Search Am., Inc. v. TransUnion Intelligence, LLC
In an recent covered business method (CBM) patent review proceeding, the U.S. Patent and Trademark Office Patent Trial and Appeal Board (PTAB) denied the parties’ motions to seal because they did not sufficiently show that the content sought to be sealed “is truly confidential, and that such confidentiality outweighs the strong public interest in having an open record.” Search Am., Inc. v. TransUnion Intelligence, LLC, Case Nos. CBM2013-00037; -00038 (PTAB, Oct. 2, 2014) (Giannetti, APJ).
In this CBM proceeding, the parties filed eight motions to seal various documents in full or in part. Noting that the moving party has the burden of showing that the motion should be granted, the PTAB denied all eight motions on the grounds that the movants did not provide sufficient evidence that the relevant documents were, in fact, confidential. The strongest of these motions attempted to show the requisite “good cause” for sealing by asserting that the relevant documents contain “non-public and business sensitive communications” and that the documents had been “designated as ‘Confidential’ in the related district court litigation.” The PTAB explained that the movant did not provide “proof” that the relevant content was actually confidential, and that this showing was insufficient, “especially when weighed against the public’s access rights to the evidence relied on by the parties.” The other seven motions provided even less evidence, merely stating that the relevant content had been marked or designated as “confidential.”
The PTAB further noted that the parties did not meet its procedural requirement to meet and confer in good faith before filing the motions in order to discuss “whether there is a need to seal the documents, and whether redaction can substantially reduce or eliminate altogether the need for sealing.”
Practice Note: In light of the dearth of evidence concerning the confidentiality of the documents in this particular case, it seems unlikely that the parties here could have saved their motions simply by having met and conferred before filing the motions. That said, parties in future cases would be well advised to comply with this procedural requirement and show the court that they made a good faith effort to reduce or eliminate the need for sealing.