Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 87
`Entered: September 25, 2019
`
`
`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 Motion to Seal Portions of Paper 61
`35 U.S.C. § 326; 37 C.F.R. §§ 42.14, 42.54(a)
`
`
`
`
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`Paper 87
`Entered: September 25, 2019
`
`
`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 Motion to Seal Portions of Paper 61
`35 U.S.C. § 326; 37 C.F.R. §§ 42.14, 42.54(a)
`
`
`
`
`
`
`
`
`
`
`
`
`PGR2018-00025
`Patent 9,668,954 B2
`
`
`BACKGROUND
`In the July 30, 2019 Final Written Decision (Paper 78), the Board
`ordered the parties to 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 a motion to seal relating to Paper 61 (and certain
`other Papers, the confidentiality and/or redaction of which have since been
`resolved). Id. at 103; see Paper 82 (order that Papers 73 and 74 should not
`be sealed, and that Paper 67 be sealed (with a redacted version of Paper 67
`filed as Ex. 1075)). After being granted several extensions, the parties filed
`a Joint Motion to Seal on September 6, 2019. Paper 81.
`The Board, after considering the parties’ submission (Paper 81 and
`related papers) and following discussion with the parties, issued an order
`requiring the parties to further confer about the confidentiality status of
`Papers 61 and 78, and to file a Revised Joint Motion to Seal addressing those
`papers. Paper 82, 3–4. The parties have since conferred further and,
`according to the Joint Motion to Seal Portions of Paper 61 (the motion
`entered as Paper 86), Petitioner is no longer maintaining that it is necessary
`to seal Paper 78.1 Paper 86, 2 (“Petitioner believes that it is no longer
`necessary to seal Paper 78”). Accordingly, Paper 78 (Final Written
`Decision), will be unsealed and entered in the record without redaction.
`
`
`1 The Board requested that the parties file the transcript of the conference
`held on September 11, 2019, which transcript has now been filed as Exhibit
`2085. As confirmed during that conference, Patent Owner’s position was
`(and apparently remains) that no portion of Papers 61 or 78 needs to remain
`sealed. Ex. 2085, 6:5–12 (Judge Majors: “In other words, for Patent
`Owner’s part those documents [Papers 61 and 78] in their entirety could be
`made public?” Mr. Blackburn: That’s correct, Your Honor.”).
`
`2
`
`
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`PGR2018-00025
`Patent 9,668,954 B2
`Petitioner maintains that two portions of Paper 61 should remain
`sealed (see Ex. 1076, showing redaction to part of one sentence on page 7,
`and redaction to part of a sentence spanning the last line of page 8 and the
`first two lines of page 9). Without revealing the specific content of those
`redacted passages, they relate to certain details about Petitioner’s product
`development and Petitioner’s assessments of a potential acquisition. Indeed,
`the proposed redactions include quoted content taken directly from
`Petitioner’s internal documents (i.e., internal emails and presentation slides;
`Exs. 2068 and 2071) on those subject matters.
`DISCUSSION
`As provided under Rule 42.54(a), “[t]he Board may, for good cause,
`issue an order to protect a party from disclosing confidential information,”
`including forbidding the disclosure of protected information or specifying
`the terms under which such information may be disclosed. 37 C.F.R.
`§ 42.54(a). The Board also observes a strong policy in favor of making all
`information filed in post-grant review proceedings open to the public.
`Under 37 C.F.R. § 42.14, the default rule is that all papers filed in post-grant
`review proceedings are available to the public. Only “confidential
`information” is subject to protection against public disclosure. 35 U.S.C.
`§ 326(a)(7); 37 C.F.R. § 42.55. In that regard, as noted in the Office’s
`Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,760 (Aug. 14, 2012):
`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
`
`
`***
`Confidential Information: The rules identify confidential
`information in a manner consistent with the Federal Rules of
`
`3
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`
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`PGR2018-00025
`Patent 9,668,954 B2
`Civil Procedure 26(c)(1)(G), which provides for protective
`orders for
`trade secret or other confidential
`research,
`development, or commercial information. § 42.54.
`Petitioner, as the party proposing in the Joint Motion that certain
`portions of Paper 61 remain sealed, bears the burden of showing that the
`relief requested should be granted. 37 C.F.R. § 42.20(c). And the standard
`for granting Petitioner’s requested relief is “good cause.” 37 C.F.R.
`§ 42.54(a). In this regard, Petitioner must make a sufficient showing that the
`information it seeks to redact in the public version of Paper 61 (Exhibit
`1076) is confidential, and that such confidentiality outweighs the interest in
`a completely open record.
`For the reasons below, we conclude good cause exists to grant
`Petitioner’s requested relief and maintain the limited portions of Paper 61
`under seal at this time.
`First, Petitioner represents that Patent Owner’s use of Exhibits 2068
`and 20712 in this proceeding was only allowed if Patent Owner agreed to
`observe the confidentiality restrictions put in place at the district court
`concerning those exhibits. Paper 86, 2–3. Petitioner also notes that those
`exhibits presently remain under seal at the district court. Id. Patent Owner
`does not challenge Petitioner on either point. Second, the redacted content
`relates to Petitioner’s internal product designs and to business acquisition
`analyses, which falls squarely within the categories of sensitive research,
`development, and commercial information. See 37 C.F.R. § 42.54. Indeed,
`even the native documents from which the redacted content derives are
`
`
`2 As noted, these exhibits are the source of the limited, quoted content that
`Petitioner requests be maintained confidential.
`
`4
`
`
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`PGR2018-00025
`Patent 9,668,954 B2
`marked as confidential, suggesting that Petitioner sought to limit distribution
`of the information in those documents. (For example, Exhibit 2068 is
`marked “CONFIDENTIAL-NO COPY ALLOWED”). Third, Petitioner
`cites the district court’s Joint Pretrial Order, which provides,
`notwithstanding the emphasis that “the Court should be open to the public
`for the entirety of the presentation of evidence at trial,” that trial exhibits
`marked as confidential, “while displayed at trial, will not be filed publicly.”
`See Paper 86, 3 (quoting portions of the Joint Pretrial Order). This language
`is more consistent with Petitioner’s position that admission of a particular
`document as a trial exhibit or even display of that document in a public
`proceeding did not necessarily remove that document’s status as
`confidential. If, as Patent Owner suggests, the document’s display in open
`court means that such document is, by definition, non-confidential, the
`district court’s order against publicly filing confidential-marked (but
`otherwise publicly-displayed) trial exhibits makes little sense. Fourth, as for
`our interest in an open record, against the balance of the whole record, the
`redactions now sought by Petitioner are few and the redacted content is in no
`way pivotal to the public’s fulsome understanding of the parties’ arguments
`and the conclusions reached by the Board. Finally, given the apparent
`existing status of the exhibits in question as sealed at the district court, to the
`extent the parties still dispute the confidentiality of those exhibits, the
`Boards suggests the court is in a better position to sort out those disputes in
`light of the public record developed before it during trial and its own orders.
`Patent Owner contends that the court’s pretrial order is not
`determinative because this motion does not relate to filing exhibits in the
`Delaware litigation. Paper 86, 5. Nor, Patent Owner contends, does the
`
`5
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`PGR2018-00025
`Patent 9,668,954 B2
`court’s order stipulate that public information will be treated as confidential.
`Id. But these contentions sidestep the key question, to which we find the
`joint pretrial order does speak: whether the use of trial exhibits, even in open
`court, means those exhibits are, in their entirety, no longer confidential? We
`conclude, for reasons explained above, that this is not necessarily so.
`Reasonably interpreted on the record before us, the pretrial order seemingly
`balances the interest in open proceedings, without negating all potential
`confidentiality in trial exhibits presented in open court.
`Patent Owner also contends that admitted trial exhibits are judicial
`records to which the public should be given access. Paper 5 (citing, e.g.,
`Littlejohn v. BIC Corp., 851 F.2d 673, 677–78 (3d Cir. 1988). Importantly,
`however, in Littlejohn the court grappled with the question of whether a
`protective order governed treatment of such trial exhibits. The court
`determined it did not and, because the exhibits were used in open court
`without objection, BIC’s confidentiality interest in those exhibits had,
`according to the court, been waived. Littlejohn, 851 F.2d at 680. But here,
`as explained above, we conclude the district court’s joint pretrial order does
`address whether trial exhibits that are marked confidential may still retain
`some element of confidentiality (e.g., because such exhibits should not be
`filed in the public record, even if displayed in open court).
`In addition to the above, Patent Owner argues that Exhibits 2068 and
`2071 (or analogous exhibits with essentially the same content) were used
`during witness questioning at trial. Paper 86, 6–7. Patent Owner provides
`page cites to where such witness questioning is alleged to have occurred. Id.
`The Board has searched, but does not have access to the portions of the
`
`6
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`PGR2018-00025
`Patent 9,668,954 B2
`court’s trial transcript cited by Patent Owner.3 So, we cannot assess the
`extent to which the witnesses discussed the exhibits in question, much less
`whether the particular content that relates to the redactions sought by
`Petitioner were raised during questioning in open court. On the other hand,
`Petitioner certifies that “it has searched the District Court record, consulted
`with litigation counsel, and is unable to find a public disclosure of the
`redacted subject matter or a quotation of the same.” Id. at 9.
`For all the reasons above, we conclude good cause exists to seal the
`limited portions of Exhibit 61 requested by Petitioner. Patent Owner’s
`arguments to the contrary are unavailing on this record.
`Accordingly, it is:
`ORDERED that Paper 78 is no longer sealed; and
`FURTHER ORDERED that Paper 61 shall remain sealed to the extent
`of the redactions noted in Exhibit 1076.
`
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`3 Patent Owner’s citations to the transcript do not provide a docket entry.
`We have searched PACER, but do not find the daily transcripts available. It
`is unclear whether the trial transcript has yet been (or will be) entered in the
`public record.
`
`7
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`
`
`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
`
`
`
`
`
`
`
`
`8
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`
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