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

Filing 1407

Administrative Motion to File Under Seal Non-Party Intel's Administrative Motion to Seal Selected Proprietary Material filed by Intel Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kelley, Christopher) (Filed on 7/27/2012)

1
2
3
4
5

Christopher L. Kelley, Bar No. 166608
[e-mail]
PERKINS COIE LLP
3150 Porter Drive
Palo Alto, CA 94304
Telephone: [phone]
Facsimile: 650.838.4350
Attorneys for Non-Party
INTEL CORPORATION

6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

APPLE INC.,
Case No. 11-cv-01846-LHK

12

Plaintiff,

13
14
15
16

NON-PARTY INTEL’S
ADMINISTRATIVE MOTION TO SEAL
SELECTED PROPRIETARY MATERIAL

v.
SAMSUNG ELECTRONICS CO., LTD.,
a Korean corporation; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; and SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,

17
Defendants.
18
Pursuant to Civil L.R. 7-11 and 79-5(c), and the Court’s Order of July 23, 2012 (Dkt.

19
20

# 1288), non-party Intel Corporation (“Intel”) moves for an order sealing specific documents that

21

contain Intel technical secrets and requiring the parties to use a version of the Intel-Samsung cross

22

license agreement that redacts commercially sensitive provisions that are irrelevant to the issues

23

in this case. Intel’s request is limited to a handful of documents previously submitted under seal

24

by the parties and subject to the Court’s July 17 order (Dkt. # 1256) and several documents that

25

the parties have identified, or are expected to identify, in their exhibit lists:

26
27



Intel source code and two large technical documents that specify in detail the system
architecture for Intel’s hardware and software;

28
LEGAL24273523.1

NON-PARTY INTEL’S ADMINISTRATIVE MOTION
TO SEAL SELECTED PROPRIETARY MATERIAL
Case No.11-cv-01846-LHK



1

two exhibits that describe Intel’s scrambling code circuitry and that were attached to

2

Apple’s motion for non-infringement of the ‘867 patent (Dkt. # 925) but that proved to

3

be irrelevant to the Court’s order granting that motion;

4



the Intel-Samsung patent cross-license agreement and amendments; and

5



Intel invoices for sales of chips to Apple.

6

Each of these documents contain technical or commercial information that is confidential

7

to Intel. Intel, therefore, requests that the Court protect its proprietary interests in these

8

documents either by sealing them or by admitting redacted versions that omit irrelevant and

9

highly sensitive information.

10
11

ARGUMENT
I.

12

INTEL SOURCE CODE AND ENGINEERING DOCUMENTS
Samsung has told Intel that its intended trial exhibit list includes portions of Intel source

13

code, as well as the “X-GOLD 61x Product Specification” and the “UMTS RLC Detailed Design

14

Description,” which provide detailed module-by-module specifications of Intel chips and

15

firmware. Intel requests that the Court order that these exhibits be sealed to prevent public

16

access.

17

Evidence relevant to a dispositive matter may be sealed for “compelling reasons.”

18

Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006). Sealing is

19

warranted where a party has taken steps to maintain the secrecy of the information and would be

20

harmed if it were disclosed. Network Appliance, Inc. v. Sun Microsys., Inc., Case No. C-07-

21

06053 EDL, 2010 WL 841274, at *2 (N.D. Cal. Mar. 10, 2010) (finding compelling reason to seal

22

“in light of the confidential nature of the information and the competitive harm to third parties if

23

the confidential information were disclosed”); Upek, Inc. v. Authentec, Inc., Case No. C 10-00424

24

JF, 2010 WL 1980189, at *4 (N.D. Cal. May 17, 2010) (noting effort to maintain confidentiality

25

in finding compelling reason to seal).

26

As described in the accompanying declaration of Josef Hausner, attached as Exhibit A to

27

this motion, Intel maintains the secrecy of the source code and technical documents and would be

28

harmed by their public disclosure. Hausner Decl. at ¶¶ 3, 4, 5 and 11. The source code represents
LEGAL24273523.1

-2-

NON-PARTY INTEL’S ADMINISTRATIVE MOTION
TO SEAL SELECTED PROPRIETARY MATERIAL
Case No.11-cv-01846-LHK

1

a significant investment and contains numerous trade secrets that provide a competitive advantage

2

to Intel. Hausner Decl. at ¶ 4. Disclosure of the source code would seriously harm Intel by

3

enabling potential competitors to shortcut their development efforts by copying Intel’s source

4

code to create firmware. Hausner Decl. at ¶¶3-4. The harm resulting from disclosure of technical

5

details of a party’s product is frequently found to provide a “compelling reason” to seal.

6

Kamakana, 447 F.3d 1172, 1179 (compelling reason may be found in avoiding release of trade

7

secrets); Network Appliance, 2010 WL 841274, at *2; Dish Network, LLC v. Sonicview USA, Inc.,

8

Case No. 09CV1553-L(NLS), 2009 WL 2579052, at *1 (S.D.Cal. Aug. 20, 2009); Upek, 2010

9

WL 1980189, at *4.

10

Likewise, the “X-GOLD 61x Product Specification” breaks down the system design of the

11

X-GOLD 61x modem into its constituent modules and specifies the interfaces and algorithms

12

used by each module. Hausner Decl. at ¶7. Although The X-GOLD 61x Product Specification is

13

not source code, it is similarly valuable because it provides a complete specification for the

14

system design of the X-GOLD 61x modem. Similarly, the “UMTS RLC Detailed Design

15

Description” details each of the code modules in Intel’s UMTS RLC firmware, identifying each

16

modules input and output variables, describing what each module does, and documenting the data

17

structures that it uses. Hausner Decl. at ¶9. It provides the same information about UMTS RLC

18

firmware design and the parameters and data structures in the URLC firmware that a software

19

engineer would extract from review of the code itself. Hausner Decl. at ¶10.

20

Disclosure of these documents would seriously harm Intel on two counts. First,

21

advantageous features of Intel’s system-level design for its X-GOLD 61x modem and its UMTS

22

RLC firmware would now be publicly documented and could be copied by Intel’s competitors.

23

Hausner Decl. at ¶8. Second, Intel would be put at risk of having to compete with products from

24

manufacturers that did not have to bear the expense or burden of doing their own independent

25

system development efforts. These risks provide a “compelling reason” to seal the Product

26

Specification. See Dish Network, 2009 WL 2579052, at *1 (possibility that technical material

27

could serve as “blueprint” for competitors provides compelling reason to seal); Network

28

Appliance, 2010 WL 841274 at *2.
LEGAL24273523.1

-3-

NON-PARTY INTEL’S ADMINISTRATIVE MOTION
TO SEAL SELECTED PROPRIETARY MATERIAL
Case No.11-cv-01846-LHK

1

Sealing these documents will not deprive the public of the opportunity to follow and

2

meaningfully review the proceedings. The parties’ experts will still be able to testify openly

3

about relevant aspects of the Intel technology and to explain what these documents say. The

4

public will be left with sufficient basis in the open record to understand the evidence and assess

5

the merits of the case. See Dish Network, 2009 WL 2579052, at *1 (finding compelling reason to

6

seal where documents that would remain publicly available “describe in less detail the infringing

7

nature of the devices and software but provide sufficient information to enable public

8

understanding of the judicial process without the need to make public the detailed technical

9

explanations contained in the report”).

10
11
12

II.

INTEL CIRCUIT INFORMATION IN SUMMARY JUDGMENT MOTION
EXHIBITS
During briefing of Apple’s motion seeking summary judgment of non-infringement of the

13

’876 patent (Dkt. # 925), Apple submitted circuit illustrations for the design of proprietary

14

scrambling code circuits in Intel modem products and expert testimony regarding these circuits.

15

This material was included in Exhibits 4 and 7 to the Selwyn Declaration in Support of Apple’s

16

Motion for Summary Judgment (Dkt. # 925). Apple requested that these exhibits be sealed in a

17

Renewed Motion to Seal filed on July 24 (Dkt. # 1317). Intel requests either these exhibits be

18

sealed or that discussion of Intel proprietary technology be redacted from the public versions of

19

these documents.

20

Exhibit 4 to the Selwyn Declaration is an Expert Report on Infringement of the ’867

21

patent from Samsung’s expert witness Dr. Richard Wessell, which analyzes the verilog (source)

22

code for Intel’s scrambling code generator at paragraphs 53, 57, 61, 65 – 69, 74 – 75, and 87 – 91.

23

Exhibit 7 is an Expert Report on Non-Infringement of the ’867 patent from Apple’s expert

24

witness Dr. Wayne Stark. Dr. Stark’s report describes Intel’s scrambling code circuitry in detail

25

at pages 6 through 9, but he bases his non-infringement conclusion ultimately on an analysis of

26

section 5.2.2 of the 3GPP TS 25.213 standard, and not on any feature of Intel’s circuitry. See

27

Stark’s Expert Report (Dkt. # 923, Selwyn Decl. Ex. 7) at p. 16. Intel’s interest in preventing

28

public disclosure of its circuit designs provides compelling reason to justify redaction of those
LEGAL24273523.1

-4-

NON-PARTY INTEL’S ADMINISTRATIVE MOTION
TO SEAL SELECTED PROPRIETARY MATERIAL
Case No.11-cv-01846-LHK

1

paragraphs of the Wessell and Stark reports. See Network Appliance, 2010 WL 841274, at *2;

2

Dish Network, 2009 WL 2579052, at *1.

3

There is no compelling public interest in access to those paragraphs. When the Court

4

granted Apple’s summary judgment on non-infringement of the ’867 patent (Dkt. # 1156), it did

5

so on the basis of construction of Samsung’s claims and application of that language to the

6

requirements of the 3GPP TS 25.213 standard. Order Granting in Part and Denying in Part

7

Apple’s Motion for Partial Summary Judgment (Dkt. #1156) at 8-9. The particulars of Intel’s

8

implementation were not discussed by the Court and were not relevant. The Court did not cite to

9

either of Exhibit 4 or 7. Since Intel’s implementation of the scrambling code circuit did not

10

inform the Court’s decision, the public interest in access to this material is greatly diminished.

11

See Network Appliance,, 2010 WL 841274, at *2 (granting request to seal where “although the

12

documents in question are attached to a dispositive motion, they had no bearing on the resolution

13

of the dispute on the merits and are therefore more akin to … ‘unrelated,’ non-dispositive motion

14

documents”).1

15

III.

16

INTEL – SAMSUNG CROSS LICENSE AND INTEL INVOICES TO APPLE
Apple contends that the 1993 Intel-Samsung patent cross-license agreement, which was

17

subsequently amended in 2003 and 2004, exhausts certain of Samsung’s patents. Samsung

18

attached copies of the agreement and the amendments to its opposition to an Apple motion for

19

summary judgment (Exhibits K1, K2 and K3 to Hecht Declaration, Dkt. # 847) and to a

20

declaration in support of its own motion to exclude Apple’s expert opinions (Exhibit 33 to Martin

21

Declaration, Dkt. # 927). Intel also understands that the parties may want to use these agreements

22

as exhibits at trial. Apple has also indicated that, in connection with its exhaustion defense, it

23

intends to introduce examples of Intel invoices for chips it has sold to Apple.

24
25
26
27
28

1

Samsung’s witness list also identifies Marcus Paltian and Andre Zorn, IMC engineers
who were deposed in this case. Intel assumes that Samsung intends to submit portions of that
deposition transcript, but Samsung has not identified specific excerpts. In the event that Samsung
identifies portions that disclose Intel confidential information, Intel reserves its right to ask the
Court at that time to seal those excerpts.
LEGAL24273523.1

-5-

NON-PARTY INTEL’S ADMINISTRATIVE MOTION
TO SEAL SELECTED PROPRIETARY MATERIAL
Case No.11-cv-01846-LHK

1

Given the potential significance of the exhaustion issue, Intel does not seek to seal the

2

agreement or the invoices. Rather, it asks that the parties be required to use only a redacted

3

version that omits commercially sensitive provisions that are irrelevant to any issues in this case.

4

With Intel’s consent, Samsung previously submitted a redacted version in open court in the

5

related litigation in Korea. Intel proposes that the same redacted versions of the agreement and

6

the amendments be used in this trial. The proposed redacted versions are attached as Exhibit B.

7

In addition, Intel requests that the pricing information on the invoices be redacted because of their

8

commercial sensitivity and irrelevance to the issue of patent exhaustion.

9

There is no need for the parties to use or rely on the redacted portions of the agreement

10

and amendments or on the pricing information in the invoices. Because those portions are

11

irrelevant to the issues in this case, no public interest would be served by requiring their

12

disclosure. See In re Electronic Arts, Inc., 298 Fed.Appx.568, 569 (9th Cir. 2008) (reversing

13

denial of request to seal licensing terms such as royalty rates and payment terms under

14

“compelling reasons” test because they constitute trade secret information whose loss might harm

15

a party’s competitive standing); TriQuint Semiconductor, Inc. v. Avago Techs., Ltd., Case No.

16

CV 09-1531-PHX-JAT, 2011 WL 6182346, at *2 - *4 (D. Ariz. Dec. 13, 2011) (redacting

17

irrelevant financial information, including pricing information, under compelling reason standard

18

because disclosure “would harm TriQuint’s bargaining position and would give competitors the

19

ability to directly undercut TriQuint and unfairly win business”); Powertech Tech., Inc. v.

20

Tessera, Inc., Case No. C 11-6121 CW, 2012 WL 1969039, at *1 (granting motion to seal license

21

terms).

22
23

CONCLUSION
The relief requested in this motion is narrowly tailored. Intel does not seek to prevent

24

reasonably focused testimony in open court about relevant portions of its products. Intel seeks

25

only to prevent the disclosure of its proprietary and highly valuable system designs and source

26

code and sensitive commercial information that is irrelevant to any issues in this case.

27
28

Accordingly, Intel respectfully requests that the Court (a) require the parties during trial to
use redacted versions of the Samsung-Intel cross-license and amendments and Intel invoices to
LEGAL24273523.1

-6-

NON-PARTY INTEL’S ADMINISTRATIVE MOTION
TO SEAL SELECTED PROPRIETARY MATERIAL
Case No.11-cv-01846-LHK

1

Apple and (b) seal the following documents:

2



Intel source code

3



Intel X-GOLD 61x Product Specification

4



Intel UMTS RLC Detailed Design Description

5



Exhibits 4 and 7 to the Selwyn Declaration in Support of Apple’s Motion for Summary

6
7

Judgment (Dkt. # 925) which describe Intel’s scrambling code circuitry.
Dated: July 27, 2012

Respectfully submitted,

8
/s/ Christopher L. Kelley
Christopher L. Kelley

9
10

Counsel for Non-Party Intel Corporation

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
LEGAL24273523.1

-7-

NON-PARTY INTEL’S ADMINISTRATIVE MOTION
TO SEAL SELECTED PROPRIETARY MATERIAL
Case No.11-cv-01846-LHK

1
CERTIFICATE OF SERVICE

2
3
4
5

I hereby certify that this document(s) filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non registered participants on July 27, 2012.

6
7
/s/ Anna Freddie
Anna Freddie

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

LEGAL24273523.1

NON-PARTY INTEL’S ADMINISTRATIVE MOTION
TO SEAL SELECTED PROPRIETARY MATERIAL
Case No.11-cv-01846-LHK