Takeaway: A motion to seal should focus on confidentiality of the document, and how the party will be harmed or prejudiced by the document being available to the public. A motion to exclude is used to address admissibility of a document.

In its Order, the Board denied Patent Owner’s Motion to Seal an exhibit. The exhibit was submitted with the Petition, and Patent Owner submitted the Motion to Seal over three months later. The exhibit was a summary of preliminary infringement analysis provided to Patent Owner to Petitioner with a demand letter. The demand letter was unsolicited, was not subject to any non-disclosure agreement, and is now publicly available on the Internet. Patent Owner argued that the exhibit was inadmissible under Federal Rule of Evidence (FRE) 408 because it contained confidential settlement contentions. Patent Owner asserted that the exhibit should be excluded or, alternatively, sealed.

The Board agreed with the Petitioner that Patent Owner’s arguments are focused on admissibility, not confidentiality. Whether to put an exhibit under seal is a question of confidentiality of the exhibit, not admissibility. A motion to exclude is the correct vehicle for addressing inadmissible information.

Symantec Corporation v. RPost Communications Limited, IPR2014-00353; IPR2014-00355; IPR2014-00357
Paper 14: Decision Denying Motion to Seal
Dated: June 9, 2014
Patent 8,504,628; 7,966,372; 8,468,199
Before: Thomas L. Giannetti, Beverly M. Bunting, and Matthew R. Clements
Written by: Giannetti