Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`Paper 60
`Entered: March 14, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CANFIELD SCIENTIFIC, INC.,
`Petitioner,
`
`v.
`
`MELANOSCAN, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-02125
`Patent 7,359,748 B1
`____________
`
`
`Before JOHN C. KERINS, MICHAEL W. KIM, and SCOTT C. MOORE,
`Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`ORDER
`Granting Motion for Protective Order and Sealing Documents
`37 C.F.R. §§ 42.5, 42.54
`
`
`
`
`571-272-7822
`
`
`
`
`
`Paper 60
`Entered: March 14, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CANFIELD SCIENTIFIC, INC.,
`Petitioner,
`
`v.
`
`MELANOSCAN, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-02125
`Patent 7,359,748 B1
`____________
`
`
`Before JOHN C. KERINS, MICHAEL W. KIM, and SCOTT C. MOORE,
`Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`ORDER
`Granting Motion for Protective Order and Sealing Documents
`37 C.F.R. §§ 42.5, 42.54
`
`
`
`
`
`IPR2017-02125
`Patent 7,359,748 B1
`
`
`
`INTRODUCTION
`I.
`On December 3, 2018, Patent Owner filed a Revised Motion to Seal
`(Paper 58, “Motion”). In its Motion, Patent Owner seeks entry of a
`protective order and asks the Board to seal Papers 33, 42, 46, and 49, and
`Exhibits 1036 and 1039. Patent Owner also submits a Proposed Protective
`Order (Exhibit 2032) that is signed by counsel for both parties. Patent
`Owner represents that the Proposed Protective Order is the “default
`protective order” set forth in the Office Patent Trial Practice Guide, 77 Fed.
`Reg. 48,756, 48,771 (Aug. 14, 2012) (“Trial Practice Guide”).
`Petitioner declined to consent to the relief sought in Patent Owner’s
`Motion. Motion, 12–13. Petitioner, however, previously informed the
`Board that it agrees to the terms of the Proposed Protective Order. Paper
`36, 1. Petitioner also did not file an Opposition to the Motion.
`For the reasons set forth below, the Motion is granted.
`
`II. REQUEST FOR ENTRY OF PROTECTIVE ORDER
`As discussed below, we determine that Patent Owner has
`demonstrated a need for a protective order to protect trade secrets and
`personal medical information. Here, the Parties have agreed to the terms of
`the Proposed Protective Order, which is substantively identical to the
`Board’s default protective order. The parties also have exchanged materials
`pursuant to the terms of this Proposed Protective Order as contemplated in
`the Trial Practice Guide. See 77 Fed. Reg. at 48,761. In these
`circumstances, we find good cause for entry of the Proposed Protective
`Order.
`
`1
`
`
`
`IPR2017-02125
`Patent 7,359,748 B1
`
`
`III. REQUEST TO SEAL PAPERS AND EXHIBITS
`There is a strong public policy that favors making information filed in
`an inter partes review open to the public. Garmin Int’l, Inc. v. Cuozzo
`Speed Techs. LLC, Case IPR2012-00001, slip op. 1–2 (PTAB Mar. 14,
`2013) (Paper 34). The standard for granting a motion to seal is good cause.
`37 C.F.R. § 42.54. That standard includes showing that the information
`addressed in the motion to seal is truly confidential, and that such
`confidentiality outweighs the strong public interest in having the record open
`to the public. See Garmin, IPR2012-00001, Paper 34, 2–3. Based on the
`Motion, the supporting Declaration, and the documents sought to be sealed,
`good cause exists to seal the Papers and Exhibits identified in the Motion.
`Redacted public versions of Papers 33, 42, 46, and 49, and Exhibits
`1036 and 1039, have been filed with the Board. See Papers 35, 43, 45, 50;
`Exhs. 1036 and 1039 (redacted versions). Patent Owner alleges that all of
`the redacted material except for one portion falls into one of the following
`five categories of trade secret information:
`(1) Financial information relating to Melanoscan’s
`business; (2) Melanoscan’s marketing and sales
`information, including customer information and
`financial information relating to its sales and
`business
`transactions;
`(3) Melanoscan’s
`confidential business practices, including practices
`involving the use of its commercial products and
`research devices to examine, diagnose and treat
`patients; (4) Details of operation, processes and
`functioning of Melanoscan’s commercial products
`and research devices; and
`(5) Confidential
`procedures, protocols, data and results of research
`and development conducted by Melanoscan.
`
`2
`
`
`
`IPR2017-02125
`Patent 7,359,748 B1
`
`Motion, 2. Patent Owner contends that the one remaining portion of
`redacted material is personal medical information that was disclosed during
`a deposition. Id. at 4.
`Patent Owner supports its assertions with a detailed declaration from
`Dr. Rhett Drugge. Exhibit 2032. This Declaration explains why each
`portion of redacted material falls into one of these five categories of trade
`secret information or constitutes personal medical information. Exhibit
`2032, ¶¶ 4–16.
`We have reviewed the materials redacted from Papers 33, 42, 46, and
`49, and Exhibits 1036 and 1039, and find Patent Owner has shown good
`cause to seal the redacted portions of these Papers and Exhibits. Patent
`Owner has shown that these redacted materials are trade secrets and personal
`medical information that are truly confidential, and that disclosure of these
`materials would result in concrete harm to Patent Owner’s business interests
`and Dr. Drugge. Given the nature of the information at issue here (trade
`secrets and personal medical information), we are persuaded that Patent
`Owner’s interest in maintaining the confidentiality of this material
`outweighs the strong public interest in having an open record.
`The Parties are reminded, however, that information subject to a
`protective order ordinarily becomes public 45 days after final judgment in a
`trial, unless a motion to expunge is granted. 37 C.F.R. § 42.56; Office
`Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,761 (Aug. 14, 2012).
`
`3
`
`
`
`IPR2017-02125
`Patent 7,359,748 B1
`
`
`IV. ORDER
`For the above reasons, it is
`ORDERED that the Proposed Protective Order (Exhibit 2032) is
`entered, and all parties and their counsel shall comply with the terms of this
`Protective Order; and
`FURTHER ORDERED that Papers 33, 42, 46, and 49, and Exhibits
`1036 and 1039, remain sealed in the Board’s document filing system.
`
`
`
`
`
`
`
`
`4
`
`
`
`IPR2017-02125
`Patent 7,359,748 B1
`
`PETITIONER
`
`Julianne Hartzell
`Sandip Patel
`Thomas Duston
`MARSHALL, GERSTEIN & BORUN LLP
`jhartzell@marshallip.com
`spatel@marshallip.com
`tduston@marshallip.com
`
`PATENT OWNER:
`
`Mark Giarratana
`Kevin Reiner
`MCCARTER & ENGLISH, LLP
`mgiarratana@mccarter.com
`kreiner@mccarter.com
`
`
`5
`
`
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