United States District Court, D. Oregon
COLUMBIA SPORTSWEAR NORTH AMERICA, INC., an Oregon corporation, Plaintiff,
SEIRUS INNOVATIVE ACCESSORIES, INC., a Utah corporation, Defendant.
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
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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)).
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 ...