Trials@uspto.gov
`571-272-7822
`
`
`Paper 31
`Date: October 26, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE LLC,
`Petitioner,
`
`
`
`v.
`DDC TECHNOLOGY, LLC,
`Patent Owner.
`
`____________
`
`IPR2023-00707 (Patent 9,420,075 B2)
` IPR2023-00708 (Patent 9,811,184 B2)1
`____________
`
`
`Before KALYAN K. DESHPANDE, Acting Deputy Chief Administrative
`Patent Judge, PATRICK M. BOUCHER, and JULIET MITCHELL DIRBA,
`Administrative Patent Judges.
`
`DIRBA, Administrative Patent Judge.
`
`ORDER
`Granting-in-Part Motions to Seal and
`Granting Motion for Protective Order
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`
`
`1 This Decision addresses an issue that is the same in both proceedings, so
`we exercise our discretion to issue one Order to be docketed in each. The
`parties are not authorized to use this caption.
`
`
`571-272-7822
`
`
`Paper 31
`Date: October 26, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE LLC,
`Petitioner,
`
`
`
`v.
`DDC TECHNOLOGY, LLC,
`Patent Owner.
`
`____________
`
`IPR2023-00707 (Patent 9,420,075 B2)
` IPR2023-00708 (Patent 9,811,184 B2)1
`____________
`
`
`Before KALYAN K. DESHPANDE, Acting Deputy Chief Administrative
`Patent Judge, PATRICK M. BOUCHER, and JULIET MITCHELL DIRBA,
`Administrative Patent Judges.
`
`DIRBA, Administrative Patent Judge.
`
`ORDER
`Granting-in-Part Motions to Seal and
`Granting Motion for Protective Order
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`
`
`1 This Decision addresses an issue that is the same in both proceedings, so
`we exercise our discretion to issue one Order to be docketed in each. The
`parties are not authorized to use this caption.
`
`
`
`IPR2023-00707 (Patent 9,420,075 B2)
`IPR2023-00708 (Patent 9,811,184 B2)
`
`
`There are three pending motions to seal in each of these proceedings:
`Paper 13 (“First Motion”); Paper 18 (“Second Motion”); and Paper 19
`(“Third Motion”).2 In these motions, the parties seek to protect as
`confidential certain information addressed in connection with their
`arguments regarding real parties in interest, privies, and secondary
`considerations. In addition, the First Motion also seeks entry of a Protective
`Order. See Paper 13, Appendix A.
`For the reasons explained below, we enter the Protective Order, grant-
`in-part the First Motion, grant the Second Motion, and grant the Third
`Motion.
`
`Legal Standard
`There is a strong public policy in favor of making information filed in
`an inter partes review open to the public, especially because the proceeding
`determines the patentability of claims in an issued patent and, therefore,
`affects the rights of the public. See Garmin Int’l v. Garmin Speed Tech’s,
`LLC, Case IPR2012–00001 (PTAB Mar. 14, 2013) (Paper 34). Under
`35 U.S.C. § 316(a)(1) and 37 C.F.R. § 42.14, the default rule is that all
`papers filed in an inter partes review are open and available for access by
`the public.
`A party seeking to depart from the default rule may file a motion to
`seal. If such a motion is filed, the moving party bears the burden of proof in
`showing entitlement to the requested relief. 37 C.F.R. § 42.20(c). The
`standard for granting a motion to seal is “for good cause.” 37 C.F.R.
`
`
`2 We cite only to the papers in IPR2023-00707, but substantially similar
`papers were filed in IPR2023-00708.
`
`
`
`IPR2023-00707 (Patent 9,420,075 B2)
`IPR2023-00708 (Patent 9,811,184 B2)
`
` §
`
` 42.54(a). The 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. See PTAB Consolidated
`Trial Practice Guide (“Trial Practice Guide”)3 19.
`
`First Motion
`In the First Motion, Patent Owner requests entry of a Protective Order
`that the parties agree to and that is similar to the Board’s Default Protective
`Order. See First Motion, Appx. A (proposed protective order), Appx. B
`(showing differences between the proposed order and the Board’s default
`order); see also Trial Practice Guide 107–122 (Appx. B). Based on the
`representations in the First Motion, Patent Owner has shown good cause for
`entering the Protective Order. 4
`In addition, Patent Owner moves to seal Exhibits 2005, 2006, 2007,
`2008, 2015, 2017, 2019, 2020, 2024, 2031, 2032, 2034, 2037, 2041, 2042,
`and 2047. First Motion 1. Patent Owner also moves to seal the portions of
`its Preliminary Response that cite and discuss these exhibits. Id. at 11. The
`portions of the Preliminary Response (Paper 14) requested to be sealed can
`easily be identified because Patent Owner has used red text for that
`information in the document. Patent Owner has also filed a redacted, public
`version of the Preliminary Response (Paper 12) that omits the information.
`
`3 Available at https://www.uspto.gov/TrialPracticeGuideConsolidated.
`4 When confidential information is to be entered into the record, it is the
`responsibility of the party whose confidential information is at issue, not
`necessarily the proffering party, to file the motion to seal. For purposes of
`these proceedings, the parties have agreed that the proffering party will file
`the motion to seal and, when applicable, include arguments prepared by the
`other party. See First Motion, Appx. A § 6.A(iii).
`
`
`
`IPR2023-00707 (Patent 9,420,075 B2)
`IPR2023-00708 (Patent 9,811,184 B2)
`
`
`We determine that Patent Owner has shown good cause for sealing the
`Preliminary Response (Paper 14) and Exhibits 2005, 2006, 2007, 2008,
`2015, 2017, 2019, 2020, 2024, 2031, 2032, 2037, 2041, 2042, and 2047. We
`are persuaded that these documents contain confidential information of one
`or more entities (including Petitioner, Patent Owner, and third-parties), and
`given the nature of the information at issue, we are sufficiently persuaded
`that harm could result from disclosure. In addition, these documents are
`primarily cited and discussed in connection with the parties’ arguments
`regarding real parties-in-interest and privies. We have evaluated these
`arguments and determine that they reveal no deficiency in the Petition and
`do not implicate any statutory bar. As a result, we are persuaded that the
`understandability of the public record will not be materially diminished by
`these limited redactions.
`As for Exhibit 2034, this exhibit is only introduced in support of
`Patent Owner’s arguments regarding objective indicia of non-obviousness.
`Thus, it may be relevant to the substantive patentability disputes at issue in
`these proceedings, and it may implicate public access issues. Moreover,
`although both Petitioner and Patent Owner assert that they designated this
`document as confidential during district court litigations, neither party
`provides any justification of that designation or explanation for why the
`document is confidential. First Motion 7–8. Further, Patent Owner has not
`filed a proposed redacted version of this exhibit, despite the fact that it
`appears to include at least some public information. See, e.g., Prelim.
`Resp. 29, 47, 49, 50 (quoting from Exhibit 2034 in the public record).
`At this juncture, we conditionally grant-in-part the Motion to Seal for
`Exhibit 2034, and we authorize the parties to file a Supplemental Renewed
`
`
`
`IPR2023-00707 (Patent 9,420,075 B2)
`IPR2023-00708 (Patent 9,811,184 B2)
`
`Motion to Seal this exhibit within fourteen days of this Order. Exhibit 2034
`will be maintained under seal pending a ruling on any Supplemental
`Renewed Motion to Seal. But, absent such a motion, Exhibit 2034 will be
`made public.
`Accordingly, we enter the Protective Order; grant-in-part the First
`Motion (Paper 13) with respect to the Preliminary Reply and Exhibits 2005,
`2006, 2007, 2008, 2015, 2017, 2019, 2020, 2024, 2031, 2032, 2037, 2041,
`2042, and 2047; and conditionally grant-in-part the First Motion with
`respect to Exhibit 2034.
`
`Second Motion
`In the Second Motion, Petitioner requests sealing of the portions of
`the Preliminary Reply and Exhibit 1019. The portions of the Preliminary
`Reply (Paper 15) requested to be sealed can easily be identified because
`Petitioner has used red text for that information in the document. Petitioner
`has also filed a redacted, public version of the Preliminary Reply (Paper 16)
`that omits the information.
`Based on the representations in the Second Motion, Petitioner has
`shown good cause for sealing the identified portions of the Preliminary
`Reply and Exhibit 1019. Accordingly, we grant the Second Motion (Paper
`18).
`
`Third Motion
`In the Third Motion, Patent Owner requests sealing of the portions
`Preliminary Sur-Reply. The portions of the Preliminary Sur-Reply
`(Paper 20) requested to be sealed can easily be identified because Patent
`Owner has used red text for that information in the document. Patent Owner
`
`
`
`IPR2023-00707 (Patent 9,420,075 B2)
`IPR2023-00708 (Patent 9,811,184 B2)
`
`has also filed a redacted, public version of the Preliminary Sur-Reply
`(Paper 21) that omits the information.
`Based on the representations in the Third Motion, the Patent Owner
`has shown good cause for sealing the identified portions of the Preliminary
`Sur-Reply. Accordingly, we grant the Third Motion (Paper 19).
`
`Conclusion
`For the reasons above, we enter the Protective Order; grant-in-part
`the First Motion with respect to the Preliminary Reply and Exhibits 2005,
`2006, 2007, 2008, 2015, 2017, 2019, 2020, 2024, 2031, 2032, 2037, 2041,
`2042, and 2047; conditionally grant-in-part the First Motion with respect to
`Exhibit 2034; grant the Second Motion; and grant the Third Motion. The
`parties are authorized to file a Supplemental Renewed Motion to Seal
`Exhibit 2034 within fourteen days of this Order. Absent such a motion,
`Exhibit 2034 will be unsealed and made public
`Moreover, we observe that the First Motion was filed under seal, but
`is not itself the subject of any motion to seal. We authorize the parties to
`move to seal this paper within fourteen days of this Order. That motion
`should be included in the parties’ Supplemental Renewed Motion to Seal, if
`filed. Absent such a motion, the First Motion (Paper 13) will be unsealed
`and made public.
`
`
`
`
`
`
`
`
`IPR2023-00707 (Patent 9,420,075 B2)
`IPR2023-00708 (Patent 9,811,184 B2)
`
`
`Accordingly, it is:
`ORDERED that the First Motion (Paper 13) is granted-in-part; the
`Second Motion (Paper 18 in IPR2023-00707 and Paper 19 in IPR2023-
`00708) is granted; and the Third Motion (Paper 19 in IPR2023-00707 and
`Paper 20 in IPR2023-00708) is granted;
`FURTHER ORDERED that Papers 14, 15, and 20 in IPR2023-00707
`and Papers 14, 16, and 21 in IPR2023-00708 are sealed and available only to
`the Parties and the Board;
`FURTHER ORDERED that Exhibits 1019, 2005, 2006, 2007, 2008,
`2015, 2017, 2019, 2020, 2024, 2031, 2032, 2037, 2041, 2042, and 2047 are
`sealed and available only to the Parties and the Board; and
`FURTHER ORDERED that Paper 13 and Exhibit2034 are
`conditionally sealed and available only to the Parties and the Board; and
`FURTHER ORDERED that the parties are authorized to file a motion
`to seal Paper 13 and/or Exhibit 2034 within fourteen days of entry of this
`Order, and absent such a motion, Paper 13 and Exhibit 2034 will be made
`public.
`
`
`
`
`
`
`
`IPR2023-00707 (Patent 9,420,075 B2)
`IPR2023-00708 (Patent 9,811,184 B2)
`
`PETITIONER:
`
`Michael L. Kiklis
`Kimani P. Clark
`KIKLIS AND CLARK, PLLC
`michael@kiklisclark.com
`kimani@kiklisclark.com
`
`
`FOR PATENT OWNER:
`
`Robert R. Brunelli
`Brian Boerman
`SHERIDAN ROSS P.C.
`rbrunelli@sheridanross.com
`bboerman@sheridanross.com
`
`
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