Trials@uspto.gov
`571-272-7822
`
`Paper No. 87
`Entered: February 13, 2024
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BASF CORPORATION,
`Petitioner,
`
`v.
`
`INGEVITY SOUTH CAROLINA, LLC,
`Patent Owner.
`____________
`
`PGR2020-00037
`Patent 10,323,553 B2
`____________
`
`
`Before JON B. TORNQUIST, CHRISTOPHER M. KAISER, and
`JULIA HEANEY, Administrative Patent Judges.
`
`HEANEY, Administrative Patent Judge.
`
`
`ORDER
`Granting Joint Motion to Seal Final Written Decision on Remand
`37 C.F.R. §§ 42.5, 42.14
`
`
`
`
`
`571-272-7822
`
`Paper No. 87
`Entered: February 13, 2024
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BASF CORPORATION,
`Petitioner,
`
`v.
`
`INGEVITY SOUTH CAROLINA, LLC,
`Patent Owner.
`____________
`
`PGR2020-00037
`Patent 10,323,553 B2
`____________
`
`
`Before JON B. TORNQUIST, CHRISTOPHER M. KAISER, and
`JULIA HEANEY, Administrative Patent Judges.
`
`HEANEY, Administrative Patent Judge.
`
`
`ORDER
`Granting Joint Motion to Seal Final Written Decision on Remand
`37 C.F.R. §§ 42.5, 42.14
`
`
`
`
`
`
`PGR2020-00037
`Patent 10,323,553 B2
`
`
`INTRODUCTION
`On January 26, 2024, we issued under seal a Final Written Decision
`on Remand. See Paper 85. In the Decision, we ordered the parties “within
`ten days after the issuance of this decision, to file a joint motion to seal
`explaining why this decision should remain under seal and including a
`redacted version of this decision that can be made publicly available.”1 Id.
`at 22.
`
`On February 2, 2024, Petitioner and Patent Owner timely filed a Joint
`Motion to Seal (Paper 86 (“Motion”)) the Board’s Final Written Decision on
`Remand and a proposed redacted public version (Ex. 2086) of the Final
`Written Decision on Remand.
`In the Motion, the parties request that we seal the Final Written
`Decision on Remand in its entirety because it discusses the confidential Guo
`Memo. Paper 86, 3. The parties explain that the confidential Guo Memo
`discussed in the Final Written Decision on Remand includes “confidential
`internal testing results” and more particularly, “confidential and proprietary
`development and technical information which would not normally be
`revealed to third parties (Paper 10, 2) and, if it were publicly disclosed,
`would impose competitive injury and economic harm to Ingevity,” and
`“confidential information and technical know-how that would impose
`competitive injury and economic harm to Ingevity if it were publicly
`disclosed.” Paper 86, 3–4. The parties note that the Board has already
`found good cause to seal the Guo Memo itself. Id. at 3; see Paper 73. The
`parties certify that the information sought to be sealed has not been
`
`
`1 We entered a Protective Order in this proceeding on July 29, 2020.
`Ex. 2013.
`
`
`
`2
`
`
`
`PGR2020-00037
`Patent 10,323,553 B2
`
`published or otherwise made public. Paper 86, 1, 4. The parties submit that
`the “proposed redacted Final Written Decision on Remand (Exhibit 2086) is
`consistent with the redacted version of the Guo Memo published as Exhibit
`2085.” Id. at 4. The parties also explain that “[r]ather than redacting the
`entirety of the discussion about the Guo Memo, Ingevity has redacted
`limited portions of the Final Written Decision on Remand that allows the
`public to understand the basis for the Board’s decision without revealing the
`confidential internal testing results from the Guo Memo.” Id. at 3. The
`parties also “jointly agree that the Redacted Version [of the Final Written
`Decision on Remand] (Exhibit 2086) does not contain any Confidential
`Information of either party and therefore, move to publish that to the
`public.” Id. at 1, 3–4.
`For the reasons below, we grant the Joint Motion to Seal.
`DISCUSSION
`Except as ordered otherwise, proceedings before the Board are
`available to the public. The Board’s standards for granting motions to seal
`are discussed in Garmin International v. Cuozzo Speed Technologies, LLC,
`IPR2012-00001, Paper 34, 1 (PTAB March 14, 2013) (“There is a strong
`public policy for making all information filed in a quasi-judicial
`administrative proceeding open to the public, especially in an inter partes
`review which determines the patentability of claims in an issued patent and
`therefore affects the rights of the public.”)
`In post-grant review, the moving party bears the burden of showing
`that the relief requested should be granted. 37 C.F.R. § 42.20(c). A party
`moving to seal must show “good cause” for the relief requested. 37 C.F.R. §
`42.54(a). The “good cause” standard includes showing that (1) the
`
`
`
`3
`
`
`
`PGR2020-00037
`Patent 10,323,553 B2
`
`information sought to be sealed is truly confidential, (2) a concrete harm
`would result upon public disclosure, (3) there exists a genuine need to rely in
`the trial on the specific information sought to be sealed, and (4) on balance,
`an interest in maintaining confidentiality outweighs the strong public interest
`in having an open record. See Argentum Pharms. LLC v. Alcon Research,
`Ltd., IPR2017-01053, Paper 27 at 3–4 (PTAB Jan. 19, 2018) (informative).
`Having considered the Motion to seal, we determine that there is good
`cause for granting the Motion with respect to all information. Specifically,
`the parties demonstrate that the information they seek to seal consists of
`sensitive business, technical, and research and development strategy
`information that has not been published or otherwise made public. Given
`the subject matter of the information redacted, and the mutual agreement
`between the parties on the redactions, we determine that the redacted
`passages are confidential, that Petitioner, Patent Owner, or a third party
`would be harmed by not redacting the information, that the parties had a
`need to rely on this information at trial, and that the interest in maintaining
`the information as confidential outweighs the public interest in having the
`information unsealed.
`Accordingly, we conclude that good cause exists to maintain under
`seal the Final Written Decision on Remand (Paper 85), and we grant the
`Joint Motion to Seal.
`
`CONCLUSION
`For the reasons above, we grant the Joint Motion to Seal.
`
`
`4
`
`
`
`
`
`
`
`PGR2020-00037
`Patent 10,323,553 B2
`
`
`ORDER
`
`It is hereby:
`ORDERED that the Joint Motion to Seal (Paper 86) is granted;
`FURTHER ORDERED that the confidential Final Written Decision
`on Remand issued January 26, 2024 (Paper 85) is maintained under seal; and
`FURTHER ORDERED that the parties shall, within ten days of the
`issuance of this Order, file as a paper a version of the proposed redacted
`Final Written Decision on Remand (Exhibit 2086), without the exhibit
`designation and with a revised paper number.
`
`
`
`
`
`
`
`5
`
`
`
`PGR2020-00037
`Patent 10,323,553 B2
`
`
`FOR PETITIONER:
`
`Brian Eutermoser
`Steven W. Peters
`Joseph D. Eng, Jr.
`KING & SPALDING LLP
`beutermoser@kslaw.com
`speters@kslaw.com jeng@kslaw.com
`
`
`FOR PATENT OWNER:
`
`Brian M. Buroker
`David L. Glandorf
`GIBSON, DUNN & CRUTCHER LLP
`bburoker@gibsondunn.com
`dglandorf@gibsondunn.com
`
`Spencer W. Ririe
`MAGNUM RIRIE LLP
`spencer@mangumririe.com
`
`
`
`
`6
`
`
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