Trials@uspto.gov
`571-272-7822
`
`Paper 36
`
` Entered: March 5, 2019
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DISPERSIVE NETWORKS, INC.,
`Petitioner,
`
`v.
`
`NICIRA, INC.,
`Patent Owner.
`____________
`
`Case PGR2018-00063
`Patent 9,722,815 B2
`____________
`
`Before DEBRA K. STEPHENS, GARTH D. BAER, and
`KAMRAN JIVANI, Administrative Patent Juges.
`
`STEPHENS, Administrative Patent Judge
`
`
`ORDER
`Entry of Protective Order
`37 C.F.R. § 42.54
`
`
`571-272-7822
`
`Paper 36
`
` Entered: March 5, 2019
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DISPERSIVE NETWORKS, INC.,
`Petitioner,
`
`v.
`
`NICIRA, INC.,
`Patent Owner.
`____________
`
`Case PGR2018-00063
`Patent 9,722,815 B2
`____________
`
`Before DEBRA K. STEPHENS, GARTH D. BAER, and
`KAMRAN JIVANI, Administrative Patent Juges.
`
`STEPHENS, Administrative Patent Judge
`
`
`ORDER
`Entry of Protective Order
`37 C.F.R. § 42.54
`
`
`
`Case PGR2018-00063
`Patent No. 9,722,815 B2
`
`
`On February 14, 2019, Dispersive Networks, Inc. (hereinafter,
`“Petitioner”) filed an Unopposed Motion to Enter Protective Order
`(Paper 30) and Unopposed Motion to Seal (Paper 31). In Petitioner’s
`Unopposed Motion to Enter Protective Order (Paper 30), Petitioner Standing
`Protective Order, filed as Exhibit 2017, which “represents a formatted
`version of the Default Protective Order provided in Appendix B of the
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,771 (Aug. 14,
`2012))” (Paper 30, 1). Petitioner represents Nicira, Inc. (hereinafter, “Patent
`Owner”) does not oppose this motion, and indicated both parties have signed
`the Standing Protective Order (Ex. 2017).
`Petitioner concurrently filed an Unpposed Motion to Seal (Paper 31)
`in which Petitioner moves to seal the unredacted transcript of the deposition
`of Richard W. Conklin (Ex. 1018) as a redacted transcript, submitted as
`Exhibit 1019.
`According to Petitioner, in the unredacted transcript, five of the
`deponent’s answers “contain[ ] confidential and sensitive financial
`information” of the Petitioner and the deponent (Paper 31, 1).
`As background, a post grant review is a public proceeding.
`Consequently, a strong public policy exists to be sure the record is open to
`the public. We recognize, however, that the parties may have an interest in
`protecting truly confidential information. “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 sensistive
`information” (Office Patent Trial Practice Guide, 77 Reg. 48,756 48,760
`(Aug. 14, 2012)).
`
`
`
`2
`
`
`
`Case PGR2018-00063
`Patent No. 9,722,815 B2
`
`
`Under 37 C.F.R. § 42.14,
`
`The record of a proceeding, including documents and things, shall be
`made available to the public, except as otherwise ordered. A party
`intending a document or thing to be sealed shall file a motion to seal
`concurrent with the filing of the document or thing to be sealed. The
`document or thing shall be provisionally sealed on receipt of the
`motion and remain so pending the outcome of the decision on the
`motion.
`Additionally, when filing a motion to seal, a proposed protective order is
`required (37 C.F.R. § 42.54).
`Here, Petitioner and Patent Owner filed a protective order (Exhibit
`1017) that “represents a formatted version of the Default Protective Order
`provided in Appendix B of the Office Patent Trial Practice Guide, 77 Fed.
`Reg. 48,756, 48,771 (Aug. 14, 2012))” (Paper 30) along with the Motion to
`Seal (Paper 31).
`Under 37 C.F.R. § 42.54(a), the Board may, for good cause, issue a
`protective order “to protect a party or person from disclosing confidential
`information.” “Specifically, protective orders may be issued for good cause
`by the Board to protect a party from disclosing confidential information”
`(Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,760). Petitioner
`seeks to protect confidential information asserted to be disclosed in the
`Deposition of Richard W. Conklin (Ex. 1018). Petitioner has filed the
`unredacted Deposition (Ex. 1018) along with a non-confidential description
`of the nature of the confidential information under seal, and reasons why the
`information is confidential and should not be made available to the public
`(Paper 31, 1–2), in accordance with guidance provided in the Office Patent
`Trial Practice Guide (Office Patent Trial Practice Guide, 77 Fed. Reg. at
`
`
`
`3
`
`
`
`Case PGR2018-00063
`Patent No. 9,722,815 B2
`
`48770). Additionally, Petitioner has filed both a confidential, redacted
`version (Ex. 1019) and a non-confidential version (Ex. 1018) of the
`deposition, together with an unopposed Motion to Seal the confidential,
`redacted version (Ex. 1018), in accordance the Office Patent Trial Practice
`Guide guidelines (Office Patent Trial Practice Guide, 77 Fed. Reg. at
`48770). In the Motion to Seal, Petitioner asserts “the redacted answers
`merely go to compensation information for the deponent, and share and
`capitalization information for the Petitioner, and do not directly bear on the
`patentability of the claims of the subject patent” (Paper 31, 2). Patent Owner
`has not opposed the Motion to Seal.
` “Good cause” for sealing is established by a “sufficient explanation
`as to why” the “information sought to be sealed is confidential information”
`(Garmin Int’l v. Cuozzo Speed Techs., LLC, Case IPR2012-00001 (PTAB
`Mar. 14, 2013) Paper 34, 3), a demonstration that the information is not
`“excessively redacted” (Corning Optical Communications RF, LLC, v. PPC
`Broadband, Inc., Case IPR2014-00440 (PTAB April 6, 14, and 17, 2015)
`Paper 46, 2), and a showing that, on balance, the strong “public[] interest in
`maintaining a complete and understandable record” is outweighed by “the
`harm to a party, by disclosure of information” and “the need of either party
`to rely specifically on the information at issue” (id. at Paper 47, 3 (footnote
`omitted)).
`Upon review of the documents, we determine Petitioner has attempted
`to minimize the material redacted and limit the redactions to isolated
`passages consisting solely of confidential information. We further
`determine the general thrust of the specific examination is discernable from
`the redacted version of the deposition. Additionally, we determine
`
`
`
`4
`
`
`
`Case PGR2018-00063
`Patent No. 9,722,815 B2
`
`Petitioner has explained sufficiently why the information sought to be
`sealed, should be sealed. At this juncture, we determine a genuine need to
`rely on this specific information at trial, does not appear necessary.
`Moreover, Patent Owner has signed the Protective Order (Ex. 1017) and has
`not opposed the Motion to Seal (Paper 31).
`Accordingly, good cause has been shown, and therefore, we grant
`Petitioner’s request to seal the unredacted deposition (Ex. 1018). The parties
`will adhere to the terms of the Standing Protective Order (Ex. 1017),
`including for the unredacted Deposition of Richard W. Conklin (Ex. 1018).
`Accordingly, it is
`ORDERED that the unopposed request for entry of the default
`protective order is granted;
`FURTHER ORDERED that the filed Protective Order shall govern
`the treatment and filing of confidential information in this procedding; and
`FURTHER ORDERED that the unopposed Motion to Seal the
`unredacted deposition of Richard W. Conklin, Exhibit 1018, is granted.
`
`
`
`
`5
`
`
`
`Case PGR2018-00063
`Patent No. 9,722,815 B2
`
`PETITIONER:
`
`Chad D. Tillman
`Jeremy C. Doerre
`TILLMAN WRIGHT, PLLC
`chad@ti-law.com
`jdoerre@ti-law.com
`
`PATENT OWNER:
`
`Scott W. Cummings
`Kevin Greenleaf
`DENTONS US LLP
`scott.cummings@dentons.com
`kevin.greenleaf@dentons.com
`
`
`
`
`
`
`6
`
`
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