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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Ramsey M. Al-Salam, WA Bar No. 18822
[e-mail]
Nathaniel E. Durrance, CA Bar No. 229210
[e-mail]
PERKINS COIE LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Telephone: [phone]
Facsimile: 206.359.9000
Attorneys for Non-Party
MICROSOFT CORPORATION

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE, INC., a California corporation,

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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,

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Defendant.
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I Tanya Moore do hereby declare:

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1.

I am the General Manager of Outbound Licensing at Microsoft Corporation and

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am familiar with Microsoft's efforts to keep the terms of its license agreements confidential and

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the potential ramifications of the public disclosure of such terms. I make this declaration based

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on my personal knowledge unless otherwise indicated.

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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

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DECLARATION OF TANYA
MOORE

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Electronics Co., Ltd, et al., Case No. 5:11-cv-01846-LHK (N.D. Cal) (the "Samsung case"). The

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fax informed me that Samsung has identified a trial exhibit that contains the financial terms of

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Microsoft's license with Samsung. The fax further stated that the Court has indicated that

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Samsung may not seal the trial exhibit unless "compelling reasons" were shown justifying the
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sealing.
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The trial exhibit at issue is Trial Exhibit 630 to the Expert Report of David Teece,

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dated March 22, 2012 (the "Teece Report"). The Teece Report contains Exhibits 3A and 3B

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summarizing key financial terms of various contracts between Samsung and third parties. One

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such contract is a recent Confidential Patent License Agreement between Samsung and Microsoft
(the "Confidential Agreement").

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4.

The terms of the Confidential Agreement revealed in the Teece Report are highly

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sensitive confidential information of Microsoft that, if revealed to the public and Microsoft's

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competitors during the Samsung case, would substantially harm Microsoft. The terms from the

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Confidential Agreement contained in the Teece Report include the amount of license payments

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and royalties that are to be paid by Samsung to Microsoft as well as other detailed licensing and

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payment information such as the licensed products/technology and length of the license.

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5.

The terms of the Confidential Agreement contained in the Teece Report are not

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known to the public. Prior to entering into the Confidential Agreement, Microsoft required that

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Samsung agree, as part of the Confidential Agreement, to keep the terms strictly confidential. I

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also understand that the parties in the Samsung case, including Apple and the retained expert of

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Samsung, David Teece, are all bound by a protective order in the Samsung case that prohibits the

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release or disclosure of the Confidential Agreement.

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6.

Microsoft has never breached the confidentiality and non-disclosure provisions of

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the Confidential Agreement and has never publicly disclosed its terms and provisions. Microsoft
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DECLARATION OF TANYA
MOORE

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treats the Confidential Agreement and its terms as highly confidential and proprietary business

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information given their sensitivity.

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7.

Even within Microsoft, the distribution of the Confidential Agreement and its

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terms is on a need to know basis. The employees that I supervise within Microsoft's licensing
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department understand the extremely sensitive nature of the Confidential Agreement, as well as

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all license agreements entered into by Microsoft, and understand their duty to not disclose the

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terms of these agreements.

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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

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disadvantage with respect to potential licensees, including in the context of licensing and cross-

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licensing negotiations as part of litigation settlement discussions. Our license agreements are

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specific to the licensee and tailored to the particular set of terms and conditions governing the

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relationships between Microsoft and the licensee. Public disclosure of the key terms of the

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Confidential Agreement, including the licensing and payment information in the Teece Report,

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would reveal Microsoft's sensitive, non-public financial data. Such a public disclosure would

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also put Microsoft in a substantially weakened position with respect to negotiating with entities
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that have not yet entered into license agreements, thus decreasing the probability of reaching out-

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of-court licensing agreements and increasing the probability of litigation to resolve intellectual

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property disputes.

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9.

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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

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Samsung’s mobile phones and tablets running the Android mobile platform." Attached as Exhibit
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DECLARATION OF TANYA
MOORE

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A is a true and correct copy of the September 28. 2011 press release. The exact terms of the

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Confidential Agreement were not and have not been publicly revealed, however, and have been
guarded as highly confidential and proprietary business information.

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

2012

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Tanya More

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1.,

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y)

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