throbber
Trials@uspto.gov
`571-272-7822
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` Paper 19
` Entered: December 3, 2020
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SUPERCELL OY,
`Petitioner,
`
`v.
`
`GREE, INC.,
`Patent Owner.
`____________
`
`PGR2020-00038 (Patent 10,307,675 B2)
`PGR2020-00039 (Patent 10,307,676 B2)
`PGR2020-00041 (Patent 10,307,677 B2)
`____________
`
`
`
`Before MICHAEL W. KIM, Vice Chief Administrative Patent Judge,
`LYNNE H. BROWNE, HYUN J. JUNG, and AMANDA F. WIEKER,
`Administrative Patent Judges.1
`
`WIEKER, Administrative Patent Judge.
`
`
`
`
`ORDER
`Granting Petitioner’s Motion to Expunge
`37 C.F.R. § 42.56
`Dismissing Petitioner’s Motion to Seal
`37 C.F.R. § 42.14 and 42.54
`
`1 This is not an expanded panel. A three-judge panel is assigned to each
`proceeding.
`
`

`

`PGR2020-00038 (Patent 10,307,675 B2)
`PGR2020-00039 (Patent 10,307,676 B2)
`PGR2020-00041 (Patent 10,307,677 B2)
`
`
`INTRODUCTION
`I.
`Prior to the Board’s decision on whether to institute review in these
`proceedings, Petitioner submitted Exhibit 1023 into the record of each
`proceeding, accompanied by a Motion to Seal and for Entry of Protective
`Order. See PGR2020-00038, Paper 8.2 In September 2020, the Board
`denied institution of these proceedings and, in October 2020, the Board
`denied Petitioner’s requests for reconsideration. See PGR2020-00038,
`Papers 14, 17.3 On November 24, 2020, with the Board’s prior
`authorization, Petitioner filed, in each proceeding, a Motion to Expunge
`Exhibit 1023. See PGR2020-00038, Paper 19.4 Petitioner has represented
`that Patent Owner does not oppose the Motion to Expunge.
`For the reasons set forth below, we grant Petitioner’s Motion to
`Expunge and dismiss as moot Petitioner’s Motion to Seal.
`
`II. ANALYSIS
`“After denial of a petition to institute a trial . . . , a party may file a
`motion to expunge confidential information from the record.” 37 C.F.R.
`§ 42.56. The Board’s Consolidated Trial Practice Guide explains that
`“[t]here is an expectation that information will be made public where the
`existence of the information is referred to in a decision to grant or deny a
`request to institute a review.” PTAB Consolidated Trial Practice Guide, 22
`
`
`2 See PGR2020-00039, Paper 8; PGR2020-00041, Paper 8.
`3 See PGR2020-00039, Papers 14, 17; PGR2020-00041, Papers 14, 17.
`4 See PGR2020-00039, Paper 18; PGR2020-00041, Paper 18.
`2
`
`
`
`

`

`PGR2020-00038 (Patent 10,307,675 B2)
`PGR2020-00039 (Patent 10,307,676 B2)
`PGR2020-00041 (Patent 10,307,677 B2)
`
`(2019).5 This expectation does not arise here, however, because the
`decisions denying institution of review and denying rehearing do not refer to
`the exhibit Petitioner seeks to have expunged. See PGR2020-00038,
`Papers 14, 17; PGR2020-00039, Papers 14, 17; PGR2020-00041, Papers 14,
`17.
`
`A party seeking expungement of material from the record must
`nevertheless show good cause by demonstrating that “any information
`sought to be expunged constitutes confidential information, and that
`Petitioner’s interest in expunging it outweighs the public’s interest in
`maintaining a complete and understandable history” of the proceeding.
`Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., IPR2013-00453,
`Paper 97 at 2 (PTAB Apr. 15, 2015). In addressing whether there is good
`cause for expungement, Petitioner asserts that Exhibit 1023 “contains
`Petitioner’s confidential and highly sensitive business confidential
`information, disclosure of which would adversely harm Petitioner, while
`expungement of which would not significantly impact the public’s interest in
`maintaining a complete and understandable file history.” See PGR2020-
`00038, Paper 19 at 2–3; PGR2020-00039, Paper 18 at 2–3; PGR2020-
`00041, Paper 2–3. Petitioner also asserts that expunging Exhibit 1023
`“protects a sensitive District Court Litigation document.” See, e.g.,
`PGR2020-00038, Paper 19 at 3 (asserting the document has not been made
`public otherwise and has been maintained as confidential in the district court
`litigation).
`
`
`5 A copy of the Consolidated Trial Practice Guide is available at
`https://www.uspto.gov/sites/default/files/documents/tpgnov.pdf.
`3
`
`
`
`

`

`PGR2020-00038 (Patent 10,307,675 B2)
`PGR2020-00039 (Patent 10,307,676 B2)
`PGR2020-00041 (Patent 10,307,677 B2)
`
`
`The Board did not rely on this exhibit in any manner during the course
`of these proceedings, so expungement does not impact the public’s interest
`in maintaining a complete and understandable history. Considering this in
`conjunction with Petitioner’s unopposed arguments, we are persuaded that
`good cause has been shown, and that Exhibit 1023 should be expunged.
`Therefore, we grant Petitioner’s Motions to Expunge, which renders
`moot the pending Motions to Seal. As such, we dismiss the Motions to Seal.
`
`
`III. ORDER
`
`Accordingly, it is:
`ORDERED that Petitioner’s Motion to Expunge (PGR2020-00038,
`Paper 19; PGR2020-00039, Paper 18; PGR2020-00041, Paper 18) is
`granted;
`FURTHER ORDERED that Petitioner’s Motion to Seal and for Entry
`of Protective Order (PGR2020-00038, Paper 8; PGR2020-00039, Paper 8;
`PGR2020-00041, Paper 8) is dismissed as moot; and
`FURTHER ORDERED that Exhibit 1023 is expunged from each
`proceeding.
`
`
`
`
`
`
`
`
`
`4
`
`

`

`PGR2020-00038 (Patent 10,307,675 B2)
`PGR2020-00039 (Patent 10,307,676 B2)
`PGR2020-00041 (Patent 10,307,677 B2)
`
`PETITIONER:
`Brian Hoffman
`Jennifer Bush
`Kevin McGann
`Gregory A. Hopewell
`Eric Zhou
`bhoffman-ptab@fenwick.com
`jbush-ptab@fenwick.com
`kmcgann-ptab@fenwick.com
`ghopewell@fenwick.com
`ezhou@fenwick.com
`
`PATENT OWNER:
`John Alemanni
`Andrew Rinehart
`jalemanni@kilpatricktownsend.com
`arinehart@kilpatricktownsend.com
`
`
`
`5
`
`

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