Takeaway: A motion to seal must present sufficient facts and meaningful analysis to establish entitlement to the requested relief, and merely because information relates to an activity of a business does not make that information confidential business information.

In its Decision, the Board granted-in-part and denied-in-part the parties’ Joint Motion to Seal. The Motion sought to seal “portions of Patent Owner’s Motion to Dismiss Petition (Paper 34), and either portions or the entirety of 12 exhibits referred to in that Motion.” The Motion also requested entry of a Joint Stipulated Protective Order. The Board granted the Motion with respect to entry of the Protective Order and with respect to email addresses that are contained in Exhibit 2100. The Motion was denied as to all other aspects.

A movant bears the burden of establishing that it is entitled to the relief requested. In particular, the Board had set forth what the Joint Motion should contain in its authorization of the filing of the Motion and the Motion to Dismiss:

The Joint Motion to Seal must explain adequately why the information sought to be sealed in fact constitutes confidential information that should be sealed. It is not apparent to us why information about which company was invoiced by Petitioner’s counsel, which company paid Petitioner’s counsel, who are the Officers of a [c]orporation, who attended settlement meetings, and who reviewed or gave instructions to petitioner’s counsel constitutes confidential information.

However, the Board found that the parties’ Motion did not address the Board’s comments. Instead, the Board found the Motion to be conclusory, containing “essentially no presentation of specific facts for meaningful analysis.” The Board analyzed the alleged confidential information in turn.

With respect to Exhibits 2017 and 2100, the Board found that no specific compensation information appeared to be present. The Board also found that Exhibits 2100, 2101, and 2103 were excessively redacted. The Board noted that “[m]aterial is not confidential business information simply because it relates to an activity of a business.”

The Board also found that the confidential version of Patent Owner’s Motion to Dismiss Petition contained no information that should be sealed, and that Exhibit 2101 was “almost entirely redacted” and need not be sealed.

Exhibits 2106, 2107, and 2108 were subject to a protective order in either a district court action or in an investigation before the U.S. International Trade Commission. The Board found this reason, by itself, to be insufficient. In particular, the Board noted that the parties did not represent whether any “information would be presented for trial in a ‘sealed’ status,” and that the parties were already at trial in the instant IPR proceeding. In addition, being subject to a protective order does not automatically result in the grant of a motion to seal.

The parties also identified information in Exhibits 2109, 2110, 2111, and 2131 “as being subject to a Mutual Non-Disclosure and Fed. R. Evid. 408 Agreement.” However, insufficient facts and explanation were provided, and the Board could not “make a ruling in the absence of pertinent facts and reasoning.”

Finally, although the parties acknowledged that the Board must consider “the public’s interest in maintaining a complete and understandable file history,” the Motion did not address the public’s interest. Therefore, the Board denied the Motion with the exception of the request for entry of a Stipulated Protective Order and the request to seal email addresses in one of the exhibits.

Corning Optical Communications RF, LLC v. PPC Broadband, Inc., IPR2014-00736
Paper 37: Decision on Motion to Seal
Dated: April 6, 2015
Patent: 6,676,446 B2
Before: Jameson Lee, Josiah C. Cocks, and Jacqueline Wright Bonilla
Written by: Lee