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

Filing 1493

Administrative Motion to File Under Seal filed by Qualcomm Incorporated. (Attachments: # 1 Exhibit A, # 2 Proposed Order, # 3 Certificate/Proof of Service)(Kays, David) (Filed on 7/30/2012)

1
2
3
4
5
6

DAVID A. KAYS, ESQ. (SBN 120798)
FREEDA Y. LUGO, ESQ. (SBN 244913)
MORGAN, FRANICH, FREDKIN & MARSH
99 Almaden Boulevard, Suite 1000
San Jose, California 95113-1613
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR NON-PARTY
QUALCOMM INCORPORATED

7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11
12

APPLE INC., a California corporation,
Case No. 11-CV-01846-LHK
Plaintiff,

13
14
15
16
17
18
19

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,
Defendants.

20
21
22
23
24
25
26
27
28

Case No. 11-CV-01846-LHK
Revised Motion to Seal Confidential Information

NON-PARTY QUALCOMM
INCORPORATED’S REVISED
ADMINISTRATIVE MOTION
TO SEAL CONFIDENTIAL
INFORMATION PURSUANT TO
CIVIL L. R. 7-11 & 79-5

1

While Non-Party Qualcomm Incorporated’s (“Qualcomm”) Motion to

2

Seal filed on July 26, 2012 (Docket Item 1394) was not on the docket for the Court’s

3

hearing held on Friday July 27, Qualcomm now has the benefit of the Court’s general

4

instructions given during that hearing concerning the sealing of third party licensing

5

information, and submits this Revised Administrative Motion to Seal Confidential

6

Information pursuant to Civil L. R. 7-11 & 75-9 (the “Revised Motion”) to comply with

7

that guidance.

8

Because the only document designated as a trial exhibit that the parties

9

have identified to Qualcomm as containing Qualcomm confidential information is Trial

10

Exhibit 630 (the expert report of Prof. David Teece) and specifically Exhibit 3A to that

11

report,1 Qualcomm confines its motion to that document, while respectfully requesting

12

that it be given a similar opportunity to move should additional documents containing

13

Qualcomm’s confidential information be proposed for use at trial.

14

Qualcomm has not received any actual copy of Trial Exhibit 630, but

15

rather only a table that Samsung represents comprises all excerpts from Trial Exhibit 630

16

that include information about Qualcomm licenses (the “Qualcomm License Summary”).

17

Attached as Exhibit A to this Revised Motion is a version of that Qualcomm License

18

Summary, from which Qualcomm’s confidential information has been redacted. An

19

unredacted version of the Qualcomm License Summary is lodged with the Clerk for the

20

Court’s reference.

21

By this Revised Motion Qualcomm narrows and confines its requests for

22

redactions, limiting them to those categories of license information that the Court

23

directed should be sealed in accordance with the Ninth Circuit’s decision in In re

24
25
26
27
28

1

See Declaration of Eric Reifscheider in Support of Non-Party Qualcomm
Incorporated’s Administrative Motion to Seal dated July 26, 2012 (“Reif. Decl.”) (Docket
Item 1394, Attachment 1) ¶ 1.
Case No. 11-CV-01846-LHK
Revised Motion to Seal Confidential Information

1

Electronic Arts, Inc., 298 Fed. App’x 568, 569-570 (9th Cir. 2008): “Pricing, royalty

2

rates, minimum payment terms” and “the duration of the license”. (See 7/27 Hearing

3

Tr. at 9.) Quite simply, Qualcomm requests sealing of all information contained in the

4

columns headed “Term” and “Payments” on the License Summary, and nothing else.

5

Qualcomm believes that “price” and “royalty rate” must include, as a

6

matter of both economics and negotiation realities, information as to when or whether

7

licenses become “paid up”, the details of rights granted to adjust price terms in the future

8

if certain conditions occur, and identification of non-monetary rights received by

9

Qualcomm as partial consideration for a license. Clearly this is the understanding of

10

Professor Teece as well, as he has listed all such information under the heading

11

“Payments”. As Eric Reifschneider, Senior Vice President and General Manager of

12

Qualcomm Technology licensing has attested, these terms are indeed heavily negotiated

13

and highly sensitive confidential information that Qualcomm considers to be trade

14

secrets, the disclosure of which would give valuable information to competitors and

15

could disadvantage Qualcomm in future negotiations with other licensees. (See Reif.

16

Decl. ¶¶ 2, 6.)

17

We note that, at the hearing, counsel for Reuters expressed doubt that a

18

Qualcomm license agreement dating back to 1993 (a “20-year-old document”) could

19

continue to contain trade secrets. (See 7/27 Hearing Tr. at 15.) We will simply note that

20

Qualcomm’s 1993 license agreement is not “just history.” As Dr. Teece’s Exhibit 3A

21

correctly reflects, the 1993 license agreement remains in effect to the present in important

22

respects, governing the license relationship between Samsung and Qualcomm subject

23

only to subsequent amendments. As a result, it is just as commercially significant and

24

sensitive as an agreement signed yesterday.

25
26

As to counsel for Reuters’ assertion that “Qualcomm has publicly filed
their licensing agreement, including financial terms” (See Hearing Tr. at 11), to

27
28

Case No. 11-CV-01846-LHK
Revised Motion to Seal Confidential Information
2

1

Qualcomm’s knowledge none of the specific and individually negotiated agreements

2

listed in Exhibit 3A of Trial Exhibit 630 have ever been publicly filed in unredacted

3

form. It is true that Qualcomm’s initial Motion to Seal was itself erroneously not filed

4

under seal due to human error, but that has been corrected.

5

Accordingly, Qualcomm respectfully moves that Trial Exhibit 630 only be

6

admitted into evidence either under seal, or redacted to remove all information redacted

7

from Exhibit A hereto. Qualcomm further moves that any testimony disclosing the

8

substance of the redacted information be admitted only under seal and in such a manner

9

as to preserve confidentiality.

10
11

Dated: July 30, 2012

MORGAN, FRANICH, FREDKIN & MARSH

12
13
14
15

By:

16

/S/
DAVID A. KAYS

17

Attorneys for Non-Party QUALCOMM,

18

INCORPORATED.

19
20
21
22
23
24
25
26
27
28

Case No. 11-CV-01846-LHK
Revised Motion to Seal Confidential Information
3