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Judge Sleet Denies Modification of Prosecution Bar Because Requesting Party did not Demonstrate Need for an Exemption for a Particular Attorney or Purpose

In this multidistrict litigation, a protective order was originally entered in a case between Plaintiff Bear Creek Technologies and Defendant Verizon while the Verizon case was pending in the Eastern District of Virginia. The Verizon case was then transferred to the MDL in the District of Delaware after entry of the protective order. The protective order in question bars the Plaintiff’s litigation counsel from participating in prosecution activities except that the “prosecution bar does not apply to any reexamination proceedings before the [USPTO] that is initiated by any Verizon defendant in this action.” The Plaintiff therefore sought a modification of the protective order because it “exempted reexamination proceeding initiated by Verizon, but did not extend the exemption to proceedings initiated by other parties” and the Plaintiff sought to have the protective order recognize “that the case now involves multiple defendants.” In re: Bear Creek Technologies Inc., MDL No. 12-2344-GMS, Amended Or. at 1-2 (D. Del. Oct. 20, 2016). Judge Sleet, however, declined to modify the protective order, agreeing with Verizon that because “the Protective Order has already been decided by another court, Bear Creek must show, on a counsel-by-counsel basis, that an exemption for a particular attorney or a particular purpose is warranted and Bear Creek has not made this showing.” Id. at 2-3 (citing In re Deutsche Bank Trust Co. Ams., 605 F.3d 1373 (Fed. Cir. 2010)).

In re: Bear Creek Technologies Inc., MDL No. 12-2344-GMS (D. Del. Oct. 20, 2016).

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