Patent No. 10,518,177 – Petitioner’s Motion to Seal and for Entry of Protective Order
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`Filed on behalf of Supercell Oy
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`By:
`BRIAN HOFFMAN, Reg. No. 39,713
`MICHAEL J. SACKSTEDER (pro hac vice)
`KEVIN X. MCGANN, Reg. No. 48,793
`JENNIFER R. BUSH, Reg. No 50,784
`GREGORY HOPEWELL, Reg. No. 66,012
`GEOFFREY MILLER (pro hac vice)
`FENWICK & WEST LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Telephone: 415.875.2300
`Facsimile: 415.281.1350
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`SUPERCELL OY,
`Petitioner
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`v.
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`GREE, INC.,
`Patent Owner.
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`
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`Post Grant Review No.
`Patent 10,518,177 B2
`_____________
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`PETITIONER’S MOTION TO SEAL EXHIBIT 1007
`AND FOR ENTRY OF PROTECTIVE ORDER
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`Filed on behalf of Supercell Oy
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`By:
`BRIAN HOFFMAN, Reg. No. 39,713
`MICHAEL J. SACKSTEDER (pro hac vice)
`KEVIN X. MCGANN, Reg. No. 48,793
`JENNIFER R. BUSH, Reg. No 50,784
`GREGORY HOPEWELL, Reg. No. 66,012
`GEOFFREY MILLER (pro hac vice)
`FENWICK & WEST LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Telephone: 415.875.2300
`Facsimile: 415.281.1350
`
`
`
`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`SUPERCELL OY,
`Petitioner
`
`v.
`
`GREE, INC.,
`Patent Owner.
`
`
`
`Post Grant Review No.
`Patent 10,518,177 B2
`_____________
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`PETITIONER’S MOTION TO SEAL EXHIBIT 1007
`AND FOR ENTRY OF PROTECTIVE ORDER
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`Patent No. 10,518,177 – Petitioner’s Motion to Seal and for Entry of Protective Order
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`Pursuant to 37 C.F.R. §§ 42.14 and 42.54, Petitioner Supercell Oy
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`(“Supercell”) respectfully requests that Exhibit 1007, filed concurrently herewith,
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`be filed under seal. Petitioner also respectfully requests that the Board enter the
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`protective order attached as Appendix A to this Motion, which is the model
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`protective order contained within the Office Patent Trial Practice Guide, 77 Fed.
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`Reg. 48756, 48769-770 (Aug. 14, 2012).
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`The exhibit at issue was served on Petitioner by Patent Owner GREE, Inc.
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`(“GREE”) on August 19, 2020 in the ongoing litigation between the parties in the
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`action GREE, Inc. v. Supercell Oy, Case No. 2:19-cv-00413-JRG-RSP (E.D. Texas)
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`(the “Civil Action”). GREE designated that document as “RESTRICTED –
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`CONFIDENTIAL SOURCE CODE.”
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`I.
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`REASONS FOR RELIEF AND STATEMENT OF FACTS
`A. Good Cause Exists for Sealing Exhibit 1007
`The Office Patent Trial Practice Guide provides that “the rules aim to strike a
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`balance between the public’s interest in maintaining a complete and understandable
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`file history and the parties’ interest in protecting truly sensitive information.”
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`77 Fed. Reg. 48756, 48760 (Aug. 14, 2012). Petitioner submits that this Motion to
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`Seal protects Supercell’s sensitive information, while not significantly impacting
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`the public’s interest in maintaining a complete and understandable file history and
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`also protects a sensitive District Court Litigation document served by GREE, Inc.
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`Patent No. 10,518,177 – Petitioner’s Motion to Seal and for Entry of Protective Order
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`Furthermore, Patent Owner GREE is already in possession of Exhibit 1007, and
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`created the document in the course of the Civil Action.
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`B.
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`Exhibit 1007 Includes Confidential Information and Public
`Disclosure Would Result in Concrete Harm
`Exhibit 1007 is GREE, Inc.’s Amended Disclosure of Asserted Claims and
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`Infringement Contentions, served on Supercell on August 19, 2020, and designated
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`by GREE as “RESTRICTED – CONFIDENTIAL SOURCE CODE” because it
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`contains references to the source code of Supercell’s Clash Royale game. To the
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`extent that Exhibit 1007 is referenced in the Petition and other exhibits, such
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`references do not include the confidential source code.
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`II. CERTIFICATION OF NON-PUBLICATION
`Petitioner certifies that to the best of its knowledge, Exhibit 1007 has never
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`been published or otherwise made public. The Patent Owner and Petitioner made
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`efforts to maintain the confidentiality of this information in the Civil Action. In the
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`Civil Action, the information Petitioner seeks to seal was produced pursuant to a
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`Protective Order agreed upon by the Parties and was designated “CONFIDENTIAL
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`– OUTSIDE COUNSEL ONLY” pursuant to that Protective Order.
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`III. CONCLUSION
`For the reasons set forth above, Petitioner respectfully requests the Board
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`grant its motion to seal, and enter the proposed Protective Order.
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`Patent No. 10,518,177 – Petitioner’s Motion to Seal and for Entry of Protective Order
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`Dated: September 29, 2020
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`Respectfully submitted,
`FENWICK & WEST LLP
`
`/Brian Hoffman /
`
`Reg. No. 39,713
`Attorneys for Petitioner Supercell Oy
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`Patent No. 10,518,177 – Petitioner’s Motion to Seal and for Entry of Protective Order
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`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6, the undersigned certifies that on September 29,
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`2020, a copy of the foregoing Petitioner’s Motion to Seal Exhibit 1007 and For
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`Entry of Protective Order was served on Patent Owner’s correspondence address
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`of record in its entirety by Federal Express – Priority Delivery upon the following:
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`MAIER & MAIER, PLLC
`345 South Patrick Street
`Alexandria VA 22314
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`Dated: September 29, 2020
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`FENWICK & WEST LLP
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`/Brian Hoffman/
`Brian Hoffman
`Reg. No. 39,713
`Attorneys for Petitioner Supercell Oy
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`Fenwick & West LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`SUPERCELL OY,
`Petitioner
`
`v.
`
`GREE, INC.,
`Patent Owner.
`
`
`
`Post Grant Review No.
`Patent 10,518,177 B2
`_____________
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`[PROPOSED] DEFAULT PROTECTIVE ORDER
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`This protective order governs the treatment and filing of confidential
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`information, including documents and testimony.
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`1.
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`Confidential information shall be clearly marked “PROTECTIVE
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`ORDER MATERIAL.”
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`2.
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`Access to confidential information is limited to the following
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`individuals who have executed the acknowledgment appended to this order:
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`(A) Parties. Persons who are owners of a patent involved in the
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`proceeding and other persons who are named parties to the proceeding.
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`(B) Party Representatives. Representatives of record for a party in
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`the proceeding.
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`(C) Experts. Retained experts of a party in the proceeding who
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`further certify in the Acknowledgement that they are not a competitor to any party,
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`or a consultant for, or employed by, such a competitor with respect to the subject
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`matter of the proceeding.
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`(D)
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`In-house counsel. In-house counsel of a party.
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`(E)
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`Support Personnel. Administrative assistants, clerical staff,
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`court reporters and other support personnel of the foregoing persons who are
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`reasonably necessary to assist those persons in the proceeding shall not be required
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`to sign an Acknowledgement, but shall be informed of the terms and requirements
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`of the Protective Order by the person they are supporting who receives confidential
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`information.
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`(F) The Office. Employees and representatives of the United States
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`Patent and Trademark Office who have a need for access to the confidential
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`information shall have such access without the requirement to sign an
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`Acknowledgement. Such employees and representatives shall include the Director,
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`members of the Board and their clerical staff, other support personnel, court
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`reporters, and other persons acting on behalf of the Office.
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`3.
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`Employees (e.g., corporate officers), consultants, or other persons
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`performing work for a party, other than those persons identified above in
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`(d)(2)(A)–(E), shall be extended access to confidential information only upon
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`agreement of the parties or by order of the Board upon a motion brought by the
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`party seeking to disclose confidential information to that person and after signing
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`the Acknowledgment. The party opposing disclosure to that person shall have the
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`burden of proving that such person should be restricted from access to confidential
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`information.
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`4.
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`Persons receiving confidential information shall use reasonable efforts
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`to maintain the confidentiality of the information, including:
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`(A) Maintaining such information in a secure location to which
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`persons not authorized to receive the information shall not have access;
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`(B) Otherwise using reasonable efforts to maintain the confidentiality
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`of the information, which efforts shall be no less rigorous than those the recipient
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`uses to maintain the confidentiality of information not received from the disclosing
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`party;
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`(C) Ensuring that support personnel of the recipient who have
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`access to the confidential information understand and abide by the obligation to
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`maintain the confidentiality of information received that is designated as
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`confidential; and
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`(D) Limiting the copying of confidential information to a
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`reasonable number of copies needed for conduct of the proceeding and maintaining
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`a record of the locations of such copies.
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`5.
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`Persons receiving confidential information shall use the following
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`procedures to maintain the confidentiality of the information:
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`(A) Documents and Information Filed With the Board.
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`i.
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`A party may file documents or information with the Board
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`along with a Motion to Seal. The Motion to Seal should provide a non-confidential
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`description of the nature of the confidential information that is under seal, and set
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`forth the reasons why the information is confidential and should not be made
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`available to the public. A party may challenge the confidentiality of the
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`information by opposing the Motion to Seal. The documents or information shall
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`remain under seal unless the Board determines that some or all of it does not qualify
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`for confidential treatment.
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`ii. Where confidentiality is alleged as to some but not all of
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`the information submitted to the Board, the submitting party shall file confidential
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`and non-confidential versions of its submission, together with a Motion to Seal the
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`confidential version setting forth the reasons why the information redacted from
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`the non-confidential version is confidential and should not be made available to the
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`public. A party may challenge the confidentiality of the information by opposing
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`the Motion to Seal. The non-confidential version of the submission shall clearly
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`indicate the locations of information that has been redacted. The confidential
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`version of the submission shall be filed under seal. The redacted information shall
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`remain under seal unless the Board determines that some or all of the redacted
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`information does not qualify for confidential treatment.
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`(B) Documents and Information Exchanged Among the Parties.
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`Documents (including deposition transcripts) and other information designated as
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`confidential that are disclosed to another party during discovery or other
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`proceedings before the Board shall be clearly marked as “PROTECTIVE ORDER
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`MATERIAL” and shall be produced in a manner that maintains its confidentiality.
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`6. Within 60 days after the final disposition of this action, including the
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`exhaustion of all appeals and motions, each party receiving confidential
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`information must return, or certify the destruction of, all copies of the confidential
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`information to the producing party.
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`7.
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`The form attached as Exhibit may be used to acknowledge a
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`Protective Order and gain access to information covered by the Protective Order.
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`EXHIBIT A
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`SUPERCELL OY,
`Petitioner
`v.
`GREE, INC.,
`Patent Owner
`
`
`Post Grant Review No.
`Patent 10,518,177 B2
`
`
`
`
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`____________
`STANDARD ACKNOWLEDGMENT FOR ACCESS
`TO PROTECTIVE ORDER MATERIAL
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`I,
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`, affirm that I have read the Protective
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`Order; that I will abide by its terms; that I will use the confidential information only
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`in connection with this proceeding and for no other purpose; that I will only allow
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`access to support staff who are reasonably necessary to assist me in this proceeding;
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`that prior to any disclosure to such support staff I informed or will inform them of
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`the requirements of the Protective Order; that I am personally responsible for the
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`requirements of the terms of the Protective Order and I agree to submit to the
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`jurisdiction of the Patent Office and the United States District Court for the Eastern
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`District of Texas for purposes of enforcing the terms of the Protective Order and
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`providing remedies for its breach.
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