Curt G. Joa, Inc. v. Fameccanica.data S.P.A.

Informative decision only: persuasive authority, not binding precedent. Because an oral hearing is open to the public and confidential information is not to be discussed in open session, the Board may, on a party's request and in view of a pending Motion to Seal, close a portion of the hearing (here, up to thirty minutes, fifteen per side) to persons not authorized to access confidential information. The Board may also bar confidential information from demonstrative exhibits and require parties to point to confidential material by exhibit, page, and line number. No prior precedent directly addressed this issue in the text; the order builds only on the panel's own earlier orders (Paper 54 and Paper 55) and on 37 C.F.R. § 42.5 and § 42.70. For the petitioner, the order means that confidential material, including its own under a pending Motion to Seal, cannot be discussed in the open session, so argument on it must be planned for a short closed session and the time allotted to it. For the patent owner, the order shows that a request to close part of the hearing can be granted, but the owner must make it in advance, and the time is capped. The text cites no Federal Circuit, CCPA or Supreme Court authority. LEGAL TEST OR STANDARD: The order states no multi-factor test. The Board considered a party's request to close part of the hearing and granted it in view of the pending Motion to Seal, subject to a procedure. Under that procedure, the open session is first-come, first-served seating, and the courtroom is then closed to persons not authorized to access confidential information. Each party gets up to fifteen minutes in the closed session, within sixty minutes total. The court reporter marks the closed transcript as confidential. TRIGGERING FACTS: The hearing was open to the public. An earlier order said confidential information is not to be discussed at the hearing, and that the Board would consider requests to close a portion if a party anticipated needing to discuss confidential information substantively. Patent Owner's counsel made that request by e-mail on June 19, 2017, the day before the order, and Petitioner had a pending Motion to Seal. KEY QUOTE: "Time not used during the open portion of the hearing may not be reserved for use during the closed portion." (Paper 61, p. 3) PRIOR PRECEDENT AFFECTED: No prior precedential or informative decision is directly affected. The order leaves the earlier orders in this case in effect except as changed (Paper 54 and Paper 55). PRACTICE TIP: If you expect to argue confidential information at the hearing, ask the Board in advance to close part of it, as the Board invited. Keep confidential information out of demonstratives. Prepare to cite confidential material by exhibit, page, and line number, and to fit that argument within the capped closed-session time.