Argentum Pharm. LLC v. Alcon Research, Ltd.

Informative decision only: persuasive authority, not binding precedent. When a patent owner moves under 37 C.F.R. § 42.54(a) to seal exhibits in an inter partes review, the Board will find "good cause" only if the movant adequately shows that (1) the information is truly confidential, (2) a concrete harm would result upon public disclosure, (3) there is a genuine need to rely in the trial on the specific information, and (4), on balance, an interest in maintaining confidentiality outweighs the strong public interest in an open record. A conclusory showing of "potential" harm, no showing of need, attorney argument without objective evidence, no public redacted versions, or a certification of conferral made the same day the motion was filed fails the standard, so the motion is denied without prejudice. No prior precedent directly addressed this issue is shown in the text. The Board instead collected the "good cause" guidance from Garmin Int'l v. Cuozzo Speed Techs., LLC, Case IPR2012-00001 (Paper 34) and Corning Optical Communications RF, LLC, v. PPC Broadband, Inc., Case IPR2014-00440 (Papers 46, 47, 49), and restated it as a four-part showing. For a petitioner, the order means that a patent owner's sealed evidence must meet a demanding standard, and the record stays open by default. The petitioner also gets an authorized five-page opposition to any second motion. For a patent owner, a deficient motion can lead to expungement of the exhibits, and any argument relying on an expunged exhibit gets no weight in the final written decision. A patent owner must also assume the risk that sealed information becomes public if a final written decision relies on it. The text cites no Federal Circuit, CCPA or Supreme Court authority; it relies on 37 C.F.R. §§ 42.14, 42.20(c), 42.54 and the Rules of Practice, 77 Fed. Reg. No. 157 (Aug. 14, 2012). LEGAL TEST OR STANDARD: A movant to seal must show good cause under 37 C.F.R. § 42.54(a), bearing the burden under 37 C.F.R. § 42.20(c). It must demonstrate adequately that (1) the information sought to be sealed is truly confidential, (2) a concrete harm would result upon public disclosure, (3) there exists a genuine need to rely in the trial on the specific information sought to be sealed, and (4), on balance, an interest in maintaining confidentiality outweighs the strong public interest in having an open record. The information must also not be excessively redacted. TRIGGERING FACTS: The patent owner moved to seal Exhibits 2008-2022 (laboratory notebooks), Exhibit 2029 (an expert declaration) and Exhibits 2040-2058 (third-party IMS Health/IQVIA and Encuity Research data summaries). The motion said disclosure only had the potential to cause harm, did not explain how the exhibits relate to a disputed issue, claimed no ownership of the third-party data, relied on counsel's unsupported understanding of that data owner's harm, and filed no public redacted versions. The patent owner also wrote to petitioner on the day of filing and did not wait for a response, and the petitioner did not oppose. KEY QUOTE: "Consequently, a movant to seal must demonstrate adequately that (1) the information sought to be sealed is truly confidential, (2) a concrete harm would result upon public disclosure, (3) there exists a genuine need to rely in the trial on the specific information sought to be sealed, and (4), on balance, an interest in maintaining confidentiality outweighs the strong public interest in having an open record." (Paper 27, p. 4) PRIOR PRECEDENT AFFECTED: No prior precedential or informative decision is directly affected. The Board follows and directs the parties to Garmin Int'l v. Cuozzo Speed Techs., LLC, Case IPR2012-00001 (PTAB Mar. 14, 2013) (Paper 34) ("IPR001") and Corning Optical Communications RF, LLC, v. PPC Broadband, Inc., Case IPR2014-00440 (PTAB April 6, 14, and 17, 2015) (Papers 46, 47, 49) ("IPR440"). PRACTICE TIP: Before moving to seal, make the four-part showing with objective evidence of concrete harm and of specific need for each exhibit. Confer in good faith with opposing counsel well before filing and certify the details, file public redacted versions or explain why full sealing is needed, and do not file for sealing of exhibits you do not need. Assume that anything the final written decision relies on may become public.