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Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories, Inc.

United States District Court, D. Oregon

April 3, 2017

COLUMBIA SPORTSWEAR NORTH AMERICA, INC., an Oregon corporation, Plaintiff,
SEIRUS INNOVATIVE ACCESSORIES, INC., a Utah corporation, Defendant.

          David W. Axelrod Scott D. Eads Nicholas F. Aldrich, Jr. Schwabe, Williamson & Wyatt, P.C. Attorneys for Plaintiff.

          Jasmine C. Hites Troutman Sanders LLC Matthew D. Murphey Troutman Sanders LLP Paul E. McGowan Troutman Sanders LLP Attorneys for Defendant.

          OPINION & ORDER


         Before the Court is Columbia's Motion for Relief from Protective Order. ECF 141. A third party to this litigation, Ventex Co., Ltd. (“Ventex”), has filed inter partes review (“IPR”) petitions challenging Columbia's Utility Patents before the Patent Office. The parties' Amended Stipulated Protective Order (hereinafter “Protective Order”) restricts the use of confidential documents only to this litigation and prohibits litigation counsel who has seen certain “Prosecution Bar” materials from participating in IPR proceedings. See Protective Order, ¶¶ 1, 10, ECF 65. Columbia seeks to introduce restricted documents from this litigation in the IPR proceedings and requests that its litigation counsel, Nicholas Aldrich, be given leave to represent it in the IPR proceedings. The Motion is granted.


         Ventex is a Korean-based company that formerly supplied Columbia and has since become a manufacturer for Seirus. Ventex seeks to invalidate claims in the Utility Patents that are currently being litigated before this Court. See Notice of Third-Party Petitions for IPR, Exs. A & B, ECF 136. In those IPR petitions, Ventex asserts that the Utility Patents are invalid as obvious over Fottinger and Harber, two prior art references also being litigated before this Court. Id. In support of its arguments, Ventex cites to the parties' motions and expert reports from this litigation. Id.

         In response to Ventex's filings, Columbia moved for relief from the parties' Protective Order. Relevant to Columbia's motion are two provisions of the Protective Order. The first states that:

All non-public documents, testimony, and other materials produced by the parties in this case, including without limitation those documents, testimony, and other materials labeled “Confidential, ” “Attorneys' Eyes Only, ” or “Outside Attorneys' Eyes Only” (and all information derived therefrom) shall be used only in this proceeding and shall not be used by any party for any business, commercial, or competitive purpose.

         Protective Order ¶ 1. The Protective Order also states that parties shall designate certain materials as “Prosecution Bar Materials” including those “materials comprising or related to . . .products designed, developed, or sold by Defendant that use, employ or include heat management materials including, without limitation, those made or sold under the trade name ‘HEATWAVE' or designed by a third party as Prosecution Bar Materials.” Id. at ¶ 10. It further provides that “[a]ny person who has viewed any of the opposing party's Prosecution Bar Materials shall not . . . engage in any ‘Prosecution Activity.'” Id. “Prosecution Activity” includes IPR proceedings. Id.

         Columbia seeks to introduce at the IPR proceedings documents showing Ventex's privity with Seirus as well as Ventex and Seirus's copying of Columbia's invention and subsequent commercial success. Columbia also moves that Aldrich, who has seen four documents with the “Prosecution Bar” designation, be permitted to participate in the IPR proceedings. Alternatively, Columbia requests that the Court strike the “Prosecution Bar” designation of the four documents at issue.


         Rule 26(c) of the Federal Rules of Civil Procedure provides that “the court may, for good cause” issue a protective order “requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specific way.” See Fed. R. Civ. P. 26(c)(1)(G). The court also has broad discretion to modify a protective order where good cause is shown. CBS Interactive, Inc. v. Etilize, Inc., 257 F.R.D. 195, 201 (N.D. Cal. 2009) (citing Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)).


         Columbia's Motion requests two distinct forms of relief from the Protective Order. First, that it be allowed to use documents restricted to this litigation in the parallel IPR proceedings. Second, that Aldrich be permitted to participate in those proceedings ...

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