Trials@uspto.gov
`571-272-7822
`
`Paper 65
`Date: January 14, 2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`ZSCALER, INC.,
`Petitioner,
`
`v.
`
`SYMANTEC CORPORATION,
`Patent Owner.
`
`____________
`
`Case IPR2018-00912 (Patent 8,316,429 B2)
`Case IPR2018-00913 (Patent 8,316,429 B2)1
`____________
`
`Before DANIEL N. FISHMAN and MINN CHUNG,
`Administrative Patent Judges.
`
`FISHMAN, Administrative Patent Judge.
`
`
`ORDER
`Denying Petitioner’s Renewed Motion to Seal and
`Authorizing Petitioner’s Second Renewed Motion to Seal
`37 C.F.R. § 42.54
`
`
`
`1 This order addresses issues that are the same in both identified cases. We
`exercise our discretion to issue one order to be filed in each case. The
`parties are not authorized to use this style heading in subsequent papers.
`
`
`571-272-7822
`
`Paper 65
`Date: January 14, 2020
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`ZSCALER, INC.,
`Petitioner,
`
`v.
`
`SYMANTEC CORPORATION,
`Patent Owner.
`
`____________
`
`Case IPR2018-00912 (Patent 8,316,429 B2)
`Case IPR2018-00913 (Patent 8,316,429 B2)1
`____________
`
`Before DANIEL N. FISHMAN and MINN CHUNG,
`Administrative Patent Judges.
`
`FISHMAN, Administrative Patent Judge.
`
`
`ORDER
`Denying Petitioner’s Renewed Motion to Seal and
`Authorizing Petitioner’s Second Renewed Motion to Seal
`37 C.F.R. § 42.54
`
`
`
`1 This order addresses issues that are the same in both identified cases. We
`exercise our discretion to issue one order to be filed in each case. The
`parties are not authorized to use this style heading in subsequent papers.
`
`
`
`IPR2018-00912 (Patent 8,316,429 B2)
`IPR2018-00913 (Patent 8,316,429 B2)
`
`
`
`
`In our Final Written Decision in the above-captioned matters, we granted the
`
`parties’ motions to seal Exhibits 1067 and 2061 (the parties’ demonstrative
`
`exhibits) and denied the parties’ motions to seal Exhibits 1046,1055, 2010, and
`
`2059 and Papers 17, 26, and 35. Paper 50, 73. Petitioner filed an authorized
`
`Renewed Unopposed Motion to Seal seeking to seal Exhibits 1046, 1055, 2010,
`
`and 2059 and Papers 17, 26, 35, 49, and 50 (along with proposed redacted public
`
`versions of such papers and exhibits). See Paper 592 (“Renewed Mot.” or
`
`“Renewed Motion”).
`
`In a conference call on December 20, 2019 with counsel for the parties and
`
`Judges Fishman and Chung, the panel expressed its continued concerns regarding
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`the substance of Petitioner’s Renewed Motion. In the conference call, the Board
`
`expressed concerns regarding the Renewed Motion similar to the concerns that
`
`formed the basis of our denial of the original motions to seal, specifically, (1) the
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`Renewed Motion provides inadequate explanation of the nature of the alleged
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`confidential information to establish good cause for sealing of the identified papers
`
`and exhibits and (2) the proposed redactions for papers and exhibits requested to be
`
`partially sealed were, in the opinion of the Board, excessive.
`
`In the conference call, the Board noted a few proposed redactions for which
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`“good cause” could likely be established with a more detailed explanation. In
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`particular, details of Mr. Udupa’s personal finances and discussions relating to
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`Zscaler’s internal procedures for preparing and filing patent applications are
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`subjects the Board acknowledges might be shown to be confidential and, thus, may
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`be sealed for good cause.
`
`
`2 We refer only to papers filed in IPR2018-00912. Similar (identical) papers and
`exhibits are filed in IPR2018-00913.
`
`2
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`
`
`
`IPR2018-00912 (Patent 8,316,429 B2)
`IPR2018-00913 (Patent 8,316,429 B2)
`
`
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`By contrast, the Board expressed skepticism that “good cause” can be
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`
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`established to seal as confidential broad, high-level discussions regarding design
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`options in Zscaler product—discussions devoid of any detailed technical designs or
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`code (discussions by experts in declarations or depositions or discussions among
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`Zscaler personnel in certain exhibits). For example, the Board cannot conceive of
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`an argument establishing good cause for redacting page and line numbers in the
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`word index of the deposition of Mr. Udupa. Ex. 2059, 60–71.
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`In each of the above-identified matters, Petitioner is authorized to file a
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`Second Renewed Motion to Seal requesting again that certain papers and exhibits
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`be partially or entirely sealed. The second renewed motion to seal may not exceed
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`five (5) pages and will be filed no later than January 27, 2020. The second
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`renewed motion to seal will be accompanied by newly redacted versions of any
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`papers or exhibits to be partially sealed. To establish good cause for the requested
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`protection, Petitioner’s Second Renewed Motion to Seal and accompanying
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`redactions must better explain the need for confidentiality (and, thus, redaction) of
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`any alleged confidential information to cure the deficiencies noted in our Final
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`Written Decisions.
`
`The parties will confer in hopes of filing the Second Renewed Motion to
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`Seal as unopposed. However, in each of the above-identified matters, if Patent
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`Owner opposes Petitioner’s new motion to seal, Patent Owner is authorized to file
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`an Opposition to Petitioner’s Second Renewed Motion to Seal no later than
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`February 3, 2020 and not to exceed five (5) pages.
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`All presently protected papers and exhibits will remain sealed until further
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`notice from this panel.
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`
`
`3
`
`
`
`
`IPR2018-00912 (Patent 8,316,429 B2)
`IPR2018-00913 (Patent 8,316,429 B2)
`
`
`
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`Accordingly, it is:
`
`
`
`ORDERED that, in each of the above-identified matters, Petitioner is
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`authorized to file a Second Renewed Motion to Seal no later than January 27, 2020
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`and not to exceed five (5) pages;
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`FURTHER ORDERED that, in each of the above-identified matters,
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`together with its Second Renewed Motion to Seal, Petitioner shall file narrowly
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`redacted public versions of any documents sought to be sealed;
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`FURTHER ORDERED that, in each of the above-identified matters, if
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`Patent Owner opposes Petitioner’s Second Renewed Motion to Seal, Patent Owner
`
`is authorized to file an Opposition to Petitioner’s Second Renewed Motion to Seal
`
`no later than February 3, 2020 and not to exceed five (5) pages; and
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`FURTHER ORDERED that, in each of the above-identified matters, all
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`presently protected papers and exhibits in the record will remain sealed until
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`further notice from this panel.
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`4
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`
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`IPR2018-00912 (Patent 8,316,429 B2)
`IPR2018-00913 (Patent 8,316,429 B2)
`
`PETITIONER:
`
`Don Daybell
`D2dptabdocket@orrick.com
`
`Jeremy Jason Lang
`Ptabdocketjjl2@orrick.com
`
`Johannes Hsu
`Ptabdocketj1h1@orrick.com
`
`Jared Bobrow
`PTABDocketJ3B3@orrick.com
`
`
`PATENT OWNER:
`
`Chad Walters
`Chad.walters@bakerbotts.com
`
`Kurt Pankratz
`Kurt.pankratz@bakerbotts.com
`
`Clarke Stavinoha
`Clarke.stavinoha@bakerbotts.com
`
`Morgan Grissum
`Morgan.grissum@bakerbotts.com
`
`
`5
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`
`
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