`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`C&D ZODIAC, INC.
`Petitioner,
`
`v.
`B/E AEROSPACE, INC.
`Patent Owner.
`___________________
`
`Case PGR2017-00019
`Patent D764,031
`___________________
`
`
`PATENT OWNER'S MOTION TO EXPUNGE CONFIDENTIAL
`MATERIALS FROM THE RECORD PURSUANT TO 37 C.F.R. § 42.56
`
`
`
`Mail Stop "PATENT BOARD"
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`10620366
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`1
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`
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`Case No. PGR2017-00019
`U.S. Patent D764,031
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`I.
`
`RELIEF REQUESTED
`Pursuant to 37 C.F.R. § 42.56, B/E Aerospace, Inc. ("Patent Owner")
`
`respectfully submits this motion to expunge from the record the following
`
`confidential Exhibits: 1029, 2020, 2038, 2039, 2040, 2048, 2049, 2050, 2051,
`
`2053, 2060, 2061, 2062, 2063, 2064, 2065, 2066, 2077, 2078, 2079, 2089, 2090,
`
`2091, 2092, 2096, 2097, and 2098, which were sealed pursuant to Paper 37 (the
`
`Final Written Decision). Collectively, these exhibits are referred to herein as the
`
`"Sealed Documents."
`
`II. CERTIFICATION
`Counsel for Patent Owner certifies that it has conferred with counsel for
`
`Petitioner regarding the relief sought, and Petitioner does not oppose this Motion to
`
`Expunge.
`
`III. GOVERNING LAW, RULES, AND PRECEDENT
`This motion is authorized by section 42.56, which states that "[a]fter denial
`
`of a petition to institute a trial or after final judgment in a trial, a party may file a
`
`motion to expunge confidential information from the record." 37 C.F.R. § 42.56.
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`The Rules of Practice for Trials Before the Patent Trial and Appeal Board provide:
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`Confidential information that is subject to a protective order ordinarily will
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`become public 45 days after denial of a petition to institute a trial or 45 days
`
`after final judgment in a trial. Section 42.56 allows a party to file a motion to
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`Case No. PGR2017-00019
`U.S. Patent D764,031
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`expunge from the record confidential information prior to the information
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`becoming public. … [T]here is an expectation that information be made
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`public where the existence of the information is referred to in a decision to
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`grant or deny a request to institute a review or identified in a final written
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`decision.
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`77 Fed. Reg. 48623.
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`Granting a motion to seal confidential information requires a showing of
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`"good cause." 37 C.F.R. § 42.54. The same standard applies to a motion to
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`expunge "confidential information" under 37 C.F.R. § 42.56 after institution is
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`denied. RPX Corp. v. VirnetX Inc., IPR2014-00171, Paper 62 at 3 (PTAB Sept. 9,
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`2014).
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`The Board has held that it is appropriate to expunge confidential information
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`where a patent owner filed confidential information of the petitioner and where the
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`Board did not rely on that confidential information in its decision. See Atlanta Gas
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`Light Co. v. Bennett Regulator Guards, Inc., IPR2013-00453, Paper 97, at 4
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`(PTAB Apr. 15, 2015) ("In considering motions to expunge, it is appropriate to
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`guard against peripheral disclosure of a party's confidential information because
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`arguments were advanced by an opposing party that ultimately proved unimportant
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`to the merits of the proceeding.").
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`Case No. PGR2017-00019
`U.S. Patent D764,031
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`IV. PROCEDURAL HISTORY
`The Board entered its Final Written Decision on October 23, 2018. Paper 37.
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`In its Final Written Decision, the Board did not cite to the Sealed Documents to
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`support its decision. See id.
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`V. GOOD CAUSE SUPPORTS EXPUNGING THE SEALED
`DOCUMENTS
`The Board has already found "that a sufficient basis exists to seal the
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`exhibits in question." See Paper 37, 35. Collectively, the Sealed Documents reflect
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`material that includes confidential and business sensitive information of Patent
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`Owner, Petitioner, and Related Entities, the disclosure of which would cause
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`competitive harm to one or more of those entities. See Paper 8, 2; Paper 20, 1;
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`Paper 28, 1.
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`Given that Patent Owner has established that the Sealed Documents
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`constitute confidential information deserving of protection, the inquiry turns to
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`whether Patent Owner's interest in maintaining that protection through
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`expungement "outweighs the public's interest in maintaining a complete and
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`understandable history of this inter partes review." See Atlanta Gas Light Co. v.
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`Bennett Regulator Guards, Inc., IPR2013-00453, Paper 97, at 2 (PTAB Apr. 15,
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`2015). Because the Board did not cite to the Sealed Documents to support its
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`decision, "the public's interest in maintaining a complete and understandable file
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`history is not prevented by expunging the identified confidential information." See
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`Celltrion, Inc., v. Genentech, Inc., IPR2016-01667, Paper 31, at 3 (PTAB July 23,
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`2018).
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`VI. CONCLUSION
`For the foregoing reasons, good cause exists for the Board to grant this
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`Motion to Expunge.
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`Dated: December 7, 2018
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`
`
`
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`
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`Respectfully submitted,
`
`/s/ Michael R. Fleming
`
`Michael R. Fleming, Reg. No. 67,933
`
`IRELL & MANELLA LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, CA 90067
`Telephone: (310) 277-1010
`Fax: (310) 203-7199
`Attorneys for Patent Owner
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`
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`Case No. PGR2017-00019
`U.S. Patent D764,031
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`CERTIFICATE OF SERVICE
`
`
`Pursuant to 37 C.F.R. § 42.6, the undersigned certifies that on December 7, 2018, a copy of the
`PATENT OWNER'S MOTION TO EXPUNGE CONFIDENTIAL MATERIALS FROM
`THE RECORD PURSUANT TO 37 C.F.R. § 42.56 was served upon the following, by email
`to Zodiac-BE-IPR@kilpatricktownsend.com:
`KILPATRICK TOWNSEND & STOCKTON LLP
`
`John C. Alemanni
`Dean W. Russell
`David A. Reed
`Andrew Rinehart
`Michael T. Morlock
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`/s/ Pia S. Kamath
` Pia S. Kamath
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`10620366
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