Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper: 76
`Date: May 12, 2023
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SLAYBACK PHARMA LLC,
`Petitioner,
`v.
`EYE THERAPIES, LLC,
`Patent Owner.
`
`IPR2022-00142
`Patent 8,293,742 B2
`
`
`
`
`
`
`
`
`Before TINA E. HULSE, ROBERT A. POLLOCK, and RYAN H. FLAX,
`Administrative Patent Judges.
`
`HULSE, Administrative Patent Judge.
`
`
`
`ORDER
`Granting Patent Owner’s Second Motion to Seal
`37 C.F.R. § 42.54
`
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`Paper: 76
`Date: May 12, 2023
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SLAYBACK PHARMA LLC,
`Petitioner,
`v.
`EYE THERAPIES, LLC,
`Patent Owner.
`
`IPR2022-00142
`Patent 8,293,742 B2
`
`
`
`
`
`
`
`
`Before TINA E. HULSE, ROBERT A. POLLOCK, and RYAN H. FLAX,
`Administrative Patent Judges.
`
`HULSE, Administrative Patent Judge.
`
`
`
`ORDER
`Granting Patent Owner’s Second Motion to Seal
`37 C.F.R. § 42.54
`
`
`
`
`
`
`
`
`
`IPR2022-00142
`Patent 8,293,742 B2
`
`
`
`
`INTRODUCTION
`I.
`The parties previously filed motions to seal certain papers and exhibits
`that contain information that Patent Owner has identified as confidential
`information under the protective order. Paper 29 (Patent Owner’s motion);
`Paper 46 (Petitioner’s motion). We granted Patent Owner’s motion with
`respect to Bausch & Lomb’s business and financial information, but denied
`Patent Owner’s motion without prejudice with respect to Bausch & Lomb’s
`NDA information and denied Petitioner’s motion because it included
`information about Bausch & Lomb’s NDA information, as well. We,
`however, authorized Patent Owner to file a second motion to seal to address
`the deficiencies in the first motion. Paper 56, 7.
`Patent Owner filed a Second Motion to Seal requesting to seal the
`confidential version of its Patent Owner Response, exhibits containing
`excerpts of regulatory documents related to the commercial product Lumify,
`and certain exhibits filed with Petitioner’s Reply.1 Paper 60 (“Mot”), 2.
`II. ANALYSIS
`A party moving to seal a document must show “good cause” for the
`relief requested. 37 C.F.R. §§ 42.20(c), 42.54. The “good cause” standard
`“reflects the strong public policy for making all information in an inter
`partes review open to the public.” See Argentum Pharms. LLC v. Alcon
`Research, Ltd., IPR2017-01053, Paper 27 at 3 (PTAB Jan. 19, 2018)
`(informative). Accordingly, our rules “aim to strike a balance between the
`
`
`1 Petitioner filed Petitioner’s Reply (Paper 43) and Petitioner’s Motion to
`Exclude Evidence (Paper 57) under seal because they potentially contained
`Patent Owner’s confidential information. Because Patent Owner does not
`seek to seal those papers, we unseal those documents and make them
`publicly available.
`
`2
`
`
`
`
`
`IPR2022-00142
`Patent 8,293,742 B2
`
`public’s interest in maintaining a complete and understandable file history
`and the parties’ interest in protecting truly sensitive information.” See
`Consolidated Trial Practice Guide2 (“CTPG”) at 19. Thus, the moving party
`must show 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, Paper 27 at 4.
`Patent Owner seeks to seal two categories of confidential information:
`(1) Bausch & Lomb3 regulatory documents, reflecting Bausch & Lomb’s
`confidential research and development; and (2) Bausch & Lomb’s sensitive
`business and financial information. See Mot. 3–4. We address each
`category below.
`
`Bausch & Lomb’s Regulatory Documents
`Patent Owner addresses each of the Argentum factors with respect to
`Bausch & Lomb’s confidential regulatory documents. First, Patent Owner
`asserts that the confidential regulatory information is truly confidential
`because the documents were confidentially submitted to the FDA and that
`confidentiality has been maintained since submission. Id. at 5. Second,
`Patent Owner asserts that concrete harm would result if the information were
`publicly disclosed because they relate to a relatively new commercial
`
`
`2 Available at https://www.uspto.gov/TrialPracticeGuideConsolidated.
`3 Patent Owner identifies Bausch & Lomb, Inc. as a real party-in-interest in
`this proceeding. Paper 4, 2.
`
`3
`
`
`
`
`
`IPR2022-00142
`Patent 8,293,742 B2
`
`product and because there are competitors that would improperly benefit
`from disclosure of the information, which would harm Bausch & Lomb. Id.
`at 5–7. Third, Patent Owner asserts there is a genuine need to rely on the
`specific information in connection with Patent Owner’s claim construction
`and nonobviousness arguments. Id. at 7. Fourth, Patent Owner asserts the
`interest in maintaining confidentiality outweighs the strong public interest of
`having an open record, as the public’s interest in regulatory information is
`minimal. Id. at 7–8.
`Having considered Patent Owner’s explanation of each Argentum
`factor, we find Patent Owner has established good cause to seal the
`requested documents. Accordingly, we grant Patent Owner’s motion with
`respect to the confidential regulatory information, as specified in the Motion.
`See Mot. 3–4.
`
`Business and Financial Information
`Patent Owner addresses each Argentum factor with respect to Bausch
`& Lomb’s business and financial information. First, Patent Owner, asserts
`the sensitive commercial information is confidential and has been treated as
`confidential by the terms of the Stipulated Protective Order. Mot. 8.
`Second, Patent Owner asserts that concrete harm would result if publicly
`disclosed, because Bausch & Lomb’s sensitive business information would
`be available to its competitors and harm Bausch & Lomb if made public. Id.
`at 8–9. Third, Patent Owner has relied on the information in its papers. Id.
`at 9. And fourth, Patent Owner asserts that maintaining the confidentiality
`of the information outweighs the public interest because of the harm that
`would be caused by the unfair competitive advantage Bausch & Lomb’s
`competitors would gain if the information were publicly disclosed. Id.
`
`4
`
`
`
`
`
`IPR2022-00142
`Patent 8,293,742 B2
`
`
`Having considered Patent Owner’s explanation of each Argentum
`factor, we find Patent Owner has established good cause to seal the
`requested business and financial documents. Accordingly, we grant Patent
`Owner’s motion with respect to the business and financial information, as
`specified in the Motion. See Mot. 4–5.
`
`
`ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that Patent Owner’s Second Motion to Seal is granted.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`5
`
`
`
`
`
`IPR2022-00142
`Patent 8,293,742 B2
`
`PETITIONER:
`
`Linnea Cipriano
`Patrick Pollard
`Louis Weinstein
`WINDELS MARX LANE & MITTENDORF LLP
`lcipriano@goodwinlaw.com
`ppollard@windelsmarx.com
`lweinstein@windelsmarx.com
`
`
`PATENT OWNER:
`Bryan Diner
`Justin Hasford
`Caitlin O’Connell
`Christina Ji-Hye Yang
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`justin.hasford@finnegan.com
`caitlin.o’connell@finnegan.com
`christina.yang@finnegan.com
`
`6
`
`
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