`6
`
`LSI Corp. Exhibit 1038
`Page 6
`
`
`
`5.
`
`(E) Support Personnel. Administrative assistants, clerical staff, court
`
`reporters and other support personnel of the foregoing persons who are reasonably
`
`necessary to assist those persons in the proceeding shall not be required to sign an
`
`Acknowledgementthe Written Assurance, but shall be informed of the terms and
`
`requirements of the Protective Order by the person they are supporting who
`
`receives confidential informationDesignated Material.
`
`6.
`
`(F) The Office. Employees and representatives of the United States
`
`Patent and Trademark Office who have a need for access to the confidential
`
`informationDesignated Material shall have such access without the requirement to
`
`sign an Acknowledgementthe Written Assurance. Such employees and
`
`representatives shall include the Director, members of the Board and their clerical
`
`staff, other support personnel, court reporters, and other persons acting on behalf of
`
`the Office.
`
`3. Employees (e.g., corporate officers), consultants, or other persons
`
`performing work for a party, other than in-house counsel and in-house
`
`counsel’s support staff, who sign the Acknowledgement shall be extended
`
`access to confidential information only upon agreement of the parties or by
`
`order of the Board upon a motion brought by the party seeking to disclose
`
`307665289 v3
`
`7
`
`LSI Corp. Exhibit 1038
`Page 7
`
`
`
`confidential information to that person. The party opposing disclosure to that
`
`person shall have the burden of proving that such person should be restricted
`
`from access to confidential information.
`
`7.
`
`4. Persons receiving confidential informationDesignated Material
`
`shall use reasonable efforts to maintain the confidentiality of the information,
`
`including:
`
`(A)Maintaining such information in a secure location to which persons
`
`not authorized to receive the information shall not have access;
`
`(B)Otherwise using reasonable efforts to maintain the confidentiality of
`
`the informationDesignated Material, which efforts shall be no less
`
`rigorous than those the recipient uses to maintain the confidentiality of
`
`confidential information not received from the disclosing partyDisclosing
`
`Party;
`
`(C)Ensuring that support personnel of the recipient who have access to
`
`the confidential informationDesignated Material understand and abide
`
`by the obligation to maintain the confidentiality of information received
`
`that is designated as confidentialDesignated Material; and
`
`(D)Limiting the copying of confidential informationDesignated Material to
`
`a reasonable number of copies needed for conduct of the proceeding and
`
`maintaining a record of the locations of such copies.
`
`307665289 v3
`
`8
`
`LSI Corp. Exhibit 1038
`Page 8
`
`
`
`8.
`
`5. Persons receiving confidential informationDesignated
`
`Material shall use the following procedures to maintain the confidentiality
`
`of the informationDesignated Material:
`
`(A) Documents and Information Filed With the Board.
`
`(i)
`
`A party may file documents or information with the Board along with
`
`a Motion to Seal. The Motion to Seal should provide a non-confidential
`
`description of the nature of the confidential informationDesignated Material
`
`that is under seal, and set forth the reasons why the information is
`
`confidential and should not be made available to the public. A party may
`
`challenge the confidentiality of the informationDesignated Material by
`
`opposing the Motion to Seal. The submission shall be treated as confidential
`
`and remain under seal, unless the Board determines that the documents or
`
`information do not to qualify for confidential treatment. The information
`
`shall remain under seal unless the Board determines that some or all of the
`
`information does not qualify for confidential treatment.
`
`(ii) 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
`
`307665289 v3
`
`9
`
`LSI Corp. Exhibit 1038
`Page 9
`
`
`
`information redacted from the non-confidential version is confidential and
`
`should not be made available to the public. A party may challenge the
`
`confidentiality of the information by opposing the Motion to Seal. The non-
`
`confidential 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. The redacted information shall remain
`
`under seal unless the Board determines that some or all of the redacted
`
`information does not qualify for confidential treatment.
`
`(B) Documents and Information Exchanged Among the Parties.
`
`DocumentsDesignated Material (including deposition transcripts) and other
`
`information designated as confidential that arethat is disclosed to another
`
`party during discovery or other proceedings before the Board shall be clearly
`
`marked as “PROTECTIVE ORDER MATERIAL”Designated Material
`
`under this Protective Order and shall be produced in a manner that maintains
`
`its confidentiality.
`
`9.
`
`6. Within 60 days after the final disposition of this action, including
`
`the exhaustion of all appeals and motions, each party receiving confidential
`
`informationDesignated Material must return, or certify the destruction of, all
`
`copies of the confidential information to the producing partyDesignated Material to
`
`307665289 v3
`
`10
`
`LSI Corp. Exhibit 1038
`Page 10
`
`
`
`the Producing Party, unless otherwise agreed to in writing by the Parties.
`
`(k) Standard Acknowledgement of Protective Order. The following form may be
`
`used to acknowledge a protective order and gain access to information covered by
`
`the protective order:
`
`[CAPTION]
`
`Standard Acknowledgment for Access to Protective Order Material
`
`307665289 v3
`
`11
`
`LSI Corp. Exhibit 1038
`Page 11
`
`
`
`EXHIBIT A
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________
`
`LSI CORPORATION and AVAGO TECHNOLOGIES U.S., INC.,
`
`Petitioners,
`
`v.
`
`REGENTS OF THE UNIVERSITY OF MINNESOTA,
`
`Patent Owner.
`
`_____________
`
`Case No. IPR2017-01068
`
`Patent No. 5,859,601
`
`_____________
`
`WRITTEN ASSURANCE
`
`307665289 v3
`
`12
`
`LSI Corp. Exhibit 1038
`Page 12
`
`
`
`I
`
`, affirm that I have
`
`read the Protective Order; that I will abide by its terms; that I will use the
`
`confidential informationDesignated Material only in connection with this
`
`proceeding and for no other purpose; that I will only allow access to support staff
`
`who are reasonably necessary to assist me in this proceeding; that prior to any
`
`disclosure to such support staff I informed or will inform them of the requirements
`
`of the Protective Order; that I am personally responsible for the requirements of the
`
`terms of the Protective Order and I agree to submit to the jurisdiction of the Office
`
`and the United States District Court for the Eastern District of Virginia for
`
`purposes of enforcing the terms of the Protective Order and providing remedies for
`
`its breach.
`
`[Signature]
`
`307665289 v3
`
`13
`
`LSI Corp. Exhibit 1038
`Page 13
`
`
`
`Summary report:
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`8/19/2020 8:07:33 AM
`
`Style name: KL Standard
`Intelligent Table Comparison: Active
`Original DMS:
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`Modified DMS:
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`142
`
`LSI Corp. Exhibit 1038
`Page 14
`
`
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