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

Filing 1395

Declaration of Tanya Moore in Support of 1390 Administrative Motion to File Under Seal Confidential License Agreement filed by Microsoft Corporation. (Attachments: # 1 Exhibit A)(Related document(s) 1391 , 1390 ) (Durrance, Nathaniel) (Filed on 7/26/2012) Modified text on 7/27/2012 (dhm, COURT STAFF).

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1 2 3 4 5 6 Ramsey M. Al-Salam, WA Bar No. 18822 Nathaniel E. Durrance, CA Bar No. 229210 PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Attorneys for Non-Party MICROSOFT CORPORATION 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 APPLE, INC., a California corporation, 13 14 15 16 17 Plaintiff, v. Case No. 11-CV-01846-LHK DECLARATION OF TANYA MOORE IN SUPPORT OF NON-PARTY MICROSOFT CORPORATION'S MOTION TO SEAL CONFIDENTIAL LICENSE AND TERMS SAMSUNG ELECTRONICS CO., LTD., a Korean corporation; SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation; SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, a Delaware limited company, 18 Defendant. 19 20 I Tanya Moore do hereby declare: 21 22 1. I am the General Manager of Outbound Licensing at Microsoft Corporation and 23 am familiar with Microsoft's efforts to keep the terms of its license agreements confidential and 24 the potential ramifications of the public disclosure of such terms. I make this declaration based 25 on my personal knowledge unless otherwise indicated. 26 27 2. On July 21, 2012, I received a fax communication from an attorney at Quinn Emanuel Urquhart & Sullivan, LLP regarding the case captioned Apple Inc. v. Samsung 28 DECLARATION OF TANYA MOORE -1- 1 Electronics Co., Ltd, et al., Case No. 5:11-cv-01846-LHK (N.D. Cal) (the "Samsung case"). The 2 fax informed me that Samsung has identified a trial exhibit that contains the financial terms of 3 Microsoft's license with Samsung. The fax further stated that the Court has indicated that 4 Samsung may not seal the trial exhibit unless "compelling reasons" were shown justifying the 5 6 7 sealing. 3. The trial exhibit at issue is Trial Exhibit 630 to the Expert Report of David Teece, 8 dated March 22, 2012 (the "Teece Report"). The Teece Report contains Exhibits 3A and 3B 9 summarizing key financial terms of various contracts between Samsung and third parties. One 10 11 such contract is a recent Confidential Patent License Agreement between Samsung and Microsoft (the "Confidential Agreement"). 12 13 4. The terms of the Confidential Agreement revealed in the Teece Report are highly 14 sensitive confidential information of Microsoft that, if revealed to the public and Microsoft's 15 competitors during the Samsung case, would substantially harm Microsoft. The terms from the 16 Confidential Agreement contained in the Teece Report include the amount of license payments 17 and royalties that are to be paid by Samsung to Microsoft as well as other detailed licensing and 18 payment information such as the licensed products/technology and length of the license. 19 5. The terms of the Confidential Agreement contained in the Teece Report are not 20 21 known to the public. Prior to entering into the Confidential Agreement, Microsoft required that 22 Samsung agree, as part of the Confidential Agreement, to keep the terms strictly confidential. I 23 also understand that the parties in the Samsung case, including Apple and the retained expert of 24 Samsung, David Teece, are all bound by a protective order in the Samsung case that prohibits the 25 release or disclosure of the Confidential Agreement. 26 6. Microsoft has never breached the confidentiality and non-disclosure provisions of 27 the Confidential Agreement and has never publicly disclosed its terms and provisions. Microsoft 28 DECLARATION OF TANYA MOORE -2- 1 treats the Confidential Agreement and its terms as highly confidential and proprietary business 2 information given their sensitivity. 3 7. Even within Microsoft, the distribution of the Confidential Agreement and its 4 terms is on a need to know basis. The employees that I supervise within Microsoft's licensing 5 6 department understand the extremely sensitive nature of the Confidential Agreement, as well as 7 all license agreements entered into by Microsoft, and understand their duty to not disclose the 8 terms of these agreements. 9 10 11 8. If the key terms of the Confidential Agreement were publicly disclosed in the Samsung case, it would significantly harm Microsoft and benefit Microsoft's competitors and potential licensees. Such a disclosure would, for example, put Microsoft in a severe negotiating 12 13 disadvantage with respect to potential licensees, including in the context of licensing and cross- 14 licensing negotiations as part of litigation settlement discussions. Our license agreements are 15 specific to the licensee and tailored to the particular set of terms and conditions governing the 16 relationships between Microsoft and the licensee. Public disclosure of the key terms of the 17 Confidential Agreement, including the licensing and payment information in the Teece Report, 18 would reveal Microsoft's sensitive, non-public financial data. Such a public disclosure would 19 also put Microsoft in a substantially weakened position with respect to negotiating with entities 20 21 that have not yet entered into license agreements, thus decreasing the probability of reaching out- 22 of-court licensing agreements and increasing the probability of litigation to resolve intellectual 23 property disputes. 24 9. 25 26 When Samsung and Microsoft entered into the Confidential Agreement in late September 2011, Microsoft released a very general public statement that the parties had entered an agreement to cross-license their patent portfolios and that "Microsoft will receive royalties for 27 Samsung’s mobile phones and tablets running the Android mobile platform." Attached as Exhibit 28 DECLARATION OF TANYA MOORE -3- 1 A is a true and correct copy of the September 28. 2011 press release. The exact terms of the 2 Confidential Agreement were not and have not been publicly revealed, however, and have been guarded as highly confidential and proprietary business information. 4 I declare under penalty of perjury that the foregoing is true and correct. 6 Executed on July 2012 8 Tanya More 9 10 11 12 1., 1.) 14 15 16 17 18 19 20 21 y) 23 24 25 26 27 78 (Jr MOORE 4X

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