502.02(c) Confidential Information
The Board’s standard protective order is automatically in place for inter partes proceedings unless the Board approves a stipulation or motion to use an alternative order. [ Note 1.] Except for materials filed under seal pursuant to a protective order or designated as confidential in ESTTA, the files of applications and registrations that are the subject matter of pending proceedings before the Board and all pending proceeding files and exhibits thereto are available for public inspection and copying on TTABVUE, http://ttabvue.uspto.gov (docket information and full images of Board files). [ Note 2.] Therefore, only the particular portion of a motion that discloses confidential information should be electronically designated as "CONFIDENTIAL" in ESTTA or when filed exceptionally by paper under seal pursuant to a protective order. Parties should avoid over-designation of non-confidential information as confidential. If a party submits a motion containing confidential information either electronically via ESTTA or by paper under seal, the party must also submit for the public record a redacted version of the motion. [ Note 3.]
Confidential information filed without appropriate designation in accordance with the Board’s standard protective order or one adopted by the parties as a substitute for the standard order is not regarded as confidential, will not be kept confidential by the Board and will be placed in the Board’s public records available on the Internet. [ Note 4.] To be handled as confidential and kept out of the public record, submissions to the Board must be filed using the "Confidential" selection available in ESTTA, or filed under a separate cover with a showing by written explanation accompanying the submission that ESTTA was unavailable due to technical problems or that extraordinary circumstances justify the paper submission. Both the submission and its cover must be marked confidential and must identify the case number and the parties. A copy of the submission with the confidential portions redacted must also be submitted concurrently for public viewing. [ Note 5.]
When filing confidential documents electronically through ESTTA, the party must use the "File Documents in a Board Proceeding" option, select "CONFIDENTIAL Opposition, Cancellation or Concurrent Use," enter the proceeding number and click "Start." The documents filed in this manner will not be viewable in the publicly available electronic proceeding file. The party filing the confidential document electronically must also file concurrently a separate redacted version of the confidential filing for public viewing.
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 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.
Disclosure of an individual’s personally identifiable information (e.g., social security number, financial account numbers, or home address) is not necessary. Such information should always be redacted from any submission.
For further information regarding protective orders, see TBMP § 412 and TBMP § 412.01. For further information regarding confidential materials, see TBMP § 120.02 ("Access to Files – Confidential Material"), TBMP § 703.01(p) ("Oral Testimony Depositions - Confidential or Trade Secret Material"), and TBMP § 801.03 ("Form and Content of Briefs").
NOTES:
2. 37 C.F.R. § 2.27(d); 37 C.F.R. § 2.27(e), and 37 C.F.R. § 2.126(c); Duke University v. Haggar Clothing Co., 54 USPQ2d 1443, 1445 (TTAB 2000).
3. 37 C.F.R. § 2.27(e) and 37 C.F.R. § 2.126(c); Duke University v. Haggar Clothing Co., 54 USPQ2d 1443, 1445 (TTAB 2000).
4. Cf. Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402 (TTAB 2010) (Board was not bound by parties’ overdesignation of testimony and evidence as confidential); and Harjo v. Pro-Football, Inc., 50 USPQ2d 1705, 1714 (TTAB 1999) (Board agreed to hold exhibits marked confidential for thirty days pending receipt of a motion for a protective order but cautioned that in the absence of such motion, the exhibits would be placed in the proceeding file), rev’d on other grounds, 284 F. Supp. 2d 96 (D.D.C. 2003).
5. 37 C.F.R. § 2.126(c). See also Duke University v. Haggar Clothing Co., 54 USPQ2d 1443, 1445 (TTAB 2000).