*1 Plaintiffs Rensselaer Polytechnic Institute (“RPI”) and CF Dynamic Advances LLC (“CF Dynamic”) (collectively, where appropriate, “plaintiffs”) bring this patent infringement lawsuit against defendant Amazon.com, Inc. (“Amazon”), alleging that Amazon is engaging in wrongful and unlicensed use of plaintiffs’ patented technology described in U.S. Patent No. 7,177,799 (“the ’798 Patent”), which includes natural language processing technology contained in Amazon's Alexa Voice Software and Alexa enabled devices. See Dkt. No. 1 at 1-2 (“Compl.”). Presently pending before the Court is Amazon's motion for a protective order pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 26(c)(1). See Dkt. No. 120. Plaintiffs opposed the motion. See Dkt. No. 121. Amazon filed a reply in response to plaintiffs’ opposition. See Dkt. No. 122. As discussed in detail below, Amazon's motion is granted to the extent that it seeks the inclusion in the parties’ Proposed Protective Order of a two-year patent prosecution bar and a two-year patent acquisition bar, subject to the Court's modifications provided by herein.

A. Undisputed Portions of the Parties’ Proposed Protective Order[1]

In May 2020, the parties jointly submitted a Case Management Plan that included a Proposed Protective Order “with the parties’ differing positions highlighted and bolded.” Dkt. No. 110 at 7. The parties represented that “[t]he protective order contains provisions necessary to safeguard the highly sensitive technical information that may be exchanged during discovery, including source code.” Id. As relevant here, the parties’ Proposed Protective Order sets forth three categories of confidential information. See id. at 13-14. First, “Confidential Information” is defined as

Id. at 13 ¶ 2(b). Further, “Highly Confidential” information is defined as

*2 Id. at ¶ 2(c) (internal quotation marks omitted). Finally, the parties define “Restricted Confidential—Source Code” information as

Id. at 13-14 ¶ 2(d). Moreover, the Proposed Protective Order defines the permissible use of “Confidential, Highly Confidential, and Restricted Confidential—Source Code information” as “exclusively for purposes of this litigation, subject to the restrictions of this Order.” Id. at 16 ¶ 4(a) (emphasis added).

“Absent written permission from the producer or further order by the Court, the recipient may not disclose Confidential information,” or “Highly Confidential Information,”

Dkt. No. 110 at 16-17 ¶ 4(b), (c). Similarly, “Restricted Confidential—Source Code information may be used exclusively for purposes of this litigation, subject to the restrictions of this Order.” Id. at 18 ¶ 5(a) (emphasis added). In addition, the Proposed Protective Order contains 19 undisputed provisions governing use and disclosure of Source Code for purposes of the present litigation. See id. at 18-26 ¶¶ 5(a)-(s).

The parties’ present dispute concerns the scope and duration of a prosecution bar and whether an acquisition bar is warranted. See Dkt. No. 110 at 30-32. Plaintiffs’ position is stated as follows:

*3 Id. at 30 Plaintiffs’ Proposed ¶ 9(a) (emphasis added).[3] Plaintiffs would define “[p]rosecution activity” as

Id. at Plaintiffs’ Proposed ¶ 9(b).

Amazon's position provides as follows, with its differences from plaintiffs’ position emphasized by underlined and bolded text:

Dkt. No. 110 at 31 Amazon's Proposed ¶ 9(a). Amazon proposes to define “Prosecution/Acquisition Activity” as

Id. at Amazon's Proposed ¶ 9(b).

It is undisputed that prosecution activity would exclude the following:

*4 Id. at 30-31 Plaintiffs’ Proposed ¶ 9(b); 31-32 Amazon's Proposed ¶ 9(b).

Amazon argues that its “source code is a trade secret of incalculable value,” and that the inadvertent disclosure of source code and/or related information “could undermine billions of dollars’ worth of technical investment by Amazon” and “expose work in progress,” which would “erod[e] the value of future plans and harm[ ] Amazon's competitive positions.” Dkt. No. 120-1 at 9. Amazon characterizes CF Dynamic, and its parent company, non-party Fortress Investment Group (“Fortress”), as “patent speculators” and/or “patent assertion entities.” Id. at 6. Amazon states that, along with CF Dynamic, “Fortress controls a portfolio of other shell companies that “make money solely by threatening and filing patent infringement lawsuits.” Id. Such companies, Amazon posits, “could (and no doubt would) realize significant and plainly unfair advantages from the advice and assistance of counsel who have acquired personal knowledge of Amazon's trade secrets through litigation.” Id. at 10.

Based on the foregoing, Amazon argues that good cause exists to warrant Amazon's proposed patent acquisition bar to prevent “[p]laintiff's counsel[,] who will become saturated with Amazon's sensitive and valuable trade secrets” from “advis[ing] their clients on patent acquisitions relating to natural language processing.” Id. at 11-12. Amazon urges that the concern that plaintiffs’ counsel to this litigation will misuse its information in advising its clients concerning patent acquisitions is “particularly acute here because [CF Dynamic] and its fellow Fortress-controlled shell companies have no business other than acquiring patents for the purpose of threatening and filing infringement lawsuits.” Id. at 11. “Patent acquisition is not just a part of their competitive decisions,” Amazon argues, but “is (together with choosing whom to sue) the whole of their business.” Id. Moreover, Amazon posits that “ ‘[p]atent acquisition creates the same risks of inadvertent use as patent prosecution’ and thus acquisition activities are properly restricted for the same reasons as a prosecution activities.” Id. at 9 (quoting Telebuyer, LLC v. Amazon.com, Inc., No. 13-CV-1677 (BJR), 2014 WL 5804334, at *7 (W.D. Wash. July 7, 2014)

Amazon avers that its proposed patent acquisition bar, which defines “Acquisition Activity” as “acquisition of rights in patents or patent applications relating to natural language processing technology,” is “tailored to the field of technology at issue in this case, and is limited to the specific individuals who actually review Amazon's confidential information.” Id. at 10-11. Further, Amazon states, “if there is a pressing need to exempt a certain individual from the prosecution bar, [p]laintiff's counsel remains free to seek exceptions on a counsel-by-counsel basis.” Id. at 11 (internal quotation marks and citation omitted). Moreover, Amazon contends that plaintiffs will not face a substantial burden in “finding legal counsel to advise them on any patent acquisitions that may be covered by the [proposed] acquisition bar,” because “RPI has already used five law firms besides its present counsel when asserting the ’798 patent in other litigations” and “Fortress ... has worked with countless other law firms to acquire patent rights in the past,” including other attorneys and firms not involved in the present litigation. Id. at 12. Finally, Amazon argues that two-year bars are common and fulfill the objective of preventing inadvertent disclosure of confidential information more than one-year bars because “the confidential information will be less readily available in the memory of counsel.” Id. (quoting Ameranth, Inc. v. Pizza Hut, Inc., No. 3:11-CV-01810 (JLS), 2012 WL 528248, at *7 (S.D. Cal. Feb. 17, 2012).

*5 Plaintiff argue that Amazon has failed to establish good cause for an acquisition bar. See Dkt. No. 121 at 11. Plaintiffs aver that Amazon's reliance on Telebuyer for the proposition that patent acquisition and patent prosecution activities present the same risks of inadvertent use of confidential information by litigation counsel is misplaced. See id. Rather, plaintiffs urge, patent acquisition bars require a higher burden to obtain, are rarely granted and, even in cases where such bars have been granted, courts have tailored them more narrowly than the one proposed by Amazon. See id. at 12.

Further, plaintiffs argue that Amazon has not demonstrated an unacceptable risk of inadvertent disclosure to warrant a patent acquisition bar. See Dkt. No. 121 at 13. Plaintiffs contend that the Amazon's alleged risk that plaintiffs’ counsel will use Amazon's confidential information for purposes of advising its clients regarding patent acquisitions is theoretical and, in any event, does not pertain to the risk of “inadvertent disclosure” that Amazon proposes to prevent through the incorporation of an acquisition bar. Id. “Rather,” plaintiffs aver, “the hypothetical risk identified by Amazon here—that [p]laintiffs’ counsel would purportedly use ‘first-hand knowledge of Amazon's trade secrets’ to advise clients to acquire patents to assert against Amazon in the future—is entirely specious in view of attorneys’ ethical obligations and other provisions in the [P]roposed Protective Order.” Id. Namely, plaintiffs rely on paragraph 4(a) of the Proposed Protective Order, which provides that “Confidential, Highly Confidential, and Restricted Confidential—Source Code information may be used exclusively for purposes of this litigation.” Id. (quoting Dkt. No. 110 at 16 ¶ 4(a)). Thus, plaintiffs aver, the parties’ Proposed Protective Order already precludes the use of protected information outside of this litigation. See id.

Moreover, plaintiffs contend that Amazon has failed to demonstrate on a counsel-by-counsel basis that plaintiffs’ outside counsel are involved in competitive decision-making against Amazon. See Dkt. No. 121 at 14. Plaintiffs aver that Amazon has failed to submit any evidence or advance any arguments in this regard and, instead, proffer only “stereotyped and conclusory statements” that CF Dynamic and Forest are patent speculators and/or patent assertion entities, which are insufficient to meet Amazon's burden to demonstrate on a counsel-by-counsel basis that plaintiffs’ counsel engages in competitive decision-making to warrant an acquisition bar. Id. at 15 (internal quotation marks and citation omitted).

In addition, plaintiffs argue that Amazon's proposed acquisition bar is unreasonable in scope and duration. See Dkt. No. 121 at 16. Plaintiffs contend that Amazon's proposed application of an acquisition bar to the category of “Confidential Information” renders their proposed acquisition bar unduly broad and prejudicial. See id. at 16-17, 22. Plaintiffs argue that including “Confidential Information,” as defined under the parties’ Proposed Protective Order, in the proposed acquisition bar would cover “non-technical information, such as organizational charts, financial documents, and generic marketing materials” and would preclude anyone who views information protected by the acquisition bar “from advising current and future clients within a vast technology space, even where such advice is based on publicly available or previously known information,” which would “restricts[ ] [p]laintiffs’ choice of counsel.” Id. Plaintiff's state that Amazon's arguments in support of an acquisition bar center almost exclusively on information relating to source code; therefore, any acquisition bar should not extend beyond source code information—not to non-technical “Confidential Information.” Id. at 18. Moreover, plaintiffs state that the proposed acquisition bar “encompasses activities that lack any risk of inadvertent disclosure, such as patent validity analysis, as well as settlement discussions.” Id. Plaintiffs also posit that Amazon's proposed acquisition bar is vague, as Amazon has not defined the phrase “natural language processing technology,” and contend that Amazon has previously objected to the use of that phrase in its discovery responses on the same basis. Id. (quoting Dkt. No. 121-3 at 7). In any event, plaintiffs contend, Amazon has failed to establish that its source code requires special protections, because production of source code in patent litigation is not unique, patent litigation involving source code frequently occurs without the use of an acquisition bar, and that Amazon has failed to demonstrate any unacceptable risk of disclosure of its source code—which is protected by 19 separate undisputed provisions under the Proposed Protective Order. See id. at 20-21. Plaintiffs also stated that Amazon has failed to limit its proposed acquisition bar to specific persons and would prohibit not only advising clients against Amazon, but advising any clients concerning acquisitions of patents relating to natural language processing technology. See id. at 18.

*6 Next, plaintiffs argue that Amazon's proposed two-year duration for is unreasonable. See Dkt. No. 121 at 19. Plaintiffs posit that courts routinely hold that one-year bars are reasonable for prosecution bars and that the proposed two-year duration is “undercut by multiple cases where Amazon previously agreed that a one-year bar or less was sufficient to protect its confidential information, including any purported source code and trade secrets.” Id. (collecting cases). Finally, plaintiffs argue that Amazon's proposed patent prosecution bar is similarly overbroad and unreasonable in scope and duration and should be rejected. See Dkt. No. 121 at 22. Plaintiffs contend that Amazon's proposed prosecution bar encompasses “any and all confidential materials,” and argue that it “should be limited to one year following the conclusion of this case, and only apply to individuals accessing Amazon's highest designated technical information—‘Highly Confidential’ or ‘Restricted Confidential-Source Code’—i.e., business or technical trade secrets.” Id.

In reply to plaintiffs’ opposition, Amazon argues that, contrary to plaintiffs’ position, acquisition bars are not rare. See Dkt. No. 122 at 7. Amazon contends that plaintiffs’ attempt to distinguish the present case from cases in which acquisition bars have been granted on the basis that they did not involve research universities such as RPI is unpersuasive because case law supports the imposition of an acquisition bar where, as here, the involvement of patent speculators like Fortress and CF Dynamics pose a significant risk of inadvertent disclosure. See id. (citing Unwired Planet LLC v. Apple Inc., No. 3:12-CV-00505, 2013 WL 1501489, at *3 (D. Nev. Apr. 11, 2013). In particular, Amazon argues that Fortress’ business model is based on acquiring large numbers of patents, which “opens the door to inadvertent disclosure [because] attorneys who work with Fortress pose a heightened risk.” Id. at 10.

Further, Amazon argues that plaintiffs are incorrect in arguing that plaintiffs’ counsel's use of Amazon's confidential information to advise clients on patent acquisition should not be considered “inadvertent disclosure.” Dkt. No. 122 at 9 (internal quotation marks and citation omitted). Rather, Amazon contends, relevant case law establishes that “ ‘inadvertent disclosure’ is an inherent risk associated with ‘competitive use,’ which includes activities like ‘making strategic decisions on the type and scope of patent protection that might be available or worth pursuing.’ ” Id. (quoting In re Deutsche Bank Tr. Co. Americas, 605 F.3d 1373, 1380 (Fed. Cir. 2010)). Indeed, Amazon asserts, despite plaintiffs’ arguments that its counsel will not use information acquired in this litigation when advising their clients as to which patents relating to natural language to acquire, “counsel will be unable to forget the information they obtained about how Alexa's natural language understanding works, and why Amazon chose a certain approach over alternatives,” which “could seriously harm Amazon.” Id.

Moreover, Amazon argues that plaintiffs are incorrect that Amazon is required to establish that plaintiffs’ counsel is involved in competitive decision making on a “counsel-by-counsel basis.” Dkt. No. 122 at 11. In support of this argument, Amazon avers that the acquisition of patents, for which Fortress and CF Dynamics rely on their counsel, “inherently involves competitive decision-making and therefore poses a risk of inadvertent disclosure.” Id. Thus, Amazon urges, it has satisfied the threshold showing of competitive decision-making to support the inclusion of an acquisition bar and the burden now shifts to plaintiffs to establish the need for an exemption from the acquisition bar on a counsel-by-counsel basis. See id. at 11-12.

Amazon also contends that its proposed acquisition bar is appropriately tailored to include “Confidential Information,” as defined in the Proposed Protective Order, because acquisition bars “ ‘should ordinarily cover the whole universe of confidential information disclosed.’ ” Dkt. No. 122 at 12 (quoting Telebuyer, 2014 WL 5804334, at *4). To the extent that plaintiffs contend that “natural language processing technology” is vague, Amazon notes that such “description comes directly from [p]laintiff's complaint,” and plaintiffs are therefore bound by that description for purposes of the Proposed Protective Order. See id. (citing Telebuyer, 2014 WL 5804334, at *4). Additionally, Amazon argues that, contrary to plaintiffs’ assertions in opposition, the proposed acquisition bar is limited to persons “who access Amazon's confidential information and then seek to advise clients on patent acquisitions involving natural language processing.” Id. Amazon posits that an acquisition bar would not unduly prejudice plaintiffs because plaintiffs “have worked with numerous law firms who will not be subject to the acquisition bar” and “may work with their current law firm on patent acquisitions, as long as the individual attorneys involved have not accessed Amazon's confidential information.” Id. Finally, Amazon reasserts that a two-year prosecution/acquisition bar is reasonable because “the information [p]laintiffs seek is exceptionally valuable, sensitive, and wide ranging” and Fortress's presence poses an increased risk. Id. at 14.

*7 Rule 26(c) permits the issuance of a protective order “to protect a party or person from annoyance, embarrassment, oppression, undue burden, or expense[.]” FED. R. CIV. P. 26(c)(1). To establish that a protective order is warranted, Rule 26(c)(1) requires that a party demonstrate “good cause.” Id.; see Schiller v. City of New York, No. 04-CV-7921 (KMK/JCF), 2007 WL 136149, at *2 (S.D.N.Y. Jan. 19, 2007) (“It is well established that the party seeking a protective order under Rule 26(c) has the burden of showing that good cause exists for issuance of that order.” (internal quotation marks, brackets, and citations omitted)). “The same burden applies to the moving party when seeking to include disputed provisions.” Intellectual Ventures I, LLC v. Lenovo Grp. Ltd., No. 16-CV-10860 (PBS), 2019 WL 343242, at *2 (D. Mass. Jan. 25, 2019) (citing Deutsche Bank, 605 F.3d at 1378 (discussing inclusion of a patent prosecution bar provision), reconsideration denied, 392 F. Supp. 3d 138 (D. Mass. 2019). “Good cause exists when the party seeking protection demonstrates that ‘disclosure will result in a clearly defined, specific and serious injury. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test. Moreover[,] the harm must be significant not a mere trifle.’ ” Burks v. Stickney, No. 9:16-CV-0759 (FJS/DEP), 2017 WL 1401312, at *4 (N.D.N.Y. Apr. 19, 2017) (quoting Schiller, 2007 WL 136149, at *5 (additional internal quotation marks and citations omitted)). Moreover, upon a showing of good cause, a protective order may require that trade secrets “not be revealed or be revealed only in a specified way.” Fed R. Civ. P. 26(c)(1)(G). A district court has “ ‘broad discretion’ ” to determine “ ‘when a protective order is appropriate and what degree of protection is required.’ ” McAdoo v. Jagiello, No. 9:10-CV-355, 2011 WL 1577236 (DNH), at *6 (N.D.N.Y. Apr. 26, 2011) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)).

“Given the unique relationship of this issue to patent law, and the importance of establishing a uniform standard, ... the determination of whether a protective order should include a patent prosecution bar is a matter governed by Federal Circuit law.” Deutsche Bank, 605 F.3d at 1378. “The same holds true for the inclusion of a patent acquisition bar provision.” Intellectual Ventures, 2019 WL 343242, at *2 (collecting cases). In determining whether the inclusion of a patent acquisition bar in a protective order is appropriate,[4] district courts have interpreted Deutsche Bank in two ways, both of which require a two-step inquiry. See Intellectual Ventures, 2019 WL 343242, at *2. Some courts have required the party moving for the inclusion of a bar to (1) show the existence of an unacceptable risk of inadvertent disclosure of confidential information on a counsel-by-counsel basis without the bar in place, and (2) then balance the risk of inadvertent disclosure against the potential harm the party against whom the bar is sought if no bar is put in place. See id. (citing NeXedge, LLC v. Freescale Semiconductor, Inc., 820 F. Supp. 2d 1040, 1043 (D. Ariz. 2011) (additional citations omitted). Other courts interpret Deutsche Bank to require the moving party to show that the proposed bar “ ‘reasonably reflect[s] the risk presented by the disclosure of proprietary competitive information,” by assessing factors, such as “the information designated to trigger the bar, the scope of activities prohibited by the bar, the duration of the bar, and the subject matter covered by the bar.” Intellectual Ventures, 2019 WL 343242, at *2 (quoting Deutsche Bank, 605 F.3d at 1381). The burden then shifts to the non-movant to establish exemption on a counsel-by-counsel basis, by “showing: (i) that the targeted counsel's role will not likely implicate competitive decision[-]making; and (ii) that its potential injury from the restrictions imposed on its choice of counsel outweighs the other party's potential injury resulting from its inadvertent use of protected information.” Front Row Techs., LLC v. NBA Media Ventures, LLC, 125 F. Supp. 3d 1260, 1278 (D.N.M. 2015).

*8 As an initial matter, the parties dispute which of the foregoing standards should apply, as they do not agree on whether the burden of proof is on Amazon as the moving party, or plaintiffs, to establish the risk of inadvertent disclosure on a counsel-by-counsel basis. See Dkt. No. 120-1 at 9; Dkt. No. 121 at 14; 122 at 11. Upon careful consideration of the relevant caselaw, the Court agrees with the reasoning set forth in Intellectual Ventures, which declined to place the burden on the moving party to prove risk of inadvertent disclosure for each of the opposing party's attorneys on a counsel-by-counsel basis in favor of requiring the non-movant to seek exemptions from an acquisition bar on a counsel-by-counsel basis after the court determines that such a bar is warranted. See Intellectual Ventures, 2019 WL 343242, at *3 (citations omitted). The Court finds compelling the rationale that it would be unrealistic to require the party moving for an acquisition bar to establish risk of inadvertent disclosure of the opposing party's attorneys on a counsel-by-counsel basis because the movant “would have little to no knowledge of the day-to-day practice for any particular attorney for the opposing party.” Id. In addition, as the court in Intellectual Ventures observed, controlling Federal Circuit precedent “references a counsel-by-counsel analysis only in the context of exemptions from [a] bar already approved by the court.” Id. (citing Deutsche Bank, 605 F.3d at 1379-80). Based on the foregoing, the Court rejects plaintiffs’ contention that Amazon has failed to meet its burden of establishing the propriety of an acquisition bar on the basis that Amazon has not proffered specific evidence on a counsel-by-counsel basis that plaintiffs’ counsel engages in competitive decision-making. See Dkt. No. 121 at 14-15; Intellectual Ventures, 2019 WL 343242, at *3.

The Court concludes that plaintiffs are correct in arguing that “Confidential Information,” as defined in the Proposed Protective Order, is not appropriately tailored to trigger the patent prosecution bar. Dkt. No. 110 at 13 ¶ 2(b). As plaintiffs point out, “financial data and other sensitive business information, even if deemed confidential, would not normally be relevant to a patent application and thus would not normally be expected to trigger a patent prosecution bar.” Deutsche Bank, 605 F.3d at 1381. Thus, such information shall not trigger the patent prosecution bar. However, also included in the parties undisputed definition of “confidential information,” is “technical and development information within the scope of Rule 26(c)(1)(G), the disclosure of which is likely to harm that person's competitive position.” Dkt. No. 110 at 13 ¶ 2(b). Based on a plain reading of this language, it is axiomatic that information defined as “technical and development information” could relate to Amazon's natural language processing technology and, therefore, “be relevant to a patent application.” Deutsche Bank, 605 F.3d at 1381. Accordingly, to the extent that the parties have defined “Confidential Information” to include “technical and development information within the scope of Rule 26(c)(1)(G), the disclosure of which is likely to harm that person's competitive position,” such information shall trigger the protections of the patent prosecution bar. Dkt. No. 110 at 13 ¶ 2(b); see Deutsche Bank, 605 F.3d at 1381.

“Courts have recognized ... that there may be circumstances in which even the most rigorous efforts of the recipient of ... information to preserve confidentiality in compliance with the provisions of ... a protective order may not prevent inadvertent compromise.” In re Deutsche Bank, 605 F.3d at 1378. Indeed, courts have acknowledged that “it is very difficult for the human mind to compartmentalize and selectively suppress information once learned, no matter how well-intentioned the effort may be to do so.” FTC v. Exxon Corp., 636 F.2d 1336, 1350 (D.C. Cir. 1980). Here, plaintiffs do not deny that CF Dynamics, and its fellow shell companies under Fortress, are in the business of acquiring patents; rather, plaintiffs take issue only with Amazon's characterization of those entities as patent speculators and/or patent assertion entities. See Dkt. No. 120-1 at 6; Dkt. No. 121 at 15. Further, plaintiffs do not controvert that CF Dynamics and Fortress rely on counsel, who advise them for purposes of acquiring and monetizing patents and/or patent applications and asserting those patents on their behalf. See id. Through discovery, as the parties have contemplated in their Proposed Protective Order, Amazon will be obligated to disclose for review by plaintiffs’ counsel confidential technical information, including information relating to Amazon's source code. See Dkt. No. 110 at 18-26 ¶¶ 5(a)-(s) (19 provisions relating to disclosure and use of source code).[5] Such information could be inadvertently disclosed by the attorneys that review such information on behalf of plaintiffs and, in turn, “used to acquire other patents and spur future litigation,” regardless of the provisions contained in the proposed protective order limiting such use exclusively to the present litigation. Intellectual Ventures, 2019 WL 343242, at *3; see In re Deutsche Bank, 605 F.3d at 1378; Dkt. No. 110 at 16 ¶ 4(a), 18 ¶ 5(a). Thus, the Court concludes that Amazon has established good cause for the inclusion of an acquisition bar.

*9 Next, applying the standard adopted by this Court, as set forth in Intellectual Ventures, the Court will first consider whether Amazon has demonstrated that the proposed acquisition bar “ ‘reasonably reflect[s] the risk presented by the disclosure of proprietary competitive information.’ ” 2019 WL 343242, at *2 (quoting Deutsche Bank, 605 F.3d at 1381). Amazon asserts that the categories of information that would trigger the acquisition bar are “Confidential Information,” “Highly Confidential,” and “Restricted Confidential—Source Code information.” Dkt. No. 110 at 31 Amazon's Proposed ¶ 9(a)-(b). Subject to the limitations concerning “Confidential Information” discussed in subsection III.A.1, supra, and for the reasons stated therein, the Court concludes that Amazon's proposed acquisition bar reasonably relates to the risk of inadvertent disclosure. See Intellectual Ventures, 2019 WL 343242, at *3 (“source code and technical data are often included in the scope of a prosecution or acquisition bar.”).

Further, both parties propose to define “prosecution activity” as activity “related to the preparation of, or prosecution of patents or patent applications relating to natural language processing technology,” including, but not limited to, “directly or indirectly drafting, amending, advising, or otherwise affecting the scope or maintenance of patent claims directed to computer-implemented methods or systems for natural language processing technology in original prosecution or any post-grand proceedings.” Dkt. No. 110 at 30 Plaintiffs’ Proposed ¶ 9(b), 31 Amazon's Proposed ¶ 9(b). Amazon proposes the same scope of the subject matter in in relation to its proposed acquisition bar. See Id. at 31 Amazon's Proposed ¶ 9(b). As Amazon notes, plaintiffs used this same phrase in their complaint and in their discovery requests. See Dkt. No. 1 at ¶¶ 29-31; Dkt. No. 121-3 at 6. The Court is, therefore, unpersuaded by plaintiffs’ argument that such definition is vague or overbroad for purposes of Amazon's proposed acquisition bar. See Dkt. No. 121 at 18. Indeed, by limiting the subject matter of the acquisition bar to “methods or systems for natural language processing technology,” Dkt. No. 110 at 31 Amazon's Proposed ¶ 9(a), the subject matter of the bar is sufficiently tailored to the patent-in-suit, which is consistent with the scope accepted by other courts. See Applied Signal Tech., Inc. v. Emerging Markets Commc'ns, Inc., No. C-09-02180 (SBA/DMR), 2011 WL 197811, at *3 (N.D. Cal. Jan. 20, 2011) (holding that “the proper subject matter of the proposed prosecution bar ... should be coextensive with the subject matter of the patents-in-suit,” which, in that case, consisted of “the field of ‘self-interference cancellation technology.’ ” (footnote omitted)).

Next, plaintiffs argue that Amazon's acquisition bar, as proposed, will “encompasses activities that lack any risk of inadvertent disclosure, such as patent validity analysis, as well as settlement discussions.” Dkt. No. 121 at 18. Plaintiffs cite EPL Holdings, LLC v. Apple Inc., No. C-12-04306 (JST/JSC), 2013 WL 2181584 (N.D. Cal. May 20, 2013), in which the Northern District of California held that the defendant was entitled to “a limited patent acquisition bar that prohibit[ed] counsel from advising clients as to which patents to acquire to the extent that such patents are narrowly related to the subject matter of th[e] litigation, but allow[ed] counsel to advise on legal matters involving such patents, including validity,” and concluded that the “bar must not apply to settlement negotiations of litigations.” 2013 WL 2181584, at * 5.

In support of its position, Amazon relies on Telebuyer. See Dkt. No. 122 at 7-8. In Telebuyer, the Western District of Washington observed that, “[u]nder the Patent Act, patent owners and third parties may initiate a reexamination proceeding to confirm or challenge the validity of a previously issued patent. Id. at *5 (citing 35 U.S.C. §§ 302–307). The court stated that, “[b]ecause reexamination proceedings involve only a comparison of existing patent claims against publicly available prior art, courts often observe that reexamination proceedings present fewer opportunities and incentives for a receiving party to use confidential information.” Id. at *6. Citing EPL Holdings, the court in Telebuyer “recognize[d] that the risk of inadvertent use decreases where counsel is offering a legal assessment of patent validity, infringement, claim scope, or the language of an acquisition contract.” Telebuyer, 2014 WL 5804334, at *7 (quoting EPL Holdings, 2013 WL 2181584, at * 4). However, the court acknowledged that “even in a reexamination proceeding, a patent owner can use confidential information to restructure or amend its claims so as to improve its litigation position against alleged infringers” and, therefore, “drafting, amending, restructuring, or otherwise participating in reexamination proceedings may constitute competitive decision-making, as contemplated ... in Deutsche Bank.” Id. at *6 (citing Deutsche Bank, 605 F.3d at 1378-79). Thus, the Court declined to “attempt[ ] to draw, in advance, a fuzzy and unmanageable distinction between purely legal matters and matters that implicate competitive decision-making.” Id. (emphasis added). Amazon argues that, unlike in EPL Holdings, where the court concluded that the defendant “ha[d] not identified any reason why its proposed bar ... should not include” the express provision that stating that “[n]othing in [the parties’ protective order wa]s intended to preclude counsel from participating in actions relating to settlement of litigations,” EPL Holdings, 2013 WL 2181584, at *5, Amazon has demonstrated that CF Dynamics and Fortress “pose a particular threat” warranting a more broad acquisition bar here. Dkt. No. 122 at 8.

*10 The Court agrees with plaintiffs that the acquisition bar should be limited to prohibiting counsel from advising clients as to which patents to acquire, but should not be so restrictive as to prevent counsel from advising on legal matters involving patent validity or from engaging in settlement negotiations. See Dkt. No. 121 at 18. First, Amazon cites no authority in support of its contention that plaintiffs’ counsel should be precluded from advising its clients on issues such as patent validity or engaging in settlement negotiations merely because CF Dynamics and Fortress frequently engage in patent acquisition and litigation. See Dkt. No. 122 at 8. Further, Telebuyer is distinguishable from the issue presented by Amazon in this case in that, in Telebuyer, the court's analysis centered on whether the court should rule, in advance, on whether the acquisition bar at issue should preclude the plaintiff's counsel from participating in reexamination proceedings. See Telebuyer, 2014 WL 5804334, at *7. Rather than decide that issue “in advance,” the court in Telebuyer decided that the acquisition bar would cover counsel's provision of advice on such issues as patent validity, but that counsel would be permitted to seek leave of the court to participate in reexamination proceedings. Id. In addition, the court in Telebuyer did not pass on the issue of whether the plaintiffs’ counsel's participation in settlement negotiations should trigger the acquisition bar. See Telebuyer, 2014 WL 5804334, at *7. Moreover, Amazon's proposed definition of “Acquisition Activity” already explicitly includes “amending ... of patent claims directed to computer-implemented methods or systems for natural language processing technology in original prosecution or any post-grant proceedings” and “includes, without limitation, Inter Partes Review, Ex Parte reexamination, Post-Grant Review, Covered Business Method Review, and reissue proceedings.” Dkt. No. 110 at 31 Amazon's Proposed ¶ 9(b). In addition, the issue of participation in reexamination proceedings is not presented by either party here, and plaintiffs conceded to such a limitation their proposed definition of “Prosecution Activity.” Dkt. No. 110 at 30 Plaintiffs’ Proposed ¶ 9(b). Thus, the Court adopts the reasoning in EPL Holdings, and concludes that Amazon is entitled to a narrow acquisition bar that “that prohibits counsel from advising clients as to which patents to acquire to the extent such patents are narrowly related to the subject matter of this litigation, but allows counsel to advise on legal matters involving such patents, including validity,” and does “not apply to settlement negotiations of litigation.” EPL Holdings, 2013 WL 2181584, at *5. The shall add the following provision to the activities expressly excluded under paragraph 9(b)’s definition of “Acquisition Activity”: “nothing in this section shall preclude counsel from participating in actions relating to settlement of litigation or advising as to issues of legal assessment of patent validity, infringement, claim scope, or the language of an acquisition contract.”

Amazon advocates for a two-year prosecution and two-year acquisition bar, while plaintiffs propose a one-year prosecution bar. See Dkt. No. 110 at 30 Plaintiffs’ Proposed ¶ 9(a), 31 Amazon's Proposed ¶ 9(a). While plaintiffs aver that a two-year prosecution bar is unreasonably long, they fail to cite any authority to establish the unreasonableness of a two-year bar and, instead, merely cite cases in which a one-year bar was either agreed to by the parties, including Amazon in other litigation, or the court concluded that one-year was sufficient without explaining why. See Dkt. No. 121 at 19. For example, plaintiffs cite PPC Broadband, Inc. v. Times Fiber Commc'ns, Inc., No. 5:13-CV-0460 (GLS/DEP), 2014 WL 859111 (N.D.N.Y. Mar. 5, 2014) and Accordant Energy, LLC v. Vexor Tech., Inc., No. 1:17 CV 411 (PAG), 2017 WL 10858845 (N.D. Ohio Oct. 3, 2017) in support of their position that a one-year prosecution bar is warranted here. Dkt. No. 121 at 19. However, neither of those cases provide any reasoning as to why it accepted the plaintiff's one-year prosecution bar over the defendant's proposed two-year bar. See Broadband, Inc., 2014 WL 859111, at *3-4; Accordant Energy, WL 10858845, at *4. By contrast, as plaintiff's point out, “[c]ourts routinely hold that prosecution bars with two-year durations are reasonable.” Front Row, 125 F. Supp. 3d at 1283. Indeed, as “[t]he purpose of the [prosecution] bar is to prevent inadvertent disclosure of confidential information[, a] two-year bar fulfills this purpose more so than a one-year bar, as the confidential information will be less readily available in the memory of counsel.” Ameranth, 2012 WL 528248, at *7. Further, plaintiffs fail to explain how previous cases involving Amazon in which a one-year bar was implemented impact the present litigation. See Dkt. No. 121 at 19. Finally, the Court concludes that a two-year acquisition bar is appropriate. See Intellectual Ventures, 2019 WL 343242, at *4 (two-year acquisition bar relating to source code found to be appropriate); see also Catch A Wave Techs., Inc. v. Sirius XM Radio, Inc., No. C 12-05791 (WHA), 2013 WL 9868422, at *1 (N.D. Cal. Aug. 6, 2013) (“The two-year patent acquisition bar allows time for the limitations of human memory to run their course or for the information to become largely stale.”).

As a final matter, the Court finds unpersuasive plaintiff's contention that the prosecution bar or acquisition bar will deprive them of their choice of counsel, as the express language of the proposed protective order states that “[t]he restrictions ... shall apply to individuals and not the organizations by which they are employed or affiliated, provided however, that an appropriate ethical wall shall be established if others at the organization engage in such prosecution.” Dkt. No. 110 at 31 Amazon's Proposed ¶ 9(a). Indeed, as Amazon argues, RPI and CF Dynamics have used numerous law firms for asserting claims relating to the ’798 Patent and plaintiffs have advanced no compelling argument that they will be deprived options for counsel if the attorneys who view the confidential information in this litigation are subject to a two-year prosecution/acquisition bar. See Dkt. No. 120-1 at 12. Consequently, the Court finds that the proposed scope of the persons subject to Amazon's prosecution and acquisition bars is not unduly broad or prejudicial to plaintiffs’ choice of counsel.

*11 WHEREFORE, for the reasons stated above, it is hereby:

ORDERED, that Amazon's motion (Dkt. No. 120) is GRANTED, and a two-year patent prosecution bar and a two-year patent acquisition bar will be incorporated into the parties’ protective order, subject to the terms and modifications included in this Memorandum, Decision & Order; and it is further

ORDERED, that the parties will submit to the Court a new Protective Order within Thirty (30) Days of the date of this Memorandum, Decision & Order that incorporates the terms as discussed herein relating to the prosecution and acquisition bars, which will be included in a revised Paragraph 9(a) and (b), as well as a revised Paragraph 5(f) that incorporates the issue previously resolved by the Court on May 27, 2020, relating to source code printouts; and it is further

Ordered, that the Clerk of the Court serve copies of this Memorandum, Decision & Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

On May 27, 2020, the Court resolved the parties only other dispute with respect to the proposed protective order concerning the disclosure of source code printouts by adopting Amazon's position that “Contested Source Code printouts need not be produced to the requesting party until the Matter is resolved by the Court.” Dkt. No. 110 at 21 ¶ 5(f); see Dkt. No. 120-1 at 7.

Appendix I refers to a waiver form attached to the parties’ Proposed Protective Order, which provides, in relevant part, “I agree to use the confidential information solely for purposes of this case. I understand that neither the confidential information nor any notes concerning that information may be disclosed to anyone that is not bound by the Court's protective order.” Dkt. No. 110 a 37-38.

Plaintiffs’ position regarding the Proposed Prosecution Bar is mistakenly numbered as paragraph 1, instead of paragraph 9.

As plaintiffs note, the Federal Circuit has only assessed the elements and burden of proof in the context of a patent prosecution bar, but not for a patent acquisition bar. See Dkt. No. 121 at 10 n.2. However, as discussed herein, courts have applied the reasoning set forth in In re Deutsche Bank Trust Co. Americas, 605 F.2d 1373 (Fed. Cir. 2010) in assessing patent acquisition bars. See, e.g., Intellectual Ventures I, LLC v. Lenovo Group Ltd., No. 16-CV-10860 (PBS), 2019 WL 343242, at *2-3 (D. Mass. Jan. 25, 2019) (applying Deutsche Bank in assessing whether a patent acquisition bar was warranted).

The Court notes that plaintiffs’ contention that Amazon's source code is not entitled to any special protection because source code is often involved in patent litigation is belied by the 19 provisions in the proposed protective order—undisputed by plaintiffs—that specifically address protections pertaining to the disclosure and use of Amazon's source code at issue in this litigation. See Dkt. No. 121 at 14. Nor have plaintiffs meaningfully demonstrated that the source code relating to the Alexa technology is not especially valuable.