Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`Paper 73
`Date: November 28, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS INC.,
`Petitioner,
`
`v.
`
`BRADIUM TECHNOLOGIES LLC,
`Patent Owner.
`____________
`
`Case IPR2018-00952
`Patent 9,253,239 B2
`
`
`
`Before BRYAN F. MOORE, BRIAN J. McNAMARA and MINN CHUNG,
`Administrative Patent Judges.
`
`CHUNG, Administrative Patent Judge.
`
`
`
`
`DECISION
`Granting-In-Part Petitioner’s Renewed Motion to Seal
`Granting-In-Part Petitioner’s Motion to Expunge
`37 C.F.R. §§ 42.14, 42.54, 42.56
`
`
`
`
`
`
`
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`
`
`
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`571-272-7822
`
`
`
`
`
`Paper 73
`Date: November 28, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS INC.,
`Petitioner,
`
`v.
`
`BRADIUM TECHNOLOGIES LLC,
`Patent Owner.
`____________
`
`Case IPR2018-00952
`Patent 9,253,239 B2
`
`
`
`Before BRYAN F. MOORE, BRIAN J. McNAMARA and MINN CHUNG,
`Administrative Patent Judges.
`
`CHUNG, Administrative Patent Judge.
`
`
`
`
`DECISION
`Granting-In-Part Petitioner’s Renewed Motion to Seal
`Granting-In-Part Petitioner’s Motion to Expunge
`37 C.F.R. §§ 42.14, 42.54, 42.56
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2018-00952
`Patent 9,253,239 B2
`
`
`
`I. DISCUSSION
`When the Final Written Decision (Paper 60) issued in this proceeding,
`the record was preserved in its entirety, and the papers and exhibits filed
`under seal remain protected, pending further developments, including
`resolution of appeal, if any. See Paper 62, 4; Paper 60, 79. The time period
`for filing a notice of appeal has expired without any party filing an appeal.
`On June 23, 2021, a Trial Certificate was issued cancelling claim 20, the
`sole remaining challenged claim, of U.S. Patent No. 9,253,239 B2
`(Ex. 1001, “the ’239 patent”), as “finally determined to be unpatentable”
`under 35 U.S.C. § 318(b). Ex. 3001; see also Ex. 2027 (Patent Owner’s
`statutory disclaimer of claims 1–19 and 21–25 of the ’239 patent); Paper 60,
`2–3.
`
`Pursuant to our authorization (Paper 62), Petitioner filed an
`Unopposed Renewed Motion to Seal (Paper 70, “Renewed Motion to Seal”
`or “MTS”), seeking to seal various papers and exhibits containing allegedly
`confidential information relating to the real party-in-interest issue. In
`addition, Petitioner filed a Motion to Expunge Confidential Information
`(Paper 72, “Motion to Expunge” or “MTE”), requesting that the sealed
`documents be expunged from the record of this proceeding. Patent Owner
`has not opposed either motion. The standard for granting a motion to seal is
`“for good cause.” 37 C.F.R. § 42.54(a).
`A strong public policy exists for making information filed in an inter
`partes review publicly available. 37 C.F.R. § 42.14; see also Consolidated
`Trial Practice Guide 19 (“CTPG,” available at
`https://www.uspto.gov/TrialPracticeGuideConsolidated). Because sealed
`2
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`IPR2018-00952
`Patent 9,253,239 B2
`
`
`information ordinarily becomes publicly available after final judgment, a
`party wishing to preserve its confidentiality may file a motion to expunge
`the information from the record. Id. at 21–22; 37 C.F.R. § 42.56. This rule
`balances the public’s interest in maintaining a complete and understandable
`file history with the party’s interest in protecting its truly sensitive,
`confidential information. CTPG 19, 22. Further, the parties are encouraged
`to redact confidential information, where possible, rather than seeking to
`seal entire documents. Id. at 22.
`For the reasons explained below, Petitioner’s Renewed Motion to Seal
`and Motion to Expunge are each granted-in-part.
`
`A. Exhibits 2008 and 2009
`In our Final Written Decision, we granted Petitioner’s motion to seal
`Exhibits 2008 and 2009—which contain Petitioner’s Member Agreement
`and Subscription Form—in their entirety. Paper 60, 76; Paper 18. In its
`Motion to Expunge, Petitioner requests that Exhibits 2008 and 2009 be
`expunged from the record of this proceeding. MTE 3. The Final Written
`Decision did not discuss in detail or rely on any confidential information
`included in these exhibits in deciding any of the issues presented. See
`generally Paper 60. At this stage of the proceeding, we determine that
`expunging Exhibits 2008 and 2009 would not hinder the public’s ability to
`understand the Final Written Decision based on an understandable file
`history of the trial. Accordingly, we grant Petitioner’s Motion to Expunge
`Exhibits 2008 and 2009.
`
`
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`IPR2018-00952
`Patent 9,253,239 B2
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`B. Exhibits 2004 and 2013
`According to Petitioner, Exhibit 2013 is Petitioner’s Voluntary
`Interrogatory Responses of Kevin Jakel and Exhibit 2004 is a deposition
`transcript of Kevin Jakel, both of which include Petitioner’s confidential
`information as well as non-confidential information. MTS 3–4. Pursuant to
`our order (Paper 62), Petitioner submitted redacted versions of Exhibits 2004
`and 2013 as Exhibits 1033 and 1032, respectively. MTE 3. Petitioner
`moves to seal and expunge the unredacted versions—Exhibits 2004 and
`2013. MTS 3–4; MTE 1–6.
`Having reviewed these exhibits, we determine that Exhibits 1032 and
`1033 are narrowly redacted. Further, the Final Written Decision did not
`discuss in detail or rely on any confidential information included in
`Exhibits 2004 and 2013 in deciding any of the issues presented. See
`generally Paper 60. Thus, expunging Exhibits 2004 and 2013 would not
`hinder the public’s ability to understand the Final Written Decision based on
`an understandable file history of the trial. Accordingly, we grant Petitioner’s
`motions to seal and expunge Exhibits 2004 and 2013.
`
`C. Papers 19, 25, 30, 38, and 45
`In the Final Written Decision, we denied without prejudice
`Petitioner’s motion to seal unredacted versions of various papers allegedly
`containing confidential information—including Preliminary Response
`(Paper 19), Reply to Preliminary Response (Paper 25), Sur-Reply to
`Preliminary Response (Paper 30), Patent Owner Response (Paper 38), and
`Sur-Reply (Paper 45)—because the redacted versions of these papers were
`
`
`
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`4
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`IPR2018-00952
`Patent 9,253,239 B2
`
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`not narrowly tailored. Paper 60, 77–78. Pursuant to the Order Authorizing
`Petitioner’s Renewed Motion to Seal (Paper 62), Petitioner submitted
`revised, redacted versions of these papers, which Petitioner argues include
`“more targeted redactions to keep highly confidential information from the
`public.” MTS 4; MTE 3–4 (identifying the revised, redacted versions of
`Papers 19, 25, 30, 38, and 45 as Papers 63, 64, 65, 66, and 67, respectively).
`Petitioner identifies the alleged confidential information contained in the
`unredacted versions and explains why the information sought to be sealed
`qualifies as confidential information under 37 C.F.R. § 42.54. MTS 4–5.
`Having reviewed these papers, we determine that the proposed
`redactions in the revised, redacted versions of the papers are narrowly
`tailored. Further, the Final Written Decision did not discuss in detail or rely
`on any confidential information included in Papers 19, 25, 30, 38, and 45 in
`deciding any of the issues presented. See generally Paper 60. Thus,
`expunging Papers 19, 25, 30, 38, and 45 would not hinder the public’s
`ability to understand the Final Written Decision based on an understandable
`file history of the trial. Accordingly, we grant Petitioner’s motions to seal
`and expunge Papers 19, 25, 30, 38, and 45.
`
`D. Final Written Decision
`Pursuant to our order (Paper 62), Petitioner submitted a redacted
`version of the Final Written Decision as Paper 68 and moves to seal and
`expunge the unredacted version of the Final Written Decision (Paper 60).
`MTS 5; MTE 1–6.
`
`
`
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`IPR2018-00952
`Patent 9,253,239 B2
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`We have reviewed these papers and find that the portions of the Final
`Written Decision Petitioner proposes to redact describe in general terms
`Patent Owner’s allegations regarding the relationship between Petitioner
`and Google and Apple and/or describe information that is already known to
`the public. Thus, we are not persuaded that the information Petitioner
`proposes to redact is truly sensitive, confidential information of Petitioner.
`Accordingly, we deny Petitioner’s motion to seal and expunge Paper 60.
`Out of an abundance of caution, however, unsealing of Paper 60 will
`be delayed for 30 days, during which time Petitioner may request that we
`reconsider our decision not to redact the subject matter Patent Owner seeks
`to maintain confidential. Patent Owner’s request for reconsideration should
`provide specific reasons and explanation of why the relevant subject matter
`is sensitive, confidential information that should be maintained in
`confidence.
`
`E. Exhibits 2035, 2036, 2056, and 2057
`In our Order Authorizing Petitioner’s Renewed Motion to Seal
`(Paper 62), we discussed that Exhibits 2035, 2036, 2056, and 2057 have
`been filed under seal without accompanying motions to seal. Id. at 3.
`Noting that Exhibits 2035, 2036, 2056, and 2057 were not mentioned or
`discussed in the Final Written Decision, we directed Petitioner to include
`these exhibits in its renewed motion to seal and/or file a motion to expunge
`these exhibits, if Petitioner believes they contain Petitioner’s confidential
`information. Id. Petitioner has not done either.
`
`
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`IPR2018-00952
`Patent 9,253,239 B2
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`Accordingly, Exhibits 2035, 2036, 2056, and 2057 will be unsealed
`and made available to the public unless Petitioner contacts the Board within
`30 days of this Decision.
`
`
`II. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that Petitioner’s Renewed Motion to Seal is granted-in-
`
`part;
`
`FURTHER ORDERED that Petitioner’s Motion to Expunge is
`granted-in-part;
`FURTHER ORDERED that Exhibits 2008 and 2009 are expunged
`from the record of this proceeding;
`FURTHER ORDERED that Exhibits 2004 and 2013 are expunged
`from the record of this proceeding;
`FURTHER ORDERED that Papers 19, 25, 30, 38, and 45 are
`expunged from the record of this proceeding;
`FURTHER ORDERED that Petitioner’s requests to seal and expunge
`Paper 60 are denied;
`FURTHER ORDERED that Paper 60 will be unsealed and made
`available to the public unless within 30 days of this Decision Petitioner files
`a request for reconsideration of our decision concerning Paper 60; and
`FURTHER ORDERED that Exhibits 2035, 2036, 2056, and 2057 will
`be unsealed and made available to the public unless Petitioner contacts the
`Board within 30 days of this Decision.
`
`
`7
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`IPR2018-00952
`Patent 9,253,239 B2
`
`
`PETITIONER:
`
`Roshan Mansinghani
`roshan@unifiedpatents.com
`
`Alyssa J. Holtslander
`alyssa@unifiedpatents.com
`
`David Cavanaugh
`David.cavanaugh@wilmerhale.com
`
`Dan Williams
`Daniel.williams@wilmerhale.com
`
`Jonathan Robe
`Jonathan.robe@wilmerhale.com
`
`Jonathan Stroud
`jonathan@unifiedpatents.com
`
`PATENT OWNER:
`
`Chris Coulson
`ccoulson@bdiplaw.com
`
`Michael Shanahan
`mshanahan@generalpatent.com
`
`
`
`
`
`8
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