Lately I’ve had a lot of calls about ethical issues in IPR proceedings. The rules are not clear in a number of instance and the case law is sparse and not always easily harmonized with the plain text of the rules. This case caught my eye, though, for a different reason.
The order is paper 23 in RPX Corp. v. Applications on the Internet Time, LLC, IPR 2015 (Dec. 4, 2015). The actual order itself grants the petitioner authority to file a motion for sanctions for alleged violations of the Standing Default Protective Order. Obviously, parties need to police against such violations.
What the case reminds us is that the Standing Default Protective Order is not… a standing default protective order. Instead, it is entered only by motion of the parties, and that motion must include the proposed protective order.
Here, the parties had previously agreed to be bound by the protective order, and so the fact that they had not requested entry of any protective order did not matter. However, remember that there really is no default standing protective order… a misnomer that can hurt you.