Beware Of Relying On Your Confidential Information

If you are involved in an IPR and you are contemplating whether to rely on your own confidential information as part of a filing, you need to consider the risk that the Board will deny your motion to file under seal because it relied on that confidential information. In Green Cross Corp. v. Shire Human Genetic Therapies, Inc., IPR2016-00258, the patent owner submitted several exhibits containing its confidential information and moved to file those exhibits under seal. The Board granted patent owner's motion to seal all but one of the exhibits, Exh. 2106. Patent owner and patent owner's experts extensively relied on Exh. 2106.

The Board found that, although patent owner had focused in its preliminary response on one figure of Exhibit 2106, the highlighted figure "is best understood in the context of the entire document." Green Cross Corp. v. Shire Human Genetic Therapies, Inc., IPR2016-00258, Paper No. 91 at 2 (PTAB Mar. 31, 2017). Not only that, but the Board relied heavily on that exhibit in the Final Written Decision. For all these reasons, the Board...