Paper 82
`Trials@uspto.gov
`Entered: Sept.12, 2019
`Tel: 571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`L’ORÉAL USA, INC.,
`Petitioner,
`v.
`LIQWD, INC.,
`Patent Owner.
`
`Case PGR2018-00025
`Patent 9,668,954 B2
`
`
`
`
`
`
`
`
`
`Before TONI R. SCHEINER, CHRISTOPHER M. KAISER, and
`TIMOTHY G. MAJORS, Administrative Patent Judges.
`MAJORS, Administrative Patent Judge.
`
`ORDER
`Granting-In-Part Motion to Seal
`35 U.S.C. § 326; 37 C.F.R. §§ 42.14
`
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`
`
`
`Trials@uspto.gov
`Entered: Sept.12, 2019
`Tel: 571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`L’ORÉAL USA, INC.,
`Petitioner,
`v.
`LIQWD, INC.,
`Patent Owner.
`
`Case PGR2018-00025
`Patent 9,668,954 B2
`
`
`
`
`
`
`
`
`
`Before TONI R. SCHEINER, CHRISTOPHER M. KAISER, and
`TIMOTHY G. MAJORS, Administrative Patent Judges.
`MAJORS, Administrative Patent Judge.
`
`ORDER
`Granting-In-Part Motion to Seal
`35 U.S.C. § 326; 37 C.F.R. §§ 42.14
`
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`
`
`
`
`PGR2018-00025
`Patent 9,668,954 B2
`
`
`
`
`In the July 30, 2019 Final Written Decision (Paper 78), the Board
`ordered the parties to, within ten days, file a redacted version of the decision
`along with a joint motion to seal. Paper 78, 105–106. At the same time, the
`Board also instructed the parties to file within ten days a motion to seal
`relating to Papers 61, 67, 73, and 74, which papers were filed and marked as
`including Highly Confidential-Protective Order Material but without an
`accompanying motion to seal. Id. at 103.
`The parties, after being granted several requested extensions of time,
`filed a Joint Motion to Seal Portions of Papers 61, 67, and 78 on September
`6, 2019. See Ex. 3001; Paper 81 (Mot.); see also Paper 80 (redacted version
`of Paper 78); Ex. 1074 (redacted version of Paper 61). With respect to
`Papers 67, 73, and 74, the Motion states that “[t]he Parties having met and
`conferred agree that Papers 73 and 74 should not be sealed, and that Paper
`67 may be sealed as outlined [in the motion].” Mot., 1, 12–16 (proposed
`redactions to Paper 67); Ex. 1075 (Redacted version of Paper 67).
`Considering the agreed-to treatment of Papers 67, 73, and 74, the
`Board finds there is good cause to unseal Papers 73 and 74, and to seal those
`portions of Exhibit 67 outlined in the motion (as reflected in redacted
`Exhibit 1075).1 Exhibit 67 will, thus, be maintained as partially sealed at
`
`
`1 In a September 11, 2019 conference with the Board, Patent Owner
`indicated that it did not necessarily agree that the redactions to Paper 67
`were appropriate, but stated it did not otherwise oppose the redactions as
`proposed in Exhibit 1075. In any event, Petitioner contends that the
`redactions to Paper 67 relate to confidential deposition testimony of one of
`Petitioner’s witnesses, and Patent Owner provides no argument or evidence
`to the contrary. Mot. 12–16.
`
`2
`
`
`
`PGR2018-00025
`Patent 9,668,954 B2
`present, but subject to the Board’s existing Orders for handling sealed
`documents in this record. See, e.g., Paper 78, 105 (indicating, for example,
`that “sealed documents in the record shall remain confidential until the
`conclusion of any appeal or the expiration of the time for appealing, at
`which time they will be made public”).
`At the Board’s request, the panel (Judges Majors, Scheiner, and
`Kaiser) and the parties’ counsel participated in a conference call on
`September 11, 2019, to discuss the remainder of the Motion in greater
`detail—in particular, the parties’ opposing positions on several of
`Petitioner’s proposed redactions to Papers 61 and 78.2 A court reporter also
`attended the conference call, and the Board requested that a transcript of the
`call be filed for the record when available.
`Without delving into all the details discussed during the call in this
`Order, the Board was convinced that the disputed issues in the Motion may
`be simplified or even resolved through further meetings between counsel.
`For example, Petitioner agreed during the call that if Patent Owner was
`indeed de-designating Exhibit 2046 (Decl. of Dean Christal) as confidential,
`that Petitioner would no longer propose that certain redactions to Paper 78
`would be necessary. In addition, it was clear during the call that Petitioner
`required further assistance from its litigation counsel (from related district
`court proceedings) to confirm whether it could accurately represent the
`confidentiality status of certain information that is referenced in Papers 61
`and 78. To the extent Patent Owner may have specific citations from
`portions of the trial record in the related litigation to demonstrate that such
`
`
`2 During the call, Patent Owner confirmed that it was not proposing any
`specific redactions to Papers 61 or 78.
`
`3
`
`
`
`PGR2018-00025
`Patent 9,668,954 B2
`information is not confidential (or no longer confidential), the Board
`encouraged Patent Owner to share such citations with Petitioner through
`further meeting and conferring on these issues. Thus, the Board ordered the
`parties to promptly meet and confer and to submit a revised motion to seal
`related to Papers 61 and 78.
`Accordingly, it is:
`ORDERED that Papers 73 and 74 are no longer sealed;
`ORDERED that the Joint Motion (Paper 81) is granted-in-part as to
`Paper 67 (and Exhibit 1075); and
`FURTHER ORDERED that the parties shall promptly meet and
`confer and file a Revised Joint Motion to Seal Portions of Papers 61 and 78,
`which revised motion must be filed on or before September 18, 2019.
`
`
`
`
`
`
`4
`
`
`
`PGR2018-00025
`Patent 9,668,954 B2
`PETITIONER:
`
`Michelle E. O’Brien
`Timothy J. Murphy
`THE MARBURY LAW GROUP, PLLC
`mobrien@marburylaw.com
`tjmurphy@marburylaw.com
`
`
`PATENT OWNER:
`
`Matthew K. Blackburn
`DIAMOND MCCARTHY LLP
`mblackburn@diamondmccarthy.com
`
`Rivka Monheit
`PABST PATENT GROUP LLP
`rivka@pabstpatent.com
`
`
`
`
`
`
`
`
`5
`
`
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