Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 1340

Administrative Motion to Partially File Under Seal filed by Koninklijki Philips Electronics N.V.. (Attachments: # 1 Proposed Order [Proposed] Order Granting Third Party Koninklijke Philips Electronics N.V.'s Administrative Motion to Partially File Under Seal, # 2 Declaration Declaration of Gary C. Ma in Support of Third Party Koninklijke Philips Electronics N.V.'s Administrative Motion to Partially File Under Seal, # 3 Exhibit Redacted Exhibit A to the Declaration of Gary C. Ma in Support of Third Party Koninklijke Philips Electronics N.V.'s Administrative Motion to Partially File Under Seal, # 4 Declaration Declaration of Michael Marion in Support of Third Party Koninklijke Philips Electronics N.V.'s Administrative Motion to File Under Seal)(Ma, Gary) (Filed on 7/25/2012) Modified on 7/26/2012 pursuant to General Order No. 62 attachement #2 and #4 sealed (dhm, COURT STAFF).

1 Robert F. McCauley (State Bar No. 162056)
[e-mail]
2 Gary C. Ma (State Bar No. 221294)
[e-mail]
3 FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP
Stanford Research Park
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3300 Hillview Avenue
5 Palo Alto, California 94304-1203
Telephone: [phone]
6 Facsimile: [phone]
7 Attorneys for Third Party
KONINKLIJKE PHILIPS ELECTRONICS N.V.
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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APPLE, INC., a California Corporation,

Case No. 11-cv-01846-LHK

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Plaintiff,
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v.

SAMSUNG ELECTRONICS CO., LTD., a
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ELECTRONICS AMERICA, INC., a New York
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TELECOMMUNICATIONS AMERICA, LLC, a
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Delaware Limited Liability Company,
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Defendants.
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THIRD PARTY KONINKLIJKE
PHILIPS ELECTRONICS N.V.’S
ADMINISTRATIVE MOTION TO
PARTIALLY FILE UNDER SEAL

Judge: Honorable Lucy H. Koh

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PHILIPS’ ADMIN MTN TO FILE UNDER SEAL
Case No. 11-cv-01846-LHK

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INTRODUCTORY STATEMENT

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Pursuant to Civil Local Rules 7-11 and 79-5, Third Party Koninklijke Philips Electronics

3 N.V. (“Philips”) respectfully requests that the Court issue an order to (1) file partially under seal
4 Exhibit A to the Declaration of Gary C. Ma in Support of Koninklijke Philips Electronics N.V.’s
5 Motion to File Under Seal (“Exhibit A”) and (2) if the Court accepts Trial Exhibit 630 into evidence
6 during trial in this case, enter a version of Trial Exhibit 630 with certain portions redacted and/or
7 sealed. As described further below, portions of Exhibit A and Trial Exhibit 630 contain Philips’
8 highly confidential and proprietary information, which if revealed would cause irreparable harm to
9 Philips.
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PAPERS SUBMITTED FOR PARTIAL FILING UNDER SEAL

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Pursuant to Civil Local Rules 7-11 and 79-5(c), Philips moves for leave to file partially under

13 seal portions of the following documents:
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(1) Exhibit A to the Ma Declaration supporting this motion to partially seal; and

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(2) Trial Exhibit 630, to the extent it is offered and admitted into evidence at trial in this

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ARGUMENT

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Philips understands Defendant Samsung intends to offer Trial Exhibit 630 as an exhibit at

19 trial in this case. Declaration of Gary C. Ma in Support of Koninklijke Philips Electronics N.V.’s
20 Motion to File Under Seal (“Ma Decl.”) ¶ 3. Trial Exhibit 630 consists of two charts (Exhibits 3A
21 and 3B) from the Expert Report of David Teece (expert for Samsung) - one summarizing Philips22 Samsung License Agreements and the other one summarizing Philips-Apple UMTS License
23 Agreements. See Exhibit A; Ma Decl. ¶ 3. Philips was not provided with a complete copy of Trial
24 Exhibit 630, because it understands that the exhibit includes other confidential information of other
25 parties and/or third parties.1 Ma Decl. ¶ 4. Counsel for Samsung, however, did provide excerpts of
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For this reason, Philips is not able to lodge complete copies of Trial Exhibit 630 pursuant to Civil
Local Rule 79-5(c). Philips is, however, providing the Court with highlighted and redacted versions
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(continued…)
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PHILIPS’ ADMIN MTN TO FILE UNDER SEAL
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Trial Exhibit 630, which Samsung’s counsel represents contain the only Philips confidential

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information that will be presented in exhibits at trial in this case. Ma Decl. ¶¶ 2 and 5. A copy of

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the excerpts of Trial Exhibit 630 received from Samsung’s counsel is attached as Exhibit A to the

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Ma Declaration supporting this motion to seal. As shown in Exhibit A, Trial Exhibit 630 includes

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charts (Exhibits 3A and 3B) that each contain a column entitled “Payments.” The information in the

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“Payments” column includes financial terms of the license agreement between Philips and Samsung

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(in Exhibit 3A of Trial Exhibit 630) and license agreements between Philips and Apple Inc. (in

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Exhibit 3B of Trial Exhibit 630). See Exhibit A to Ma Decl. Philips requests that the information in

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the “Payments” column be sealed in Exhibit A, and that the same information be sealed in Trial

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Exhibit 630, if that exhibit is offered and admitted into evidence at trial.
Philips recognizes that potential trial exhibits that will be part of the judicial record must

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meet the “compelling reasons” standard in order to be sealed. Kamakana v. City & County of

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Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); see In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th

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Cir. 2008) (applying the “compelling reasons” standard to potential trial exhibits). Under that

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standard, the court must “articulate the factual basis for its ruling, without relying on hypothesis or

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conjecture.” Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). Furthermore, “a district

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court must weigh relevant factors, base its decision on a compelling reason, and articulate a factual

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basis for its ruling without relying on hypothesis or conjecture.” Dish Network L.L.C. v. Sonicview

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USA, Inc., No. 09-cv-1553 L (NLS), 2009 WL 2224596, *7 (S.D. Cal. July 23, 2009). To determine

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whether a document should be sealed, a district court must weigh relevant factors, which include

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“the public interest in understanding the judicial process and whether disclosure of the material

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could result in improper use of the material for scandalous or libelous purposes or infringement upon

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trade secrets.” Id. (quoting Pintos v. Pac. Creditors Ass’n, 565 F.3d 1106, 1116 n.6 (9th Cir. 2009)).

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The U.S. Supreme Court has, however, explained that “the right to inspect and copy judicial records

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(…continued)
highlighted copies of the excerpts of Trial Exhibit 630 provided by Samsung’s counsel (Exhibit A to
Ma Decl.), as well as a redacted, public version of Exhibit A, which includes Philips’ requested
redactions.
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PHILIPS’ ADMIN MTN TO FILE UNDER SEAL
Case No. 11-cv-01846-LHK

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is not absolute,” and that “the common-law right of inspection has bowed before the power of a

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court to insure that its records are not used . . . as sources of business information that might harm a

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litigant’s competitive standing.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)

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(internal quotation omitted).

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Exhibit A and Trial Exhibit 630 contain highly confidential information belonging to Philips.

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In particular, they disclose the financial terms of confidential license agreements between Philips

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and its licensees, including pricing terms, royalty rates, and other consideration. Public disclosure of

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these terms, which are not otherwise available to competitors or potential licensees, would cause

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irreparable harm to Philips, particularly in future negotiations with potential licensees. Declaration

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of Michael Marion at ¶¶ 3 and 4 (filed concurrently herewith). Such information is exactly the type

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of exceptionally sensitive information that deserves protection. Indeed, the Ninth Circuit has held

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that such license agreement terms should be sealed because they are trade secrets that, if disclosed,

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will irreparably harm a party. Elec. Arts, 298 F. App’x at 569-70.

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At the same time, there is very little, if any, public need for disclosure of the financial terms

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of these agreements. This case primarily involves claims for patent, trademark and trade dress

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infringement, none of which hinge on the terms of any Philips license agreements. The financial

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terms of the license agreements are, at most, related to potential damages, and are therefore only

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“tangentially related” to the claims. MMI, Inc. v. Baja, Inc., 743 F. Supp. 2d 1101, 1106 (D. Ariz.

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2010) (finding, in a patent infringement case, that the financial terms of a license agreement are only

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“tangentially related[] to the underlying cause of action.”) (citing Kamakana, 447 F.3d at 1179).

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In summary, Philips’ request to seal is sufficiently particularized and it has demonstrated

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compelling reasons to protect the identified portions of Exhibit A and Trial Exhibit 630. Moreover,

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the request is narrowly tailored to protect Philips’ interests while balancing the public’s interest in

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having access to information associated with the litigation. Accordingly, Philips respectfully

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requests that the Court enter the concurrently filed Proposed Order granting leave to file under seal

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portions of the above-identified documents.

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PHILIPS’ ADMIN MTN TO FILE UNDER SEAL
Case No. 11-cv-01846-LHK

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Dated: July 25, 2012

By: /s/ Gary C. Ma
Robert F. McCauley
Gary C. Ma
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP
Stanford Research Park
3300 Hillview Avenue
Palo Alto, California 94304-1203
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Third Party
Koninklijke Philips Electronics N.V.

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PHILIPS’ ADMIN MTN TO FILE UNDER SEAL
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