Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper 30
`Entered: May 13, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS LLC,
`Petitioner,
`
`v.
`
`VELOS MEDIA, LLC,
`Patent Owner.
`_________
`
`
`Case IPR2019‐00757
`
`Patent 9,930,365 B2
`____________
`
`
`Before MONICA S. ULLAGADDI, JASON MELVIN and
`AARON W. MOORE, Administrative Patent Judges.
`
`ULLAGADDI, Administrative Patent Judge.
`
`
`ORDER
`Granting Petitioner’s Motions to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`
`
`571-272-7822
`
`
`
`
`Paper 30
`Entered: May 13, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS LLC,
`Petitioner,
`
`v.
`
`VELOS MEDIA, LLC,
`Patent Owner.
`_________
`
`
`Case IPR2019‐00757
`
`Patent 9,930,365 B2
`____________
`
`
`Before MONICA S. ULLAGADDI, JASON MELVIN and
`AARON W. MOORE, Administrative Patent Judges.
`
`ULLAGADDI, Administrative Patent Judge.
`
`
`ORDER
`Granting Petitioner’s Motions to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`
`
`
`IPR2019‐00757
`
`Patent 9,930,365 B2
`
`
`BACKGROUND
`I.
`On December 3, 2019, Petitioner filed a Motion for Protective Order,
`requesting entry of the Board’s default Protective Order1 (Ex. 1022). Paper
`17. On January 29, 2020, we authorized entry of the default Protective
`Order. Paper 22.
`On April 10, 2020, Unified Patents, LLC (“Petitioner”) filed a Motion
`to Seal, seeking to seal Petitioner’s Reply (Paper 26, “Reply”) and Exhibits
`2113, 2114, 2138, 2152, and 2161. Paper 25 (“Reply Mot.”). Along with its
`motion, Petitioner filed a redacted version of the Reply (Ex. 1023,
`“Redacted Reply”), as well as redacted versions of the exhibits, as
`summarized in the table below. Petitioner indicates that Patent Owner does
`not oppose. Reply Mot. 3.
`On April 15, 2020, Petitioner filed a Motion to Seal, seeking to seal
`Patent Owner’s Response (Paper 18, “PO Resp.”) and the exhibits listed in
`the table below. Paper 27 (“PO Resp. Mot.”). Along with its motion,
`Petitioner filed a redacted version of the Patent Owner’s Response
`(Ex. 1024, “Redacted PO Response” or “Redacted PO Resp.”), as well as
`redacted versions of the exhibits, as summarized in the table below.
`Petitioner indicates that Patent Owner does not oppose. PO Resp. Mot. 3–4.
`
`ITEMS TO BE SEALED
`II.
`The table below summarizes the papers and exhibits sought to be
`sealed, as well as the corresponding redacted exhibits.
`
`
`1 Available at https://www.uspto.gov/TrialPracticeGuideConsolidated, 117–
`122 (App. B) (“TPG”).
`
`2
`
`
`
`IPR2019‐00757
`
`Patent 9,930,365 B2
`
`
`Paper or Exhibits to be Sealed
`
`Corresponding
`Redacted Exhibits
`Membership Agreement and Subscription Form
`Exhibit 2152 Member Agreement and
`None
`Subscription Form
`Communications
`Exhibit 2158: Mass Email Titled “Unified
`Files IPR Against US
`9,338,449 Owned by Velos Media LLC”
`
`Exhibit 2102: 9/4/17 Email from Kevin Jakel
`with Attachments
`Exhibit 2103: 9/14/17 Email from Shawn
`Ambwani with Attachments
`Exhibit 2109: 11/24/17 Email from Shawn
`Ambwani with Attachments
`Exhibit 2111: 12/3/17 Email from Kevin Jakel
`with Attachments
`Exhibit 2113: 1/18/18 Email from Shawn
`Ambwani with Attachments
`Exhibit 2114: 1/19/18 Email from Shawn
`Ambwani with Attachments
`Exhibit 2122: 2/3/18 Email from Shawn
`Ambwani with Attachments
`Exhibit 2127: 2/9/18 Email from Shawn
`Ambwani with Attachments
`Exhibit 2132: 1/2/18 Email from Shawn
`Ambwani with Attachments
`Interrogatory Responses and Testimony of Kevin Jakel
`Exhibit 2151: Petitioner’s Supplemental
`Ex. 1025
`Second Voluntary Interrogatory Responses
`Exhibit 2161: Transcript of First Deposition of
`Kevin Jakel
`Exhibit 2138: Transcript of Second Deposition
`of Kevin Jakel
`Patent Owner Response and Petitioner Reply
`Paper 18: Patent Owner’s Response
`Ex. 1024
`Paper 26: Petitioner’s Reply
`Ex. 1023
`
`Ex. 1028
`
`Ex. 1029
`
`Ex. 1030
`
`Ex. 1031
`
`Ex. 1032
`
`Ex. 1033
`
`Ex. 1034
`
`Ex. 1035
`
`Ex. 1036
`
`Ex. 1037
`
`Ex. 1026
`
`Ex. 1027
`
`3
`
`
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`IPR2019‐00757
`
`Patent 9,930,365 B2
`
`
`III. PRINCIPLES OF LAW
`A motion to seal may only be granted on a showing of good cause.
`37 C.F.R. § 42.54(a). In general, the Board’s “rules aim to strike a balance
`between the public’s interest in maintaining a complete and understandable
`file history and the parties’ interest in protecting truly sensitive information.”
`TPG at 19. The rules identify confidential information as “trade secret or
`other confidential research, development, or commercial information.” Id.
`(citing 37 C.F.R. § 42.54). Applying the rules, the Board has required that
`a movant to seal must demonstrate adequately that (1) the
`information sought to be sealed is truly confidential, (2) a
`concrete harm would result upon public disclosure, (3) there
`exists a genuine need to rely in the trial on the specific
`information sought to be sealed, and (4), on balance, an interest
`in maintaining confidentiality outweighs the strong public
`interest in having an open record.
`Argentum Pharms. LLC v. Alcon Research, Ltd., IPR2017-01053, Paper 27
`at 4 (PTAB Jan. 19, 2018) (designated informative July 10, 2018); see also
`Corning Optical Commc’ns RF, LLC, v. PPC Broadband, Inc., IPR2014-
`00440, Paper 46 at 2 (PTAB April 6, 2015) (“Material is not confidential
`business information simply because it relates to an activity of a
`business.”).
`
`
`
`
`4
`
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`IPR2019‐00757
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`Patent 9,930,365 B2
`
`
`IV. PETITIONER’S ARGUMENTS
`Petitioner argues that the exhibits set forth above were “produced
`subject to the agreed-to Protective Order.” PO Resp. Mot. 3. 2 According to
`Petitioner, each exhibit “include[s] statements that contain confidential,
`sensitive commercial information, including closely held information related
`to Unified’s core business.” Id. Petitioner notes that the “Patent Owner
`Response (Paper 18) references and cites to confidential information
`included in the [exhibits] listed above.” Id. Aside from the Membership
`Agreement and Subscription Form (Ex. 2152) that Petitioner seeks to seal in
`its entirety, Petitioner provides redacted versions for each exhibit sought to
`be sealed. Id. at 9–10; supra § II. Petitioner contends that “the balance
`overwhelmingly favors protecting Unified’s highly confidential
`information,” because “[t]he information Unified seeks to protect has
`nothing to do with patentability, but rather involves Unified’s status as the
`real party in interest.” PO Resp. Mot. 6. Petitioner argues that, accordingly,
`the public interest in having access to the exhibits is minimal, “while the
`public interest is well-served in keeping such business information readily
`available and exchangeable between parties based on voluntary discovery,
`without the fear of incidental public exposure of confidential business
`information.” Id. at 7. Petitioner further argues that “[i]dentical or similar
`confidential information held by Unified has been sealed by the Board in
`prior cases.” Id. (citing Unified Patents, Inc. v. Uniloc 2017 LLC, IPR2017-
`
`
`2 Where appropriate, we refer to Petitioner’s Motion to Seal Patent Owner’s
`Response as the exhibits sought to be sealed subsume the exhibits set forth
`in Petitioner’s Motion to Seal Petitioner’s Reply. Compare Reply Mot. with
`PO Resp. Mot. There is significant overlap in the arguments set forth the
`motions, as well. Id.
`
`5
`
`
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`IPR2019‐00757
`
`Patent 9,930,365 B2
`
`02148, Papers 84, 89 (PTAB May 23, 2019 & May 31, 2019) (granting
`Unified’s Motions to Seal)). Petitioner also seeks to seal the Patent Owner’s
`Response and the Petitioner’s Reply because portions therein reference
`confidential information.
`
`V. ANALYSIS
`For the reasons that follow, we grant each of Petitioner’s motions.
`1. Membership Agreement and Subscription Form (Ex. 2152)
`Exhibit 2152 is an executed, contractual agreement between two
`parties outlining the terms of service and fees.
`2. Email Communications (Exs. 2158, 2102, 2103, 2109, 2111, 2113,
`2114, 2127, 2132)
`Exhibit 2158 is a mass email regarding Unified’s filing of an inter
`partes review (IPR) with respect to U.S. 9,338,449 assigned to Patent
`Owner. Exhibit 1028 is a redacted version of the mass email which redacts
`the email addresses of the parties to which it was sent. Exhibits 2102, 2103,
`2109, 2111, 2113, 2114, 2127, and 2132 are emails from Unified leadership
`attaching slide decks concerning Unified’s Patent Pool Validation Program.
`Redacted versions are presented in Exhibits 1029 through 1037 in which the
`email recipient’s information is redacted. Other redactions generally relate
`to the specifics of Unified’s patent strategy with respect to particular
`“zones,” patent analytics, parties affected by the strategy, deliverables, a
`zone-specific subscription form, and questions from a recipient of the email.
`3. Interrogatory Responses (Ex. 2151) and Testimony of Kevin Jakel
`(Exs. 2138, 2151, 2161)
`Ex. 1025 redacts, in general, the members of a particular zone, as set
`forth in the voluntary interrogatory responses of Ex. 2151. Ex. 1026 redacts
`
`6
`
`
`
`IPR2019‐00757
`
`Patent 9,930,365 B2
`
`information generally related to operating details, operating expenses,
`ownership, payments, memberships, etc. from Mr. Jakel’s testimony in
`Exhibit 2161. Ex. 1027 redacts information generally related to
`membership, information generally related to procedure for creating slide
`decks on patent pools, and the substance of the slide decks from Mr. Jakel’s
`testimony in Ex. 2138.
`4. Patent Owner’s Response (Paper 18) and Petitioner’s Reply
`(Paper 26)
`The Redacted Reply (Ex. 1023) redacts portions of Petitioner’s Reply
`responding to Patent Owner’s arguments about a real party in interest issue.
`The Redacted PO Response (Ex. 1024) redacts portions of Patent Owner’s
`Response relating to a real party in interest issue.
`5. Discussion
`Upon review of the papers and exhibits sought to be sealed and the
`corresponding redacted exhibits, we are persuaded, by Petitioner, that each
`exhibit “include[s] statements that contain confidential, sensitive
`commercial information, including closely held information related to
`Unified’s core business.” PO Resp. Mot. 3. We are further persuaded that
`“[t]he information Unified seeks to protect has nothing to do with
`patentability, but rather involves Unified’s status as the real party in interest”
`based on our review of the corresponding redacted exhibits. Id. at 6.
`We find persuasive Petitioner’s concerns that disclosing the redacted
`information could harm Petitioner by enabling others to replicate its
`business, and that unsealing such information would have an adverse effect
`on future voluntary discovery. We are persuaded that Petitioner has shown
`
`7
`
`
`
`IPR2019‐00757
`
`Patent 9,930,365 B2
`
`good cause for maintaining this information under seal. Consequently, we
`grant Petitioner’s motion to seal this information.
`
`VI. ORDER
`
`It is, therefore,
`ORDERED that Petitioner’s Motion to Seal Patent Owner’s Response
`and Exhibits 2102, 2103, 2109, 2111, 2113, 2114, 2122, 2127, 2132, 2138,
`2151, 2152, 2158, and 2161 is granted;
`ORDERED that Petitioner’s Motion to Seal Petitioner’s Reply and
`Exhibits 2113, 2114, 2138, 2152, and 2161 is granted;
`FURTHER ORDERED that this matter shall be governed by the
`Default Protective Order set forth in the TPG, and Petitioner’s confidential
`information shall be considered designated “PROTECTIVE ORDER
`MATERIAL” under that Order; and
`FURTHER ORDERED Exhibits 2102, 2103, 2109, 2111, 2113, 2114,
`2122, 2127, 2132, 2138, 2151, 2152, 2158, and 2161 and Papers 18 and 26
`are to be kept under seal.
`
`
`
`
`
`8
`
`
`
`IPR2019‐00757
`
`Patent 9,930,365 B2
`
`FOR PETITIONER:
`Eric A. Buresh
`Michelle Callaghan
`ERISE IP, P.A
`eric.buresh@eriseip.com
`michelle.callaghan@eriseip.com
`
`Ashraf Fawzy
`Roshan Mansinghani
`UNIFIED PATENTS INC.
`afawzy@unifiedpatents.com
`roshan@unifiedpatents.com
`
`
`
`PATENT OWNER:
`
`Brent Bumgardner
`Thomas Cecil
`Barry Bumgardner
`Matthew Juren
`NELSON BUMGARDNER ALBRITTON P.C
`bbumgardner@nbclaw.net
`tom@nelbum.com
`barry@nelbum.com
`matthew@nelbum.com
`
`
`
`
`9
`
`
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