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

Filing 1556

OPPOSITION to ( 1414 JOINT MOTION, 1493 Administrative Motion to File Under Seal , 1499 Administrative Motion to File Under Seal PRIOR MOTIONS AND EXHIBITS THERETO, 1489 Administrative Motion to File Under Seal (Revised), 1328 Administrative Motion to File Under Seal /Non-Party Nokia Corporation's Administrative Motion to File Under Seal, 1396 Administrative Motion to File Under Seal Third Party Confidential Information, 1390 Administrative Motion to File Under Seal Non-Party Microsoft Corporation's Motion to Seal Terms of Confidential License Agreement, 1376 EMERGENCY ADMINISTRATIVE MOTION for a Limited Sealing Order, 1340 Administrative Motion to Partially File Under Seal, 1400 Administrative Motion to File Under Seal (Emergency Motion by Non-Party Motorola Mobility LLC to Seal Exhibits, Close Courtroom and Seal Portions of Transcript), 1495 Administrative Motion to File Under Seal APPLE'S MOTION TO SEAL CONFIDENTIAL TRIAL EXHIBITS, 1506 First Administrative Motion to File Under Seal , 1488 MOTION to Seal Trial Exhibits , 1334 Emergency MOTION for an Order Closing the Courtroom and Sealing the Transcript During Discussion of InterDigital's Confidential Information, 1486 Administrative Motion to File Under Seal Portions of Proposed Trial Exhibit 630, 1490 Administrative Motion to File Under Seal Samsung's Renewed Motion to Seal Dkt. Nos. 927, 991, 1013, 1022, 1060, 1206, 1481 Administrative Motion to File Under Seal , 1498 Administrative Motion to File Under Seal Non-Party Siemens AG's Administrative Motion to Seal ) Third Party Reuters America LLC's Opposition to Motions to Seal Trial and Pretrial Evidence filed byReuters America LLC. (Attachments: # 1 Proposed Order [Proposed] Order Denying Motions to Seal Trial and Pretrial Evidence, # 2 Declaration Declaration of Julie P. Samuels, # 3 Declaration Declaration of Amy Stevens, # 4 Declaration Declaration of Patent Professors)(Olson, Karl) (Filed on 8/2/2012) Modified text on 8/6/2012 (dhm, COURT STAFF).

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KARL OLSON (SBN 104760)
[e-mail]
XINYING VALERIAN (SBN 254890)
[e-mail]
RAM, OLSON, CEREGHINO & KOPCZYNSKI LLP
555 Montgomery Street, Suite 820
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
Attorneys for Third-Party REUTERS AMERICA LLC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE

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APPLE INC., a California corporation,
Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD., a
Korean Business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
Defendants.

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CASE NO. 11-cv-01846-LHK
DECLARATION OF PATENT
PROFESSORS COLLEEN CHIEN,
BRIAN LOVE, MICHAEL RISCH, JOHN
ALLISON, AND DAVID SCHWARTZ IN
SUPPORT OF REUTERS’ OPPOSITION
TO MOTIONS TO SEAL TRIAL AND
PRETRIAL EVIDENCE
Date:
Time:
Place:
Judge:

No hearing set
N/A
Courtroom 1, 5th Floor
Hon. Lucy H. Koh

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We, Professors Colleen Chien, Brian Love, Michael Risch, John Allison, and David

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Schwartz, declare:

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1.

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We have personal knowledge of the facts set forth below, except as to those stated

on information and belief, and as to those we believe them to be true.
2.

We are professors and scholars of Law and Business engaged in the empirical

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study of the U.S. patent system. Together we have several decades of patent litigation experience

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in addition to academic research experience. We rely critically on publicly available information

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and data on the patent system to conduct our research and formulate policy recommendations,

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which we have made through testimony to Congress, the courts, and the PTO.

Case No. 11-cv-01846-LHK – DECLARATION OF PATENT PROFESSORS COLLEEN CHIEN,
BRIAN LOVE, MICHAEL RISCH, JOHN ALLISON, AND DAVID SCHWARTZ IN SUPPORT OF
REUTERS’ OPPOSITION TO MOTIONS TO SEAL TRIAL AND PRETRIAL EVIDENCE

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3.

We submit this declaration in our personal capacities based on our research

interests in patent litigation, patent practice and domestic patent policy.
4.

The lack of a transparency about patent licenses is a well-recognized problem. As

Professor Mark Lemley and Nathan Myhrvold have written:
Imagine a stock market in which buyers and sellers couldn't find out the prices at
which anyone else sold a share of stock. If you wanted to buy (or sell) a share of
stock, you'd have to guess what it was worth. The result, everyone would agree,
would be massively inefficient. Willing buyers and sellers would often miss each
other.
Patents, however, exist in just such a blind market. Want to know if you're getting
a good deal on a patent license, or acquiring rights in a technology? Too bad.
Even if that patent or ones like it have been licensed dozens of times before, the
terms of those licenses, including the price itself, will almost invariably be
confidential. Patent owners who want to put their rights up for sale face the same
problem.

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Lemley, Mark A. and Myhrvold, Nathan, How to Make a Patent Market (August 1, 2007).

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HOFSTRA LAW REVIEW, Vol. 36, p. 257, 2008 (available at SSRN website:

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<http://ssrn.com/abstract=1012726>).

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5.

The lack of information about the value of arms-length patent transactions creates

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arbitrage opportunities for those who have access to proprietary data, while shutting out the

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public, scholars, and others. The lack of data compounds the difficulty of finding “comparable”

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licenses in patent cases as the law now requires, forcing juries to evaluate the often complex

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methodologies of patent damages experts rather than real-world evidence of the economic value

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of comparable patents. See, e.g., Lucent v. Gateway, 580 F.3d 1301 (2009) (emphasizing the

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need for comparable licenses to form the basis of damages determinations). The lack of data

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contributes to the uncertainty that surrounds patent damages determinations.

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6.

It is our belief that making licensing data more widely available can help reduce

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these market inefficiencies by providing credible and comparable information to parties, scholars,

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and courts wrestling with the difficult question of what a patent is worth.

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7.

We recognize and respect the value of confidentiality with respect to licensing

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data. However, this need must be balanced with the desperate need for greater transparency

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about the value of patent licenses. Perhaps the two can be reconciled by redacting key

Case No. 11-cv-01846-LHK – DECLARATION OF PATENT PROFESSORS COLLEEN CHIEN,
BRIAN LOVE, MICHAEL RISCH, JOHN ALLISON, AND DAVID SCHWARTZ IN SUPPORT OF
REUTERS’ OPPOSITION TO MOTIONS TO SEAL TRIAL AND PRETRIAL EVIDENCE

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identifying information or information about the parties, patents, or products.
We declare under penalty of perjury under the laws of the United States of America that
the foregoing is true and correct.
Executed on August 2, 2012.

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/s/ Colleen Chien
_
Colleen Chien, Assistant Professor of Law, Santa
Clara University

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/s/ Brian Love
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Brian Love, Assistant Professor of Law, Santa
Clara University

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/s/ Michael Risch
Michael Risch, Associate Professor of Law,
Villanova University

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/s/ John Allison
John Allison, The Spence Centennial Professor and
Professor of Intellectual Property, McCombs
School of Business Associate Chair, Business,
Government & Society Department, University of
Texas at Austin

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/s/ David Schwartz
David Schwartz, Assistant Professor of Law,
Chicago-Kent College of Law

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N:\Docs\1273-02\OppMotsSeal4-Professor-FINAL.doc
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Case No. 11-cv-01846-LHK – DECLARATION OF PATENT PROFESSORS COLLEEN CHIEN,
BRIAN LOVE, MICHAEL RISCH, JOHN ALLISON, AND DAVID SCHWARTZ IN SUPPORT OF
REUTERS’ OPPOSITION TO MOTIONS TO SEAL TRIAL AND PRETRIAL EVIDENCE

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SIGNATURE ATTESTATION
I hereby attest that I have on file all holograph signatures for any signatures indicated by a

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“conformed” signature (/s/) within this e-filed document.

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Dated: August 2, 2012

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/s/ Karl Olson
Karl Olson (SBN 104760)
RAM, OLSON, CEREGHINO & KOPCZYNSKI
555 Montgomery Street, Suite 820
San Francisco, CA 94111
Tel: [phone]; Fax: [phone]
Email: [e-mail]

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Attorneys for Reuters America LLC

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By:

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Case No. 11-cv-01846-LHK – DECLARATION OF PATENT PROFESSORS COLLEEN CHIEN,
BRIAN LOVE, MICHAEL RISCH, JOHN ALLISON, AND DAVID SCHWARTZ IN SUPPORT OF
REUTERS’ OPPOSITION TO MOTIONS TO SEAL TRIAL AND PRETRIAL EVIDENCE

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