Apple v. Samsung: Sealed Files, First Amendment Fears

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The word “seal” appears 1,319 times in the docket for the Apple v. Samsung patent infringement case.

The sealed submissions and sealed files encompass more than just the two litigants, Apple and Samsung. It so far includes sealed submissions from such major tech companies as IBM, Research in Motion, InterDigital, Philips, Toshiba, Microsoft, Intel, Motorola Mobility, Ericsson, Dolby, Siemens, Nokia and Qualcomm.

Some parties — InterDigital and Motorola Mobility — have even requested that the courtroom be closed during any testimony their reps provide.

Sealed submissions are becoming typical in patent law. Even transcripts of court proceedings can go under seal.

Would you believe that, in a few patent cases, nearly everything but the judge’s rulings has been sealed? Wo ho ho! It’s true.

Now most patent cases don’t draw the media scrutiny of Apple v. Samsung and the not-that-surprising demands for information. Reuters America LLC has filed several motions with the court in an effort to keep the trial’s proceedings more open.

The tension in this case lies between the U.S. First Amendment right to know what transpires in court proceedings versus a litigant’s right to protect confidential business information, trade secrets or internal product roadmaps.

Apple’s work on various products came to light day one of the trial, when Apple designer Christopher Stringer testified and brought Apple various prototype iPhone devices up to the stand.

And Reuters attorneys submitted several exhibits that purport to show much sealed information is already publicly known.

In one motion, Reuter’s attorneys argued, “this trial court is a public governmental institution, and neither Apple nor Samsung can fight over billions of dollars in a public courtroom and expect to have the information upon which this case turns shielded from public view.” In their briefs, Reuters’ attorneys cite various US and California supreme court rulings regarding open and public civil trials.

Some of the judge’s comments seem to echo Reuters’ arguments. In a July 18 20122 hearing, Judge Lucy Koh told attorneys:

… All of the marketing stuff? Public documents. Okay? All of the design developments, public document… It’s all going to be public. … I’ve told you, other than some third party source code, I don’t really plan on sealing anything.

The judge has yet to rule on the Reuters motions.

For their parts, the computer and telecom companies argue that the law protects their otherwise confidential business information. Nokia’s attorneys even argued that there is no “public interest” in the case. “While the products are highly popular, the parties are major corporations, and the facts are juicy and salacious (who copied whom, who destroyed documents and what evidence should be heard), the legal issues are routine patent infringement questions. Hence, while the public is interested, the ‘public interest’ is not at stake,” says a Nokia document.

Reuters also submitted a declaration signed by four patent law professors. It opposed the general proposition of sealing court records. The law professors wrote:

It is our belief that making licensing data more widely available can help reduce these market inefficiencies by providing credible and comparable information to parties, scholars, and courts wrestling with the difficult question of what a patent is worth.

In their brief, Reuters’attorneys also quoted Judge Alsup’s testy response under somewhat similar circumstances during Oracle v. Google in April. After Google attempted to seal certain financial information, the judge in that case ruled:

Oh, come on. Oh, come on. This is a public trial. Denied. Denied.

Reuters attorneys argued:

Apple’s attempt to minimize the public interest in disclosure of the material it tries to seal is flawed for three reasons. First, the burden is not upon those seeking access to show the public interest in disclosure of court documents, it is upon those attempting to rebut the strong presumption of access. Second, Apple’s manufacturing processes and overseas costs are a matter of tremendous public interest: Apple recently “agreed to allow” a human rights investigation into its Asian subsidiaries, and the resulting report contained wage and hour information. Third, the public will not be able to understand the companies’ damages cases without the information they now seek to seal, especially since the damages issues will be interwoven with infringement and invalidity issues.

Here’s the full complaint — Apple v. Samsung.
Apple Samsung Lawsuit