It will not surprise you to learn that Judge Lucy Koh has denied [PDF] Samsung's motion to file a supplemental declaration by its expert, Stephen Gray. Apple opposed and indeed her order opens with the same thought used by Apple in its opposition:
On December 4, 2012 – two days before the Court’s scheduled hearing on post-trial
motions in this case – Samsung filed an administrative request for leave to file a supplemental
declaration of Stephen Gray in support of Samsung’s opposition to Apple’s motion for a permanent
injunction (“Request”). ECF No. 2183-1.
Less than 17 hours before the scheduled hearing on Apple’s motion for a permanent injunction, Samsung seeks leave to file a supplemental expert declaration to respond to a reply declaration filed on November 9, 2012 – almost a month ago. So another denial for Samsung, which can now add it to the list for appeal.
Judge Koh has also ruled on the various requests for sealing. For Samsung, it's two granted, including the HTC one, and another which asks for something Apple asked for too and four denied, with one partly granted; for Apple it's 2 granted and 1 partially granted. It's been like that every time I check who gets the most motions denied.
As for HTC's desire, seconded by Samsung, to more fully redact HTC's license agreement with Apple, she has granted that motion.
Here are the orders:
Here are her reasons for changing her mind on the HTC license and letting them redact more than her original order permitted:
12/10/2012 - 2190 -
ORDER by Judge Lucy H. Koh granting 2125 Administrative Motion to File
Under Seal; granting in part and denying in part 2127 Administrative
Motion to File Under Seal (lhklc2, COURT STAFF) (Filed on 12/10/2012)
12/11/2012 - 2191 -
ORDER by Judge Lucy H. Koh denying 2183 Administrative Motion for
Leave to File (lhklc2, COURT STAFF) (Filed on 12/11/2012) (Entered:
12/11/2012 - 2192 -
ORDER by Judge Lucy H. Koh granting 2182 Administrative Motion to File
Under Seal (lhklc2, COURT STAFF) (Filed on 12/11/2012) (Entered:
On December 3, 2012, this Court issued an Order granting Samsung’s motion for leave to file Apple’s license agreement with HTC, and ruling that only the pricing and royalty terms of the agreement could be filed under seal. ECF No. 2179. Samsung has now filed a proposed redacted version of the license agreement. ECF No. 2182. HTC has filed a response and a declaration in support of Samsung’s proposed redactions. ECF No. 2186. So, we, the public, don't get to find out if the license agreement in any way violates the GPL; but since Samsung won the right to see the entire license agreement, surely it's on the ball and already knows the answer to that question.
As this Court has previously explained, the “compelling reasons” standard applies to documents filed in connection with Apple’s motion for a permanent injunction, as, like a dispositive motion, a motion for a permanent injunction cannot be considered tangential to the merits of the case. See ECF Nos. 2047; 2168; 2190. The Ninth Circuit has explained that “‘compelling reasons’ may exist if sealing is required to prevent judicial documents from being used ‘as sources of business information that might harm a litigant's competitive standing.’” In re Electronic Arts, 298 Fed. App’x 568, 569 (9th Cir. 2008) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978).
HTC has proposed to redact portions of the license agreement covering the actual pricing and royalty terms, as well as terms explaining exactly how those royalties are to be determined, for which products, and for which precise features. These terms are closely linked with the actual payment and royalty amounts, and may pose a competitive risk to HTC for the same reasons. Specifically, exposure of the details of how the royalties will be determined for any given product could allow other companies to gain an advantage in negotiating with HTC in the future. Further, HTC, not a party to this action, has carefully identified only the specific portions of the agreement likely to cause actual competitive harm. The relevance of this agreement to the present case is limited to which Apple patents have been licensed. Thus, the public’s interest in disclosure of the details of how royalties are to be calculated is very limited, and is outweighed by HTC’s interest in keeping the most sensitive terms of its license agreements confidential. Accordingly, Samsung’s motion to file under seal, incorporating HTC’s requested redactions, is GRANTED.
Still, I'm disappointed, in that sometimes the community's interests and corporate interests are not perfectly aligned, and I'd like to be able to see the details in full for myself. For that matter, I'd like to see the terms of the Microsoft-Android OEM licenses and for the exact same reason.
And since lawyers who are not familiar with the GPL have trouble understanding it, in my experience -- Boies Schiller's quickly withdrawn argument in the SCO v. IBM case that the GPL violates the US Constitution? lordy, how much fun was that? -- let me just
say that my understanding is that the GPL v2, the license on the Linux kernel, does not allow paying for patents unless it opens up the patent's use to the world. If you pay just for yourself on GPL code that allegedly infringes someone's patent, you lose your GPL license, and then if you continue to distribute that code after that, it's a copyright violation. Ask your lawyer.
Patent agreements are done in the dark, mostly, as you've seen, but someday someone will care enough to actually force Microsoft and others swashbuckling around against Linux and Android with patents to cough up those details, and then we'll know for sure.
Say, Linux Foundation. How about you? Google? In the house? Judge Koh doesn't think the public has an interest, but she's wrong on that point, but nobody raised it, so it's not her fault.
Update: And Samsung has now officially filed the redacted version of the HTC-Apple license that the judge ordered filed, along with the now-unredacted motion that reveals why Samsung wanted to use the license agreement in this case:
Filed & Entered: 12/11/2012
Here's what Samsung told the court was the reason it wanted to file the agreement and use it as evidence:
NOTICE by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC re  Order on Administrative Motion to File Under Seal Samsung's Administrative Request for Leave to File Declaration re HTC Settlement Agreement (Un-redacted) (Attachments: # (1) Exhibit A to Samsung's Administrative Request (Partially Redacted))(Maroulis, Victoria) (Filed on 12/11/2012)
Filed & Entered: 12/11/2012
NOTICE by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC re  Order on Administrative Motion to File Under Seal Declaration of Robert J. Becher re Samsung's Submission of HTC Settlement Agreement in Support of Opposition to Apple's Motion for Permanent Injunction and for Damages Enhancement (Attachments: # (1) Exhibit 1 to the Becher Declaration)(Maroulis, Victoria) (Filed on 12/11/2012)
Pursuant to Civil Local Rules 7-3(d) and 7-11, Samsung respectfully requests leave to file the Declaration of Robert J. Becher Regarding Samsung's Submission of HTC Settlement Agreement in Support of Opposition to Apple's Motion for Permanent Injunction and for Damages Enhancements ("Declaration"). The Declaration is attached as Exhibit A to this Administrative
Request. Samsung's request should be granted because the Patent License and Settlement Agreement between HTC America, Inc., HTC Corporation and S3 Graphics Co., Ltd. and Apple Inc., dated November 11, 2012 ("Agreement") was not available when Samsung filed its Opposition to Apple's Motion for Permanent Injunction, and it is relevant to Apple's pending request for a permanent injunction, including on the question of whether monetary relief would
adequately compensate Apple....
Moreover, the Agreement is directly relevant to Apple's permanent injunction motion. The Agreement grants HTC a license to all current and future utility patents owned by Apple. (Becher Decl., Ex. 1 at §§ 1.11, 3.1). As a result, the Agreement includes a license to Apple's utility patents at issue in this case--the '915, '381, and '163 patents. This refutes Apple's
argument in its reply that the patents at issue in this case are "unavailable for licensing, particularly to competitors." (Dkt. No. 2127 at 7).
Because Samsung could not have presented this evidence earlier, and because the question of whether Apple licenses the patents-in-suit is directly relevant to its permanent injunction motion, Samsung respectfully requests that the Court grant Samsung's Administrative Request for