Trials@uspto.gov
`571-272-7822
`
`
` Paper 60
`Entered: January 8, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION,
`Petitioner,
`
`v.
`
`SIEMENS MOBILITY, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01669 (Patent 6,824,110 B2)
`Case IPR2017-02044 (Patent 6,609,049 B1)1
`
`
`
`Before KRISTEN L. DROESCH, MEREDITH C. PETRAVICK, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`DROESCH, Administrative Patent Judge.
`
`DECISION
`Patent Owner’s Motions to Seal Exhibit 2017 and
`Submission of Supplemental Information
`Petitioner’s Motions to Seal Response to Supplemental Information
`Petitioner’s Motions to Seal Motion to Exclude Ex. 2017
`Patent Owner’s Motions to Seal Opposition to Motion to Exclude Ex. 2017
`37 C.F.R. §§ 42.14, 42.54
`
`1 This Order applies to each of the above-listed proceedings. We exercise
`our discretion to issue one Order to be filed in each proceeding. The
`parties are not authorized to use this heading style in any subsequent
`papers.
`
`
`
`
`
`
`
`571-272-7822
`
`
` Paper 60
`Entered: January 8, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION,
`Petitioner,
`
`v.
`
`SIEMENS MOBILITY, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01669 (Patent 6,824,110 B2)
`Case IPR2017-02044 (Patent 6,609,049 B1)1
`
`
`
`Before KRISTEN L. DROESCH, MEREDITH C. PETRAVICK, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`DROESCH, Administrative Patent Judge.
`
`DECISION
`Patent Owner’s Motions to Seal Exhibit 2017 and
`Submission of Supplemental Information
`Petitioner’s Motions to Seal Response to Supplemental Information
`Petitioner’s Motions to Seal Motion to Exclude Ex. 2017
`Patent Owner’s Motions to Seal Opposition to Motion to Exclude Ex. 2017
`37 C.F.R. §§ 42.14, 42.54
`
`1 This Order applies to each of the above-listed proceedings. We exercise
`our discretion to issue one Order to be filed in each proceeding. The
`parties are not authorized to use this heading style in any subsequent
`papers.
`
`
`
`
`
`
`
`
`IPR2017-01669 (Patent 6,824,110 B2)
`IPR2017-02044 (Patent 6,609,049 B1)
`
`Patent Owner filed a Motion to Seal Exhibit 2017 and Patent Owner’s
`Submission of Supplemental Information in IPR2017-01669 (“1669 IPR”),
`and an identical Motion to Seal Exhibit 2017 and Patent Owner’s
`Submission of Supplemental Information in IPR2017-02044 (“2044 IPR”).
`1669 IPR, Paper 39; 2044 IPR, Paper 42 (“Motion to Seal Ex. 2017 & Supp.
`Info.”).2 Patent Owner also filed a redacted version of its Submission of
`Supplemental Information (1669 IPR, Paper 41; 2044 IPR, Paper 44) and a
`redacted version of Exhibit 2017 in each IPR, to be available to the public.
`
`Related to Exhibit 2017 and the Submission of Supplemental
`Information, Petitioner filed a Motion to Seal Petitioner’s Response to Patent
`Owner’s Supplemental Information in the 1669 IPR (1669 IPR, Paper 47),
`and an identical Motion to Seal Petitioner’s Response to Patent Owner’s
`Supplemental Information in the 2044 IPR (2044 IPR, Paper 50). 1669 IPR,
`Paper 46; 2044 IPR, Paper 49 (“Mot. to Seal Resp. Supp. Info.”).3 Petitioner
`also filed a redacted version of its Response in each IPR (1669 IPR, Paper
`48; 2044 IPR, Paper 51), to be available to the public.
`
`Also related to Exhibit 2017 and the Submission of Supplemental
`Information, Petitioner filed a Motion to Seal Petitioner’s Motion to Exclude
`Exhibit 2017 in the 1669 IPR (1669 IPR, Paper 52), and an identical Motion
`to Seal Petitioner’s Motion to Exclude Exhibit 2017 in the 2044 IPR (2044
`IPR, Paper 55). 1669 IPR, Paper 51; 2044 IPR, Paper 54 (“Mot. to Seal
`
`
`2 All references to “Mot. to Seal Ex. 2017 & Supp. Info.” are to IPR2017-
`01669, Paper 39.
`3 All references to “Mot. to Seal Resp. Supp. Info” are to IPR2017-01669,
`Paper 46.
`
`2
`
`
`
`IPR2017-01669 (Patent 6,824,110 B2)
`IPR2017-02044 (Patent 6,609,049 B1)
`MTE Ex. 2017”).4 Petitioner filed a redacted version of its Motion to
`Exclude Ex. 2017 in each IPR (1669 IPR, Paper 53; 2044 IPR, Paper 56), to
`be available to the public.
`
`Patent Owner filed a Motion to Seal Patent Owner’s Opposition to
`Petitioner’s Motion to Exclude Exhibit 2017 in the 1669 IPR (1669 IPR,
`Paper 55), and an identical Motion to Seal Patent Owner’s Opposition
`Petitioner’s Motion to Exclude Exhibit 2017 in the 2044 IPR (2044 IPR,
`Paper 58). 1669 IPR, Paper 54; 2044 IPR, Paper 57 (“Mot. to Seal Opp.
`MTE Ex. 2017”).5 Patent Owner filed a redacted version of its Motion to
`Seal Patent Owner’s Opposition in each IPR (1669 IPR, Paper 56; 2044 IPR,
`Paper 59), to be available to the public.
`
`The standard for granting a motion to seal is “good cause.” 37 C.F.R.
`§ 42.54. There is a strong public policy that favors making information filed
`in an inter partes review open to the public. See Garmin Int’l v. Cuozzo
`Speed Techs., LLC, Case IPR2012-00001, slip op. at 1–2 (PTAB Mar. 14,
`2013) (Paper 34) (discussing the standards applied to motions to seal). The
`moving party bears the burden of showing that the relief requested should be
`granted. 37 C.F.R. § 42.20(c). The burden includes showing why the
`information is confidential. See Garmin, slip op. at 3.
`
`Patent Owner asserts good cause exists for sealing Exhibit 2017
`because it is a confidential license agreement between Patent Owner and
`Norfolk Southern Corporation, which sets forth the confidentiality
`obligations of the parties in the document itself. Motion to Seal Ex. 2017 &
`
`4 All references to “Mot. to Seal MTE Ex. 2017” are to IPR2017-01669,
`Paper 51.
`5 All references to “Mot. to Seal Opp. MTE Ex. 2017” are to IPR2017-
`01669, Paper 54.
`
`3
`
`
`
`IPR2017-01669 (Patent 6,824,110 B2)
`IPR2017-02044 (Patent 6,609,049 B1)
`Supp. Info. 1 (citing Ex. 2017, 5 ¶ 8). Patent Owner asserts that it “believes
`it is obligated to maintain confidentiality of this license agreement as
`‘Protective Order Material’ in accordance with the Stipulated Protective
`Order.” See id. According to Patent Owner, both Patent Owner and Norfolk
`Southern treat this agreement as confidential because the license agreement
`terms could have significant value to competitors. See id. Patent Owner
`asserts that the license agreement contains Patent Owner’s and Norfolk
`Southern’s confidential information, and should be subject to the protections
`of the Board’s protective order. See id. at 1–2. Patent Owner contends that,
`if the license agreement was made public, both Patent Owner and the
`licensee “would be irreparably harmed” [because] such disclosure would
`provide the public at-large with direct insight into the parties’ closely-held
`business terms.” See id. at 2. Patent Owner represents that it “has received
`permission from Norfolk Southern to use the license with the financial terms
`redacted in the IPR on the condition that it is treated as confidential pursuant
`to the Board’s protective order.” See id. Patent Owner also asserts good
`cause exists for sealing its Submission of Supplemental Information because
`the redacted text includes a four word quotation from Ex. 2017, which
`constitutes confidential information of Patent Owner and Norfolk Southern.
`See id. (citing Ex. 2017, 5 ¶ 8). Petitioner did not file an opposition to
`Patent Owner’s Motion to Seal Exhibit 2017 and Patent Owner’s
`Submission of Supplemental Information.
`
`We have considered Patent Owner’s Motions and the information
`contained in Exhibit 2017 and Patent Owner’s Submissions of Supplemental
`Information. We are persuaded Patent Owner has demonstrated sufficiently
`that Exhibit 2017 and Patent Owner’s Submission of Supplemental
`Information include confidential information that should be sealed.
`
`4
`
`
`
`IPR2017-01669 (Patent 6,824,110 B2)
`IPR2017-02044 (Patent 6,609,049 B1)
`Accordingly, Patent Owner’s Motions to Seal Exhibit 2017 and Patent
`Owner’s Submission of Supplemental Information are granted.
`
`As to Petitioner’s Motions to Seal Petitioner’s Response to Patent
`Owner’s Submission of Supplemental Information, Petitioner asserts that its
`“Response extensively discusses Exhibit 2017 which Patent Owner has
`indicated is “a confidential license agreement” that “contains Patent Owner’s
`confidential information, and the confidential information of the nonparty
`licensee [Norfolk Southern] (NS), and should be subject to the protections of
`the Board’s protective order.” Mot. to Seal Resp. Supp. Info. 2 (citing
`Motion to Seal Ex. 2017 & Supp. Info.). According to Petitioner, “Patent
`Owner contends that Petitioner’s Response contains information that is
`confidential and subject to the previously-filed Default Protective Order
`(Exhibit 2015) for the reasons set forth in its Motion to Seal Exhibit 2017
`and Patent Owner’s Submission of Supplemental Information.” See id.
`(citing Motion to Seal Ex. 2017 & Supp. Info.). As to Petitioner’s Motions
`to Seal Petitioner’s Motion to Exclude Exhibit 2017, Petitioner reiterates its
`reasons that the information is confidential set forth in its Motion to Seal
`Petitioner’s Response to Patent Owner’s Submission of Supplemental
`Information. Compare Mot. to Seal MTE Ex. 2017 1–2, with Motion to Seal
`Ex. 2017 & Supp. Info. 1–2. Petitioner represents that Patent Owner does
`not oppose its motions. See Motion to Seal Ex. 2017 & Supp. Info. 1; Mot.
`to Seal MTE Ex. 2017 1.
`
`We have considered Petitioner’s Motions to Seal Petitioner’s
`Response to Patent Owner’s Submission of Supplemental Information and
`Petitioner’s Motions to Seal Petitioner’s Motion to Exclude Exhibit 2017,
`and the information therein. We are persuaded that Petitioner’s Response to
`Patent Owner’s Submission of Supplemental Information and Petitioner’s
`
`5
`
`
`
`IPR2017-01669 (Patent 6,824,110 B2)
`IPR2017-02044 (Patent 6,609,049 B1)
`Motion to Exclude Exhibit 2017 include confidential information that should
`be sealed. Accordingly, Petitioner’s Motions to Seal Petitioner’s Response
`to Patent Owner’s Submission of Supplemental Information and Petitioner’s
`Motions to Seal Petitioner’s Motion to Exclude Ex. 2017 are granted.
`
`As to Patent Owner’s Motions to Seal Patent Owner’s Opposition to
`Petitioner’s Motion to Exclude Ex. 2017, Patent Owner asserts that it
`requests the redaction of certain portions of several paragraphs in its
`Opposition because those portions either describe and/or characterize the
`license terms that constitute confidential information in the license
`document. See Mot. to Seal Opp. MTE Ex. 2017 1. According to Patent
`Owner, “[i]f other third parties were able to access such information, Patent
`Owner submits that it and the non-party licensee would be irreparably
`harmed as such disclosure would provide the public at-large with direct
`insight into the parties’ closely-held business terms,” such as providing third
`parties with “an unfair business advantage with respect to future licensing
`negotiations concerning this patent, or others maintained by Patent Owner.”
`Id. at 1–2. Petitioner represents that Patent Owner does not oppose its
`Motions. See id. at 1.
`
`We have considered Patent Owner’s Motions to Seal Patent Owner’s
`Opposition to Petitioner’s Motion to Exclude Exhibit 2017, and the
`information contained therein. We are persuaded that Patent Owner’s
`Opposition to Petitioner’s Motions to Exclude Exhibit 2017 includes
`confidential information that should be sealed. Accordingly, Patent Owner’s
`Motions to Seal Patent Owner’s Opposition to Petitioner’s Motion to
`Exclude Exhibit 2017 are granted.
`
`6
`
`
`
`IPR2017-01669 (Patent 6,824,110 B2)
`IPR2017-02044 (Patent 6,609,049 B1)
`ORDER
`
`
`Accordingly, it is
`
`ORDERED that Patent Owner’s Motions to Seal Exhibit 2017 and
`
`Patent Owner’s Submission of Supplemental Information are granted;
`
`FURTHER ORDERED that Petitioner’s Motions to Seal Petitioner’s
`Response to Patent Owner’s Submission of Supplemental Information are
`granted;
`
`FURTHER ORDERED that Petitioner’s Motions to Seal Petitioner’s
`Motion to Exclude Ex. 2017 are granted; and
`
`FURTHER ORDERED that Patent Owner’s Motions to Seal Patent
`Owner’s Opposition to Petitioner’s Motion to Exclude Exhibit 2017 are
`granted.
`
`
`
`
`
`
`
`
`
`
`
`7
`
`
`
`IPR2017-01669 (Patent 6,824,110 B2)
`IPR2017-02044 (Patent 6,609,049 B1)
`PETITIONER:
`Jason A. Engel
`Alan L. Barry
`Benjamin E. Weed
`Tina Thomas
`Erik Halverson
`K&L GATES LLP
`Jason.Engel.PTAB@klgates.com
`alan.barry@klgates.com
`benjamin.weed.PTAB@klgates.com
`tina.thomas@klgates.com
`erik.halverson@klgates.com
`
`PATENT OWNER:
`Jeffrey D. Sanok
`Mark M. Supko
`Vincent J. Galluzzo
`Scott Bittman
`CROWELL & MORING LLP
`jsanok@crowell.com
`msupko@crowell.com
`vgalluzzo@crowell.com
`sbittman@crowell.com
`
`
`
`8
`
`
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