Microsoft vs Google trial raises concerns over courtroom secrecy
Two weeks before trial in a high-stakes lawsuit pitting Google’s Motorola Mobility unit against Microsoft, Google made what has become a common request for a tech company fighting for billions of dollars: a public court proceeding conducted largely in secret.
Google, like its counterparts in the smartphone patent wars, is eager to keep sensitive business information under wraps – in this case, the royalty deals that Motorola cuts with other companies on patented technology.
Such royalty rates, though, are the central issue in this trial, which starts Nov. 13 in Seattle. U.S. District Judge James Robart has granted requests to block many pre-trial legal briefs from public view. Though he has warned he may get tougher on the issue, the nature of the case raises the possibility even his final decision might include redacted, or blacked-out, sections.
Legal experts are increasingly troubled by the level of secrecy that has become commonplace in intellectual property cases where overburdened judges often pay scant attention to the issue.
Widespread sealing of documents infringes on the basic American legal principle that court should be public, says law professor Dennis Crouch, and actually encourages companies to use a costly, tax-payer funded resource to resolve their disputes.
“There are plenty of cases that have settled because one party didn’t want their information public,” said Crouch, an intellectual property professor at University of Missouri School of Law.
Tech companies counter that they should not be forced to reveal private business information as the price for having their day in court. The law does permit confidential information to be kept from public view in some circumstances-though the companies must compellingly show the disclosure would be harmful. Google argues that revelations about licensing negotiations would give competitors “additional leverage and bargaining power and would lead to an unfair advantage.”
Robart has not yet ruled on Google’s request, which includes not only keeping documents under seal but also clearing the courtroom during crucial testimony. It is also unclear whether he will redact any discussion of royalty rates in his final opinion. The judge, who will decide this part of the case without a jury, did not respond to requests for comment.
NOT PAYING ATTENTION
Apple Inc and Microsoft Corp have been litigating in courts around the world against Google Inc and partners like Samsung Electronics Co Ltd, which use the Android operating system on their mobile devices.
Apple contends that Android is basically a copy of its iOS smartphone software, and Microsoft holds patents that it contends cover a number of Android features. Google bought Motorola for $12.5 billion, partly to use its large portfolio of communications patents as a bargaining chip against its competitors.
Robart will decide how big a royalty Motorola deserves from Microsoft for a license on some Motorola wireless and video patents.
Apple, for its part, is set to square off against Motorola on Monday in Madison, Wisconsin, in a case that that involves many of the same issues.
In Wisconsin, Apple and Motorola have filed the overwhelming majority of court documents entirely under seal. U.S. District Judge Barbara Crabb did not require them to seek advance permission to file them secretly, nor did she mandate that the companies make redacted copies available for the public.
Judges have broad discretion in granting requests to seal documents. The legal standard for such requests can be high, but in cases where both sides want the proceedings to be secret, judges have little incentive to thoroughly review secrecy requests.
In Apple’s Northern California litigation against Samsung, both parties also sought to keep many documents under seal.
After Reuters intervened to challenge the requests, on grounds it wanted to report financial details, U.S. District Judge Lucy Koh ordered both companies to disclose a range of information that they considered secret – including profit margins on individual products – but not licensing deals.
Apple and Samsung are appealing the disclosure order.
In response to questions from Reuters last week, Judge Crabb in Wisconsin, who will also decide the case without a jury, acknowledged that she had not been paying attention to how many documents were being filed under seal. Federal judges in Madison will now require that parties file redacted briefs, she said, though as of Wednesday Apple and Motorola were still filing key briefs entirely under seal.
“Just because there is a seed or kernel of confidential information doesn’t mean an entire 25-page brief should be sealed,” said Bernard Chao, an IP professor at University of Denver Sturm College of Law. Crabb promised that the upcoming trial would be open.
“Whatever opinion I make is not going to be redacted,” she told Reuters in an interview.