decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
Apple appeals Judge Koh's Nov. 29th Order Re Sealing; Claims $399,196 a Day Supplemental Damages ~pj
Monday, January 14 2013 @ 01:27 PM EST

Apple has given notice [PDF] that it has appealed to the Federal Circuit Judge Lucy Koh's order [PDF] denying Samsung's motion to seal certain Apple documents. Apple had filed materials in support of Samsung's motion, but Judge Koh refused to seal some of those materials in her November 29 Order.

Here's the text of Apple's Notice:

NOTICE IS GIVEN that Plaintiff Apple Inc. appeals to the United States Court of Appeals for the Federal Circuit from the Order Granting-in-Part and Denying-In-Part Motion to Seal entered in this action on November 29, 2012 (Dkt. 2168) and from all other orders, rulings, findings, and conclusions underlying and related to that order, including but not limited to the orders dated August 9, 2012 (Dkt. 1649) and the July 17, 2012 (Dkt. 1256).
Here are Docket numbers 1649 and 1256, both PDFs.

This issue has been going on since July, and the judge stayed her orders so the parties could appeal, which Apple has now done. Interestingly, it's Apple appealing, not Samsung, so that is who really cares.

So what is it Apple wants kept from the public? I'll show you in detail, but the big items appear to be Apple’s internal customer research, specific financials, and certain license agreements.

After the order, Apple filed Exhibit 2 to the Robinson Declaration, its calculations that it is suffering $399,196 a day in supplemental damages, or $50 per infringing Samsung unit sold, from October of 2011 to the end of December 2012, with a total estimated supplemental damages figure of $101,167,892. Are they kidding? $50 for each phone sold. Can you imagine?

Apple is the one who has been telling courts that if it had to pay $6 per unit, or 2.4% royalties, per phone for FRAND patents, it would go out of business. But here it is asking for $50 per unit from Samsung for patents, at least three of which are under a cloud at the USPTO in reexaminations.

I think one may, then, honestly conclude that Apple isn't so much trying to protect its patents as trying to knowingly put Samsung out of business. Apple declared it would try to destroy Android, and it certainly seems to be following through. Are there any patents in this world that are worth such amounts, let along Apple's "rectangle with rounded corners" nonsense patents?

If you are curious as to how companies come up with such grandiose figures, here's the document [PDF] that explains it. Supplemental damages are the alleged damages racking up day by day after the jury verdict.

Interestingly, the judge's reason for denying some of the sealing requests has to do with the public's interest in the case, which triggers a higher standard to prevail on a sealing motion:

As evidenced by the plethora of media and general public scrutiny of the preliminary injunction proceedings and the trial, the public has a significant interest in these court filings, and therefore the strong presumption of public access applies. Accordingly, the “compelling reasons” standard applies to Apple’s motion for a permanent injunction, and to documents filed in opposition thereto. Further, a motion for judgment as a matter of law, like trial documents, directly concerns the merits of the case. Accordingly, the “compelling reasons” standard also applies to documents filed in connection with a motion for judgment as a matter of law. As all of the documents Samsung now seeks to seal concern either Apple’s motion for a permanent injunction or Apple’s motion for judgment as a matter of law, all of the documents in this motion are subject to the “compelling reasons” standard.
We get to know more when we show we care more.

Here are the latest filings, first, before I show you all the details:

2214 - Filed & Entered: 01/03/2013
Docket Text: Transmission of Notice of Appeal and Docket Sheet to the Federal Circuit Court of Appeals as to [2209] Notice of Appeal to the Federal Circuit,. Filing fee paid $ 455., receipt #0971-7372368 Appeal Record due by 2/4/2013. (dhmS, COURT STAFF) (Filed on 1/3/2013)

2215 - Filed & Entered: 01/07/2013
ORDER by Judge Lucy H. Koh granting [2213] Administrative Motion to File Under Seal (lhklc2, COURT STAFF) (Filed on 1/7/2013)

2216 - Filed & Entered: 01/08/2013
Exhibit 2 to Reply Declaration of Marylee Robinson in Support of Apples Motion for A Permanent Injunction by Apple Inc. re [2211] Order Denying Motion to Stay (Previously Filed Under Seal) (Hung, Richard) (Filed on 1/8/2013) Modified text on 1/9/2013 (dhmS, COURT STAFF).

Samsung, in its motion to seal [PDF], listed many items it wanted sealed, and it also included items that Apple wanted sealed. Apple filed a brief [PDF] and some declarations in support of Samsung's motion. In its Memorandum of Points and Authorities, it tells the court why it should grant Samsung's motion regarding Apple's materials:
APPLE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF SAMSUNG’S
ADMINISTRATIVE MOTION TO
FILE DOCUMENTS UNDER SEAL

In accordance with Civil Local Rules 7-11 and 79-5, and General Order No. 62, Apple submits this memorandum in support of Samsung’s motion (Dkt. No. 2064) to seal documents related to Samsung’s Oppositions to Apple’s Motion for Judgment as a Matter of Law, New Trial, and Amended Judgment (“JMOL Opposition”) and Apple’s Motion for a Permanent Injunction and Damages Enhancements (“PI Opposition”).

I. THE COURT SHOULD SEAL CAPACITY INFORMATION, FINANCIAL
INFORMATION, THIRD PARTY RESEARCH DATA, FULL LICENSE
AGREEMENTS AND APPLE’S CONFIDENTIAL CONSUMER RESEARCH

The court should grant Samsung's motion to seal Apple-confidential material as outlined in greater detail below and the Declaration of Cyndi Wheeler in Support of Samsung’s Motion to File Under Seal (“Wheeler Decl.”) filed herewith. The need to protect trade secrets contained in 11 Apple documents filed in connection with Samsung’s motions is a “compelling reason” to seal material, which is sufficient to outweigh the public’s interest in disclosure. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). The type of information that Apple seeks to seal qualifies as trade secret. See, e.g., SI Handling Sys., Inc. v. Heisley, 753 F.2d 1244, 1260 (3d Cir. 1985) (concluding that data relating to profit margin constituted trade secrets); Apollo Techs. Corp. v. Centrosphere Indus. Corp., 805 F. Supp. 1157, 1198 (D.N.J. 1992) (noting that multiple courts have found customer product use and preference information to be trade secrets).

A. The Court should seal Apple’s capacity information

The Court has previously approved sealing of capacity information, including the information Samsung has proposed redacting. (Wheeler Decl. ¶¶ 2-5; Dkt. No. 1649 at 4, 13.) For the same reasons, the Court should seal capacity information filed with Samsung’s JMOL Opposition and PI Opposition in Exhibit 13 to the Pierce Declaration ISO Samsung’s JMOL Opposition, Exhibit C to the Wagner Declaration ISO Samsung’s JMOL Opposition, and Exhibit 212 to the Wagner Declaration ISO Samsung’s PI Opposition.

B. The Court should seal unredacted license agreements

The Court should also seal Samsung Exhibits 12-1 and 12-2 to the Pierce Decl. ISO PI Opposition, which are complete, unredacted license agreements. (Wheeler Decl. ¶ 14.) The

1

Court has previously sealed such license agreements because they “contain a whole host of terms (e.g. termination conditions, side-agreements, waivers) that are irrelevant to matters in this litigation [and] disclosure of these full documents could result in significant competitive harm to the licensing parties as it would provide insight into the structure of their licensing deals, forcing them into an uneven bargaining position in future negotiations.” (Dkt. No. 1649 at 10, 16.) For the same reason, Apple respectfully requests that Exhibits 12-1 and 12-2 to the Pierce Decl. ISO PI Opposition be sealed.

C. The Court should seal third party confidential research data

Samsung filed an extensive IDC spreadsheet as Exhibit 199 to the Wagner Decl. ISO PI Opposition, with data from this spreadsheet making up Schedules 2.1 and 2.2 in Exhibit 2 to the Wagner Decl. ISO PI Opposition. (Wheeler Decl. ¶¶ 11-12.) The Court has previously granted Apple’s motions to seal consumer research reports prepared by third parties such as IDC (E.g., Dkt. No. 2047 at 4-5). The Court found that release of such information “could harm IDC in so far as it might reduce IDC’s ability to sell its reports to other customers, and the public’s interest in this information about the smartphone market generally is not especially great, and could be satisfied by the information disclosed at trial.” (Dkt. No. 2047 at 4-5; see also Dkt. No. 1649 at 10.) Pages ‘627, ‘628, ‘629, ‘634, ‘643, ‘644, ‘655, ‘656, ‘667, ‘668, ‘679, ‘680, ‘691, and ‘692 of Exhibit 29 to the Wagner Decl. ISO PI Opposition similarly contain data derived from reports published from third parties IDC and Gartner. (Wheeler Decl. ¶ 13.) Consistent with the Court’s prior order, and for the same reasons discussed in Apple’s prior motions to seal, Apple respectfully requests that the Court seal this material.

D. The Court should seal Apple’s highly confidential financial information

Apple has previously moved to seal, supported by detailed declarations, the same types of financial information at issue in Samsung’s PI Opposition, specifically in Exhibits 2, 47, 83, 84, 25 85, 86, 87, 201, 202, 203, 204, and 212 to the Wagner Decl. ISO PI Opposition. (Wheeler Decl. ¶¶ 7-10.) The Court previously denied Apple’s motions but stayed enforcement of its order pending Apple’s appeal to the Federal Circuit. (Dkt. Nos. 1754, 2047.).

2

Apple takes extensive steps to protect the secrecy of its critical financial information. Even within Apple, very few people have access to this information. Access is on a “need to know” basis and must be approved in advance by one of Apple’s Vice Presidents of Finance. (Dkt. No. 1502 ¶ 3.) The list of approved individuals is reviewed quarterly and revised to ensure that employees who no longer require access do not receive that information. (Id.) On the very rare occasions Apple must disclose its nonpublic financial information to those outside Apple, it marks such information “confidential” and distributes it only subject to highly restrictive nondisclosure agreements or protective orders. (Id.)

Apple goes to such lengths to protect its financial information because the information is competitively sensitive. Apple derives enormous value from the fact that its financial details are not shared with Apple’s competitors and suppliers. (Dkt. No. 1502 ¶¶ 4-8.) Apple’s competitors could use profits and margins data to undercut Apple’s prices by determining the products for which Apple has substantial profits, low costs, and wide margins and thus would be most susceptible to a price cut. (Id. ¶ 8.) Competitors’ products—particularly if released with pricing designed to take advantage of unfair knowledge of Apple’s bottom line—will substantially affect demand for Apple’s products. Competitors could use the information to develop products that they can strategically price to undercut Apple. The facts of this case substantiate this risk. Indeed, Samsung may be in a position to undercut Apple’s prices for smartphones and tablets, having already economized on development costs by free-riding off Apple’s innovation. Apple’s suppliers could use quarterly profits, costs, and margins data to determine when Apple has the highest margins and hike their prices accordingly. (Id.)

Product-line specific information, i.e. financial details with information as to specific versions of a given product, is also critically sensitive and valuable. (Dkt. No. 1502 ¶ 7.) Product line sales and revenue information reveal to competitors what Apple’s most and least successful products are, and therefore provide unfair intelligence into which markets are ripe for competition and which markets may be more difficult to approach. (Id.) Apple respectfully requests that the financial information contained in Samsung’s filings be sealed, as set out in in the Wheeler Declaration ¶¶ 6-10.

3

E. The Court should seal Apple’s confidential consumer research

Exhibit 6 to the Pierce Declaration ISO Samsung’s PI Opposition and Exhibits 10-12, 31- 32, 38, 72, and 189 to the Wagner Declaration ISO Samsung’s PI Opposition contain Apple confidential consumer research data. (Wheeler Decl. ¶ 15.) At Apple’s request, Samsung has agreed to withdraw these exhibits and refile only the portions that Samsung believes are relevant to the instant motions. (Sabri Decl. ¶ 1 Ex. A.)

The Court has denied Apple’s previous motions to seal confidential consumer research data but stayed enforcement of its orders pending appeal and a motion to stay before the appellate court. (E.g., Dkt. No. 1754.)

Apple again requests that the Court seal Apple’s confidential consumer research. No competitor has access to Apple’s customer base to conduct the type of in-depth analysis Apple is able to conduct. (Dkt. No. 1496 ¶ 5.) Access to this analysis would be of enormous benefit to Apple’s competitors. (Id.) Apple’s competitors will know the importance Apple’s customers place on each of a wide variety of features; what demographics are most satisfied with Apple’s products; and even the preferences of customers in countries around the world, which are irrelevant to this case. (Id.) Competitors would be able to observe trends over time. (Id.) No other entity can replicate this research. (Id.)

Also important are the conclusions Apple has drawn from the data. (Id. ¶ 6.) Knowing what Apple thinks about its market and where Apple is focusing its attention is extremely valuable to competitors. (Id.) If competitors gain access to such documents, they will able to infer Apple’s next product moves. Knowing where Apple is headed, they can target their efforts to prepare products and marketing counterstrategies in the short term and target product development plans to stay ahead of Apple in the long term. All of this would result in serious competitive harm to Apple. (Id.)

Because of this extreme sensitivity, distribution of Apple’s internal customer research is very tightly controlled at Apple. (Id. ¶ 7.) The documents are stamped as confidential and no internally conducted surveys circulate outside a small, select group of Apple executives. (Id.) No iPhone-related surveys or iPad-related surveys are allowed to be distributed to anyone outside this

4

group without the personal permission of Apple’s Vice President of Product Marketing, Gregory Joswiak. (Id.) Thus, the Court should seal Exhibit 6 to the Pierce Declaration ISO Samsung’s PI Opposition and Exhibits 10-12, 31-32, 38, 72, and 189 to the Wagner Declaration ISO Samsung’s PI Opposition.

II. IF SEALING IS DENIED, THE COURT SHOULD STAY THE EFFECT OF ITS
ORDER PENDING APPEAL

Apple respectfully requests that if the Court denies sealing of any of the materials that are the subject of this motion, the Court continue its practice of staying effect of its order pending appeal. (Dkt. No. 2047 at 7.) As the Court has previously held, once information is publicly filed, “what once may have been trade secret no longer will be. Thus, the parties may be irreparably injured absent a stay. In contrast, the public interest, which favors disclosure of relevant information in order to understand the proceedings, is not unduly harmed by a short stay.” (Id.)

Dated: October 26, 2012

MORRISON & FOERSTER LLP

By: /s/ Jason R. Bartlett
JASON R. BARTLETT

Attorneys for Plaintiff
APPLE INC.

5

This Cindy Wheeler Declaration [PDF] lists the items Apple cared about and why they cared:
DECLARATION OF CYNDI WHEELER IN
SUPPORT OF SAMSUNG’S
ADMINISTRATIVE MOTION TO FILE
DOCUMENTS UNDER SEAL

I, Cyndi Wheeler, hereby declare as follows:

1. I am an attorney for Apple Inc. (“Apple”). I submit this declaration in support of Samsung’s Administrative Motion to File Under Seal (Dkt. No. 2064) pursuant to Local Rules 7-11 and 79-5. I have personal knowledge of the matters set forth below. If called as a witness I could and would competently testify as follows.

Capacity Information

2. Exhibit 13 to the Declaration of John Pierce in Support of Samsung’s JMOL Opposition (“Pierce Decl. ISO JMOL Opposition”) consists of PX25A1, an admitted trial exhibit summarizing Apple’s damages calculations. The Court has already ordered that this exhibit may be sealed in part. (Dkt. No. 1649 at 6-7.) Apple filed its proposed redactions (Dkt. No. 1691), and the Court approved them. (Trial Tr. 1993:18-19.)1

3. Exhibit C to the Declaration of Michael J. Wagner in Support of Samsung’s 13 JMOL Opposition (“Wagner Decl. ISO JMOL Opposition”) consists of an excerpt from the Supplemental Damages Schedules of Terry L. Musika, Exhibit 17.2-S2. The Court ordered that an earlier version of this exhibit may be sealed in part, specifically noting, “Apple’s motion is GRANTED with respect to Apple’s proposed redactions of Exs. 17.2-S . . . all of which contain capacity data[.]” (Dkt. No. 1649 at 13.) Exhibit 17.2-S2 contains the same types of information as Exhibit 17.2-S, arranged in the same format, the numbers are simply updated.

4. Apple’s Court-approved redactions to PX25A1, which Samsung filed as Exhibit 20 13 to the Pierce Declaration, and Samsung’s proposed redactions to Ex. 17.2-S2, which mirror 21 Apple’s Court-approved redactions to Ex. 17.2-S and are filed as Exhibit C to the Wagner Decl. 22 ISO JMOL Opposition, cover only capacity information. As the Court agreed, such information 23 relating to Apple’s production and supply capacity is trade secret and is properly sealed:

[D]isclosure of this information would cause substantial competitive harm to Apple. Competitors and suppliers armed with knowledge of Apple’s capacity would be able to alter their business and pricing models to gain an unfair advantage over Apple in such a way that would harm its competitive standing. Suppliers, for

1

instance, could predict when Apple would most need to increase supply and leverage this knowledge to exact substantial price increases. Similarly, competitors could lower their prices during periods when Apple has excess capacity and is therefore most vulnerable to a price cut. Although Apple seeks to seal past capacity data, such data is cyclical and would allow competitors and suppliers to discover the patterns in Apple’s capacity that would make it easy to predict Apple’s current and future capacity constraints.
Dkt. No. 1649 at 4 (internal quotations and citations omitted). Apple respectfully requests that the Court accept the redacted versions filed by Samsung.

5. Exhibit 212 to the Declaration of Michael J. Wagner in Support of Samsung’s PI Opposition (“Wagner Decl. ISO PI Opposition”) consists of the entire transcript of the February 23, 2012 deposition of Mark Buckley. This transcript contains specific capacity information of the same type discussed above, as well as highly confidential financial information discussed in more detail below. In particular, the transcript reveals capacity information at 184:16-20, 185:1-22, 186:19-25, 188:5-21, 190:1-24, 193:6-12, 193:18-194:7, 195:19-196:3, 196:8-25, 197:11-20, 203:9-204:25. Apple requests that the Court seal these lines.

Financial Information

6. Exhibits 2, 47, 83, 84, 85, 86, 87, 201, 202, 203, 204, and 212 to the Wagner Decl. ISO PI Opposition contain highly confidential individual product model-specific revenue, cost, and margin information.

7. Apple has previously moved to seal such financial information (Dkt. No. 1495.) Many of the documents Samsung has submitted were directly at issue in Apple’s prior motion to seal trial exhibits—Wagner Exhibit 47 was DX543, Wagner Exhibit 83 was DX778, Wagner Exhibit 84 was DX779, Wagner Exhibit 85 was DX780, Wagner Exhibit 201 was DX542, Wagner Exhibit 203 was PX102, and Wagner Exhibit 204 was PX103. Wagner Exhibits 85, 86 and 202 are similar types of documents with the same types of financial information, although these exact documents were not at issue in Apple’s prior motion. Apple provided a detailed supporting declaration with its motion to seal trial exhibits from its Vice President of Worldwide Planning and Analysis, Jim Bean. (Dkt. No. 1495-2).

2

8. Exhibits 47, 83, 84, 85, 86, 87, 201, 203, and 204 to the Wagner Decl. ISO PI Opposition reveal product line–specific sales, cost, and margin information and should be sealed for the reasons expressed in the declaration previously filed by Apple (Dkt. No. 1495-2) when this information was at issue in trial exhibits. Proposed redacted versions are attached as Exhibits A-I, respectively. Exhibit 202 reveals channel/carrier/reseller-specific information, disclosure of which would harm Apple in the same way as product-line specific information, and should be sealed in full.

9. Exhibit 212 to the Wagner Decl. ISO PI Opposition contains similar highly confidential financial information that should also be sealed for the reasons expressed in the declaration previously filed by Apple (Dkt. No. 1495-2). In particular, this exhibit reveals income received from individual search providers (148:7-23, 149:7-11, 149:22-150:9, 151:15), which is confidential for the same reasons as product-line specific information—just as disclosure of product-line information would allow competitors to know what markets are most and least successful and therefore which are ripe for competition (Dkt. No. 1502 ¶ 7), disclosure of specific search provider incomes reveals which search markets are ripe for competition and with which search providers Apple is doing the most business. This exhibit also reveals margin information (165:17-18, 167:22-168:1) and royalty payments (220:7-221:1). Apple requests that the Court seal these lines.

10. Schedules 3.1 and 3.2 in Exhibit 2 to the Wagner Decl. ISO PI Opposition consist entirely of data extracted from Exhibits 201, 203, and 204. These schedules should be sealed in their entirety with the exception of the “total unit sales” line for the same reasons explained above.

Third-Party Confidential Data

11. Exhibit 199 to the Wagner Decl. ISO PI Opposition consists of an extensive, worldwide, recent spreadsheet of IDC data. The Court has previously sealed IDC information (Dkt. No. 1495 at 12-13) because disclosure of this level of detailed data would eviscerate the demand for sale of IDC’s reports. Apple respectfully requests that the Court permit this material to remain under seal.

3

12. Schedules 2.1 and 2.2 in Exhibit 2 to the Wagner Decl. ISO PI Opposition consist entirely of extensive data extracted from Exhibit 199. These schedules should be sealed in their entirety for the same reasons explained above.

13. Pages ‘627, ‘628, ‘629, ‘634, ‘643, ‘644, ‘655, ‘656, ‘667, ‘668, ‘679, ‘680, ‘691, and ‘692 of Exhibit 29 to the Wagner Decl. ISO PI Opposition contain extensive industry-wide data from reports published from third parties IDC and Gartner and should be sealed for the same reasons.

Licenses

14. Exhibits 12-1 and 12-2 to the Pierce Decl. ISO PI Opposition consist of entire licenses between Apple and third parties. The Court has previously sealed such license agreements. (Dkt. No. 1649 at 10, 16) They contain a host of terms that are irrelevant to this litigation and would competitively harm both Apple and the licensing parties, as disclosure would provide insight into the structure of their licensing deals and impact future negotiations. For these reasons, Apple respectfully requests that Exhibits 12-1 and 12-2 to the Pierce Decl. ISO PI Opposition remain under seal in their entirety.

Consumer Research

15. Samsung has filed Apple’s highly confidential internal reports as Exhibit 6 to the Pierce Declaration ISO Samsung’s PI Opposition and Exhibits 10-12, 31-32, 38, and 72 to the Wagner Declaration ISO Samsung’s PI Opposition. Exhibit 189 to the Wagner Declaration is a highly condensed summary that reveals extensive information from a large number of separate confidential internal reports. These documents should be sealed in their entirety.

16. Apple has previously moved to seal similar documents, and filed a highly detailed declaration at that time further supporting the confidentiality of this information. (See Dkt. No. 1503.) As noted at that time, Apple has made the difficult decision not to seek sealing of certain marketing research reports in order to focus on only its most sensitive confidential information. (Dkt. No. 1503 ¶ 8.) Apple is also not seeking to seal references to these reports in Samsung’s briefs or declarations—only the full reports or slides of data themselves.

4

17. The above information is highly confidential and trade secret. If disclosed, the information in the materials described above could be used by Apple’s competitors to Apple’s disadvantage. The requested relief is necessary and narrowly tailored to protect the confidentiality of this information.

18. Apple does not maintain a claim of confidentiality on Samsung’s JMOL Opposition; Samsung’s PI Opposition; Exhibits 7, 13, or 22-43 to the Pierce Decl. ISO Samsung’s PI Opposition; the Wagner Decl. ISO Samsung’s PI Opposition; Exhibits 9, 13, 28, 30, 71, 92-93, 183, 191, 197-98, 206, 208 to the Wagner Decl. ISO Samsung’s PI Opposition; or the Erdem, Wind, or Sukumar Declarations in Support of Samsung’s PI Opposition.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 26th day of October, 2012 at Cupertino, California.

/s/ Cyndi Wheeler
Cyndi Wheeler

____________
1 The exhibit number is mistranscribed as “PX 2581” rather than “PX25A1.”

In her November order [PDF], granting in part and denying in part, Judge Koh granted many of Samsung's requests, including some related to Apple, but she denied some of them that apparently Apple cares about enough to appeal:

2. License agreements

Apple also seeks to seal Exhibits 12-1 and 12-2 to the Pierce PI Declaration. These two exhibits consist of full, unredacted license agreements between Apple and third parties, including payment and royalty terms. The Ninth Circuit has held, and this Court has previously ruled, that pricing terms, royalty rates, and minimum payment terms of licensing agreements plainly constitute trade secrets, and thus are sealable. See Electronic Arts, 298 Fed. App’x at 569; see also August 9 Order at 10-11. Accordingly, these limited terms are sealable, and the motion is GRANTED as to the pricing, royalty, and payment terms of Exhibits 12-1 and 12-2.

The rest of the agreements, however, do not pose the same risks to future negotiations. At trial, the parties relied on summaries of license agreements, from which the Court agreed to redact payment and royalty terms only. See August 9 Order a 10-11. If the parties wish to keep other terms of their licensing agreements secret, they are free to introduce summaries here, as they did at trial. But the parties may not introduce and rely on complete licenses while keeping the licenses sealed. The public interest in resolution of Apple’s motion for a permanent injunction is significantly greater than it was in resolving a motion to strike, the only context where the Court has permitted the type of sealing permitted here. See August 9 Order at 16.

Accordingly, the motion is GRANTED as to the pricing and royalty terms, and DENIED as to all other information in the license agreements.

3. Confidential financial information

Apple seeks to seal a number of documents on the grounds that they contain confidential “individual product model-specific revenue, cost, and margin information,” and “product line-specific sales, cost, and margin information.” Wheeler Decl. at ¶¶ 6, 8. This Court has twice found that such information does not meet the “compelling reasons” standard. See August 9 Order at 5-6; ECF No. 2047 at 5-6.

Specifically, this Court has noted that Apple has repeatedly failed to articulate exactly how it believes dissemination of such information could cause competitive harm, and has observed that Apple has allowed a limited amount of such information to be introduced where it serves Apple’s purposes of justifying a large damages award.

Likewise, here, Apple has put this information in issue by seeking a permanent injunction that would prevent the sale of 26 Samsung products. Apple would need to make a very strong showing of compelling reasons to justify keeping information under seal in this context.

Yet Apple continues to rely on its previous arguments regarding such information, without presenting any new reason why this Court should seal its financial information. See Apple Br. at 2-3; Wheeler Decl. at 2-3 (citing declarations submitted on July 30, 2012 in support of previous sealing motions).

As Apple has presented no new arguments, the Court will not change its prior ruling that such information is not sealable. Accordingly, Samsung’s motion is DENIED as to Exhibits 2, 47, 83, 84, 85, 86, 87, 201, 202, 203, 204, and 212 to the Wagner PI Declaration.

4. Apple’s consumer research

Apple seeks to seal several documents because they contain Apple’s confidential consumer research data.

As with Apple’s financial information, this Court has already considered – and rejected – Apple’s arguments that this information meets the “compelling reasons” standard:

Apple’s desire to protect its own market surveys reporting on its consumers’ usage habits, buying preferences, and demographics is not sufficient to meet the “compelling reason” standard required for sealing at this stage. See Kamakana, 447 F.3d at 1179. While Apple is presumably correct that its consumer base is different than Samsung’s, Apple’s claim that Samsung could not replicate the analysis contained in these exhibits is not convincing. Surveys about consumer preferences are commonplace, and Apple has not argued convincingly that similar data is not already available to its competitors.

Moreover, because Apple claims that these surveys inform its future product and marketing plans, it stands to reason that its competitors may infer the most significant results by simply observing Apple’s product releases and marketing campaigns.

August 9 Order at 9. Here, as with its claims regarding financial data, Apple has presented no new arguments, but rather has merely pointed to the arguments it made in previous filings, which this Court has already rejected. See Apple Br. at 5 (citing a declaration introduced on July 30, 2012 in support of a previous motion to seal).

As Apple has presented no new reasons, and the Court sees no material change in circumstances, the Court finds, consistent with its previous rulings, that Apple’s internal consumer research does not meet the “compelling reasons” standard, and thus cannot be sealed. Accordingly, Samsung’s motion is DENIED as to Exhibit 6 to the Pierce PI Declaration and Exhibits 10-12, 31-32, 72, and 189 to the Wagner PI Declaration....

Pursuant to Apple’s request, the denial as to documents identified as confidential financial information ( Exhibits 2, 47, 83, 84, 85, 86, 87, 201, 202, 203, 204, and 212 to the Wagner PI Declaration) and Apple’s internal proprietary market research (Exhibit 6 to the Pierce PI Declaration and Exhibits 10-12, 31-32, 38, 72, and 189 to the Wagner PI Declaration) is stayed, pending resolution of Apple’s appeal of this issue to the Federal Circuit. III. CONCLUSION

For the reasons stated above, Samsung’s motion to seal confidential Apple material is GRANTED in part and DENIED in part. Pursuant to Apple’s request, the denial as to documents identified as confidential financial information (Exhibits 2, 47, 83, 84, 85, 86, 87, 201, 202, 203, 204, and 212 to the Wagner PI Declaration) and Apple’s internal proprietary market research (Exhibit 6 to the Pierce PI Declaration and Exhibits 10-12, 31-32, 38, 72, and 189 to the Wagner PI Declaration) is stayed, pending resolution of Apple’s appeal of this issue to the Federal Circuit. Samsung’s motion to seal its own confidential material is GRANTED in part and DENIED in part.

So that's what Apple is appealing. The fact that Apple didn't advance any new arguments means that Apple didn't expect this judge to grant its requests and is relying on the appeals court to reverse her. If they don't, we'll get to see quite a lot of insider information, such as the redacted license agreements. I'm sure Apple is sincere in claiming that making these documents public would be damaging to its business.

That's the thing about initiating lawsuts, though. Things don't always go the way you planned.


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )