PGR2020-00088
`Petitioner’s Motion to Expunge Confidential Document
`
`Filed on behalf of Supercell Oy
`
`By:
`BRIAN HOFFMAN, Reg. No. 39,713
`MICHAEL J. SACKSTEDER
`KEVIN X. MCGANN, Reg. No. 48,793
`JENNIFER R. BUSH, Reg. No 50,784
`GEOFFREY MILLER
`FENWICK & WEST LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Telephone: 415.875.2300
`Facsimile: 415.281.1350
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`SUPERCELL OY,
`Petitioner,
`
`v.
`
`GREE, INC.,
`Patent Owner.
`
`
`Case PGR2020-00088
`Patent 10,518,177 B2
`_____________
`
`PETITIONER’S MOTION TO EXPUNGE CONFIDENTIAL DOCUMENT
`
`
`
`
`
`Petitioner’s Motion to Expunge Confidential Document
`
`Filed on behalf of Supercell Oy
`
`By:
`BRIAN HOFFMAN, Reg. No. 39,713
`MICHAEL J. SACKSTEDER
`KEVIN X. MCGANN, Reg. No. 48,793
`JENNIFER R. BUSH, Reg. No 50,784
`GEOFFREY MILLER
`FENWICK & WEST LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Telephone: 415.875.2300
`Facsimile: 415.281.1350
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`SUPERCELL OY,
`Petitioner,
`
`v.
`
`GREE, INC.,
`Patent Owner.
`
`
`Case PGR2020-00088
`Patent 10,518,177 B2
`_____________
`
`PETITIONER’S MOTION TO EXPUNGE CONFIDENTIAL DOCUMENT
`
`
`
`
`
`
`PGR2020-00088
`Petitioner’s Motion to Expunge Confidential Document
`TABLE OF CONTENTS
`
`Page
`INTRODUCTION ........................................................................................... 1
`I.
`APPLICABLE LEGAL STANDARDS .......................................................... 2
`II.
`III. GOOD CAUSE EXISTS FOR EXPUNGING THE
`CONFIDENTIAL DOCUMENT .................................................................... 2
`IV. CONCLUSION ................................................................................................ 3
`
`
`
`
`
`i
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`
`
`PGR2020-00088
`Petitioner’s Motion to Expunge Confidential Document
`
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc.,
`IPR2013-00453, Paper 97 (P.T.A.B. Apr. 15, 2015) ........................................... 2
`STATUTES AND RULES
`35 U.S.C. § 324(a) ..................................................................................................... 3
`OTHER AUTHORITIES
`37 C.F.R. § 42.56 ............................................................................................... 1, 2, 3
`Trial Practice Guide, 77 Fed. Reg. at 48,761 ............................................................. 2
`
`
`ii
`
`
`
`PGR2020-00088
`Petitioner’s Motion to Expunge Confidential Document
`
`
`EXHIBIT LIST (37 CFR § 42.63(e))
`
`Exhibit
`
`Description
`
`1010
`
`1001 U.S. Patent No. 10,518,177 to Suzuki
`1002 File History of U.S. Patent No. 10,518,177
`1003 U.S. Patent No. 10,583,362
`1004 File History of U.S. Patent No. 10,583,362
`1005 Declaration of Steve Meretzky
`1006 Curriculum Vitae of Steve Meretzky
`1007 GREE’s Amended Disclosure of Asserted Claims and Infringement
`Contentions dated August 19, 2020 in Case No. 2:19-cv-00413-JRG-RSP
`(E.D. Tex.)
`1008 Microsoft Computer Dictionary, 4th Ed. (1999)
`1009 YouTube - Master Hearthstone in 10 Minutes! The Ultimate Beginner’s
`Guide (“MH”) (web page print out from
`https://www.youtube.com/watch?v=CVZ4qyx-c2o)
`“Master Hearthstone in 10 Minutes! The Ultimate Beginner’s Guide,”
`webpage as captured by The Internet Archive on January 2, 2014
`“Master Hearthstone in 10 Minutes! The Ultimate Beginner’s Guide” –
`Video File
`“Master Hearthstone in 10 Minutes! The Ultimate Beginner’s Guide” –
`Transcript
`1013 U.S. Patent Publication No. 2013/0281173 to Gilson et al.
`1014 US Patent Publication No. 2014/0349723 to Nakatani et al.
`1015 U.S. Patent No. 5,662,332 to Garfield
`1016
`“Dynamic game difficulty balancing,” Wikipedia page as captured by
`The Internet Archive on December 12, 2011
`
`1011
`
`1012
`
`iii
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`
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`PGR2020-00088
`Petitioner’s Motion to Expunge Confidential Document
`
`Exhibit
`
`Description
`
`1017
`
`1018
`
`1019
`
`1021
`
`“And That’s A Wrap! BlizzCon 2013 Has Officially Come to an End!”
`webpage as captured by the Internet Archive on Nov. 16, 2013
`“FAQ – Hearthstone” webpage as captured by the Internet Archive on
`Nov. 16, 2013
`“Hearthstone: Heroes of Warcraft Official Game Site” webpage as captured
`by the Internet Archive on Nov. 16, 2013
`1020 GREE, Inc.’s Opposition to Defendant Supercell Oy’s Motion to Dismiss,
`Dkt. No. 34, Filed April 8, 2020, Case No. 2:19-cv-00413-JRG-RSP (E.D.
`Texas)
`[Model] Order Focusing Patent Claims and Prior Art to Reduce Costs,
`retrieved from
`http://www.txed.uscourts.gov/sites/default/files/forms/ModelPatentOrder.pdf
`1022 Declaration of Madeline Byers, Custodian of Records for Google LLC
`1023 Affidavit of Elizabeth Rosenberg, Records Processor at the Internet Archive
`1024 Declaration of Jennifer R. Bush in Support of Supercell Oy’s Reply to Patent
`Owner’s Preliminary Response
`
`
`
`iv
`
`
`
`PGR2020-00088
`Petitioner’s Motion to Expunge Confidential Document
`
`I.
`
`INTRODUCTION
`Pursuant to 37 C.F.R. § 42.56, Petitioner Supercell Oy (“Supercell” or
`
`“Petitioner”) respectfully requests that certain confidential information in the
`
`record be expunged. Petitioner filed its Motion to Seal Exhibit 1007 and for Entry
`
`of Protective Order on December 29, 2020. (Paper 3) The Board did not enter an
`
`order on Petitioner’s Motion to Seal. On April 14, 2021, the Board entered its
`
`Decision Denying Institution of Post-Grant Review. (Paper 11) A call to the
`
`PTAB helpdesk confirmed that a Motion could be filed without explicit
`
`authorization. For the reasons set forth below, Petitioner respectfully requests that
`
`certain papers and documents be expunged.
`
`Specifically, Petitioner requests that Exhibit 1007, GREE, Inc.’s Amended
`
`Disclosure of Asserted Claims and Infringement Contentions (served by GREE in
`
`the underlying Eastern District of Texas civil action, Case No. 2:20-cv-00413-
`
`JRG-RSP), be expunged from the record as this document contains Petitioner’s
`
`highly confidential business information designated by Patent Owner in the
`
`underlying District Court action as “Restricted – Confidential Source Code”
`
`material.1
`
`
`1 Petitioner is filing a parallel Motion to Expunge Confidential Document for this
`
`confidential exhibit in PGR2021-00014.
`
`1
`
`
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`PGR2020-00088
`Petitioner’s Motion to Expunge Confidential Document
`
`II. APPLICABLE LEGAL STANDARDS
`37 CFR § 42.56 provides that following “denial of a petition to institute a
`
`trial or after final judgment in a trial, a party may file a motion to expunge
`
`confidential information from the record.” The Trial Practice Guide states 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 or is identified in a final written decision following a trial.” Trial Practice
`
`Guide, 77 Fed. Reg. at 48,761. However, the Trial Practice Guide also states that a
`
`party “seeking to maintain the confidentiality of information . . . may file a motion
`
`to expunge the information from the record prior to the information becoming
`
`public.” A party seeking expungement from the record must 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 this inter partes
`
`review.” Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., IPR2013-
`
`00453, Paper 97 at 2 (P.T.A.B. Apr. 15, 2015).
`
`III. GOOD CAUSE EXISTS FOR EXPUNGING THE CONFIDENTIAL
`DOCUMENT
`In this proceeding, the Board the Board has not entered its Decision on
`
`Petitioner’s Motion to Seal. As set forth in the Motion to Seal (Paper 3), the
`
`document contains Petitioner’s confidential and highly sensitive business
`
`2
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`
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`PGR2020-00088
`Petitioner’s Motion to Expunge Confidential Document
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`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. Expunging Exhibit 1007
`
`also protects a sensitive District Court Litigation document served by GREE, Inc.
`
`To the best of Petitioner’s knowledge, Exhibit 1007 has never been
`
`published or otherwise made public. Patent Owner and Petitioner made efforts to
`
`maintain the confidentiality of this information in the Civil Action. In the Civil
`
`Action, Exhibit 1007 was produced pursuant to a Protective Order agreed upon by
`
`the Parties, and was designated “CONFIDENTIAL ATTORNEYS EYES ONLY”
`
`pursuant to that Protective Order.
`
`Additionally, the Board did not rely on Exhibit 1007 in its denial of
`
`institution in this proceeding. See Paper 11 (discretional denial under 35 U.S.C.
`
`§ 324(a)). Thus, there is no public interest in now making Petitioner’s confidential
`
`information publicly available.
`
`Accordingly, good cause exists to expunge the confidential document.
`
`IV. CONCLUSION
`For the above reasons, Petitioner respectfully requests that the Board protect
`
`Petitioner’s highly confidential business information and expunge the confidential
`
`document pursuant to 37 C.F.R. § 42.56.
`
`
`
`3
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`
`
`PGR2020-00088
`Petitioner’s Motion to Expunge Confidential Document
`
`Dated: October 18, 2021
`
`Respectfully submitted,
`FENWICK & WEST LLP
`
`/Jennifer R. Bush /
`Jennifer R. Bush
`Reg. No. 50,784
`Attorneys for Petitioner Supercell Oy
`
`
`
`4
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`
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`PGR2020-00088
`Petitioner’s Motion to Expunge Confidential Document
`
`
`CERTIFICATION OF SERVICE ON PATENT OWNER
`
`The undersigned hereby certifies that the foregoing Petitioner’s Motion to
`
`Expunge Confidential Document was served on Patent Owner’s lead and back-up
`
`counsel in its entirety by electronic service at the email addresses provided below:
`
`
`
`John C. Alemanni
`Kilpatrick Townsend & Stockton LLP
`4208 Six Forks Road, Suite 1400
`Raleigh, NC 27609
`jalemanni@kilpatricktownsend.com
`
`Joshua H. Lee
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta, GA 30309-6582
`jlee@kilpatricktownsend.com
`
`Dated: October 18, 2021
`Fenwick & West LLP
`801 California Street
`Mountain View, CA 94041
`
`Andrew W. Rinehart
`Kilpatrick Townsend & Stockton LLP
`1001 West Fourth Street
`Winston-Salem, NC 27101
`arinehart@kilpatricktownsend.com
`
`Scott A. McKeown
`Ropes & Gray
`2099 Pennsylvania Avenue, N.W.
`Washington, D.C. 2006
`scott.mckeown@ropesgray.com
`
`
`FENWICK & WEST LLP
`
`/Jennifer R. Bush/
`Jennifer R. Bush
`Reg. No. 50,784
`Attorneys for Petitioner Supercell Oy
`
`
`
`5
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`
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