Although the focus of IPR and other PTAB trials is on the
validity of patents, parties cannot reflexively rely on the
safeguards of FRE 408 for licensing and settlement negotiations
that apply in Federal Court. In
Palo Alto Networks, Inc. v. FinJan, Inc., (Cases
IPR2016-00149 and IPR2016-00150, Paper 12), the Board denied a
motion to seal, stressing that "[t]here is a presumption that
the record of our proceedings, including documents submitted as
exhibits, shall be made available to the public [under 37 C.F.R.
§ 42.14.]" The Patent Owner was unable to overcome this
presumption with respect to an email it sent to the Petitioner in
order to engage in pre-litigation negotiations.
The Patent Owner's Motion to Seal, regarding an infringement
claim chart based on Petitioner's publicly available marketing
materials and submitted with the IPR Petition, was filed three
months after the Petition was published. In its Motion, the Patent
Owner argued that the exhibits "are
