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

Filing 1590

REPLY (re 1493 Administrative Motion to File Under Seal ) in Support of Qualcomm's Revised Admin Mtn to Seal Confidential Information filed byQualcomm Incorporated. (Attachments: # 1 Certificate/Proof of Service)(Kays, David) (Filed on 8/6/2012)

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DAVID KAYS, ESQ. (SBN 120798)
FREEDA LUGO, ESQ. (SBN 244913 )
MORGAN, FRANICH, FREDKIN & MARSH
99 Almaden Boulevard, Suite 1000
San Jose, California 95113-1613
Telephone: [phone]
Facsimile: [phone]
ROGER G. BROOKS, Pro Hac Vice
CRAVATH, SWAIN & MOORE LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Telephone: [phone]
Facsimile: [phone]
Attorneys for Non-Party,
QUALCOMM INCORPORATED

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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,,

Case No. 11-CV-01846-LHK

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Plaintiffs,
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vs.
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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,

NON-PARTY QUALCOMM
INCORPORATED'S REPLY TO
THIRD PARTY REUTERS
AMERICA LLC'S OPPOSITION TO
MOTIONS TO SEAL TRIAL AND
PRETRIAL EVIDENCE

Defendants.

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Reuters’ generic argument in favor of forced disclosure of all terms of licensing

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agreements rests on (a) the non-sequitur that “If there is a public interest in understanding

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how our patent system works,” then license terms should be disclosed, and (b) the truism

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that disclosure “would increase everyone’s access to information”. (Reuters Opp’n at 18.)

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So it would, but the law recognizes that that is not always a good or fair result. Reuters

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cites no law, and instead invites the Court to rely on broad economic theories and policy
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Apple, Inc. v. Samsung Electronics, Case No: 11-CV-01846-LHK
QUALCOMM'S REPLY TO REUTERS AMERICA LLC'S OPPOSITION
TO MOTION TO SEAL TRIAL AND PRETRIAL EVIDENCE

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arguments to compel disclosure even if that disclosure will hurt the competitive and

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commercial interests of non-parties—innocent bystanders—to the litigation. (Id. at 19.)

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We believe that the relevant facts and law have been adequately laid out in the opening

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papers of Qualcomm and other affected non-parties, and will not revisit those issues.

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However, Reuters also asserts that Qualcomm’s motion to seal is “moot” “because

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the licensing terms involved were disclosed in [its] initial filings”. (Id. at 19.) It is correct

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that Qualcomm’s motion was initially in error not filed under seal. That, however, has

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been corrected: following the proper procedure, at the earliest possible moment on July

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30, Qualcomm notified the ECF HelpDesk for the Northern District of California that

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Attachment 2 had been filed incorrectly. Following the District’s published procedures,

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Docket Item 1394 was immediately locked, and Qualcomm filed an Administrative Motion

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to Remove Incorrectly Filed Document on that same date, which is currently pending. In

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short, Qualcomm’s confidential information is not now publicly available through this

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Court’s records or on PACER.

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As the very existence of this Court’s procedure for removing incorrectly filed

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documents from public access reflects, confidentiality is not a black and white, once lost,

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never regained matter; there are degrees of accessibility. It is true that Reuters sent out a

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very brief wire report containing some of Qualcomm’s inadvertently disclosed confidential

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information on Monday, July 30, even after the document had been removed from public

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access on PACER. However, as the Court is aware, license agreements may remain in

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effect for many years. Five years from now, a competitor or licensee seeking to gain an

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advantage by obtaining otherwise confidential information about Qualcomm’s license

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terms with Samsung may or may not stumble across that transient and by then ancient-

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history Reuters wire report; they are almost certain to look to and find the docket of this

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extremely high profile litigation.

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sealing Qualcomm’s confidential information in this Court’s record still matters in the real

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world.

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In other words, despite the inadvertent disclosure,

For this reason, Qualcomm’s motion is not moot, and Qualcomm respectfully
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Apple, Inc. v. Samsung Electronics, Case No: 11-CV-01846-LHK
QUALCOMM'S REPLY TO REUTERS AMERICA LLC'S OPPOSITION
TO MOTION TO SEAL TRIAL AND PRETRIAL EVIDENCE

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requests that the Court order the sealing of documents disclosing the financial details of its

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licensing agreements with Samsung, as set forth in more detail in its opening brief.

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Dated: August 3, 2012

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MORGAN, FRANICH, FREDKIN & MARSH
CRAVATH, SWAINE & MOORE, LLP

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By:
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Apple, Inc. v. Samsung Electronics, Case No: 11-CV-01846-LHK
QUALCOMM'S REPLY TO REUTERS AMERICA LLC'S OPPOSITION
TO MOTION TO SEAL TRIAL AND PRETRIAL EVIDENCE

/S/
DAVID KAYS
Attorneys for Non-Party
QUALCOMM INCORPORATED