As the patent showdown between Apple and Samsung over
smartphones and tablets careens toward a July trial, the paper
trail in the case is getting longer. Reuters reported in December that many of the key documents in the case, which is
taking place in San Jose, California, under the auspices of U.S.
District Judge Lucy Koh, were sealed, making it extremely
difficult for investors and the public to see much of the
closely watched docket.
But a lot can change in six months. In December, Koh posted
official guidelines on the court's website mandating that
parties file redacted, publicly available versions of the
documents that they seek to seal at the same time that they make
the sealing request. The new regime seems to have stuck. Since
then Koh and U.S. Magistrate Judge Paul Grewal (who is helping
with the paper crush) have flatly denied at least five of the
parties' motions to seal, granted in part and denied in part at
least six of their motions to seal, and granted at least six
more motions to seal. Before December, Koh had granted every
sealing request made.
The language in Koh and Grewal's actual orders says even
more than the numbers: In some cases they haven't minced words
when it comes to the parties' applications to seal documents,
which are frequently expert declarations accompanying procedural
motions. In a March 9 order granting in part and denying in part
Samsung's motion to file papers under seal -- which itself cited
material Apple had designated as confidential -- Koh reminded
the parties of some transparency basics.
"Requests to seal must be narrowly tailored," she wrote,
adding that Apple had made "overly broad" designations.
Materials "that reveal information that is publicly available
through Apple's website, or through television and other forms
of media are not sealable."
Grewal, in a brief order on June 21, took Samsung to task
for trying to keep as a secret information that is otherwise
publicly available. "In particular, sections of various exhibits
that give rise to no discernible proprietary interest at all are
requested to be kept from the public eye," Grewal wrote. Some of
the material Samsung asked to file under seal includes Samsung's
sponsorship of the NFL and NASCAR and quotes from management
guru Peter Drucker. (Samsung has since asked Grewal to
Koh did not immediately respond to a request for comment,
nor did representatives for Apple and Samsung.
Widespread sealing in patent cases is a perennial problem.
In a 2011 paper entitled "Not So Confidential: A Call for Restraint in Sealing Court Records," University of Denver law
professor Bernard Chao chronicled his difficulty in finding
publicly available documents in large patent disputes in
patent-heavy districts such as the central and northern
districts of California, the Eastern District of Texas and the
District of New Jersey. Chao argued that courts should uniformly
adopt rules to require parties to file both redacted versions
and confidential, sealed versions of the same documents --
exactly as Koh has urged the parties to do (and as is generally
stated practice in the Northern District of California).
But not every judge appears to be so rigorous. The IP world
was captivated last week by Judge Richard Posner's decision that
Apple can't pursue an injunction against Google's Motorola
Mobility unit in its smartphone IP battle. But if you want to
get your hands on dozens of documents in that case, including
Apple's last plea to seek the injunction, think again. They're
filed under seal.
(This story has been corrected. An earlier version
incorrectly stated that many documents in the case were filed
under seal without any request to the court.)
(Reporting by Carlyn Kolker and Dan Levine)
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