Trials@uspto.gov Paper No. 9
`571-272-7822 Entered: February 22, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS, INC.,
`Petitioner,
`
`v.
`
`MONKEYmedia, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00059
`Patent 9,247,226 B1
`____________
`
`
`
`Before MARC S. HOFF, LYNNE E. PETTIGREW, and
`KAMRAN JIVANI, Administrative Patent Judges.
`
`HOFF, Administrative Patent Judge.
`
`
`
`
`ORDER
`Authorizing Reply to Preliminary Response and Motion to Seal
`37 C.F.R. §§ 42.5, 42.54, 42.108(c)
`
`
`
`INTRODUCTION
`Petitioner contacted the Board by email dated February 9, 2018.
`Petitioner seeks leave to file a reply to Patent Owner’s Preliminary Response
`(Paper 8), filed January 17, 2018, with respect to the issue of the real party
`
`
`571-272-7822 Entered: February 22, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS, INC.,
`Petitioner,
`
`v.
`
`MONKEYmedia, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00059
`Patent 9,247,226 B1
`____________
`
`
`
`Before MARC S. HOFF, LYNNE E. PETTIGREW, and
`KAMRAN JIVANI, Administrative Patent Judges.
`
`HOFF, Administrative Patent Judge.
`
`
`
`
`ORDER
`Authorizing Reply to Preliminary Response and Motion to Seal
`37 C.F.R. §§ 42.5, 42.54, 42.108(c)
`
`
`
`INTRODUCTION
`Petitioner contacted the Board by email dated February 9, 2018.
`Petitioner seeks leave to file a reply to Patent Owner’s Preliminary Response
`(Paper 8), filed January 17, 2018, with respect to the issue of the real party
`
`
`
`IPR2018-00059
`Patent 9,247,226 B1
`in interest. Petitioner also seeks leave to file a motion to seal the Preliminary
`Response and Patent Owner’s Exhibit 2006.
`DISCUSSION
`REPLY TO PRELIMINARY RESPONSE
`Pursuant to 37 C.F.R. § 42.108(c), a “petitioner may seek leave to file
`a reply to the preliminary response,” and “[a]ny such request must make a
`showing of good cause.”
`Petitioner requests authorization to file a reply to Patent Owner’s
`Preliminary Response to respond to the issue of whether the Petition
`identifies all of the real parties in interest. Petitioner states that Patent Owner
`does not oppose this request.
`After considering the positions of the parties, we find that Petitioner
`has established good cause for further briefing with respect to the issue
`identified above. Accordingly, Petitioner is authorized to file a reply to the
`Preliminary Response to address only the issue of whether the Petition
`identifies all of the real parties in interest.
`MOTION TO SEAL
`Petitioner seeks to file a motion to seal Patent Owner’s Preliminary
`Response and Patent Owner’s Exhibit 2006 because they allegedly contain
`confidential business information of Petitioner. Petitioner states that in
`connection with a motion to seal, the parties would prepare and file redacted
`versions of both documents and a proposed protective order.
`Petitioner is authorized to file a motion to seal Patent Owner’s
`Preliminary Response and Exhibit 2006. The motion to seal shall include a
`proposed protective order, filed as an exhibit. The parties are encouraged to
`adopt the Board’s default protective order. See Default Protective Order,
`
`2
`
`
`
`IPR2018-00059
`Patent 9,247,226 B1
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,769 (App’x B).
`If the parties choose to propose a protective order deviating from the default
`protective order, they must submit the proposed protective order along with
`a marked-up comparison of the proposed and default protective orders
`showing the differences.
`The parties shall confer and agree to redacted versions of the
`Preliminary Response and Exhibit 2006, which shall be filed
`contemporaneously with the motion to seal. The unredacted versions of the
`Preliminary Response (Paper 8) and Exhibit 2006 filed previously by Patent
`Owner shall remain provisionally sealed pending a decision on the motion to
`seal. See 37 C.F.R. § 42.14.
`Petitioner is reminded that the standard for granting a motion to seal is
`“good cause.” 37 C.F.R. § 42.54(a). The filing party bears the burden of
`proof in showing entitlement to the relief requested in a motion to seal. 37
`C.F.R. § 42.20(c); see also 37 C.F.R. § 42.22(a) (A motion must include a
`“full statement of the reasons for the relief requested, including a detailed
`explanation of the significance of the evidence including material facts, and
`the governing law, rules, and precedent.”). This includes showing that the
`information is truly confidential, and that such confidentiality outweighs the
`strong public interest in making the record in an inter partes review open to
`the public.
`Petitioner’s motion, therefore, should discuss specific reasons that
`Petitioner believes each redacted portion of the Preliminary Response and
`Exhibit 2006 constitutes “confidential information” under 35 U.S.C.
`§ 316(a)(7). Petitioner should identify specific proposed redacted portions by
`page and line number, and provide particular reasons why the identified
`
`3
`
`
`
`IPR2018-00059
`Patent 9,247,226 B1
`portions constitute “confidential information” (e.g., trade secret or other
`confidential research, development, or commercial information). The
`motion also should include a detailed discussion that explains why good
`cause exists to place such “confidential information” under seal.
`
`ORDER
`
`Accordingly, it is:
`
`ORDERED that Petitioner is authorized to file a reply to Patent
`
`Owner’s Preliminary Response, addressing only the issue of whether the
`Petition identifies all of the real parties in interest;
`
`FURTHER ORDERED that the reply is limited to five pages and is
`due no later than March 2, 2018;
`
`FURTHER ORDERED that Petitioner is authorized to file a Motion
`to Seal Patent Owner’s Preliminary Response and Patent Owner’s Exhibit
`2006;
`FURTHER ORDERED that the Motion to Seal is limited to five
`
`pages and is due no later than March 2, 2018;
`
`FURTHER ORDERED that, contemporaneously with the Motion to
`Seal, Patent Owner shall file redacted versions of the Preliminary Response
`and Exhibit 2006;
`FURTHER ORDERED that Patent Owner is authorized to file an
`Opposition to Petitioner’s Motion to Seal; and
`FURTHER ORDERED that any Opposition filed by Patent Owner is
`limited to five pages and is due no later than March 9, 2018.
`
`
`
`4
`
`
`
`IPR2018-00059
`Patent 9,247,226 B1
`PETITIONER:
`Stuart A. Nelson
`W. Karl Renner
`Ryan Chowdhury
`FISH & RICHARDSON P.C.
`snelson@fr.com
`
`Ashraf Fawzy
`Jonathan Stroud
`UNIFIED PATENTS, INC.
`jonathan@unifiedpatents.com
`
`
`PATENT OWNER:
`Jonathan D. Baker
`FARNEY DANIELS PC
`jbaker@farneydaniels.com
`
`5
`
`
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