`571-272-7822
`
`
`
`
`
`
`
`Paper 17
`Date: April 25, 2022
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`NXP USA, INC.,
`Petitioner,
`
`v.
`
`IMPINJ, INC.,
`Patent Owner.
`____________
`
`PGR2022-00005
`Patent 10,929,734 B1
`____________
`
`
`
`Before KEN B. BARRETT, ROBERT J. WEINSCHENK, and
`KEVIN C. TROCK, Administrative Patent Judges.
`
`BARRETT, Administrative Patent Judge.
`
`
`
`
`ORDER
`Granting Patent Owner’s Motion to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`
`PGR2022-00005
`Patent 10,929,734 B1
`
`
`I.
`
`INTRODUCTION
`
`
`
`Patent Owner Impinj, Inc. filed, concurrently with its Preliminary
`
`Response to the Petition, a Motion to Seal a confidential version of the
`
`Preliminary Response and of Exhibit 2001 (the declaration of Dr. Joshua R.
`
`Smith). Paper 16 (“Motion” or “Mot.”). Patent Owner also filed redacted,
`
`public versions of the Preliminary Response and Exhibit 2001. Petitioner
`
`NXP USA, Inc. has not filed an opposition to the motion to seal.
`
`
`
`
`
`For the reasons discussed below, we grant Patent Owner’s Motion.
`
`II. DISCUSSION
`
`Under 37 C.F.R. § 42.14, the default rule is that all papers filed in
`
`such proceedings are available to the public. Only “confidential
`
`information” is subject to protection against public disclosure. 35 U.S.C.
`
`§ 326(a)(7); 37 C.F.R. § 42.55. The Board also observes a strong policy in
`
`favor of making all information filed in post grant proceedings open to the
`
`public. Cf. Argentum Pharms. LLC v. Alcon Research, Ltd., IPR2017-
`
`01053, Paper 27, 3–4 (PTAB Jan. 19, 2018) (informative) (discussing
`
`motions to seal in the context of an inter partes review).
`
`
`
`The standard for granting a motion to seal is “for good cause.” 37
`
`C.F.R. § 42.54(a). That standard includes showing that the information
`
`addressed in the motion to seal is confidential. Argentum, IPR2017-01053,
`
`Paper 27 at 3–4. Further, the parties are encouraged to redact confidential
`
`information, where possible, rather than seeking to seal entire documents.
`
`Consolidated Trial Practice Guide1 22.
`
`
`
`1 Patent Trial and Appeal Board Consolidated Trial Practice Guide (Nov.
`2019), available at https://www.uspto.gov/TrialPracticeGuideConsolidated
`(“Consolidated Trial Practice Guide”).
`
`2
`
`
`
`PGR2022-00005
`Patent 10,929,734 B1
`
`
`
`We, on Petitioner’s motion, previously entered a Protective Order
`
`(Ex. 1023) and sealed certain information filed in this proceeding, including
`
`all or portions of Exhibits 1013–1017. Paper 11. Petitioner certifies that it
`
`“is designating as confidential portions of Patent Owner’s Preliminary
`
`Response and Expert Declaration of Joshua R. Smith (Ex. 2001) that
`
`reference and/or incorporate the same information in Exhibits 1013-1017
`
`that Petitioner indicated was confidential.” Mot. 1. Patent Owner notes
`
`(Mot. 2) that Petitioner asserts that the subject information in the now-sealed
`
`exhibits is confidential technical information of non-party RFMicron, Inc.
`
`See Paper 4, 2–3, 5–6 (Petitioner’s Motion to Seal); Paper 11 (Order
`
`granting Petitioner’s Motion to Seal).
`
`
`
`After considering Patent Owner’s Motion and in light of our prior
`
`decision granting Petitioner’s request to seal the subject information, we
`
`determine that Patent Owner shows sufficiently that the information
`
`addressed in the Motion should be sealed pursuant to the Protective Order in
`
`this case.
`
`
`
`We also advise the parties that “[c]onfidential information that is
`
`subject to a protective order ordinarily would become public 45 days after
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`denial of a petition to institute a trial or 45 days after final judgment in a
`
`trial.” Consolidated Trial Practice Guide 21–22. “There 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.” Id. at 22. “A party
`
`seeking to maintain the confidentiality of information, however, may file a
`
`motion to expunge the information from the record prior to the information
`
`becoming public.” Id.; see 37 C.F.R. § 42.56.
`
`3
`
`
`
`PGR2022-00005
`Patent 10,929,734 B1
`
`
`For the foregoing reasons, it is
`
`III. ORDER
`
`ORDERED that Patent Owner’s Motion to Seal is granted;
`
`FURTHER ORDERED that the confidential versions of the
`
`
`
`
`
`
`
`Preliminary Response (Paper 15) and of Exhibit 2001 are sealed.
`
`
`
`
`
`
`
`4
`
`
`
`PGR2022-00005
`Patent 10,929,734 B1
`
`PETITIONER:
`
`Matthew W. Johnson
`Joshua R. Nightingale
`Thomas W. Ritchie
`Gurneet Singh
`David B. Cochran
`JONES DAY
`mwjohnson@jonesday.com
`jrnightingale@jonesday.com
`twritchie@jonesday.com
`gsingh@jonesday.com
`dcochran@jonesday.com
`
`
`
`PATENT OWNER:
`
`Daniel Keese
`Ruben Kendrick
`Brianna Kadjo
`PERKINS COIE LLP
`Keese-ptab@perkinscoie.com
`Kendrick-ptab@perkinscoie.com
`Kadjo-ptab@perkinscoie.com
`
`
`
`
`
`
`5
`
`
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