412.01(a)    Proper Designation of Confidential Matter

Excerpts from Board’s Standard Protective Order:

1) Classes of Protected Information.

The Rules of Practice in Trademark Cases provide that all inter partes proceeding files, as well as the involved registration and application files, are open to public inspection. The terms of this Order are not to be used to undermine public access to such files. When appropriate, however, a party or witness, on its own or through its attorney, may seek to protect the confidentiality of information by employing one of the following designations.

Confidential - Material to be shielded by the Board from public access.

Confidential – Attorneys’ Eyes Only (Trade Secret/Commercially Sensitive) - Material to be shielded by the Board from public access, restricted from any access by the parties, and available for review by outside counsel for the parties and, subject to the provisions of paragraphs 4 and 5, by independent experts or consultants for the parties. Such material may include the following types of information: (1) sensitive technical information, including current research, development and manufacturing information; (2) sensitive business information, including highly sensitive financial or marketing information; (3) competitive technical information, including technical analyses or comparisons of competitor’s products or services; (4) competitive business information, including non-public financial and marketing analyses, media scheduling, comparisons of competitor’s products or services, and strategic product/service expansion plans; (5) personal health or medical information; (6) an individual’s personal credit, banking or other financial information; or (7) any other commercially sensitive information the disclosure of which to non-qualified persons subject to this Order the producing party reasonably and in good faith believes would likely cause harm.

2) Information Not to Be Designated as Protected.

Information may not be designated as subject to any form of protection if it (a) is, or becomes, public knowledge, as shown by publicly available writings, other than through violation of the terms of this Order; (b) is acquired by a non-designating party or non-party witness from a third party lawfully possessing such information and having no obligation to the owner of the information; (c) was lawfully possessed by a non-designating party or non-party witness prior to the opening of discovery in this proceeding, and for which there is written evidence of the lawful possession; (d) is disclosed by a non-designating party or non-party witness legally compelled to disclose the information; or (e) is disclosed by a non-designating party with the approval of the designating party.

14) Challenges to Designations of Information as Protected.

If the parties or their attorneys disagree as to whether certain information should be protected, they are obligated to negotiate in good faith regarding the designation by the disclosing party. If the parties are unable to resolve their differences, the party challenging the designation may make a motion before the Board seeking a determination of the status of the information.

A challenge to the designation of information as protected must be made substantially contemporaneous with the designation, or as soon as practicable after the basis for challenge is known. When a challenge is made long after a designation of information as protected, the challenging party will be expected to show why it could not have made the challenge at an earlier time. The party designating information as protected will, when its designation is timely challenged, bear the ultimate burden of proving that the information should be protected.

37 C.F.R. § 2.27(c)  [Pending trademark application index; access to applications.] Decisions of the Director and the Trademark Trial and Appeal Board in applications and proceedings relating thereto are published or available for inspection or publication.

37 C.F.R. § 2.116(g)  The Trademark Trial and Appeal Board’s standard protective order is automatically imposed in all inter partes proceedings unless the parties, by stipulation approved by the Board, agree to an alternative order, or a motion by a party to use an alternative order is granted by the Board. The standard protective order is available at the Office’s web site. No material disclosed or produced by a party, presented at trial, or filed with the Board, including motions or briefs which discuss such material, shall be treated as confidential or shielded from public view unless designated as protected under the Board’s standard protective order, or under an alternative order stipulated to by the parties and approved by the Board, or under an order submitted by motion of a party granted by the Board. The Board may treat as not confidential that material which cannot reasonably be considered confidential, notwithstanding a designation as such by a party.

37 C.F.R. § 2.120(g)  Motion for a protective order. Upon motion by a party obligated to make initial disclosures or expert testimony disclosure or from whom discovery is sought, and for good cause, the Trademark Trial and Appeal Board may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the types of orders provided by clauses (A) through (H), inclusive, of Rule 26(c)(1) of the Federal Rules of Civil Procedure. If the motion for a protective order is denied in whole or in part, the Board may, on such conditions (other than an award of expenses to the party prevailing on the motion) as are just, order that any party comply with disclosure obligations or provide or permit discovery.

37 C.F.R. § 2.125(f)  Upon motion by any party, for good cause, the Trademark Trial and Appeal Board may order that any part of a deposition transcript or any exhibits that directly disclose any trade secret or other confidential research, development, or commercial information may be filed under seal and kept confidential under the provisions of § 2.27(e). If any party or any attorney or agent of a party fails to comply with an order made under this paragraph, the Board may impose any of the sanctions authorized by § 2.120(h).

Fed. R. Civ. P. 26(c) Protective Orders.

  • (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
    • (A) forbidding the disclosure or discovery;
    • (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;
    • (C) prescribing a discovery method other than the one selected by the party seeking discovery;
    • (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
    • (E) designating the persons who may be present while the discovery is conducted;
    • (F) requiring that a deposition be sealed and opened only on court order;
    • (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
    • (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
  • (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.

Fed. R. Civ. P. 26(g) Signing Disclosures and Discovery Requests, Responses, and Objections.

  • (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name—or by the party personally, if unrepresented—and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:
    • (A) with respect to a disclosure, it is complete and correct as of the time it is made; and
    • (B) with respect to a discovery request, response, or objection, it is:
      • (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
      • (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
      • (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

The automatic imposition of the Board’s standard protective order upon commencement of the Board proceeding [ Note 1.] is designed to facilitate the exchange of information in connection with disclosures and during pretrial discovery by allowing parties to designate materials as "Confidential" or "Confidential – For Attorneys’ Eyes Only (trade secret/commercially sensitive)" without a preliminary showing of good cause under 37 C.F.R. § 2.120(g)  and Fed. R. Civ. P. 26(c). The Board’s standard protective order is a blanket protective order [ Note 2.] which does not automatically protect all information [ Note 3.] but allows parties to designate in good faith only those items a party and/or its counsel believes are subject to protection. [ Note 4.]

Parties must actively utilize the provisions in the Board’s standard protective order to designate information as "Confidential" or "Confidential – For Attorneys’ Eyes Only (trade secret/commercially sensitive)". [ Note 5.] Thus, the burden falls on the party seeking to designate information as protected, and if a party fails to designate the information as protected under the terms of the Board’s standard protective order and/or redact "Confidential" or "Confidential – For Attorneys’ Eyes Only (trade secret/commercially sensitive)" portions thereof, the confidentiality of the information is deemed waived. [ Note 6.]

Because a confidential designation of discovery or deposition testimony or other information limits what an opposing party can do with the materials and is one step removed from filing documents under seal, producing parties or their counsel are expected to act in good faith in designating information as "Confidential" or "Confidential – For Attorneys’ Eyes Only (trade secret/commercially sensitive)" under the terms of the Board’s standard protective order. [ Note 7.] The fact that the Board’s standard protective order is automatically entered upon commencement in a Board proceeding does not give a party unbridled authority to designate its discovery responses and production as protected. [ Note 8.] When responding to discovery, the party seeking to designate information as "Confidential" or "Confidential – For Attorneys’ Eyes Only (trade secret/commercially sensitive)" has a duty to make a meaningful good faith effort to designate only that information that warrants the designated level of protection, if any. [ Note 9.] It is improper for a party to designate all produced discovery as confidential under the Board’s standard protective order. Producing parties should designate only those particular discovery responses, documents, deposition exhibits, and depositions transcript pages as confidential within the scope of and consistent with the protective order entered in the proceeding. See TBMP § 408.01 regarding a party’s duty to cooperate with regard to discovery.

The designations "Confidential" or "Confidential – For Attorneys’ Eyes Only (trade secret/commercially sensitive)" should be limited to information that the producing party or their counsel has determined, in good faith, contains, reflects, or reveals non-public, confidential, proprietary or commercial information that is not readily ascertainable through proper means by the public or the receiving party, to the extent that information either is the type of information that the party normally attempts to protect from disclosure or is subject to privacy protection under federal, state or local law. [ Note 10.]

The designation "trade secret" should be limited to any information that the producing party or their counsel has determined in good faith "can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others." [ Note 11.] Information that is confidential or that imparts private information may require a different level of protection than information that may be considered a trade secret or commercially sensitive. [ Note 12.] Information which may not be designated as subject to any form of protection includes information that is or becomes publicly available or information that has been disclosed to the public or a third party, under the circumstances specifically set forth in the Board’s standard protective order. [ Note 13.]

While there is no preliminary showing of good cause required for designations under the Board’s standard protective order, such a showing can be triggered by the receiving party raising an issue with respect to a party’s designation as to any documents, information or testimony. Thus, the party designating information as protected will, when its designation is timely challenged, bear the ultimate burden of proving that the information should be protected. [ Note 14.]

The parties are expected to make a good faith effort to resolve disputes with regard to the propriety of challenged designations before bringing such matters to the Board. [ Note 15.] The Board expects that disputes as to designations that are brought to the Board will be significantly narrow, resulting from the parties’ mutual obligation to negotiate the propriety of the challenged designations and come to a resolution under the Board’s standard protective order. [ Note 16.]

See TBMP § 412.06 regarding the good faith effort required for motions for protective orders. Cf. TBMP § 523.02 and TBMP § 524.02 in regard to good faith efforts required for motions to compel and to test the sufficiency of responses to requests for admissions.

The Board’s standard protective order is applicable during disclosures, discovery, and at trial. [ Note 17.] When filing submissions electronically as confidential in connection with motions, briefs or evidence via ESTTA, or where appropriate, filing on paper, under seal, parties should designate only those particular discovery responses, exhibits, depositions transcript pages, or portions of a motion or brief as confidential consistent with and within the scope of the protective order entered in the proceeding. [ Note 18.] A party may not improperly mark its filings as confidential so as to shield them from public view [ Note 19.] nor may the Board’s standard protective order, or any modified protective agreement stipulated to by the parties, be used as a means of circumventing relevant provisions of 37 C.F.R. § 2.27, which provides, that trademark application and registration files, and related TTAB proceeding files, generally should be available for public inspection. [ Note 20.]

Any confidential filing must include redacted versions for the public record. See 37 C.F.R. § 2.126(c). For any confidential unredacted version of a submission for which a redacted version must be filed, the parties are strongly encouraged to enclose the confidential information in brackets so as to facilitate a better comparison between the public and confidential versions of the filing when the Board is issuing an order or preparing a final decision.

Please Note: as part of general restyling, effective December 1, 2007, former Fed. R. Civ. P. 26(c)(1)(7) is now Fed. R. Civ. P. 26(c)(1)(G).

The Board’s standard protective order is available for viewing at http://www.uspto.gov 

NOTES:

 1.   37 C.F.R. § 2.116(g). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 72 Fed. Reg. 42242, 42244 (August 1, 2007); Standard Form Agreement or Order for Protecting Confidentiality of Information and Documents Disclosed During Proceedings Before the Trademark Trial and Appeal Board, O.G. Notice (June 20, 2000); Provisions for Protecting Confidentiality of Information Revealed During Board Proceeding, O.G. Notice (June 20, 2000). See also Layne Christensen Co. v. Purolite Co., 271 F.R.D. 240, 246–47 (D. Kan. 2010) (tiered protective orders are commonly entered in cases involving intellectual property, trade secrets, and unique technological information, affording fuller protection to particularly sensitive information than is extended to ordinary business information).

 2.   See Gillard v. Boulder Valley School District Re.-2, 196 F.R.D. 382, 385-86 (D. Colo. 2000) (explaining the difference between "particular protective orders," "umbrella protective orders," and "blanket protective orders").

 3.   See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 72 Fed. Reg. 42242, 42244 (August 1, 2007).

 4.   Fed. R. Civ. P. 26(g)(1)(B)(ii) (requiring discovery responses to be "not interposed for any improper purpose"). See Gillard v. Boulder Valley School District Re.-2, 196 F.R.D. 382, 386 (D. Colo 2000) ("Normally, a blanket protective order requires that counsel for a producing party review the information to be disclosed and designate the information it believes, in good faith, is confidential or otherwise entitled to protection.").

 5.   MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 72 Fed. Reg. 42242, 42244 (August 1, 2007).

 6.   37 C.F.R. § 2.116(g). See, e.g., Wet Seal, Inc. v. FD Management, Inc., 82 USPQ2d 1629, 1633 n.6 (TTAB 2007) (waiver of confidential designation of settlement agreement as the agreement was not redacted nor made confidential, was introduced as an exhibit during a deposition without mention of its confidential nature, and the parties openly discussed provisions of the agreement in their briefs). But see 37 C.F.R. § 2.120(f); Ayoub, Inc. v. ACS Ayoub Carpet Service, 118 USPQ2d 1392, 1398 n.39 (TTAB 2016) (parties electronically filed documents marked as confidential without identifying them in ESTTA as confidential and without filing a redacted public version; parties allowed 30 days from the date of the decision to file redacted copies, failing which the documents would be treated as part of public record); Rolex Watch U.S.A. Inc. v. AFP Imaging Corp., 101 USPQ2d 1188, 1189 n.1 (TTAB 2011) (granting opposer’s motion to designate as confidential portions of testimony previously submitted without designation and setting aside original opinion in the case on that basis; opinion reissued), judgment vacated based on action of defendant on appeal, 107 USPQ2d 1626 (TTAB 2013); Sports Authority Michigan Inc. v. PC Authority Inc., 63 USPQ2d 1782, 1787 n.6 (TTAB 2001) (noting parties failed to submit under seal deposition testimony that had been marked as confidential and affording the parties 30 days from date of decision to file, for the record, redacted and confidential versions of those portions of testimony which were confidential).

 7.   Fed. R. Civ. P. 26(g)(1) (requiring discovery responses to be "not interposed for any improper purpose"). See Blackhorse v. Pro Football Inc., 98 USPQ2d 1633, 1635 (TTAB 2011) (party to be circumspect and to limit the "confidential" designation only to information that is truly confidential or commercially sensitive); Bass Pro Trademarks LLC v. Sportsman’s Warehouse Inc., 89 USPQ2d 1844, 1848 (TTAB 2008) (urging counsel to exercise discretion and designate as confidential only such information that is truly confidential when appearing before the Board in future proceedings); THK America Inc. v. NSK Co. Ltd., 157 F.R.D. 637, 33 USPQ2d 1248, 1255, 1253 (N.D. Ill. 1993) (it is counsel’s "place and responsibility" to ensure that the proper confidential designations are assigned to documents produced"); Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 121 F.R.D. 264, 268 (M.D.N.C. 1988) (party to blanket protective order must invoke confidential designation in good faith). See also Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354, 358 (D. Md. 2008) (discussing Fed. R. Civ. P. 26(g) generally).

 8.   Hunter Industries, Inc. v. Toro Co., 110 USPQ2d 1651, 1656 n.12 (TTAB 2014) ("the mere assertion that information is confidential does not make such designation proper."), on appeal, No. 14-CV-4463 (D. Minn.); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1591 n.4 (TTAB 2011) (excessive markings of various information as confidential often indicates that matter is improperly designated or not useful to case), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential). See, e.g., THK America Inc. v. NSK Co. Ltd., 157 F.R.D. 637, 33 USPQ2d 1248, 1255-56 (N.D. Ill. 1993) (with regard to its document production, party improperly used Attorney Eyes Only designation four times as often as lower confidentiality designation as well as improperly designated non-confidential matter as confidential; court ordered party to de-designate all of the Attorney’s Eyes Only documents and reclassify them Confidential’ or ‘Non-confidential.).

 9.   Fed. R. Civ. P. 26(g)(1); Blackhorse v. Pro Football Inc., 98 USPQ2d 1633, 1635 (TTAB 2011) (party to be circumspect and to limit the "confidential" designation only to information that is truly confidential or commercially sensitive); Bass Pro Trademarks LLC v. Sportsman’s Warehouse Inc., 89 USPQ2d 1844, 1848 (TTAB 2008) (urging counsel to exercise discretion and designate as confidential only such information that is truly confidential when appearing before the Board in future proceedings). See also THK America Inc. v. NSK Co. Ltd., 157 F.R.D. 637, 33 USPQ2d 1248, 1255-56 (N.D. Ill. 1993) (nothing prevented the defendants from designating the trade secret pages of a document as "confidential" and the admittedly public pages included therewith or attached thereto as "non-confidential"; some form of redaction along these lines would have indicated a bona fide approach to the court-ordered discovery); Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 121 F.R.D. 264, 268 (M.D.N.C. 1988) (party to blanket protective order must invoke confidential designation in good faith). See also Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354, 358 (D. Md. 2008) (discussing Fed. R. Civ. P. 26(g) generally); 37 C.F.R. § 2.116(g)  ("The Board may treat as not confidential that material which cannot reasonably be considered confidential, notwithstanding a designation as such by a party.).

 10.   See, e.g., Layne Christensen Co. v. Purolite Co., 271 F.R.D. 240, 246 (D. Kan. 2010) (information that is designated as confidential prohibits the disclosure or dissemination of the information to third parties while "attorneys-eyes only" information is usually reserved for more sensitive information such as trade secret information, future product plans, competitive pricing, customer lists or competitive business financial information). See also 37 C.F.R. § 2.125(f); Trademark Trial and Appeal Board Standard Protective Order (effective June 24, 2016), Section 1, for a listing of the type of information that may be trade secret/commercially sensitive.

 11.   Restatement (Third) Unfair Competition § 39 (1995); see also Restatement of Torts (First) § 757, cmt. b (1939) (discussing six factors courts have considered in determining whether information is trade secret under the common law). Black’s Law Dictionary (10th ed. 2014) (A "trade secret" is defined as "[a] formula, process, device, or other business information that is kept confidential to maintain an advantage over competitors; information — including a formula, pattern, compilation, program, device, method, technique, or process — that (1) derives independent economic value, actual or potential, from not being generally known or readily ascertainable by others who can obtain economic value from its disclosure or use, and (2) is the subject of reasonable efforts, under the circumstances, to maintain its secrecy."). See also 37 C.F.R. § 2.125(f); Trademark Trial and Appeal Board Standard Protective Order (effective June 24, 2016), Section 1, for a listing of the type of information that may be trade secret/commercially sensitive.

 12.   Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402 (TTAB 2010).

 13.   Provisions for Protecting Confidentiality of Information Revealed During Board Proceeding, O.G. Notice (June 20, 2000). See e.g., THK America Inc. v. NSK Co. Ltd., 157 F.R.D. 637, 33 USPQ2d 1248, 1255-56 (N.D. Ill. 1993) (publicly available documents including catalogs, patents, books, magazines, technical journals and newspaper articles were non-confidential; confirmation letters regarding employee seminars, responses to business invitations, requests for permission to attend business trips and internal memos regarding public seminars were found non-confidential; memoranda or similar documents predicated upon or relating to public information which may be confidential, were not entitled to "attorneys eyes only" designation; customer documents that were innocuous and far from current were not entitled to "attorneys eyes only" designation but may be confidential); Noble House Home Furnishings, LLC v. Floorco Enterprises, LLC, 118 USPQ2d 1413, 1416 n.21, 1418 n. 28, 1419 n.31 (TTAB 2016) (title of witness as "Operations Officer," respondent’s status as limited liability company organized under the Commonwealth of Kentucky, and Respondent’s status as a wholly-owned subsidiary are not confidential; cover page of marketing proposal sent to third party without any indication there was a nondisclosure agreement and the recipient was identified in the publicly available discovery deposition of witness not confidential; advertising or marketing proposal send to third party, not confidential); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1460 (TTAB 2014) (improper designation of marketing materials that were distributed to respondent’s purchasers and potential purchasers not confidential; presentation used to describe program directed to interested employer groups, associations, hospitals, schools that had no warning or legend that the information was trade secret and should be kept confidential, were not confidential); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014) (printout of shopping cart webpage available to the public is not confidential); Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402 (TTAB 2010) (user manuals for opposer’s heart monitors distributed to opposer’s purchasers and which contained no warning or legend advising they contained trade secrets and should be kept in a secure location were not confidential). Cf. Blackhorse v. Pro Football Inc., 98 USPQ2d 1633, 1635 (TTAB 2011) (If party designates more than a minimal amount of evidence as confidential or commercially sensitive and the information is more than 20 years old, party should anticipate an order to show cause why such information should warrant a designation as confidential and be shielded from public view).

 14.   37 C.F.R. § 2.120(g); Fed. R. Civ. P. 26(c)(1). Cf. Emilio Pucci International BV v. Sachdev, 118 USPQ2d 1383, 1386 (TTAB 2016) (good faith effort required for motion for protective order in connection with discovery requests).

 15.   Fed. R. Civ. P. 26(c)(1); Provisions for Protecting Confidentiality of Information Revealed During Board Proceeding, O.G. Notice (June 20, 2000). Cf. 37 C.F.R. § 2.120(f)(1); Hot Tamale Mama…and More, LLC v. SF Investments, Inc., 110 USPQ2d 1080, 1081 (TTAB 2014) (good faith effort should be directed to understanding differences and investigating ways in which to resolve dispute); Amazon Technologies Inc. v. Wax, 93 USPQ2d 1702, 1705 (TTAB 2009) (quoting Dondi Properties Corp. v. Commerce Savings and Loan Ass’n, 121 F.R.D. 284, 289 (N.D. Tex. 1988) ("[t]he purpose of the conference requirement is to promote a frank exchange between counsel to resolve issues by agreement or to at least narrow and focus the matters in controversy before judicial resolution is sought.")).

 16.   Provisions for Protecting Confidentiality of Information Revealed During Board Proceeding, O.G. Notice (June 20, 2000). Cf. Sentrol, Inc. v. Sentex Systems, Inc., 231 USPQ 666, 667 (TTAB 1986) (prior to seeking Board intervention, parties must narrow amount of disputed requests to reasonable number); Medtronic, Inc. v. Pacesetter Systems, Inc., 222 USPQ 80, 83 (TTAB 1984) (nature and the number of discovery requests subject to motion to compel clearly demonstrated that no good faith effort had been made by the parties).

 17.   37 C.F.R. § 2.116(g).

 18.   Blackhorse v. Pro Football Inc., 98 USPQ2d 1633, 1635 (TTAB 2011) (parties must make an attempt to delineate the truly confidential portions by redaction when filing submissions with the Board). See also Baxter International Inc. v. Abbott Laboratories, 297 F.3d 544, 63 USPQ2d 1859, 1859 (7th Cir. 2002) ("Secrecy is fine at the discovery stage, before the material enters the judicial record. . . . But those documents, usually a small subset of all discovery, that influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality.").

 19.   In re Violation of Rule 28(d), 635 F.3d 1352, 98 USPQ2d 1144, 1149 (Fed. Cir. 2011) (public version of brief contained extensive markings as confidential which ignores the requirements of public access); Baxter International Inc. v. Abbott Laboratories, 297 F.3d 544, 63 USPQ2d 1859, 1859 (7th Cir. 2002) ("But those documents, usually a small subset of all discovery, that influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality."); United States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989) (citations omitted) (" . . . the common law right of access creates a ‘strong presumption’ in favor of public access to material submitted as evidence in open court . . . the public’s right to inspect judicial documents may not be evaded by the wholesale sealing of court papers"). See also 37 C.F.R. § 2.116(g)  ("The Board may treat as not confidential that material which cannot reasonably be considered confidential, notwithstanding a designation as such by a party.)

 20.   Sports Authority Michigan Inc. v. PC Authority Inc., 63 USPQ2d 1782, 1787 (TTAB 2001); Duke University v. Haggar Clothing Co., 54 USPQ2d 1443, 1445 (TTAB 2000).