`571-272-7822
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`Paper____
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`________________
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`UNIFIED PATENTS INC.,
`Petitioner
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`v.
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`SYNKLOUD TECHNOLOGIES, LLC,
`Patent Owner
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`Case No. IPR 2019-01655
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`Patent No. 9,098,526
`________________
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`PATENT OWNER’S MOTION TO SEAL
`37 C.F.R. §§42.54, 42.55
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`Patent Owner Synkloud Technologies, LLC (“PO” herein) moves to submit
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`confidential information as evidence in support of its position in the above-
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`captioned matter, and accordingly moves that Exhibit 2011, submitted
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`contemporaneously herewith, be accepted but not made public and maintained
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`confidential to a Modified Protective Order submitted herewith as Exhibit 2012. In
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`so moving, PO is guided by this Board’s Decision in IPR2017-01053, Paper No.
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`27, and decisions cited therein, including IPR2012-00001, Paper No. 34.
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`PO, as an element of its position that the claims challenged in the above-
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`captioned IPR are not obvious over prior art cited, wishes to submit a license
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`extended under the patent at issue, U.S. Patent 9,098,526 as secondary indicia of
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`non-obviousness pursuant to well-established caselaw. See, e.g., Rothman v.
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`Target Corp. 556 F. 3d 1310, 1321 (Fed. Cir. 2009). The public is not denied
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`essential information by sealing Exhibit 2011. The Exhibit is a license between the
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`owner of the ‘526 Patent and a recognized corporation, in consideration of
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`payment of fees. No other issues, such as sales, conditions, promotions or other
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`issues are set forth in or raised by the license, and thus, questions such as nexus
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`and the like are not raised. PO does not rely on the identity of the Licensee, other
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`than to note it is a recognized major corporation in the computer technology field.
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`PO does not rely on the specific terms of the license, other than to note the license
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`extended is in consideration of payment of money, and no other consideration
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`flows between the parties.
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`By its terms, further information with respect to the license is confined to
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`outside counsel only. To that end, PO has fashioned a Protective Order premised
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`on the Board’s Standing Protective Order, but altered to limit the confidential
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`information submitted to the specific counsel appearing for Petitioner in this
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`matter. Submission of this information, which Court’s have often found of value in
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`considering questions of obviousness, without seal or protection, would potentially
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`vitiate the license as a possible breach thereof and/or expose PO to liability.
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`Undersigned counsel has conferred with opposing counsel. After an initial
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`exchange of emails, the Modified Protective Order that is Exhibit 2012 was
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`fashioned and forwarded to counsel for Petitioner in a good faith effort to arrive at
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`resolution of the question of submission. Counsel for Petitioner acknowledged
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`receipt of the proposed Modified Protective Order by email on June 10, 2020.
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`Counsel for Petitioner indicated he would “take a look and revert back” but as of
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`the filing of this Motion, had not further responded or indicated if the Motion
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`would be opposed. Accordingly, PO respectfully requests Exhibit 2011 be held
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`confidential to the Board provisionally, pending grant of this Motion or
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`expungement if this Motion is denied.
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`Respectfully, PO submits it has met the Board’s standard for submission
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`under seal, Argentum Pharmaceuticals LLC v. Alcon Research, IPR 2017-01053,
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`Paper 27 (January 19, 2018) at p. 4. 1) The confidential information, a patent
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`license, is truly confidential – it is confidential by its terms. 2) Concrete harm
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`would result upon public disclosure of Exhibit 2011, it would constitute a potential
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`breach of the very license at issue. 3) There exists a genuine need to rely in the trial
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`on the specific information sought to be sealed. It is PO’s strong evidence of a
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`judicially recognized indication of non-obviousness – a patent license. 4) On
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`balance, the interest in maintaining confidentiality as to this one exhibit outweighs
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`the strong public interest in having an open record.
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`On this basis, and in light of the proposed Modified Protective Order that is
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`Exhibit 2012, PO respectfully requests grant of this Motion and acceptance of
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`Exhibit 2011 under seal.
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`Date: June 12, 2020
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`Respectfully submitted,
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`/s/ Steven B. Kelber
`Steven B. Kelber
`Yeasun Yoon
`Capitol IP Law. PLLC
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`E-Mail:
`Steve. Kelber@capitoliplaw.com
`yoon@capitoliplaw.com
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`Tel: (240)506-6702
`Tel: (434)906-2975
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`Attorneys for Patent Owner
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