`Tel: 571-272-7822
`
`Paper: 80
`Date: July 20, 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 Motion to
`Preserve the Record Pending Appeal
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`
`
`
`
`IPR2022-00142
`Patent 8,293,742 B2
`
`
`During trial, the Board granted Patent Owner’s motions to seal
`confidential versions of certain exhibits containing Bausch & Lomb’s
`business and financial information and information from Bausch & Lomb’s
`NDA. See Paper 56; Paper 76. On May 15, 2023, the Board issued a Final
`Written Decision, holding Petitioner has shown by a preponderance of the
`evidence that claims 1–6 of U.S. Patent No. 8,293,742 B2 are unpatentable.
`Paper 77.
`According to our Consolidated Trial Practice Guide (“CPTG”),
`“[c]onfidential information that is subject to a protective order ordinarily
`would become public 45 days after denial of a petition to institute a trial or
`45 days after final judgment in a trial.” CPTG,1 21–22. In this proceeding,
`45 days after our Final Written Decision was June 29, 2023. On June 15,
`2023, Patent Owner notified the Board by e-mail that it intends to appeal the
`Final Written Decision, but that the deadline to file a notice of appeal was
`July 17, 2023. The panel, therefore, authorized Patent Owner to file a
`Motion to Preserve the Record Pending Appeal. Patent Owner filed the
`Motion on June 27, 2023, which Petitioner does not oppose. Paper 78
`(“Mot.”). Patent Owner then filed a Notice of Appeal to the Federal Circuit
`on July 14, 2023. Paper 79.
`In its Motion, Patent Owner asserts that Federal Circuit Rules require
`that “[t]he agency must retain the record,” and that the parties must have
`access to both the sealed and unsealed portions of the record “[w]hen a
`petition for review or notice of appeal is filed.” Mot. 3 (citing Fed. Cir. R.
`17(a), (d)). Patent Owner further asserts that “[i]f the record is not preserved
`in its entirety during the appeal, the Federal Circuit will not be able to fully
`
`1 Available at https://www.uspto.gov/sites/default/files/documents/tpgnov.pdf
`2
`
`
`
`IPR2022-00142
`Patent 8,293,742 B2
`
`consider the issues raised by Patent Owner, which would cause prejudice.”
`Id.
`
`
`
`We find Patent Owner’s arguments persuasive and grant the Motion.
`The record in this proceeding shall be preserved and the documents filed
`under seal shall not be expunged or made public until at least 45 days after
`the completion of the appeal. Patent Owner may, however, file a motion to
`expunge before that time.
`
`
`ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that Patent Owner’s Motion to Preserve the Record
`Pending Appeal is granted; and
`FURTHER ORDERED that the record in this proceeding shall be
`preserved and the documents filed under seal shall not be expunged or made
`public until at least 45 days after the completion of the appeal, unless Patent
`Owner files a motion to expunge before that time.
`
`
`
`
`
`
`
`
`
`
`
`3
`
`
`
`
`
`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
`bryan.diner@finnegan.com
`justin.hasford@finnegan.com
`caitlin.o’connell@finnegan.com
`christina.yang@finnegan.com
`
`4
`
`
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