In its Decision, the Board denied each of the parties’ ten Motions to Seal, holding that they failed to show “good cause” for the relief requested. The Board held that the Motions were defective in a number of ways and that the parties, nevertheless, failed to establish the confidentiality of the underlying documents upon which the Motions relied.
Citing to Garmin International v. Cuozzo Speed Technologies, LLC, IPR2012-00001 (Paper 34, March 14, 2013), the Board explained that a strong public policy exists to keep all information public in an IPR proceeding. A party seeking to seal information bears the burden of establishing “good cause,” including “showing that the information is truly confidential, and that such confidentiality outweighs the strong public interest in having an open record.” Parties are also required to certify “that the moving party has in good faith conferred, or attempted to confer, with the opposing party in an effort to come to an agreement on the scope of the protection sought.”
The parties’ motions primarily relied upon the alleged confidentiality of two documents.
Adam Declaration
Patent Owner sought to seal the Declaration of Fiona Adam for allegedly containing confidential and sensitive business financial information related to market share and profits. The Board pointed out that Patent Owner did not submit a redacted version of the exhibit and did not identify any particular portion of the exhibit as containing the confidential information. Although the declaration disclosed some information that could be characterized as commercial and financial, it was all in the form of declaration testimony of Ms. Adam without corroborating business records. Patent Owner failed to limit the scope of its motion to any particular portion of the Adam Declaration. Furthermore, the Board noted that the information was relied upon by Patent Owner for showing nonobviousness, which weighed against withdrawing the information from the public.
The Board denied the Motion to Seal the Adam Declaration. The Board denied other related motions that relied upon or discussed the Adam Declaration, including those filed by Petitioner seeking to seal based on Patent Owner’s allegedly confidential information.
Exhibit 1037
Petitioner filed a Motion to Seal that disputed Patent Owner’s contention that Exhibit 1037 contained confidential information. Petitioner explained that it obtained the document directly from the U.S. District Court for the District of Oregon, in the case captioned, “Acrymed v. ConvaTec, Case 3:03-cv-741.” Petitioner argued and the Board agreed that the document was publicly available and should not be sealed. In addition, the Board held that any allegedly privileged information in the Exhibit was no longer privileged when the document was made publicly available from the District Court of Oregon. The Motion to Seal this document and other related motions were denied.
Demonstrative Exhibits for Oral Hearing
The parties also moved to seal Demonstrative Exhibits for Oral Hearing on the same bases discussed above. The Board denied the motions along the same lines and noted that it would not rely upon the oral hearing demonstratives as evidence.
The parties were advised that they could file requests to expunge the demonstrative exhibits from the record if it were deemed appropriate, and Petitioner’s one Motion to Expunge related to one of the demonstrative exhibits was granted “[t]o avoid duplication of the exhibit.”
Renewed Motions to Seal and Motions to Expunge
Because the proceeding was after the final hearing, the Board ordered the parties to file any renewed motions to seal or motions to expunge any original versions within five days. Any renewed motion to seal should be limited to filing redacted copies of papers or exhibits that were already part of the record and which were subject to one of the denied motions to seal. The parties were also reminded that information relied upon in the final written decision will become public and that motions to expunge may not prevail over the public interest in maintaining a complete and understandable file history.
Smith & Nephew, Inc. v. ConvaTec Technologies, Inc., IPR2013-00097
Paper 84: Decision on Motion to Seal
Dated: May 2, 2014
Patent 6,669,981
Before: Lora M. Green, Rae Lynn P. Guest, and Sheridan K. Snedden
Written by: Guest
Related Proceeding: Acrymed v. ConvaTec, Case 3:03-cv-741 in the United States District Court for the District of Oregon